Samantha Jane Moore v Jonathon Michael Blackburn
[2010] ACTSC 143
•4 NOVEMBER 2010
SAMANTHA JANE MOORE v JONATHON MICHAEL BLACKBURN
[2010] ACTSC 143 (4 NOVEMBER 2010)
CHILDREN – application to change child’s surname – child’s welfare is paramount.
PRACTICE AND PROCEDURE - application to change child’s surname – child’s father is not an applicant – attempts made to notify child’s father of application to change surname considered satisfactory – application to change child’s surname approved.
Births, Deaths and Marriages Registration Act 1997 (ACT) ss 19(3), 19(4)
Family Law Act 1975 (Cth)
Chapman v Palmer (1978) 4 Fam LR 462
C v B (2007) 38 Fam LR 1
In the Marriage of Skrabl v Leach, (1983) 13 Fam LR 83
Inthe Marriage of Mahony v McKenzie (1993) 16 Fam LR 803
In the marriage of Pylarinos v Reklitis (1979) 4 Fam LR 629
In the marriage of Beach v Stemmler (1979) 5 Fam LN N13
EX TEMPORE JUDGMENT
No. SC 623 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 4 November 2010
IN THE SUPREME COURT OF THE )
) No. SC 623 of 2010
AUSTRALIAN CAPITAL TERRITORY )
SAMANTHA JANE MOORE
v
JONATHON MICHAEL BLACKBURN
ORDER
Judge: Refshauge J
Date: 4 November 2010
Place: Canberra
THE COURT ORDERS THAT:
The proposed change and registration of Samantha Jane Moore’s daughter’s surname from Blackburn-Moore to Moore be approved.
Samantha Jane Moore, the applicant, has a daughter, (who for the purposes of these written reasons will be called [A]), now aged 10. The surname registered in the Registrar of Births of ACT for [A] is Blackburn-Moore. Her father’s name is Jonathon Michael Blackburn.
[A] has not lived with her father since about six months after her birth. Mr Blackburn now resides in the United Kingdom. Although [A] has had some contact with him, it is very limited.
She has for some time now used the surname Moore for school and social purposes. I saw annexed to Ms Moore’s affidavit of 9 September 2010 many examples of that use in school documents, documents related to social activities and documents related to academic activities.
Ms Moore now applies under s 19(3) of the Births, Deaths and Marriages Registration Act 1997 (ACT) (the Births Registration Act) for an order of this court approving the change of [A’s] name following which Ms Moore will apply to the Registrar-General for registration of the change in [A’s] surname. The approval is necessary because [A’s] father is not an applicant. The court may approve the proposed change if satisfied that the change is in the child’s best interest.
Section 19 of the Births Registration Act provides:
19 Application to register change of child’s name
(1) The parents of a child may apply to the registrar-general for registration of a change of the child’s name if –
(a) the child is domiciled or a resident in the ACT; or
(b) the child’s birth is registered in the ACT.
.....
(2) An application for registration of a change in a child’s name may be made by 1 parent if –
(a) the applicant is the sole parent named in the register or in a register kept under a corresponding law or the law of any place outside Australia; or
(b) there is no surviving parent of the child; or
(c) the Supreme Court has approved under subsection (3) the proposed change of name.
(3) The Supreme Court may, on application by a child’s parent, approve a proposed change of name for the child if satisfied that the change is in the child’s best interests.
(4) The Supreme Court must not dispose of an application under subsection (3) unless satisfied that the registrar-general has been notified of the application.
The reason for the difference between an application by both parents (subsection 1) and one parent (subsection 2) is perhaps obvious, but it has a legal basis that I will address below.
The law regarding name changes was considered by the Full Court of the Family Court of Australia in Chapman v Palmer (1978) 4 Fam LR 462. Despite its age, it appears to be still regarded as authority: see C v B (2007) 38 Fam LR 1 (at 26 [107]).
In Chapman v Palmer, the unanimous court described the situation in relation to changes of surname as follows (at 465-6):
At common law an adult may assume any surname by using such name and becoming known by it. A surname is not a matter of law but matter of repute: R v Smith (1865) 4 F & F 1099; Re T (Orse H) [1963] I Ch 238 at 240; [1962] 3 All ER 970; Cowley v Cowley) [1901] AC 450 at 460.
It has been held, however, that an infant is not competent to change his or her name without parental consent (Re T)...
The surname by which a child is known is generally that entered by the parents on the birth certificate. It has been held that the mother may not enter on the birth certificate a name other than that of the father to whom she was married at the time of conception unless with his consent in writing or in an order of the court (D v B (Orse D) [1977] 3 All ER 751). This principle applies even if the parties separated before the birth.
A child will generally be known by the name given to him or her by the parents at birth (subject to what is said above). This arises both from the parents’ acts and from the assumptions of others.
The child will generally be assumed to have the surname of the parents or the parent with whom that child lives. This assumption may arise without any overt act on the part of the parent or child.
