Reagan & Orton
[2016] FamCA 330
•11 May 2016
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 | 45 | of | 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 were made by consent. In summary those interim orders relevantly provided:
a)That the child live with the mother;
b)That the child spend time with the father on a graduating basis resulting in alternate weekends from 10.00 am Saturday to 4.00 pm Sunday from 22 March 2014 and in the event that the father was in C Town each second Thursday from 4.30 pm to 6.30 pm;
c)That the mother and father each undertake urinalysis drug testing at the request of the other;
d)That the mother and father be restrained from mutual denigration;
e)That the child’s time with the father be supervised by Mr A Reagan, the father’s uncle, or Ms D or Mr or Ms E; and
f)That proceedings be transferred to the Federal Circuit Court of Australia.
On 17 July 2014 further interim orders were made by consent in the Federal Circuit Court of Australia. Those orders relevantly in summary provided:
a)That all previous parenting orders be discharged;
b)That the child live with the mother;
c)That upon an undertaking being given by Ms F Reagan as to her supervision of the child’s time with the father that the child spend time with the father on alternate weekends from 10.00 am Saturday to 4.00 pm Sunday commencing 26 July 2014 and every second Wednesday or Thursday from 4.30 pm to 6.30 pm and at other times as agreed;
d)That changeovers be effected by the father’s uncle Mr A Reagan; and
e)That the mother and father each undertake urinalysis drug testing at the request of the other.
On 23 October 2014 the orders made on 17 July 2014 as to changeover and urinalysis were discharged. Otherwise the court ordered the preparation of a Family Report. Proceedings were listed for further directions in the G Town sittings on 29 May 2015.
On 29 May 2015 proceedings were transferred to this Court.
On 14 July 2015, on which day both the mother and father were represented, trial directions were made and proceedings listed for hearing in the G Town sittings commencing Monday 2 November 2015.
Proceedings were further listed for judicial case management on 19 October 2015. On this day both the mother and father were represented.
On 27 October 2015 the father’s solicitor filed a Notice of Ceasing to Act.
On 2 November 2015, on which day proceedings were listed for hearing at G Town there was no appearance on behalf of the father. The Court was informed that the father was that day before the C Town Local Court in relation to a number of criminal charges. Proceedings were adjourned to 10.00 am on 3 November 2015 to facilitate the father’s attendance.
On 3 November 2015 the father appeared in person. On that day by consent final parenting orders were made that provided for the mother to have sole parental responsibility for the child and for the child to live with the mother. Otherwise orders as to the child’s time with the father were suspended pending further order. Proceedings were adjourned to 5 February 2016 for further judicial case management.
Procedural fairness
On 5 February 2016 there was no appearance by or on behalf of the applicant father. On that date his application filed on 28 November 2013 was dismissed. The mother sought to proceed with the outstanding issue raised in her response as to the change of the child’s surname to a hyphenated surname. That issue was adjourned to 16 March 2016 for an undefended hearing.
On 16 March 2016 the father appeared by telephone. He informed the Court that he opposed the mother’s application for a hyphenated surname for the child. The Court ordered:
a)That the father file and serve any affidavit material to be relied upon by him in relation to the discrete issue as to mother’s proposed change of the child’s surname to a hyphenated surname by no later than 29 April 2016,
b)The discrete issue was adjourned for hearing to the G Town sittings commencing Monday 9 May 2016 at 10.00 am; and
c)That in the event that the father fails to file and serve any affidavit material as directed the mother’s application will proceed to undefended hearing.
The matter was called on at 10.00 am on 9 May 2016. There was no appearance by or on behalf of the father. He had not filed any affidavit material as ordered on 16 March 2016. The matter was called again at about 10:20 am and there was no appearance behalf of the father.
It is appropriate that the matter proceed to undefended hearing in his absence.
As to the issue for determination
The child has spent irregular and limited time with the father since August 2014, having not seen the child more recently in the period from 4 April 2015 to 28 June 2015 and from 14 September 2015 to date.
Since the proceedings on 3 November 2015 the mother has had no communication with the father nor have her solicitors heard anything from any legal representative on behalf of the father.
The child is nearly five years of age. Having regard to the child’s age and the father’s lack of engagement in the child’s life the strong inference must be that the child has a strong attachment to the mother as his primary carer.
Historically, notwithstanding the child’s registered birth name, the mother and the extended maternal family have done and continue to use the surname Orton in relation to the child. To the mother’s observation this is the name identified with by the child who has no identity or association with the surname Reagan.
The child will commence kindergarten in the 2017 school year and it is the mother’s wish to change the child’s surname before the child commences school so that neither the child nor the mother have to explain to teachers or the child’s peers the reason for the child’s differing surname. The mother would preferably like to enrol the child as B Orton, however appropriately she has sought to retain for the child some identification with the father by the retention of a hyphenated surname.
A child’s name
Notwithstanding that the mother has sole parental responsibility for the child ss 28(3) and (5) of the Births Deaths and Marriages Registration Act 1995 (NSW) relevantly provides;
(3) An application for registration of a change of a child’s name may be made by one parent if:
(a) the applicant is the sole parent named in the registration of the child’s birth under this Act or any other law (including a corresponding law), or
(b) there is no other surviving parent of the child, or
(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 name for a child, the court may order the Registrar to register the child’s name in a form specified in the order.
A change of name requires the Court to have regard to the best interests of the child.
The relevant principles in relation to parenting proceedings are set out more fully in Goode & Goode 2006 FCA 1346, and the pathway to be followed by the Court was confirmed by the High Court in MRR v GRR (2010) HCA 4.
Section 60B outlines the objects and principles underlying the legislation in relation to children, and s 60CA provides that in deciding whether to make a particular parenting order, the Court must regard the interests of the child as the paramount consideration.
Section 60CC sets out the best interest considerations in relation to the child being the primary – subsection (2) – and additional considerations, subsection (3).
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it’s in the best interests of the child for the child’s parents to have equal shared parental responsibility. That is not an issue in the current proceedings, as a final order has been made that the mother is to have sole parental responsibility for the child.
Accordingly, the considerations before the Court fall to be determined by reason of the application of the best interest principles set out in s 60CC of the legislation.
The Court has had regard to each of the additional and primary considerations set out in the legislation.
This is a discrete issue for determination.
The nature of orders relating to a child's surname was considered by the Full Court of the Family Court in Flanagan v Handcock [2000] FamCA 150. It is apparent from the Full Court's decision that whichever way one analyses a change of name issue, that is by reference to a s 68B injunction or a parenting order, either directly or indirectly the paramountcy principle of the child’s best interests is applicable.
In Fooks v McCarthy (1994) FLC 92-450 Warnick J held:
There is only one principle that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents.
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 is 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 that the 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; and
g)The degree of identification which the child or children have with the parent with whom they live.
In the circumstances of this matter it is readily apparent that having regard to the discussion and the relevant considerations above it is in the child’s best interests that the mother be permitted to adopt a hyphenated surname for the child.
Orders will be made accordingly.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 11 May 2016.
Associate:
Date: 11 May 2016
5