SAKHAGI & BRAWN

[2017] FamCA 178

FAMILY COURT OF AUSTRALIA

SAKHAGI & BRAWN [2017] FamCA 178

FAMILY LAW – CHILDREN – final orders – change of name – where the mother seeks to change the child’s surname to the mother’s maiden name – where the child has been known socially by the mother’s maiden name – where the father opposes the change of name – where the father contends that the child should be known by her legal name to avoid confusion – where the best interests of the child are considered – where leave is granted to change the child’s surname

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

Chapman & Palmer (1978) FLC 90-510
Fooks & McCarthy (1994) FLC 92-450

APPLICANT: Mr Sakhagi

RESPONDENT: Ms Brawn

INDEPENDENT CHILDREN’S LAWYER: Lyrene Wiid Lawyer & Migration Agent

FILE NUMBER: BRC 1373 of 2011

DATE DELIVERED: 23 March 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Berman J

HEARING DATE: 20 March 2017

REPRESENTATION

THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Ms Sweetapple

SOLICITOR FOR THE RESPONDENT: Briese Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lyrene Wiid Lawyer & Migration Agent

Orders

1. That the child “B SAKHAGI” born … 2008 will be known by the name “B BRAWN” and within fourteen (14) days of this order the mother and the father shall do all such acts and sign all such documents as may be necessary to change the child’s legal name to “B BRAWN”.

2. That the order appointing an Independent Children’s Lawyer be discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1373 of 2011

Mr Sakhagi

Applicant

And

Ms Brawn

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 23 February 2011 Mr Sakhagi (“the father”) filed an Initiating Application seeking orders for equal shared parental responsibility and time to be spent with B Sakhagi born in 2008 (“the child”).  By Response filed 21 April 2011, Ms Brawn (“the mother”) sought orders that the child live with her and that there be a gradual increase in time with the father.

2. The parties entered into a final consent order on 14 February 2013 which provided for them to have equal shared parental responsibility, that the child live with the mother and spend time with the father as agreed, but failing agreement, on weekends and school holidays.

3. On 9 March 2013 the mother made allegations that the father may have sexually abused the child.

4. On 27 August 2014 the father filed a further Initiating Application seeking orders that the child live with him, spend time with the mother and that both parents “have the right to have input into all major long term decisions but failing agreement that the father make a final decision”.

5. The mother filed a Response on 20 October 2014 seeking that the child live with her and spend time with the father as may be ordered by the Court.

6. Each of the parties filed a Notice of Child Abuse, Family Violence or Risk of Family Violence in the Federal Circuit Court.

7. At a pre-trial hearing on 31 January 2017 the parties indicated that there was a good prospect of the substantive parenting issues being settled, but that there might be some further narrow issues that would need judicial determination.

8. The matter was listed for trial on 20 March 2017.

9. The father appeared as a self-represented litigant.  The mother was represented by her solicitor and counsel and the Court was assisted by the involvement of the Independent Children’s Lawyer (“ICL”) and her counsel.

10. Whilst there was some uncertainty at the commencement of the hearing as to the extent of the agreement that had been reached between the parties, following the matter being stood down to enable the father to speak to the duty solicitor if he wished to do so, but in any event to consider whether and if so to what extent agreement may be reached, I was presented with a Minute of Order that would finalise all outstanding parenting issues save and except for the following orders being sought by the mother:-

    1.That the child “[B Sakhagi]” will be known by the name “[B Brawn]” and within 14 days of this Order the Mother and Father shall do all acts and things and sign all documents necessary to change the child’s legal name to “[B Brawn]”.

11. The matter proceeded by way of evidence on the limited topic of the child’s surname and at the conclusion of the proceedings I made orders in terms of the Minute of Order (Exhibit 1) in the proceedings which disposed of all outstanding matters other than the child’s surname and the discharge of order of appointment of the ICL.

BACKGROUND

1. The parties separated on 2 July 2010 after what has been agreed was an unhappy and disrupted de facto relationship between the parties.  The child was born in 2008.  Shortly thereafter the father left the mother’s premises but maintained contact with the child.

2. It is conceded that the mother has been the primary parent and it would seem uncontroversial that she has been primarily responsible for the child’s health, education and general welfare.

3. The child has been diagnosed with Autism and ADHD.  She has language difficulties and according to Ms C, psychologist (report writer) the child has some understanding of the conflict, but does not know why her parents are in dispute.

4. The child has a maternal half-sibling namely Ms D born in 1998 (“Ms D”).  The father married Ms Sakhagi in 2012.  There are three paternal half-siblings of the child namely:-

   a)E born in 2011;

   b)F born in 2013; and

   c)G born … 2015 (collectively “the paternal half- siblings”).

NAME CHANGES

1. The mother wants to change the child’s surname.  It is her contention that for the entirety of the child’s life she has been known as “Brawn” and not “Sakhagi”.

