Nixon and Johanson

[2016] FCCA 70

FEDERAL CIRCUIT COURT OF AUSTRALIA

NIXON & JOHANSON [2016] FCCA 70

Catchwords:
FAMILY LAW – Children – parenting orders – application to vary parenting orders – name of child – change of child’s name – where applicant seeks to change both the given name and the surname of the child.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC

Births, Deaths and Marriages Registration Act 1995 (NSW), ss.22, 28

Cases cited:
Beach & Stemmler (1979) 5 Fam LR 13; FLC 90-692
Chapman & Palmer (1978) 4 Fam LR 462; FLC 90-510
Flanagan & Handcock [2000] FamCA 150; (2001) 27 Fam LR 615; FLC 93-074
George v Radford (1976) 1 Fam LR 11,510; FLC 90-060
Johanson & Nixon [2013] FCCA 1607
Johanson & Nixon [2015] FCCA 1930
Mahony & McKenzie (1993) 16 Fam LR 803; FLC 92-408
Valone & Sambrook [2010] FamCA 428
Vine & Wands [2013] FCCA 2284
Whinney & Kelleher [2013] FCCA 1939

Applicant: MS NIXON

Respondent: MR JOHANSON

File Number: SYC 4141 of 2012

Judgment of: Judge Scarlett

Hearing date: 3 July 2015

Date of Last Submission: 3 July 2015

Delivered at: Sydney

Delivered on: 19 January 2016

REPRESENTATION

Counsel for the Applicant: Ms Haughton

Solicitors for the Applicant: Soden Legal

Solicitor for the Respondent: Ms Escobar

Solicitors for the Respondent: Clayhills Escobar Solicitors

ORDERS

1. The name of the child X born (omitted) 2011 is changed to X.

2. For all day to day activities the said child is to be known as X.

3. As provided by s.28 of the Births, Deaths and Marriages Registration Act 1995 (NSW) the Applicant Mother is given leave to apply to the Registrar of Births, Deaths and Marriages in and for the State of New South Wales to register the name of the child formerly known as X as X.

4. The Registrar of Births, Deaths and Marriages in and for the State of New South Wales is ordered to register the name of the child formerly known as X as X.

5. Orders (4)(c) and (4)(d) made on 16 October 2013 are discharged and replaced by Orders (4)(e) and (4)(f) respectively.

6. Order (4)(e) provides that from and after the date of this Order and for a period of twelve (12) months thereafter the child X is to spend six (6) hours with the Respondent Father each Saturday without the need for supervision.

7. Order (4)(f) provides that from and after 19 January 2017 the child X is to spend up to eight (8) hours with the Father on the Saturday and Sunday of each alternate weekend without the need for supervision.

8. It is a condition of the immediately preceding Orders that the Father is restrained from exposing the child X to or involving the child in any (omitted) religious or spiritual ceremonies.

9. Orders (10), (11), (12) and (13) made on 16 October 2013 are discharged.

10. The Mother and father by themselves, their servants or agents are restrained from removing or attempting to remove the child X born (omitted) 2011 from the Commonwealth of Australia.

11. The Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the Police Forces of the States and Territories of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the child X from the Commonwealth of Australia.

12. The Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Border Protection are to take all necessary steps to place the name of the child X (a male) born (omitted) 2011 on the Family Law Watch List also known as the PACE Alert System maintained by the Australian Federal Police at all points of arrival in and departure from the Commonwealth of Australia.

13. The name of the child X (a male) born (omitted) 2011 is to remain on the Family Law Watch List until (omitted) 2017 unless the Court orders its earlier removal.

14. For the avoidance of uncertainty the name of X (a male) born (omitted) 2011 is to be removed from the Family Law Watch List and in substitution therefor the name of X (a male) born (omitted) 2011 is to be placed on the Family Law Watch List in accordance with Orders (12) and (13) above.

IT IS NOTED that publication of this judgment under the pseudonym Nixon & Johanson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4141 of 2012

MS NIXON

Applicant

And

MR JOHANSON

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application to change both the surname and the given name of a little boy called X who was born on (omitted) 2011. The Applicant is his mother, who wishes to have the change of name recorded at the New South Wales Registry of Births, Deaths and Marriages. The child’s name is currently on the Family Law Watch List maintained by the Australian Federal Police, and the Mother wants the child to be recorded on the Watch List in his new name.

