PORRITT & DUNFORD
[2019] FCCA 1146
•23 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PORRITT & DUNFORD | [2019] FCCA 1146 |
| Catchwords: FAMILY LAW – Parenting – change of name for 5½ year old – where father wants child to retain his surname – where mother seeking her surname be hyphenated and included in the child’s surname – Held child’s surname to be hyphenated and reflect surnames of father and mother. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 64B, 106A, Pt VII |
| Cases cited: Beach & Semmler (1979) FCWA 1 |
| Applicant: | MR PORRITT |
| Respondent: | MS DUNFORD |
| File Number: | BRC 6297 of 2017 |
| Judgment of: | Judge L.Turner |
| Hearing date: | 28 November 2018 |
| Date of Last Submission: | 28 November 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 23 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Horsley |
| Solicitors for the Applicant: | New Way Lawyers |
| Counsel for the Respondent: | Ms Pendergast |
| Solicitors for the Respondent: | Watson St Claire Family Law |
FINAL PARENTING ORDERS
From the date hereof the child [X] Porritt born … 2013 be hereby known as [X] Porritt-Dunford.
Within seven days from the date hereof each party shall do all such things and sign all such documents as are necessary to change the child’s surname with Births, Deaths and Marriages Registry.
Should the father fail to sign documents in order to give effect to Order (1) a Registrar of the Federal Circuit Court of Australia upon proof on affidavit of such failure is appointed pursuant to section 106A Family Law Act 1975 to execute any required documents on behalf of the father to give full force and effect to this order.
That upon the issue of the birth certificate reflecting the name change of the child to [X] Porritt-Dunford, the parties will take all steps necessary to ensure that the child’s name is reflected on all legal records including schooling and medical records.
That forthwith the parties shall ensure that in all circumstances the child is known as and referred to as [X] Porritt-Dunford.
IT IS NOTED that publication of this judgment under the pseudonym Porritt & Dunford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 6297 of 2017
| MR PORRITT |
Applicant
And
| MS DUNFORD |
Respondent
REASONS FOR JUDGMENT
Introduction
In November 2018 the parties reached final orders by consent on a property division after a long de facto relationship and final parenting orders on the majority of issues for the child [X] aged 5½.
Issue
The remaining issue requiring determination is [X]’s surname.
Evidence
In considering this issue, the parties (who are both legally represented) agreed this issue could be determined on the papers, with each side providing written submissions.
Therefore in considering this issue regard has been had to:-
a)The material as marked on the court file.
b)The family reports.
c)The written submissions.
d)Part VII Family Law Act 1975.
e)Relevant authorities.
Findings of fact are made on the balance of probabilities, having regard to the evidence in what follows statements of fact constitute findings of fact.
Father’s proposal
The father is seeking an order that the child’s surname of “Porritt” remain the same and that the mother be restrained from changing the name.
The father in support of his proposal submits:
a)The child was registered at birth with the surname “Porritt” as agreed between the parties ([9] December 2018 written submissions).
b)The father has strong ties to his Country A culture and has always used the surname “Porritt”, the surname connected to his Country A heritage ([7] December 2018 written submissions).
c)The parties, when choosing the surname “Porritt” for the child, did not place as great a weight on [X]’s surname “Dunford” which reflected her Country B heritage ([9] December 2018 written submissions).
d)The choice of the middle name “…” reflects the mother’s Country D heritage ([9] December 2018 written submissions).
e)There would be confusion of identity for [X] to change her name to include “Dunford”, as the child has only ever been known by the surname “Porritt”, the name the child is known as in such public settings as childcare and Country A language classes ([10] December 2018 written submissions).
f)The child is known by surname of “Porritt” by the paternal family ([11] December 2018 written submissions).
g)The child has achieved a significant milestone of commencing prep in 2019 and a change of surname from “Porritt” may leave the child feeling confused about her identity ([12] December 2018 written submissions).
h)If the mother was to remarry and take on the surname of a new spouse, then this could result in further confusion for the child, if her surname included the mother’s maiden name of “Dunford” ([13] December 2018 written submissions).
i)A change of surname in the short term would be a source of stress and burden for the parties and potentially for [X], as her surname would have to be updated on her birth certificate, passports, school, Centrelink, Medicare, health fund and medical practitioners ([14] December 2018 written submissions).
