Reagan & Orton - [2016] FamCA 330

FAMILY COURT OF AUSTRALIA

REAGAN & ORTON

[2016] FamCA 330

FAMILY LAW – CHILDREN – Discrete issue as to child’s surname – Where mother seeks that the child be known by a hyphenated surname – Where father historically opposed the use of a hyphenated surname – Where father has failed to comply with directions for filing material and has failed to appear before the Court – Where appropriate that the matter proceed on an undefended basis – Where orders made previously for the child to live with the mother and the mother to have sole parental responsibility – Where the child is due to commence school in 2017 – Where the father’s surname is the child’s registered name but the mother and her extended family use the mother’s surname for the child and the child identifies with this name – Consideration of best interests principles – Order made that the mother be permitted to register the child’s surname as a hyphenated surname.

Births Deaths and Marriages Registration Act 1995 (NSW) ss 28(3), 28(5)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 68B

Flanagan v Handcock [2000] FamCA 150
Fooks v McCarthy (1994) FLC 92-450
Goode & Goode 2006 FCA 1346
MRR v GRR (2010) HCA 4

APPLICANT:

Mr Reagan

RESPONDENT:

Ms Orton

FILE NUMBER:

DUC

2014

DATE DELIVERED:

11 May 2016

PLACE DELIVERED:

G Town

PLACE HEARD:

G Town

JUDGMENT OF:

Foster J

HEARING DATE:

9 May 2016

REPRESENTATION

SOLICITOR FOR THE RESPONDENT:

Messenger & Messenger

Orders

The Mother Ms Orton be authorised to apply to the Registrar of Births, Deaths and Marriages NSW that the child registered as B Reagan born … 2011 be now registered as B Orton-Reagan.
Pursuant to s 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW), the Registrar register the child’s name in the form specified in order (1) herein.
The Court forward a sealed copy of this order to the Registrar of Births, Deaths and Marriages NSW.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Reagan & Orton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: DUC 45 of 2014

Mr Reagan

Applicant

And

Ms Orton

Respondent

REASONS FOR JUDGMENT

These are discrete parenting proceedings relating solely to the question of the name of the child B Reagan born in 2011.
The mother in her amended response filed on 20 January 2016 seeks a change to the child’s surname such that the child will have the hyphenated surname Orton-Reagan.

Context

The mother and father commenced cohabitation in 2006. The child is the only child of the de facto relationship.
The mother and father separated in early March 2012 at which time the child was eight months old.
The father commenced parenting proceedings in the Local Court at C Town, NSW and on 24 January 2014 interim orders in relation to the child…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Reagan & Orton

Details

AGLC: Reagan & Orton [2016] FamCA 330
Case: [2016] FamCA 330
Decision Date: 11 May 2016

CaseChat Overview and Summary

This matter concerned an application by Ms Orton, the mother of a child named B Reagan, for authorisation to change the child's registered surname. The application sought to alter the surname from B Reagan to B Orton-Reagan. The court was asked to consider whether to grant this authorisation.

The central legal issue before the court was whether to permit the change of the child's surname as requested by the mother. This involved an interpretation of the relevant provisions of the *Births, Deaths and Marriages Registration Act 1995* (NSW), specifically section 28(5), which governs the registration of names.

Foster J considered the application and, in exercising the court's discretion, authorised the mother to apply to the Registrar of Births, Deaths and Marriages NSW to have the child registered with the surname Orton-Reagan. The court directed that pursuant to section 28(5) of the Act, the Registrar should register the child's name in the specified form. A sealed copy of the court's order was to be forwarded to the Registrar.

Orders

Orders of the court

The Mother Ms Orton be authorised to apply to the Registrar of Births, Deaths and Marriages NSW that the child registered as B Reagan born … 2011 be now registered as B Orton-Reagan.

Pursuant to s 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW), the Registrar register the child’s name in the form specified in order (1) herein.

The Court forward a sealed copy of this order to the Registrar of Births, Deaths and Marriages NSW.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.