2. The Mother also seeks to vary the parenting orders that are currently in force relating to the amount of time that the father spends with the child.

3. The Father opposes the Mother’s application.

Background

1. The background facts are set out in detail in the earlier parenting decision of Johanson & Nixon[1].

   [1] [2013] FCCA 1607

2. Essentially, the parties were married on (omitted) 2009 and separated on 28^th April 2012, after a violent incident that led to police intervention. The Father was placed on a good behaviour bond for twelve months for an assault on the Mother, and on 24^th May 2012 an Apprehended Domestic Violence Order was made against the Father, in force for a period of twelve months.

3. The parties have one child, X, who was born on (omitted) 2011. X lives with the Mother.

4. On 16^th October 2013 the Court made orders providing that:

   a)The Mother was to have sole parental responsibility for the child;

   b)The child was to live with the Mother;

   c)The child was to spend time with the Father:

   i)Until 31^st October 2013 under supervision at a contact centre for two hours each second Sunday;

   ii)For six months from 1^st November 2013 for three hours each Saturday under supervision;

   iii)For twelve months from and after 1^st May 2014 for six hours each Saturday without supervision on condition that the Father provided proof of his attendance and satisfactory completion at a course involving behaviour change for family violence; and

   iv)From and after 1^st May 2015 for up to eight hours on the Saturday and Sunday of each alternate weekend without the need for supervision.

5. As it turned out, the change to unsupervised time did not commence on 12^th July 2014. The Father commenced contravention proceedings by filing an Application-Contravention on 3^rd October 2014. Eventually, when the Application was listed for hearing on July 2015, the Father discontinued the Application. After some submissions, the parties were ordered to pay their own costs (Johanson & Nixon[2]).

   [2] [2015] FCCA 1930

The Current Application

1. The current Application by the Mother was filed on 9^th January 2014. Curiously, the Mother chose to commence proceedings in the Local Court of New South Wales. She sought procedural orders:

   1.  That the matter be dealt with on an ex parte basis.

   2.  That service of the application on the father be dispensed with.

   3. That leave is granted for the matter to be dealt with on short notice.

2. The Application was supported by an affidavit of the Mother sworn on 9^th January 2014, in which she deposed:

   46.Due to the history of violence in my relationship with Mr Johanson, my continuing fears of Mr Johanson and the circumstances relating to X’s naming at birth and as I have been granted Sole Parental Responsibility for X, I do not wish for the Respondent Father to become aware of my request for X’s name change and seek that this Honourable court make the orders on an ex parte basis and that leave be granted for the service of my Application on Mr Johanson to be dispensed with.

   47.I became aware from Mr Johanson’s application to the Court at the Final Hearing that he is currently in (country omitted) and will be returning sometime in January 2014.[3]

   [3] Affidavit of Ms Nixon 9.1.2014 at paragraphs [46]-[47]

3. The Application was returnable on 14^th January 2014. The Mother and her (then) solicitor appeared but there was no appearance by or on behalf of the Father. The learned Magistrate[4] declined to make the ex parte orders sought, noting that there were no exceptional circumstances.

   [4] Whose signature was, with respect, indecipherable

4. The Application was adjourned to 21^st January 2014 for mention only, on which date the Father attended Court. The Magistrate ordered the Father to file and serve a Response and an affidavit in support and on the next occasion, 11^th February 2014, another Magistrate who was sitting that day, his Honour Magistrate Rabbidge, transferred the matter to this Court.  

5. In her Application, the mother seeks these final declarations and orders:

   1. That it is declared that it is in the best interests of the child X born (omitted) 2011 to hereinafter be known as X.

   2. That the Applicant Mother be permitted to do all acts and things and sign all documents as may be required to change the name of the child “X” born (omitted) 2011 to the name “X”.

   3. That the Applicant Mother be authorised to apply to the Registrar of Births, Deaths and Marriages to change the name of the child previously registered as “X” born (omitted) 2011 to “X” and the said Registrar do register the said child’s name as “X”.

   4. That a sealed copy of these orders be served forthwith upon the Registrar of Births, Deaths and Marriages New South Wales.

   5. That each party henceforth exclusively use the name X as the name of the child X born (omitted) 2011 and not cause or permit any other person to use any name other than X as the child’s full name.