j)With the parties having recently been through stressful and contentious court proceedings, then having to attend to such changes to the child’s surname could give rise to further issues and communication difficulties ([14] December 2018 written submissions).
k)A change of the child’s surname in the short term to a hyphenated surname may be difficult for [X] to remember and spell and as a consequence the child may shorten her name to be “Dunford”, (rather than using Dunford-Porritt) for ease and convenience, which would sever her tie from her “Porritt” surname ([15] December 2018 written submissions).
l)In the long term, the adoption of a hyphenated surname will result in a lengthy surname for the child, which may be problematic or impractical, when completing online or prefill forms or using social media profiles ([16] December 2018 written submissions).
m)A long-term impact of a hyphenated surname may also lead to impracticalities and challenges when [X] is older, if she wishes to retain her maiden name as a hyphenated name if she marries ([16] December 2018 written submissions).
n)A change in surname, where “Dunford” appears first in the hyphenated name, may also subconsciously send a message to [X] that there is a priority or ranking in the relationship between her and her parents. It may imply to [X] that the relationship between her and the mother (who has been the primary carer since separation until recent parenting orders) has priority and takes precedence over the relationship with the father, who is also very significantly involved in her life ([17] December 2018 written submissions).
o)Symbolically it is important for the surname “Porritt” to continue to be used by [X] and not be dropped off (due to the length of the hyphenated name) while she is young, as this reinforces the importance of her connection with the father ([17] December 2018 written submissions).
p)There will be no embarrassment for the mother and the child to have different surnames, as this has always been the situation and to date this has not caused any issue or apparent embarrassment to the mother or the child ([18] December 2018 written submissions).
q)It would be unnatural or difficult for the father to correct the child in her use of a surname, if there is a change of surname, which is not supported, by the father ([19] father’s December 2018 written submissions). I
r)It is in the child’s best interests that there be no change to her surname ([20] of the December 2018 written submissions).
Mother’s proposal
The mother is seeking an order that the child’s surname be changed from “Porritt” to “Dunford-Porritt”, so that the child’s full name reads as [X] Dunford-Porritt.
The mother in support of her proposal submits:
a)The change of surname will add to the child’s sense of identity and belonging to both parties, now the parties are separated ([192] August 2017 affidavit).
b)[X] is still very young and not aware of her current surname ([93] August 2017 affidavit).
c)There is no evidence that [X] will suffer from confusion about her identity if the change of name is ordered.
d)The child due to her age is not yet aware of the difficulties and possible embarrassment to having a surname different to her mother ([184] November 2018 case outline), but in time the child may become embarrassed if her surname is different to that of the mother’s surname ([195] November 2018 affidavit).
e)Incorporating the mother’s surname will link the child more closely to the mother’s culture which is important to the child’s identity ([85] November 2018 case outline) and heritage on her mother’s side ([199] November 2018 affidavit).
f)There would be no embarrassment for the child for the surname change, as it will occur prior to schooling ([187] November 2018 case outline) and where the child is young ([198] November 2018 affidavit).
g)The mother is concerned that once [X] starts school, she will then be exposed to the paternalistic approach to naming of a child ([196] November 2018 affidavit).
h)If the child’s surname is not changed, then there may be confusion as to who the mother is, as the father has repartnered. The child being faced with a question about who her mother is may cause her confusion or embarrassment ([200] November 2018 affidavit).
i)At this age, the child does not have a strong identity or particular attachment to her current surname ([202] November 2018 affidavit) and therefore the change of the child’s surname to include the mother’s surname could easily be achieved.
j)The mother has close cultural links to Country D and Country B traditions and hopes to travel to Country B with [X] to visit relations there. As the surname Dunford has special links to the Country B heritage, the child will have the opportunity to meet family members and see other people and businesses with the same surname as is included in the child’s surname ([21] December 2018 written submissions).
k)Including the mother’s surname in the child’s surname will remove possible confusion when the mother attends with the child to health services, library, and when travelling, including at school and other related activities ([24] December 2018 written submissions).