The difficult question is whether and in what circumstances a parent or a child may by any overt act, formal or informal, seek to have a child known by a name different from that by which the child has been known formally.
In the case of an adult a change of name can be effected without formal steps; the effectiveness of the change depends upon usage and reputation. Formal steps can be taken to assist the process, such as advertising in a newspaper or executing a statutory declaration or deed poll and having the instrument registered.
The surname by which a minor is known will depend almost exclusively on the actions and intentions of the adult or adults in whose custody the child is. It is in the power of his custodians to ensure that he or she is known by the surname they choose, whether as a member of the household, in the neighbourhood, in registering at school, in medical insurance, taxation return or for whatever purposes it is necessary or convenient to use a surname. They have the same capacity to change the child’s surname as to change their own. A child need not be given and need not retain the name of his parent or custodian, but whatever name is chosen by his custodians must be established by reputation and usage.
A minor may have the ability, within limits, to bring about a situation in which he is known by a surname of his own choosing. This is more likely to be possible where the minor is approaching majority and where he lives apart from his custodian or where the custodian agrees or does not object to the chosen name.
A younger child residing with and dependant on a parent may have little opportunity to establish a new name for himself without the concurrence of that parent. It is a nebulous area so far as the law is concerned, since it involves partly the question of the child’s power to act independently and partly the question of fact whether a particular name is established by repute and usage. Since the parent will have control of most situations in which the surname is used, the younger child has little scope for independent action.
In In the Marriage of Skrabl v Leach, (1988) 13 Fam LR 83 Rowlands J described (at 84) the situation from which the court would start its consideration:
In a case where the mother assumes the father’s surname on marriage, a child is born and registered with that name and the father remains in close and continuing contact with the child as an access parent, it is normal for the child to continue to use the original name although the custodial mother may remarry or revert to her maiden name – that is currently our general custom.
I have to say that this custom may not necessarily have survived the more than 20 years since that judgement. Even five years later Warnick J Inthe Marriage of Mahony v McKenzie (1993) 16 Fam LR 803 (at 809) expressed some reservations about the prevalence of such custom.
Nevertheless, the law seems clear about the right of a parent to change the surname of a child and the role of the court. In Chapman v Palmer, the court said (at 468-9):
In regard to the surname of a child, the change or retention of a particular name may affect the child in a number of ways. The most common situation is one in which the desire of the father to maintain a close relationship and identity with the child is in conflict with the desire of a mother, on remarriage, to establish a new family unit, identifiable as such. The desires of the parents are, however, of secondary importance when put alongside the welfare and the wishes of the child in question. Because a change in a child’s surname may cause him or her confusion and because the issue usually arises between the parents the court will exercise a supervisory role in the matter when called upon to do so.
It does not follow that it is essential for a custodial parent in every case to make application to the court to change the surname of a child...There are cases where the custodial parent may effect a change in the child’s surname without the consent of the other parent or the leave of the court. The other parent may have no objection, may have no interest, may not be traceable or may be dead. In circumstances such as those the custodial parent may take action which is effective, so far as third parties are concerned to change the child’s surname; this is largely a question of fact, depending partly on the parent’s actions and partly on recognition of those actions.
The other parent would not be precluded from making an application to the court to reverse the change. As in the present case, this is the manner in which the issue often arises. However it arises, the issue before the court is always the same - what should be done to promote the welfare of the child. The court is concerned only with that issue and will not decide the case on the technical ground of whether the parent had or did not have the right to change the child’s name.
The appellant in the present case submitted that his Honour approach the case as if it were the wife’s application. The issues are the same, however, as if the wife has applied for an order. The only difference is that the court must consider the effect on the child of reversing a change which has occurred.
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 court then identified (at 471) the factors it said were relevant. These were:
To summarise, the factors to which the court should have regard determining whether there should be any change in the surname of a child include the following:-
(a) The welfare of the child as the 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 to 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 parent whose name the child bore during the marriage.
(f) The effect of frequent or random changes of name.
It seems appropriate to include, as did McCall J in In the marriage of Pylarinos v Reklitis (1979) 4 Fam LR 629 (at 633) the wishes of the child as a relevant factor. These were added to by Connor J in In the marriage of Beach v Stemmler (1979) 5 Fam LN N13 where his Honour, after referring to the factors referred to in Chapman v Palmer, held:
Additional relevant considerations are:
(a) Both long and short term advantages if the name remains as it is now.
(b) The contact the father has and is likely to have with the children.
(c) The degree of identification with the father.
(d) The degree of identification with the mother and the stepfather.
(e) The degree of identification with any child to be born to the mother and the likely confusion if the father’s name is restored.
(f) Desire of the father to have the original name restored, while that is a relevant consideration it should be subordinate to the overall welfare of a child.
(g) Obiter: a child’s wishes may be relevant.