   6. That until further Order each party being MR JOHANSON born (omitted) 1981 and MS NIXON born (omitted) 1984 their servants and/or agents be and are hereby restrained from removing or attempting to remove or permitting the removal of the said child X born (omitted) 2011 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order and to take all necessary steps to restrain either party from removing or attempting to remove the child X born (omitted) 2011 from the Commonwealth of Australia.

   7. The Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Border Protection are to take all necessary steps to place the name of the child X (a male) born (omitted) 2011 on the Watch List also known as the PACE Alert System at all points of arrival and departure from the Commonwealth of Australia.

   8. The name of the child X (a male) born (omitted) 2011 is to remain on the Watch List until (omitted) 2017 unless the Court orders its earlier removal.

6. The Father filed a Response at the Campbelltown Local Court on 5^th February 2014. In his Response the father sought the following final declarations and orders:

   1. That it is in the best interest of the child X born on (omitted) 2011 to retain his name as X in all legal or authorised documentation.

   2. That the Applicant, Ms Nixon, be restrained by injunction from doing any act or signing any document, register or certificate or any other record which would have the effect of changing or altering the name of the child, X, as it was recorded in the Register of the Births Deaths and Marriages NSW.

   3. That the Applicant, Ms Nixon, be restrained from calling or referring to the child X by any other name.

   4. That the Applicant shall be restrained from enrolling the child in any school or child-care in any name other than X.

   5. Forthwith the Applicant is directed to take all such steps as are necessary to alter any record or document which refers to the child as anything other than X and to record the name as X in any such record or document.

   6. That to continue the current visiting with child X under the supervision of an employee of Phoenix Rising every Saturday for 3 hours as in the final order received Federal Magistrate[5]Court of Australia, Sydney Registry on 16^th October 2013 until the father finishes the course related to “Behaviour change” as advised in the final order to complete and until the next term of visit which will be an unsupervised one. The course may finish around mid June of 2014 for which the father has already registered.

   7. That the Child care/day care centre/school name and the supervisor details of the child X to be shared with the respondent father by the applicant mother.

   8. That the father can enquire about the education progress of the child X from the child care/day care centre or the school he goes to.

   [5] Sic. The name of this Court has been the Federal Circuit Court of Australia since 12 April 2013

7. Although the Father’s Application-Contravention filed on 3^rd October 2014 was discontinued, there is still current an Amended Response filed by the mother on 21^st April 2015. The Mother does not press Orders 1 and 2 in the Response but moves on proposed Orders 3 to 5 inclusive, which say:

   3. That from and after 1 August 2015 and for a period of three months thereafter provided the father has accommodation of which he is the only applicant of[6] and he has provided proof to the mother that he has such accommodation the father is to spend three hours each Saturday with the child.

   4. That the father be restrained from taking the child to the (church omitted) and/or any other (church omitted).

   5. That the Applicant Father pay the Respondent Mother’s costs incidental to this application within 14 days of the making of these orders.

   [6] sic

Evidence

1. The Mother relied on the following affidavits:

   a)her affidavit sworn 13^th February 2015;

   b)her affidavit sworn 16^th June 2015;

   c)the affidavit of Ms K sworn 5^th February 2014, filed in Campbelltown Local Court;

   d)the affidavit of her father Mr F sworn 5^th February 2014, filed in Campbelltown Local Court;

   e)the affidavit of Rev. Mr R sworn 17^th June 2015;

   f)the affidavits of Mr D sworn:

   i)12^th February 2015; and

   ii)18^th June 2015.

2. Only the Mother and Mr D gave oral evidence.

3. The Mother is of (nationality omitted) background. She has lived in Australia since she was three years old. She and her family follow the (omitted) faith. The Father is of (nationality omitted) background and he and his family follow the (omitted) faith.[7]

   [7] Affidavit of Ms Nixon 16.6.2015 at paragraphs [5]-[6]

4. In the Mother’s affidavit sworn on 16^th June 2015, she sets out her reasons for seeking to change the child’s name from X to X at paragraphs [23] to [52].

