Malmo & Hartigan
[2010] FamCA 1182
•16 December 2010
FAMILY COURT OF AUSTRALIA
| MALMO & HARTIGAN | [2010] FamCA 1182 |
| FAMILY LAW – CHILDREN - Change of surname of child – the principle of best interests of the child |
| Family Law Act 1975 (Cth). s 60CA |
| Flanagan & Hancock (2001) FLC 93074 |
| APPLICANT: | Mr Malmo |
| RESPONDENT: | Ms Hartigan |
| INDEPENDENT CHILDREN’S LAWYER: | Gonzalez & Co. |
| FILE NUMBER: | SYC | 478 | of | 2008 |
| DATE DELIVERED: | 16 December 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | the Hon. Justice Rose |
| HEARING DATE: | 16 December 2010 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Legal Aid Commission of NSW |
| COUNSEL FOR THE RESPONDENT: | J Mcintosh |
| SOLICITOR FOR THE RESPONDENT: | Henaghan Mclean Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | K Ginges |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | R Gonzalez |
Orders
That the parties ensure that the child M (“the child”) born … December 2007 is henceforth known as “M Malmo-Hartigan”.
That the parties forthwith do all acts and things and sign all documents necessary to alter the registration of the child’s name with the New South Wales Registry of Births Deaths and Marriages AND all other documents required to be altered to reflect her new surname whether they be kindergarten, school, medical records or any other formal document.
That the father pay the fees required to be paid for the purpose of registering of the alteration of the child’s name at the New South Wales Registry of Births Deaths and Marriages either at the time of such registration or within seven (7) days of being furnished by the mother with a receipt for payment made.
That the oral application of the independent children’s lawyer for an order for costs is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Malmo & Hartingan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 478 of 2008
| MR MALMO |
Applicant
And
| MS HARTIGAN |
Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings the father relies upon his Application in a Case filed 25 January 2010 and, in effect, an amendment of that application reflected in a minute of orders sought, which is Exhibit 1 (“the Application”).
The mother relies upon her application reflected, in part, in the Application for Final Orders of 30 January 2008 and her subsequent Response to the Application but crystallised further in her minute of orders sought being Exhibit 2.
The issue for determination is whether or not it is in the best interests of the child of the parties for her surname to be altered. The case for the father is that the surname be altered to “Hartigan-Malmo.” That approach is opposed by the mother. The order that she seeks is that the surname be altered to “Malmo-Hartigan.”
There is no issue that the child should have a hyphenated surname. The ancillary issue is that regardless of which surname reflects the orders ultimately made, the matter of the timing of the implementation of the orders also requires determination.
The child the subject of these proceedings is M Hartigan, born in December 2007 (“the child”).
Brief History
The brief history of these proceedings is as follows.
The mother is 39 years of age and engaged in home duties, residing with the child in a Sydney suburb.
The father is 31 years of age. He is employed as a truck driver, residing in a Sydney suburb.
The parties have been engaged in litigation in this Court in relation to parenting issues since early 2008.
Issue for determination
To the credit of the parties, all parenting issues, with the exception of the issue of the child’s future surname, were resolved by agreement between them which led ultimately to orders being made by consent on 22 October 2010 (“the consent orders”).
The substance of the consent orders provided for the parties to have equal shared parental responsibility; that the child live with the mother, subject to such periods of time that she spends in the care of the father, as reflected in Order 4 of the consent orders and other relevant orders.
A necessary consequence of the parties having equal shared parental responsibility is that neither of them has the sole right and responsibility to determine the child’s surname. Consequently, that issue falls for determination by me.
The matter proceeded on the Papers. Leave was not sought to cross-examine either party. The evidence relied upon was, in the father’s case, his Affidavit sworn 23 November 2010 and in the mother’s case, her Affidavit sworn 26 November 2010. After that affidavit evidence was read and an objection ruled upon, I heard submissions from the legal representatives for the parties and counsel for the independent children’s lawyer.
As the legal representatives quite properly identified, part of the difficulty in relation to determination of this issue is that there is an absence of expert evidence as to the likely effect upon the child of the surname being either as contended by the father or mother, let alone the timing for implementation of the change of surname.
Neither of the parties, through their legal representatives, sought an adjournment. Neither of them sought that there be an order for the appointment of a family consultant or other child expert to provide a report and/or give oral evidence.
Consequently, I must determine this matter in the absence of any expert evidence and solely on the basis of the evidence that each of the parties has adduced through their respective affidavits.
Relevant legal principles
It was ultimately acknowledged in submissions that the orders that I am asked to make are inferentially parenting orders, given that the best interests of the child is the paramount consideration. Consequently, that is consistent with section 60CA of the Family Law Act.
The leading authority in relation to the issue of the surname is that set out in the judgments of the Full Court in Flanagan & Hancock (2001) FLC 93074. That case, to a large extent, turned upon statutory interpretation of the injunctive power in relation to matters touching upon the welfare of the child reflected in the provisions of section 68B or pursuant to the then existing 65E of the Family Law Act.
Part of the ratio of the judgments was that regardless of which approach is adopted, the best interests of the child was either the paramount consideration or a primary consideration. Subsequent to that judgment, the Family Law Act has been extensively amended.
Neither of the applications by the parties seek an order by way of a mandatory injunction. Consequently, that part of the Full Court’s judgment in Flanagan & Hancock which discusses the power to make mandatory injunctions is not relevant to these particular proceedings. However, the judgment does make clear that absent the issue arising so far as the injunction is concerned, the best interests of the child is the paramount consideration when considering the issue of change of surname of the child.
