Nicholls and Sampson
[2012] FMCAfam 716
•15 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NICHOLLS & SAMPSON | [2012] FMCAfam 716 |
| FAMILY LAW – Application for child’s change of name – avoidance of risk of confusion in medical records considered. |
| Flanagan v Handcock (2002) FLC 93-102 |
| Applicant: | MR NICHOLLS |
| Respondent: | MS SAMPSON |
| File Number: | PAC 5250 of 2010 |
| Judgment of: | Dunkley FM |
| Hearing date: | 14 June 2012 |
| Date of Last Submission: | 14 June 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 15 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms M. De Vere |
| Solicitors for the Applicant: | McPhee Kelshaw |
| Solicitors for the Respondent: | G and D Lawyers |
ORDERS
The Initiating Application seeking to change the child [X] surname is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Nicholls & Sampson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5250 of 2010
| MR NICHOLLS |
Applicant
And
| MS SAMPSON |
Respondent
REASONS FOR JUDGMENT
This is a single issue case as to by what surname [X] is to be named. As is usual, single issue cases are not decided in a vacuum. The relevant background to this case is as follows:
·[Date omitted] 1980, the mother was born
·[Date omitted] 1980, the father was born
·[Date omitted] 1999, [Y], child of the mother’s previous relationship, born
·[Date omitted] 2001, [Z], child of the mother’s previous relationship born
·May 2007, the parties’ relationship begins
·November 2008, the parties start to live together
·[Date omitted] 2008, the parties’ child, [X], born
·[Date omitted] 2008, [X]’s birth certificate is issued by the New South Wales Births, Deaths & Marriages, noting the informants as Ms Sampson of [address omitted] and Mr Nicholls of [same address omitted] and that certificate indicated that the child’s name was registered as [X] Sampson
·14 January 2010, the parties separate
·23 May 2012, final parenting orders made by consent, which provide for equal shared parental responsibility, that [X] live with her mother and spend significant and substantial periods of time with the father, with the periods increasing in duration at the time [X] starts school
[X] has Cystic Fibrosis. She has had during her lifetime a number of hospital admissions in different hospitals, all as [X] Sampson, and has a number of treating doctors who know her by that name.
In some brief cross-examination of the father, it became apparent that [X] is attending preschool two days a week, registered as [X] Sampson.
There is little evidence that [X] identifies with the surname, Sampson. Although paragraph 43 of the father’s affidavit makes clear [X] knows her mother’s surname is Sampson. [X] has only known the surname Sampson.
The reasons advanced by each parent regarding their preferred name usage for [X] have more to do with the parents needs or wants than what is best for [X].
The mother proposes [X]’s name be changed to [X] Nicholls Sampson by inserting the husband’s surname Nicholls as [X]’s second middle name.
The father proposes a retention of [X]’s first and middle names and a hyphenation of her surname, so that it becomes Nicholls-Sampson.
I accept and adopt the reasoning of Rose J at first instance and Finn J on appeal in the case of Flanagan v Handcock, that the bests interests of [X] is the paramount consideration in this case in deciding the name [X] is to be known by.
The granting or not of the injunction sought by the husband might result in that decision being made, applying both the paramount principle and other factors, for example equitable injunctive principles.
As I have decided, for reasons that follow, that the husband’s application is to be dismissed, I do not need to decide the injunctive issue.
There is, as I have said, only a little evidence to conclude [X] identifies with the surname Sampson.
There is no evidence about whether she would be embarrassed by using the surname Sampson or by using the surname Nicholls-Sampson. It would be entirely supposition by the parents.
Her father is concerned, given [X]’s need for ongoing treatment, that a hospital might query his right to make decisions for a child with a different surname to his and says that inclusion of Nicholls in hyphenated surname overcomes this potential. There is no evidence, in this case, that a problem has arisen of this nature in the past and no evidence a hyphenated surname will overcome it as a potential future problem. It is all speculation on his behalf.
More important is the fact that the parties have equal shared parental responsibility and so are required to discuss treatment for [X] and will presumably reach consensus about treatment. If they do not, then application would then lie to this Court and [X]’s surname would be irrelevant.
More importantly for [X] is she is known in several hospitals as [X] Sampson and has records at those hospitals in that name. There is no evidence available to assess how easily relevant hospitals, doctors and/or health services could change their records if the husband’s application were successful.
Given her ongoing treatment needs, it would not be in [X]’s best interests for there to be any confusion or potential for confusion about what are her applicable records.
It is to avoid any risk of the possibility of confusion that the husband’s application to change [X]’s surname is dismissed. The insertion of Nicholls as a second middle name is also rejected for the same reason of avoiding the risk of possible confusion.
The issues of status quo of registration of name, conformity, recognition with a parent, unusualness of name, parental wishes or aesthetics play no part in this decision, as they are not persuasive enough visa vie the potential risk to [X].
The avoidance of any potential risk with confusion arising from medical records with different names is in [X]’s best interests and is overridingly persuasive in this decision.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Dunkley FM
Date: 20 July 2012
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