5. The Mother deposed that from when she was pregnant she had always wanted to call her child X if he was a boy but the Father insisted that the child should be called X. The Mother deposed:

   I never consented to the name. Out of fear of Mr Johanson and fear that any opposition I show towards the name “X” would be met with violence, verbal assaults or intimidation I did not tell Mr Johanson that I did not want the name X for my son. At the time of X’s birth Mr Johanson’s parents were in Sydney living with us. With Mr Johanson’s parents present, I found it even more difficult to express my disapproval of the name.[8]

   [8] Ibid at [[26]

6. The Mother went on to depose that the child was approximately six months old when the parties separated and from that time onwards she started calling the child “X” rather than “X”. The child has been known by the name X ever since amongst the Mother’s family, friends, colleagues, church pastors, church members and child care workers.[9]

   [9] Ibid at [27]-[30]

7. The Mother states that the child has been responding to the name “X” ever since.[10] She does not want the child to have a name that brings back unpleasant memories of what she says was for her a dark period in her life, being a time of helplessness and fear when she was subjected to violence and intimidation by her then husband.

   [10] Ibid at [31]-[33]

8. As for the proposed change of surname, it is the Mother’s position that she wants her son to have the same surname as herself. She deposed that:

   In the (nationality omitted) community, I feel embarrassed to reveal that my husband and I separated. The reason I had endured Mr Johanson’s violence and abuse during the relationship was because I believed that there is shame and embarrassment and even a stigma associated with being a divorcee and a single mother in our (nationality omitted) community.[11] \

   [11] Affidavit of Ms Nixon 16.6.2015 at [35]

9. The Mother deposed that she does not wish for the child to commence school as X but as X, as she does not wish him to be teased or ridiculed at school because of his uncommon name. Again, she does not want the child to feel embarrassed or be teased at school for not having the same surname as his mother. As the parent with sole parental responsibility, the Mother will be the one making long term decisions for the child, including medical and educational decisions. She will be the only parent who will be listed in various documents connected with the child and she does not wish the child or herself to be questioned as to the reason why they have different surnames.[12]

   [12] Ibid at [37]-[39]

10. The Mother further deposed that since she and the Father separated none of the Father’s extended family members have been in contact with her to ask about the child. Neither the Father nor members of his extended family have sent the child any cards or other messages. Again, the Mother deposed that the father:

    …specifically asked for the return of the one gift that X had received from Mr Johanson’s parents at the time of his birth, being a gold chain. As a result he is unaware of their existence and has no bond or attachment to them.[13]

    [13] Ibid at [40]

11. The Mother deposed that all of her extended family members identify strongly with the (omitted) faith and have “(omitted)” first names. X’s name is the only “non-(omitted)” name in the family. Again, the child is the only one in the family whose surname is “Johanson” and not “Nixon”.[14]

    [14] Ibid at [44]-[45]

12. The Mother stated at paragraph [49] of her affidavit that during his supervised time with the child even the Father has been calling the child by the name of X.[15]

    [15] Ibid at [49]

13. Mr F, the child’s maternal grandfather, and Ms K, a friend of the Mother, confirm in their affidavits that the child has consistently been known as X. They were not cross-examined.

14. The Mother has also expressed concern in her affidavit of 13^th February 2015 about the fact that the Father is living in a (omitted) described as (omitted). The Father apparently shares that accommodation with other people whom the Mother does not know.

15. The Mother said in cross-examination that she objected to the Father taking the child to the (church omitted) because the child has been raised in the (omitted) faith and at the (church omitted) the people there engage in (religion omitted) routines. These rituals would be confusing to the child.  

16. The evidence of Mr D in his affidavits of 12^th February and 18^th June 2015 is that he met the Father on one occasion on 17^th November 2014 he met the Father in North Sydney. He observed the Father to be “dressed in traditional clothes of spiritual followers of (omitted) religions”.[16]

    [16] Affidavit of Mr D 12.2.2015 at paragraph [4]

17. Mr D said in cross-examination that when he met the Father in North Sydney the Father did not want to shake his hand because he had become a vegetarian and did not wish to shake the hand of someone who eats meat. Mr D resiled from his evidence in chief that the Father was wearing (omitted) when he saw him.

18. The Father relied on his affidavits of 2^nd October 2014, filed in support of his Application-Contravention, and 26^th February 2015.