Their Honours reviewed earlier decisions of the court in relation to the matter of surname and concluded that those judgments provided some assistance in terms of identification of possible relevant factors. However, much turns upon the facts in an individual case and regardless of those facts, the best interests of the child remains the paramount consideration. That is the approach which I will adopt in this matter.
The case for the father is that he seeks the orders that he has sought to ensure that the child will retain identification with him and members of his extended family and implicitly not be faced with some confusion in that regard. His affidavit contains evidence of members of his family providing letters or cards addressed to the child as “M Malmo” and that he himself uses that surname when making a written reference to the child. Other members of his family use that surname. The father also points to different surnames that the mother’s children by other relationships now have.
The mother’s case is that the child has been registered under the name of M Hartigan, and has been consistently known in that way. In particular, the mother has given evidence of the following matters:
a)That the mother changed her surname to Hartigan in order to meet the approach of the father that he did not want the then baby to be born under the name of the mother’s ex-husband.
b)That, upon the child being born, her identification at the hospital was the use of the surname Hartigan.
c)That the father was in a position to know and notice the baby referred to in that way.
d)The birth registration document was completed by identifying the child as “M Hartigan.” The father had opportunity to either object or to request or discuss with the mother a change of name prior to registration of the child’s birth with the Registry of Births, Deaths, and Marriages, but had not done so.
e)The child is registered under the name of M Hartigan.
f)The child has been known in a variety of circumstances as M Hartigan.
None of that material upon which the wife relies, to which I have referred by way of summary, is the subject of any denial or opposition by or on behalf of the father.
Consequently, I make findings of fact which reflect all of that evidence given by the mother.
The mother has children, being two sons who have the surname T. The mother herself continues to use the surname Hartigan. The mother, in effect, submits that in the event of the child’s surname being Malmo, that would add yet another surname to the family unit, to which all children and, in particular, the child the subject of these proceedings, will have to become accustomed.
Conclusion
As previously referred to, there is no issue between the parties that the child have in the future a hyphenated surname. I have concluded that it is in the child’s best interests for her surname to be Malmo-Hartigan for the following reasons.
Whilst the child is still very young, she has been known under a surname which is that of Hartigan throughout her life. There was an opportunity for registration not to take place in that fashion. However, registration did proceed unimpeded and without any objection from the father, leaving the child’s surname to be that of Hartigan. In addition, the child has been known under that surname throughout her life.
The question raised by the father of identification of the child with his family is perfectly understandable. However, there is no evidence, either directly or indirectly, which suggests that the child has not identified with him as her father nor that she would somehow or other be impeded in continuing to do so nor have an obstacle in the path of her developing or continuing to have a close relationship with him, whether her surname was Malmo-Hartigan or Hartigan-Malmo. In one sense, that is a good thing as far as the child is concerned because the bonding and relationship with a parent should not depend on what the name is in the child’s surname. Nonetheless, those are matters which are not raised as relevant to determination of this application.
The child is only three. She is now starting to develop. She is now learning to write and to write her name. The child is starting to develop friendships, albeit only at kindergarten level. Given the consistency with which the child has been known throughout her short life and the registration of her name, together with other documentation required to record her name as showing the surname Hartigan, I have determined that it is in her best interests that she continue to be known in that fashion.
That does not present an obstacle to her surname being hyphenated, whereby she retains the last name in that hyphenation as being Hartigan, because that will be perfectly consistent with the manner in which she has been referred to throughout her life. To take the other approach, as submitted on behalf of the father, will be to introduce a new element in her identification for which, in my view there is no basis in terms of her best interests in having to adjust to such a change now, when there was ample opportunity to endeavour to have her surname reflecting Malmo from the time that she was born.
I now move to the question of when the change of name should be implemented. It was submitted on behalf of the husband and by the independent children’s lawyer that implementation should take place forthwith. The contention in summary is that the child is now starting to reach an important stage of development, so far as expression of her identity is concerned and consequently, it would be part and parcel of that development for her now to appreciate that her surname is Malmo-Hartigan, rather than to do so, as contended by the mother, when the child commences school.
The child is not due to commence school until first term 2013. The mother’s position in relation to this particular issue is that it may cause confusion to the child when she is not yet old enough to have the maturity to appreciate the reason for her surname being altered. Consequently that would impose unnecessary emotional pressure on her which could be more easily met when she is ready to attend school with more attendant maturity than she has now at three years of age.
This particular matter heightens the difficulty that I have due to the absence of expert evidence. As previously referred to, neither party sought an adjournment for the purpose of expert evidence being adduced. I consider that each party has made cogent submissions for their respective positions, and there is merit in each party’s approach to this particular issue.
I have concluded that despite the difficulties that are involved and that confusion may be visited upon the child regardless of when it is that she must have her surname altered, that is whether it be now or when she is ready to attend school, it is in her best interests for implementation to take place now.
The child is still very young. The child is commencing to learn to write. Her process of identification and maturity is starting to develop further. It would be consistent with that process and that pathway for her to gradually appreciate the more formal aspect of her identity in terms of her surname being Malmo-Hartigan, rather than have to face that change in her situation when she is due to meet other big changes in her life namely, moving from kindergarten to school.
Consequently, the orders sought by the mother in Exhibit 2 will be made, save and except for paragraph 1(d) of Exhibit 2, in that paragraph 1(d) is refused.
I further note that the father has commendably offered to pay the fees that are involved in change of registration of the child’s name and accordingly an appropriate order will be made.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 16 December 2010.
Associate:
Date: 21 December 2010
3
0
1