l)The mother is not proposing that the child’s surname be changed to her surname only. Rather, the proposal will result in a hyphenated name that links both surnames, reflecting [X]’s two parents, two homes, and both her Country D and Country B cultural backgrounds and her Country A and Country E heritage ([25] December 2018 written submissions).
m)The timing of the surname change is appropriate and coincides with the child’s formal education and increased time in the father’s household ([26] December 2018 written submissions).
n)The change of surname will not affect the father’s relationship with the child, as final orders provide the father with significant and substantial time with the child ([20] December 2018 written submissions).
o)Australia no longer has a community where children grow to adulthood with the surname of their father. The child may have their mother’s surname, their father’s surname or a hyphenated name, or some variation thereof and not be regarded as unusual or special because of these variations ([27] December 2018 written submissions).
p)It is in the child’s best interests to have the mother’s surname included in the child’s surname, recognising the committed, ongoing involvement of both parents in her life, before [X] moves into formal education, when her surname will assume a significant public and personal role in her identity ([28] December 2018 written submissions).
Background
Before considering the issue it is worth looking at the relevant background in this matter:
a)The father is aged nearly 40 and is a professional.
b)The father is of Country A heritage, being born in Country A, and speaks the language fluently, a language also spoken by [X].
c)The mother is aged nearly 37 and was born in Australia.
d)The mother has extended family in Country D and Country B and the United Kingdom.
e)In or around 2004 the parties commenced their relationship.
f)In … 2103 after IVF treatment, the child [X] was born and since that date has used the name [X] Porritt.
g)In or around 2016 the parties separated.
h)In 2017 the father married Ms F, who is of Country D heritage. There are no children from that relationship.
i)In 2017 the father commenced parenting proceedings.
j)In her filed response, which incorporated property, the mother did not include any orders seeking a change of name for the child.
k)However, in the mother’s supporting affidavit, the mother at makes reference to adding her surname to [X]’s surname, stating that such requests of the father of the name change have so far been refused ([89] to [93]).
l)In 2017 the family report was released by Mr G, which makes no mention of a change of name for the child.
m)In 2018 the updated family report was released by Mr G and also makes no mention of a change of name for the children.
n)In November 2018 the parties by consent entered into final parenting orders whereby:
i)The parties have equal shared parental responsibility for the child.
ii)The child live with the mother.
iii)The father’s time with the child increase over time to six nights a fortnight, with extensive time over school holidays and time on special event days.
The law
I now turn to the law.
As noted by the Full Court in Lysons & Lysons (2019) FamCAFC 29 at 22 “it is entirely correct to say that orders as to a child’s name are parenting orders within the meaning of section 64B and therefore must be made in the child’s best interest, taking into account the conditions raised by section 60CC (Reynolds & Sherman (2016) FamCAFC 240 at [7] to [15])”.
The Full Court in Chapman & Palmer (1978) FLC 905-10 sets out a number of criteria which the court must look at in determining whether there should be a change of name:
a)The welfare of the child is a paramount consideration.
b)The short and long-term effect of any change in the child’s name.
c)Any confusion of identity which may arise for the child if the name is or is not changed.
d)Any embarrassment likely to be experienced by the child of the name if the name is different from the parent who has the primary care.
e)The effect, which any change in surname may have on the relationship between the child and the parent whose name the child bears.
f)The effect of frequent or random changes of name.
Connor J of the Family Court Western Australia in Beach & Semmler (1979) FCWA 1 referred to additional matters relevant to a change of a child’s name:
a)The short and long-term advantages to the child of no change of name.
b)Extent of contact with the father (past and future).
c)Extent to which the child identifies with the father.
d)Extent to which the child identifies with the mother.
Foster J in Reagan & Orton (2016) FamCA 330 (a case supported in Lysons) at [34] said “the factors frequently considered in determining whether there should be any change to a child’s name include:
a)Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control.
b)Any confusion of identity which may arise for the child if his or her name is changed or not changed.
c)The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship.
d)The effect of frequent or random changes of name.
e)The contact any non-custodial parent has had and is likely to have in the future with the child.
f)The degree of identification that the child or children have with their non-custodial parent.
g)The degree of identification the child or children have with the parent with whom they live”
In Fooks (1993) FamCA 117, Warnick J held that the children’s best interest stood above the parents’ wishes.