19. The Father deposed in his affidavit of 2^nd October 2014 that he had been spending time with the child on a supervised basis in accordance with the Orders of 16^th October 2013. He completed a course entitled Facing Up (Domestic Violence) – Behavioural Change for Men and provided a certificate to that effect dated 30^th June 2014. As he had to return to (country omitted) in late 2013 he agreed with the Mother’s lawyers that his time with the child supervised by Phoenix Rising would commence on 11^th January 2014. The reports from Phoenix Rising relating to his time with the child from 11^th January to 21^st June 2014 present a positive account of the Father’s time with the child. The report notes that contact did not occur on 28^th June 2014 because the child “appeared to be too distressed to get into the car”.[17]

    [17] Affidavit of Mr Johanson 2.10.2014 at paragraph [7]

1. In his affidavit of 26^th February 2015 the Father deposed that he lived in an (omitted) in an inner suburb of Sydney:

   Four men live here. They are all practicing a clean living spiritual life. We have our own bed rooms. It is a private building and very secure. I can move out of the (omitted) at any time.[18]

   [18] Affidavit of Mr Johanson 26.2.2015 at [12]

2. The Father went on to depose that the (omitted) is only open to the public or guests when there is a spiritual program on which is always in the evening after 6:30pm.

3. The Father stated that he wore (omitted) but denied that he wore (omitted) or that he had ever (omitted).

4. The Father was cross-examined by Ms Haughton of Counsel for the Mother. He was reluctant to answer questions about the names of other people living in the (omitted). His answer to the question about why it was necessary for him to take his son to the (omitted) during his time with the child was, quite simply:

   “Because that is where I live”.

Submissions

1. Counsel for the Mother submitted that the parties were 12 months behind in the program set by the parenting Orders made on 16^th October 2013. The parties should be at the stage provided in Order (4)(c), which provides:

   From and after 1 May 2014 and for a period of twelve (12) months thereafter the child is to spend six (6) hours with the Father each Saturday without the need for supervision PROVIDED THAT the Father provides to the Mother or her solicitor a document certifying his attendance at and satisfactory completion of a course involving behaviour change for family violence being either “Taking Responsibility – a Course for Men” run by Relationships Australia or “facing Up” run by (omitted) Community Services or such other course of that nature as the parties shall agree;

2. Ms Haughton of Counsel submitted that the parties separated in April 2012 and then there was a period of seven months when the Father had no contact with the child. The Father’s time under the orders did not recommence until January 2014.

3. The evidence shows that when the Father was with his son for three hours under supervision things were going well. The Mother is concerned about the child being at the (omitted) at the time when there is a religious meeting. The Mother does not know who the other people in the (omitted) are.

4. As for the change of name proposed by the Mother, she is concerned about embarrassment in the (nationality omitted) community in which she and the child live about his having a different surname from his mother. The Mother will always have the primary care of the child.

5. Ms Haughton referred to the well-known authorities of Beach & Stemmler[19] and Chapman & Palmer[20]. She told the Court that the Mother opposed the idea of a hyphenated surname.

   [19] (1979) 5 Fam LR Note 13; FLC 90-692

   [20] (1978) 4 Fam LR 462; FLC 90-510

6. Ms Escobar, solicitor for the Father, submitted that the Court can be confident about the Father’s approach to parenting and there are no concerns about the child’s welfare in his father’s care. The Court was referred to the decision of Murphy J in the Family Court in Valone & Sambrook[21]. The use of a hyphenated surname was not approved.

   [21] [2010] FamCA 428

The law relating to the change of a child’s name

1. The Courts have considered the often emotive aspect of changing a child’s name in a number of decisions since the Family Law Act 1975 (Cth) came into operation on 5 January 1976.

2. In George v Radford[22] Watson J held:

   [22] (1976) 1 Fam LR 11,510; FLC 90-060

   I consider that the factors which should guide me in this case are as follows-

   (a)the final decision must be governed not by supposed parental rights but must be in the best interests of the children;

   (b)short-term embarrassment must be weighed against long-term effects;

   (c)where the father has a meaningful relationship with his children they should, unless there is a clear contra-indication bearing on their welfare, bear his name;

   (d)children should not be subjected unnecessarily to a confusion of identity;

   (e)a parent does not have the right unilaterally to change the surname of children in his or her custody or care and control; such a change requires the consent of both parents, or an order of the relevant court.[23]

   [23] (1976) 1 Fam LR 11,510 at 11,514; FLC 90-060 at 75,296

3. In Chapman & Palmer[24] the Full Court of the Family Court held that:

   [24] (1978) 4 Fam LR 462; FLC 90-510

   To summarize, the factors to which the courts should have regard in determining whether there should be any change in the surname of a child include the following:

   (a)The welfare of the child is the paramount consideration.