2. The father generally agrees with the mother’s summary but argues that the birth certificate properly represents the child’s surname as “Sakhagi” and accordingly the mother should be required to use the surname on the child’s birth certificate for all aspects of the child’s life.

3. The ICL raised the option of the child having a hyphenated name namely “Sakhagi-Brawn”.  At first, neither of the parties were in favour of a hyphenated name but its’ genesis appeared to have been as a result of earlier negotiations between the parties where the father was prepared to concede a hyphenated name if that would settle the matter.  The mother was not prepared to accept a hyphenated name and whilst the father was initially opposed to such an outcome, in his final submissions he conceded that he would not oppose such an outcome, although it was not his first preference.

4. There was some discussion as to whether “Sakhagi” could be adopted as a third given name rather than a surname, hyphenated or otherwise.  It is a fair reflection of the presentation of the parties that neither was interested in that option.

5. The Full Court gave consideration to the change of a child’s surname in Chapman & Palmer (1978) FLC 90-510. At 77,674 the Full Court said:-

   The general principle appears to be that the Court will not intervene to prevent a parent from changing the surname of a child in the custody or care and control of that parent (or to direct that a name be restored where a change has occurred), unless the Court is 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 same principle applies when the Court is asked to direct that a surname be restored where a change has already occurred.  In deciding the issue in each case there is no onus of proof.  It is for the Court to balance in its discretion the factors for and against change.  The guiding principle is that the welfare of the child is the paramount consideration.  It must stand above the wishes or proprietary interests of the parents.

6. The Full Court provided further assistance at 77,675 – 77,676:-

   …the factors to which the Court should have regard in determining whether there should be any change in the surname of a child include the following:

   (a)The welfare of a child is a 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 is 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 or relationship; and

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

STATUTORY FRAMEWORK

1. The matter of the child’s surname is a parenting consideration and must be considered pursuant to the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. Section 60B of the Act provides the objects of the Act and focus on the Court’s obligation to ensure that the best interests of the child are met.

3. I am required pursuant to s 60CA when considering what orders to make to have regard to the best interests of the child as the paramount consideration. In order to better determine what is in a child’s best interests, s 60CC of the Act must be applied and considered. I am to have regard to the “primary considerations” (s 60CC(2)) and “additional considerations” (s 60CC(3)).

FAMILY REPORT

1. The parenting arrangements for the child have been the subject of report by the report writer on 27 September 2011, 21 November 2012, 4 May 2015 and finally on 22 February 2017.  It was agreed between the parties and the ICL that the reports would be before me and there was no application for the report writer to be called to give evidence.

2. I have given careful consideration to the contents of the various reports to assist in determining the history of parenting of the parties and to gain an overview of the child’s presentation.

3. The parties have attended the “Positive Partnership/Carers Workshop” to assist in better understanding the child’s Autism and how she might best be managed into the future.

4. Whilst the tenor of the 2017 report foresaw that the parties may well reach agreement, the father’s concern in respect of the child’s surname was raised with the report writer and summarised at paragraph 6.23:-

   In relation to [the child’s] surname, [the father] said he has continually requested that [the child] be known by her correct registered birth name, [Sakhagi].  [The father] stated that as a compromise he will accept [a hyphenated name] as suggested in their current Consent Orders.  However, he very clearly stated that he will not accept [the child] saying its use is illegal and [the mother] continually calls their daughter [Brawn] within the public domain such as at school, medical appointments and so forth over the last 6 years.  [The father] reported he does not know which name [the mother] will finally agree to.

5. The report writer conferred with the head of the special education unit at the child’s school and with the child’s special education teacher.  The teacher’s assessment of the child’s behaviour is found at paragraph 10.5 of the report:-

   [The teacher] reported that [the child] is a complex case and she has observed that some of [the child’s] challenging behaviours are very much anxiety based but also a lot of them are “attention seeking” behaviours.  She stated that [the child] would like one on one contact with an adult all the time.  [The teacher] also reported that [the child] copes better emotionally if she is dropped at school and the parent leaves straight away.  [The teacher] also stated that if [the child] is late at school her anxiety symptoms increase and she can take two hours to calm down.  [The teacher] stated that when [the child] is really upset she would take herself off to the reading corner or into the teacher’s office and they gently bring her back into the class.  [The child] will often ask for her mother which may be an indication of some dependency issues between mother and child.

6. I find that at school the child is known by “Brawn” and not “Sakhagi”.

EVIDENCE OF THE PARTIES

The mother

1. The mother relies upon her affidavit filed 14 March 2017.

2. Her evidence is that from birth, whilst the birth certificate reflects the name “Sakhagi”, in all aspects of the child’s life she has been known as “Brawn”.  The birth certificate was a compromise between the parties in that unless the surname of the child was included as “Sakhagi”, the father would not sign the document.  In the absence of the father’s signature the birth certificate would have reflected that the child’s father was unknown.  The mother found that to be unpalatable.

