S and W
[2003] FMCAfam 160
•21 May 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & W | [2003] FMCAfam 160 |
| FAMILY LAW – Children – name of children – use of hyphenated surname proposed. Family Law Act 1975, s.65D Chapman & Palmer (1978) 4 Fam LR 462; FLC 90-510 |
| Applicant: | RWS |
| Respondent: | DW |
| File No: | PAM 2953 of 2002 |
| Delivered on: | 21 May 2003 |
| Delivered at: | Parramatta |
| Hearing Date: | 28 April 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Mr Thompson |
| Solicitor for the Applicant: | Collins & Thompson |
| Solicitor Advocate for the Respondent: | Mr Williamson |
| Solicitor for the Respondent: | Verekers |
ORDERS
The Respondent is restrained from using any surnames for the children RA born 11 July 1996 and NB born 19 November 1998 other than S or W-S.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 2953 of 2002
| RWS |
Applicant
And
| DW |
Respondent
REASONS FOR JUDGMENT
This is an application by the father of two girls, R, born 11th July 1996, and N, born 19th November 1998, for an order that the Respondent mother should not change the surname of the children without his written consent. The children’s birth certificates show that their surnames were recorded as S.
The mother seeks an order that the children should use the surname W-S.
Background
The parties commenced their relationship around Christmas time in 1994, and they commenced to live together in about June 1995. Their daughter R was born on 11th July 1996, and their second daughter, N, was born on 19th November 1998.
The parties separated on about 1 April 2000. The children continued to live with the mother, and the father exercised contact. There were some difficulties about the extent of that contact, and the father eventually commenced proceedings in this Court on 29th August 2002.
When the matter came before the Court for final hearing on 28th April 2003, the parties were able to negotiate a settlement of all parenting matters with the exception of the surnames of the children. Terms of settlement were signed on that day and I made orders accordingly.
I then heard submissions from the parties’ solicitors about the question of the children’s surname.
The children’s birth certificates show their surname as S, the father’s surname. The father deposes in his affidavit sworn 8th January 2003 that he found out that the children were enrolled at school and pre-school with the name “S-W”. He did not consent to the use of this name, and he was not consulted about the change.
The mother, in her affidavit sworn on 10th April 2003 (mistakenly described as “2002”) admits to changing the children’s name unilaterally. She says, in paragraph 28 of her affidavit “The girls are presently using the name W-S at their school and pre-school”.
Issues
The father says that the children’s name on their birth certificates is S, and he did not, and does not, consent to any change. His solicitor, Mr Thompson, submitted that a hyphenated surname is unnecessary, and there is a real concern that the name S at the end of the children’s surname will be dropped off over time. The Applicant is involved with the children as their father and wishes to maintain his involvement with them.
Mr Williamson, for the mother, said that the mother has not sought to discard the father’s surname, but her name is W and the children identify with her. The children have lived with the mother all their lives, and will continue to do so. It would only lead to confusion if their name were to be changed back at this stage.
Mr Williamson conceded on his client’s behalf that the younger child, N, is actually enrolled at her pre-school under the name ‘W’. This arose because the pre-school used the name that that was on the mother’s concession card from Centrelink.
Relevant law
In Chapman and Palmer (1978) 4 Fam LR 462; FLC 90-510, the Full Court of the Family Court stated that the general principle appeared to be that the Court would not intervene to prevent a parent from changing the name of a child in the custody (however described) of that parent unless the Court were satisfied that “The change was made without the consent of the other parent and that it does not promote the welfare of the child”.
The Court set out the factors to which the Court should have regard in determining whether there should be a change in the child’s surname to include:
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 suffered 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.” (at 77675-6).
In Beach and Stemmler (1979) FLC 90-692 Connor J took into account the matters set out in Chapman and Palmer mentioned certain additional matters that may be relevant, including:
i)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.
ii)The contact that the husband has had and is likely to have in the future with the children.
iii)The degree of identification that the children now have with their father.
iv)The desire of the father that the original name be restored[1].
[1] At 78,693
The decision of Warnick J in Mahony and McKenzie (1993) FLC 92-408 refers to a case where the facts were similar to the facts in this case. The child in that case had been registered in the father’s surname at birth, and the mother reverted to the use of her family name after the parties separated. The father found out that the child was attending pre-school under the mother’s surname, and sought orders to ensure that the child was known by his surname.
In that case Warnick J attached no significance to the fact that the child’s surname had been registered as the father’s surname at birth. He held that a number of benefits could be expected to arise from the use of a hyphenated surname, made up of the surnames of each parent. One such advantage was that the use of the name accorded with the reality of life. The child had an ongoing relationship with both his parents though they did not live together.
In Flanagan and Handcock (2001) FLC 93-074, the Full Court held that the power to change a child’s name is clearly an aspect of parental responsibility as defined by section 61B. The resolution of a dispute between the parents of a child about that child’s name is ultimately to be resolved by the making of a specific issues order under the provisions of section 65D, which is governed by the provisions of section 65E, which requires the Court to consider that the welfare of the child is the paramount consideration.
Conclusions
It is clear that the mother unilaterally changed the children’s names. The father had no input into that decision, nor any knowledge of the decision. The fact that the child N was enrolled at pre-school as NW does not support the mother’s contention that she has not sought to drop the name S.
This is a case where the children live with their mother and identify with her. There may be some embarrassment on the part of either one of them if their name is completely different from that of their mother. The father’s fear, as Mr Thompson mentioned in his submission, that the name S might be quietly dropped, would appear to be based on reasonable grounds.
The consent orders made by this Court on 28th April are a clear indication of the father’s wish to pursue a regular relationship with the children.
The present and likely future contact between the father and the children is relevant to these proceedings, and it seems clear that the father will pursue a relationship with both children. This ongoing relationship should have the effect of increasing the degree of identification between the father and the children.
The children reside with their mother, and there could be a level of embarrassment in having to explain why their surname is different from that of their mother. At the same time, there is a valid purpose in these children having a name that reflects the identity of their father, who is a part of their lives. Whilst the decision of Warnick J is not binding upon this Court, I am satisfied that it is persuasive. The use of a hyphenated surname will offer the advantage of reflecting the reality of the children’s situation, showing that they are the children of both parents.
It may be argued that the use of hyphenated surnames will create some difficulty in Australian society in the early 21st Century, where many women, whether they are married to their partner or not, elect to keep their own family name. Over a few generations, children could end up with very long names. I am inclined to believe that when the children become adults they may exercise their own discretion as to what name they wish to be called.
For these children, who are still very young, it appears to me to be in their best interest for them to have a name that identifies them with both parents. It would not be helpful to them for the mother to drop the father’s surname completely, as happened to the child N when she was enrolled at pre-school. The explanation of an apparent error by the pre-school in using the name on the mother’s Centrelink concession card is a very thin excuse, and it does not appear that the mother took any steps to rectify the situation. I find it difficult to accept that staff at a pre-school would be unaware of the fact that many children live in single-parent families and that many children have parents with different surnames. Apparently, the mother was not required to produce N’s birth certificate, which would show the name S.
It does not appear to me to be in the children’s best interests for their father’s surname to disappear completely. It would not be in their interests for there to be any other change of name in the future, as this would not be conducive to stability.
It is for these reasons that I propose to order that the mother is restrained from using any surname for these children other than their original name of S or the name W-S.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 21 May 2003
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