   (b)The short and long term effects of any change in the child’s surname.

   (c)Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.

   (d)Any confusion of identity which may arise for the child if his or her name is changed or not changed.

   (e)The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.

   (f)      The effect of frequent or random changes of name.[25]

   [25] (1978) 4 Fam LR 462 at 471; FLC 90-510 at 77,675-77,676 per Evatt CJ, Asche and Marshall SJJ

4. In Beach & Stemmler[26], a decision of the Family Court of Western Australia, Connor J followed the decision in Chapman & Palmer and added the following considerations:

   [26] (1979) 5 Fam LN 13 (reported as In the Marriage of Beach and Semmler); FLC 90-692

   The advantages both in the short term and in the long term which will accrue to the children if their name remains as it is now.

   The contact that the husband has had and is likely to have in the future with the children.

   The degree of identification that the children now have with their father.

   The degree of identification that the children now have with their mother…

   The desire of the father that the original name be  restored.[27]

   [27] (1979) 5 Fam LN 13 at 2010; FLC 90-692 at 78,693

5. His Honour went on to say:

   In many cases it might be more convenient for a custodial parent to have a child’s name changed but I do not believe that mere convenience itself is sufficient reason for changing a name.[28]

   [28] Ibid

6. In Mahony & McKenzie[29] Warnick J granted an application that a hyphenated surname be used for the child (a boy then aged 4 years and 10 months), the mother having returned to the use of her maiden name. His Honour held that the registration of the child’s birth under the surname of the father was of no real significance and:

   The real questions are as to the degree of identification of the child with the registered surname, and as to any difficulties or embarrassment for the child, if using a surname other than that by which he or she is registered.[30]

   [29] (1993) 16 Fam LR 803; FLC 92-408

   [30] (1993) 16 Fam LR 803 at 806; FLC 92-408 at 80,184

7. His Honour went on to find that the use of a hyphenated surname was appropriate.

8. In Flanagan & Handcock[31] the Full Court of the Family Court reviewed a range of decisions on the principles to be considered when dealing with a proposed change of a child’s name and held at [35]:

   The matters which frequently need to be considered in deciding whether or not to permit or prohibit a change of name have been considered in several decisions of this Court, both at first instance and on appeal. The most significant feature that appears from those cases is that they turn on their individual facts.[32]

   [31] [2000] FamCA 150; (2001) 27 Fam LR 615; FLC 93-074

   [32] [2000] FamCA 150 at [35]; (2001) 27 Fam LR 615 at 625 [35]; FLC 93-074 at 88,301 [35] per Kay and Holden JJ

9. The Court has been referred to the decision of Murphy J in Valone & Sambrook[33], which appears to be clearly a decision that turns on the individual facts of the case. His Honour held at [29]:

   There is no reason, it seems to me, why the children in the respective care of each of their parents should lose, as it were, their identity with the other parent. Their names, particularly given the extremely high conflict between the parents, are an overt symbol of the fact that they have two parents who seek to love and care for them and with whom they are connected, not only by birth, but by rights and obligations enshrined in the Act.[34]

   [33] supra

   [34] [2010] FamCA 428 at [29]

10. The facts in that case are that the children’s surnames were recorded as hyphenated names on their birth certificates and the mother, in respect of the children living with her, had dropped the father’s surname.

Parenting Orders

1. When considering making a parenting order in respect of a child, or varying an existing order, the Court is required to consider various sections of the Family Law Act 1975 set out in Part VII. These include:

   a)Section 60B, dealing with the objects and principles of Part VII;

   b)Section 60CA, which prescribes that the best interest of the child should be regarded as the paramount consideration;

   c)Section 60CC, which sets out the way that the Court decides what is in a child’s best interests;

   d)Section 61DA, which deals with the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child, and the circumstances in which the presumption does not apply or may be rebutted; and

   e)Section 65DAA, which sets matters that must be considered if the Court makes an order that the child’s parents should have equal shared parental responsibility for the child.