3. The first document that reflects the child’s surname as “Brawn” was the child’s registration with Centrelink and Medicare.

4. Until recently, the child’s surname was “Brawn” in the hospital and medical system and with the child’s general practitioner.  At school the child is only known as “Brawn”.  The mother argues that to now introduce the name “Sakhagi” would be confusing and disconcerting to the child, heightened by the symptoms of the child’s Autism and a need for there to be regularity, routine and certainty in as many aspects of the child’s life as can be reasonably accommodated.

5. The mother denies that her use of “Brawn” as the child’s surname was the subject of conflict and disagreement.  She contends that the father well knew that she had been representing the child’s surname of “Brawn” for nine years and that whilst the father may have had a concern about how the child’s name was represented, it was never raised until the parties commenced their negotiations ultimately leading to a resolution of the substantive parenting arrangements for the child.

6. I am satisfied that for most aspects of the child’s life, she is known by the name “B Brawn”.

The father

1. The father relies upon his affidavit filed 8 March 2017.  At paragraph 7 he summarises his position namely that the child should be known by her legal name in order that there be no confusion caused.

2. He disputes the mother’s contention that the issue of the child’s surname had not been previously raised by him and at paragraph 9 the following is stated:-

   I have on many previous occasions raised with her that [the child] should be known by her legal name.  I have even taken [the child’s] birth certificate into the medical practice and requested that they change [the child’s] records to her legal name, [the mother] raised objection to this and the medical centre refused to change their records.

3. The father is also concerned that the child be able to identify with her younger half-siblings who use the surname “Sakhagi”.

4. I consider that the father was truthful in his evidence, but he did concede the child was generally known by the name of “Brawn” other than where his intervention had caused records to be altered to reflect the surname “Sakhagi”.

5. What was apparent however was the extent to which the issue can cause confusion.  The evidence revealed that each of the parties have a separate Medicare card or a reference in respect of the child.  The mother has the child on her Medicare card reflecting the surname as “Brawn”, whereas the father’s current partner organised a Medicare card for the child using the surname “Sakhagi”.  The father did not consult with the mother, nor did he advise her that he had obtained a separate Medicare card.

6. The mother is concerned that the uncertainty in respect of the child’s surname may impact on the child’s entitlement and continued involvement in the NDIS benefits.  The father’s actions obviously created some difficulty with the child’s general practitioner.

7. There needs to be a resolution given the father’s propensity to be proactive in advising the health professionals who are involved with the child’s care that they should amend their records to reflect the child’s surname as “Sakhagi” and not “Brawn”.

CONCLUSION

1. The final orders that have now been made by consent resolve the substantive parenting issues as between the parties.  The child will remain in the primary care of the mother and I am satisfied on the evidence that consideration in respect of the child’s health, behavioural management and education will fall predominantly to her.

2. I accept that the father is genuine in his desire to have his family connection reflected in the child’s surname, but the matter is to be determined by considering what would be in this child’s best interests.

3. I cannot overlook that the child has used the surname of “Brawn” for nine years with the father’s knowledge and in the absence of any action taken by him, with his tacit consent.

4. Whilst there may be some uncertainty as to the extent that the child identifies with any surname, the preponderance of the evidence supports the name “Brawn” as the name by which she is known at school, government departments and certainly when in the mother’s care, socially.

5. The father ensures that in his home the child’s surname is “Sakhagi”, but overwhelmingly the child has been known as “B Brawn”.

6. There can be no advantage to the child in frequent changes of the child’s surname depending upon whether the child is in the care of the mother or the father, or if the father decides to take some pre-emptive action in relation to the child’s health providers.

7. The child’s life has been conducted using the surname of “Brawn” and in the circumstances of this case I do not consider it would be in the child’s best interests to now revert to a name that she is not familiar with and does not reflect the child’s engagement in the wider community, but in particular in terms of government departments and health professionals that are integral to this child’s development going forward.

8. I have also considered whether there should be a hyphenated name adopted.  The mother does not want that as an option and it must be said that the father is equivocal.  As was held by Warnick J in Fooks & McCarthy (1994) FLC 92-450:-

   As I indicated in my earlier decision the utility of a general adoption in society of hyphenated surnames is doubtful.  However, in that case in which, in but one of the contrasts to the present case, I could not find a particular attachment by the child to one surname to the exclusion of the other surname, I was persuaded by the benefits of the hyphenated surname, that the use of that surname was in that child’s best interests.

9. I have found that the child has “a particular attachment” to “Brawn” as a surname and accordingly I do not consider there is any advantage to the child in a hyphenated surname.  If anything, such an outcome might appease the parents, but does nothing to provide this child with stability and certainty.

10. I make orders as appear at the commencement of these reasons.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 23 March 2017.

Associate:

Date:  23 March 2017