I note the useful discussion by Warnick J in In the marriage of Mahony v McKenzie about names created by hyphenating the surnames of the child’s parents. Though, of course, there are many reasons for that, her Honour did enumerate a number of benefits including a compromise where there was a dispute and a continuing identification with both parents after separation where there is a real connection with both parents. That circumstance does not pertain here.
While the considerations relate to the issue of retaining or changing a name is in the family law context, it seems to me helpful as an identification of what is relevant for the consideration, under s 19(3) of the Births Registration Act, of the child’s best interest.
I pause to note that it is arguable that this court has no power to change the child’s surname. Chapman v Palmer held that the change of surname was part of the power in relation to custody in the court and that would appear to mean that the approval of a change of name may be within the jurisdiction of the Family Court of Australia or courts exercising power under the Family Law Act 1975 (Cth).
If that is so, I can rely on the decision of the New South Wales Local Court at Goulburn made on 23 July 2010 where it ordered:
(1) That the service of this application on the Respondent be dispensed with.
(2) That the consent of the Respondent Father be dispensed with.
(3) That the court make the declaration that it is in the best interests of the child of the relationship, namely, [A] born on [date provided] that her name be changed to [A] Moore.
(4)(a) That the mother be authorised to apply to the Register of Births Deaths and Marriages that the child previously known as [A] Blackburn-Moore be now registered as [A] Moore.
(4)(b) That the sealed copy of this order be served upon the Registrar of Births Deaths and Marriages who is requested to give effect to such an order.
(5) That the applicant mother be authorised to make application for the said child of the relationship in the name of [A] Moore without obtaining the consent of the Respondent Father.
(6) The Applicant mother is authorised to apply for a passport of the said child of the relationship in the name of [A] Moore without obtaining the consent of the respondent father.
Section 19(4) of the Birth Registration Act requires that the Registrar-General have notification of the application. I have received an affidavit of Ms Kaylah Noonan sworn 2 November 2010 deposing to the service of the originating application and an affidavit of the applicant sworn 9 September 2010 deposing to service on the Registrar-General. I am satisfied that s 19(4) has been complied with.
I note that it has not been possible to serve Mr Blackburn, the defendant, with these proceedings. My reading of s 19 of the Birth Registration Act is that it does not require service on Mr Blackburn, although obviously there would be some desirability of him at least knowing of the application.
I have read carefully the affidavit of Ms Moore sworn 9 September 2010, in which she deposes to attempts made to ensure that Mr Blackburn is aware of the application. I note that contact has been made with the paternal grandparents of the child and they are clearly aware of the application and have forwarded on to their son details of the application. In my view, nothing further is required of the applicant in these circumstances and I am prepared to proceed to deal with the application.
I read, in addition to the affidavit of Ms Moore, sworn 9 September 2010, a copy of the affidavit, the original of which was filed in the NSW Local Court at Goulburn on 23 July 2010, being an affidavit of 16 July 2010, that presumably was used in support of the application for the orders of the NSW Local Court at Goulburn that I have referred to above (at [17]). It detailed the contact, or, more fairly, the lack of contact, between [A] and her birth father. He had, apart from the initial period of six months, virtually no significant contact with her, and the evidence suggests that he has shown little interest in having any more contact. There have been periods as long as two years when there has been no contact whatsoever. He even failed to see her on Christmas day when she and her mother travelled to the United Kingdom in 2005. He has not spoken to her since early 2008.
He has made no financial contribution to her education or advancement, apart from some money forwarded to her shortly after her birth when Ms Moore and Mr Blackburn returned to Australia from the United Kingdom. This was before their separation in June 2001 and his return to the United Kingdom.
[A’s] paternal grandparents have given support to [A] and to Ms Moore. They paid for the trip Ms Moore and [A] made to the United Kingdom in 2005. The grandparents obviously have confidence in Ms Moore and [A’s] paternal grandmother described her as “a good mother”. Naturally, they seek to remain in contact with [A]. The evidence was that [A] has much contact, and identifies very closely, with Ms Moore’s family.
As noted above, her school and formal expectation is that she would be known by the name [A] Moore, and that appears to be her name. In any event, a court acting under the Family Law Act 1975 (Cth) has approved the change of name.
In all the circumstances it is clearly in [A’s] best interests that her birth certificate be changed to formalise the reality that her name is now [A] Moore. Accordingly, I approve the proposed change in the registration of her surname from Blackburn-Moore to Moore.
I consider that the attempts that have been made to serve the defendant with the application regarding the proposed change to [A’s] surname are sufficient. Accordingly, I will order that the registration of the surname of [A] Blackburn-Moore to [A] Moore be approved.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 15 November 2010
Counsel for the applicant: Ms R Davidson
Solicitor for the applicant: Dobinson Davey Clifford Simpson
Date of hearing: 4 November 2010
Date of judgment: 4 November 2010
0
0
2