2. All of these matters have been considered, so far as they are relevant.

Conclusions

1. The Mother wishes to change not only the child’s surname, but his given name as well. Her reasons for doing so are understandable, as her marriage to the father was a short one, marred by family violence. The communication between the Mother and the Father is poor, to say the least.

2. It must be made quite clear, however, that any decision about the child’s names must be made with the child’s best interests clearly in mind. It is not a question of the Mother’s convenience or the need to overcome any short term embarrassment. The Mother may wish to expunge any trace of the Father from her life and that of the child, but the best interests of the child do not necessarily accord with that view.

3. As with so many cases of this nature, the decision turns on the individual facts. It appears to me that these facts are relevant:

   a)The child was born on (omitted) 2011, so he is still only four years and three months old;

   b)The child will be too young to start school in 2016 but will have to start school in 2017;

   c)If there is to be a change to his name or name, it should ideally be done before he starts school;

   d)The parents separated on 28^th April 2012, when the child was only six months old;

   e)The Mother has been the child’s primary caregiver since he was born, and is likely to remain so;

   f)The Mother has sole parental responsibility for the child, as a result of an Order of this Court made on 16^th October 2013;

   g)The Mother has not remarried and uses her maiden surname of Nixon;

   h)The Father has spent relatively little time with the child since the parties separated, but continues to spend time with him and wishes to remain a part of the child’s life;

   i)There is no evidence that the Father poses a threat of harm to the child.

4. As the Mother is the child’s primary caregiver with sole parental responsibility for him, there is much to be said for the child having the same surname as his mother. This will avoid any confusion or embarrassment for the child once he goes to school or in circumstances where he has to undergo medical or hospital treatment. In due course the Mother may wish to travel out of Australia with the child. It would be beneficial if mother and child were to have the same surname.

5. I do not attach a great deal of weight to the Mother’s stated embarrassment about people knowing that she and her husband have separated and she is now a single parent. That is the case, and whether or not she and the child have the same surname will not have any effect on that situation.

6. The Mother used the surname of Nixon for the child when he was baptised at her church. He is apparently already known by this surname in the circles in which he and his mother move.

7. The next question to be asked is whether the Father’s surname of Mr Johanson should be removed completely. The Father is still present in the child’s life, and wishes to remain so, although the Mother is the primary caregiver. To paraphrase the words of Murphy J in Valone & Sambrook, the name of Johanson is an overt symbol of the fact that this child has a father who seeks to love and care for him and with whom he is connected not only by birth, but by rights and obligations under the Family Law Act 1975.

8. Neither party wishes the child to have a hyphenated surname incorporating the names of both parents. Whilst I have I the past made such an order (see Vine & Wands[35]), that decision was governed by the particular facts of the case. In my view the name Johanson can remain as a part of the child’s name, but his surname will effectively become Nixon for everyday use.

   [35] [2013] FCCA 2284

9. This is a case where the Mother wishes to do away with the given name of “X” and have the child known by the name of “X”. It is the Mother’s evidence that she always wanted to call the child “X” and never liked the name “X”. I do not attach much weight to the Mother’s evidence that she fears that the child would be teased or ridiculed at school for having an unusual name. The name “X” is an (nationality omitted) name and the Mother lives in a family with a (nationality omitted) background.

10. However, the child has been known as “X” since shortly after his parents’ separation. He has been baptised under the name of X and the Mother’s evidence is that she made a point of telling family, friends, colleagues and people at her church that the child’s name is X, and that appears to be the name by which he is known in the community in which he lives.

11. It is too late to turn the clock back and make an order that the child should revert to using the name of “X” when for most of his life he has been used to being called X. This would, in my view, be confusing and possibly distressing for the child. As the Mother deposed in her affidavit of 16^th June 2015:

    With the exception of the first six months, X has been responding to the name “X” all his life. I have never observed X to respond to the name “X”.[36]

    [36] Affidavit of Ms Nixon 16.6.2015 at [32]

12. The Mother never liked the name “X” anyway and always wanted to call the child “X”. As this little boy has been known as X pretty well all his life, no doubt he thinks of himself as X. He should remain so.

13. Accordingly, an order will be made that the child will henceforth be known by the name of X, without a hyphen. This way, his surname will effectively be “Nixon”, which seems to be the case anyway, and will allow him to have the same name as his mother, with whom he primarily resides. The name “Johanson” will effectively become the child’s middle name, which will retain his identification with his father without causing any confusion in his everyday life.

