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

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

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”.
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

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.
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.
On 9 March 2013 the mother made allegations that the…

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 SAKHAGI & BRAWN

Details

AGLC: SAKHAGI & BRAWN [2017] FamCA 178
Case: [2017] FamCA 178
Decision Date: 23 March 2017

CaseChat Overview and Summary

In the matter of *Sakhagi & Brawn*, heard before Berman J, the dispute concerned an application by the mother to change the surname of the child from "Sakhagi" to her maiden name, "Brawn". The father opposed this application, arguing that the child should retain her legal surname to prevent confusion, despite the child having been known socially by the mother's maiden name. The court was required to consider the paramount consideration of the child's best interests when determining whether to grant leave for the surname change.

Berman J granted the mother's application to change the child's surname. The court's reasoning, while not detailed in the provided text, would have involved weighing the competing interests of the parents against the welfare of the child. The fact that the child was already known socially by the proposed new surname likely played a significant role in the court's determination that the change was in the child's best interests. The legal principle applied is that in all matters concerning children, their welfare is the primary consideration.

The court ordered that the child, born "B Sakhagi" in 2008, would henceforth be known by the name "B Brawn". Both the mother and the father were directed to take all necessary steps to effect this legal name change within fourteen days of the order. Additionally, the order appointing an Independent Children's Lawyer was discharged.

Orders

Orders of the court

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”.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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