In Mahony & McKenzie (1993) FamCA 78 a hyphenated name for the child has been approved as a compromise.
In Giessruf & Giessruf (2004) FamCA 848 where during the marriage the children were known by the surname “Giessruf” and after separation, the wife applied to have their names changed to Jones-Giessruf to include her maiden name, Murray J said:-
a)“The wife is not choosing to change the name of the child to something alien either to her or to her husband. She seeks to have her maiden name hyphenated with that of her husband. The wife does not seek to diminish the husband’s importance in the life of the child” ([7]).
b)“I pointed out to the husband that it was very common procedure these days for some children to take the surname of both parents, perhaps as a symbol of equality between the genders, perhaps to give equal paramountcy to the role of each parent. I see no detriment to the children having that take place in these circumstances” ([8]).
Should there be a change to child’s surname?
I find having considered the evidence and the submissions that it is in the child’s best interests for the child’s surname to be changed forthwith from “[X] Porritt” to “[X] Porritt-Dunford”.
I make this finding based on the following:
a)[X]’s birth was because of a planned pregnancy involving IVF, when the parties were in a committed, loving de facto relationship.
b)The father’s surname “Porritt” was chosen and registered for [X] as her surname by the parties at a time when the parties remained in that committed relationship.
c)Upon separation, the mother, when [X] was not yet 3 years of age, made the father aware of her want for the child to share both surnames, a suggestion which was not agreeable to the father.
d)[X] has a diverse cultural heritage, Country E, on the father’s side; Country D on the stepmother’s side and Country B-Country D on the mother’s side. The inclusion of the mother’s surname as hyphenated in the child’s surname will reflect this extensive cultural diversity.
e)Although [X]’s primary attachment is to the mother, [X] has a strong, loving relationship with the father and his extended paternal family, with time increasing to a shared care arrangement, whereby the father will shortly be spending six nights a fortnight with the child. A change of name will not in any way affect that relationship, nor will it take away from the relationship.
f)[X], only having just commenced prep at school, is a very young child, whereby it is unlikely that her last name holds any overwhelming significance, either by way of identity or embarrassment for the child.
g)With both parents and their different cultural heritage being actively involved in [X]’s life on a day-to-day basis, it would be beneficial for the child at this young age to have reference to both of her parents’ names in her own surname and for that change to occur now.
h)This will provide [X] with a sense of identity to her father, in continuing to carry the surname of “Porritt” as the first part of the hyphenated name, and a sense of identity in now having the mother’s surname of “Dunford” as the second part of the hyphenated name.
i)This will avoid any potential confusion of her stepmother, known as Ms F Porritt, being mistaken as her biological mother, especially as the child refers to both mothers as mummy, although steps are being taken to ensure that [X] calls Ms F “Mummy Ms F”.
j)The father’s surname of “Porritt” as the first part of the hyphenated surname of Porritt-Dunford will make the transition to a hyphenated name easier for the child to grasp and will alleviate the fears held by the father that his surname may be dropped off if the child shortens the surname.
k)Hyphenated last surnames are not unusual.
l)With modern technology, the concerns raised by the father as to the use of such a hyphenated surname on the internet or in social media are not founded.
m)Like any child learning their names, [X] will over time learn her surname, how to say it, how to spell it, where it will become second nature to be known as [X] Porritt-Dunford.
n)The mother has not repartnered and the absence of any evidence before the court to support that the mother may in the future change her maiden name, this is not an issue that need be considered.
o)Whilst a change of name will require the issue of a new birth certificate and a change to passports, medical records and schooling records, this is only of minor inconvenience and not a valid reason as to why a change of name should not occur.
p)As [X] does not have any other siblings in either household, a change of surname will not cause her confusion in that regard.
I therefore find that a change of surname in the short term, whilst posing some inconvenience to the parties, will not have a lasting negative impact on the child.
I therefore find that a change of surname to include the mother’s surname will have a positive long-term impact on the child, as it will provide the child with links to her diversified heritage and identity with both her mother and father, without taking away the importance of the sole surname of “Porritt”, which the child has experienced for the first five years of her life.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge L.Turner
Date: 23 May 2019
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Family Law
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