14. In the decision of Whinney & Kelleher[37], where the father of the subject child had elected to play no part in the child’s life whatsoever, I considered the relevant legislation at [13]-[17]:

    [37] [2013] FCCA 1939

    13.The applicable legislation in New South Wales to deal with a change of name is the Births, Deaths and Marriages Registration Act 1995 (NSW).

    14.    Section 22 of that Act provides:

    (1)If there is a dispute between parents about a child’s name, either parent may apply to the District Court for a resolution of the dispute.

    (2)On an application under subsection (1), the District Court may:

    (a)    resolve the dispute about the child’s name as the Court considers appropriate; and

    (b)    order the Registrar to register the child’s name in a form specified in the order.

    (3)If any court (including any court of another State or the Commonwealth) resolves a dispute about a child’s name, the court may order the Registrar to register the child’s name in a form specified in the order.

    15.Thus, it can be seen that this Court, being a court of the Commonwealth, may, under s.22(3) of the Act, order the Registrar of Births, Deaths and Marriages in New South Wales to register the child’s name.

    16.Section 28 of the Births, Deaths and Marriages Registration Act also provides for registration of a change of a child’s name in similar terms to s.22(3). The section says, relevantly:

    (3)An application for registration of a child’s name may be made by one parent if:

    …

    (c)     a court approves the proposed change of name.

    …

    (5)If any court (including any court of another State or the Commonwealth) approves a proposed change of name for a child, the court may order the Registrar the child’s name in a form specified in the order.

    17.Where a court makes an order changing the surname[38] of a child, it is not necessary to order the other parent to sign any documents. It is neither necessary nor appropriate to empower a Registrar of the court to sign any documents on the other parent’s behalf. The court itself is given the power to order the Registrar of Births, Deaths and Marriages to register the child’s name.[39]

    [38] Or, it would seem, the given name

    [39] [2013] FCCA 1939 at [13]-[17]

15. Clearly, an order will need to be made to have the child’s new name placed on the Family Law Watch List maintained by the Australian Federal Police.

16. As I am satisfied that it is in the child’s best interests to change his name in the way set out above, I will order accordingly.

The parenting orders

1. In my view, the argument between the parties about the Father’s decision to live in an (omitted) and follow the tenets of the (omitted) religion is one of very little substance. The Mother and her extended family follow the (religion omitted) faith and the Mother does not wish the child to become involved in (religion omitted) ceremonies at the (church omitted).

2. The evidence shows that the Father has responded positively towards the child whilst his time was being supervised. His solicitors have provided to the Mother’s former solicitors a BCS Facing Up Certificate showing that he completed the course. That appears to comply with the requirement of Orders (4)(c) made on 16^th October 2013. As Ms Haughton, submitted, this is the stage in the graduated parenting orders that the Father should have reached.

3. There is no evidence that the Father poses any threat of harm to the child and there is nothing to show that his time with the child needs to be supervised.

4. The fact that the Father chooses to live in an (omitted) does not appear to pose any threat to the child. The Mother does not want the child to be exposed to (omitted) religious ceremonies, and I am prepared to make an order to that extent.

5. However, the fact remains that the Father chooses to follow the (omitted) religion. He has a right to do so and the practice of the (omitted) religion is permitted in Australia. If the child comes to learn that this is a part of his father’s life, there would not appear to be any harm in this.

6. However, the Mother has sole parental responsibility for the child and she is the one who will decide the child’s religious upbringing. She has had the child baptised in the (omitted) faith and she clearly wants the child to be brought up in that faith. Exposure to (omitted) religious or spiritual ceremonies would most likely be confusing to this little boy, who is not yet of school age, and the Father should refrain from involving the child in any such ceremonies when the child is in his care.

7. There is no need to vary the earlier parenting orders with respect to parental responsibility or with whom the child shall reside. I will, however, vary orders (4)(c) and (4)(d) made on 16^th October 2013 to take into account the current circumstances. The period of twelve months set out in Order (4)(c) will commence from the date of these Orders and there will no longer be a need for the Father to provide documentary proof of his having completed a course in behaviour change. The new Order (4)(d) will commence after the period of twelve months in Order (4)(c) has elapsed.

I certify that the preceding seventy nine (79) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  19 January 2016