Sander & Hearn

[2012] FMCAfam 812

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SANDER & HEARN [2012] FMCAfam 812

Catchwords:
FAMILY LAW – Children’s matter – change of name – mother seeks a change of name from the married name of Sander which the two children aged 7½ and 5½ have always used to a hyphenated name of Hearn-Sander to incorporate mother’s recent reversion to her maiden name – Held not in children’s best interest for the surname to be changed.

Family Law Act 1975

Chapman & Palmer (1978) FLC 90-150

Applicant: MR SANDER

Respondent: MS HEARN

File Number: ADC 4850 of 2009

Judgment of: L. Turner FM

Hearing dates: 23 and 24 July 2012

Date of Last Submission: 24 July 2012

Delivered at: Adelaide

Delivered on: 27 July 2012

REPRESENTATION

Counsel for the Applicant: Mr Richards

Solicitors for the Applicant: Lempriere Abbott McLeod

Counsel for the Respondent: Mr Bowler

Solicitors for the Respondent: Robinson & Mason

ORDERS

1. That the children of the marriage are to be known for all purposes as [X] born on (omitted) 2004 and [Y] born (omitted) 2006.

IT IS NOTED that publication of this judgment under the pseudonym Sander & Hearn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 4850 of 2009

MR SANDER

Applicant

And

MS HEARN

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. The parties in this matter after much negotiation have, to their credit, managed to reach agreement on all property orders and the majority of children’s orders. 

2. The one outstanding issue is regarding the surname of the two children of the relationship [X] aged 7½ and [Y] aged 5½. 

Issues

1. The mother seeks that the children’s surname be changed to a hyphenated name of Hearn-Sander in recognition of each parent’s surname and acknowledgement of the children’s parentage.

2. The father is vehemently opposed to the application and requires the children to retain the surname of Sander. 

3. The evidence before me regarding this issue is extremely scant. 

4. Not raised in any previous applications, nor the topic of discussion in the evidence by the family consultant, the evidence is restricted to one paragraph of the mother’s affidavit at [95]:

   “I have now changed my surname back to my maiden name, Hearn.  I believe it is in the best interests of the children for their surnames to be changed to Hearn-Sander to appropriately reflect their parentage.”

5. Oral evidence was not given and cross-examination did not occur. 

6. In determining this issue, I have taken into account the oral submissions of the parties. 

7. Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.

Should there be a change of name for the children? 

Facts

1. Before considering the law as to the change of name for children, it is useful to look at a snapshot of the agreed facts:

   a)The parties Mr Sander and Ms Hearn married in 2000 at which time the mother adopted the father’s surname of Sander;

   b)In 2004 [X] was born and on his birth certificate the name Sander appears as his surname;

   c)In 2006 [Y] was born and on her birth certificate the name Sander appears as her surname; 

   d)In 2007 the parties separated at which time [X] was aged 3 and [Y] was aged 1; 

   e)Since 2007 the children have always been known by the surname of Sander;

   f)Since 2007 until just before the hearing date the mother was known by her married name of Sander. 

The Law

1. The principles regarding a change of name for children are articulated in the Full Court decision of Chapman & Palmer (1978) FLC 90-150.

2. In summary the court must given consideration to:

   a)The welfare of the child being the paramount consideration;

   b)Any short or long term effect of any change in the child’s name;

   c)Any confusion of identity which may arise for the child of a name change if a name change does or does not occur;

   d)Any embarrassment that the child may experience if their name is different to that of the primary carer;

   e)The effect that any change of name may have on the child’s relationship with the parent whose name the child bears; and

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

Conclusion

1. I find having considered the law and the submissions that it is in the children’s best interests for their surnames to remain as Sander based on the following: 

   a)This is the name that has always been used for the children, and the name that the children know themselves and each other by;

   b)There is no evidence before the court that the children are even aware of the mother’s surname or maiden name of Hearn;

   c)On the balance of probabilities, it is unlikely, as the mother has been known by the name of Sander until recently;

   d)I therefore do not accept the mother’s submission that the inclusion of her maiden name in the children’s surname would appropriately “reflect their parentage”;

   e)Further there is no evidence that the children are confused as to their parentage or as to the role of the mother and father in their lives should they retain the name of Sander;

   f)I find, with the children aged 7½ and 5½ that a name change would be confusing for the children and may result in short-term negative impact on the children;

   g)Whilst I do not find that a name change would impact on the children’s relationship with either parent, it may result in a temporary questioning of their identity, as a hyphenated name would give the children a surname that differs from that of their father and differs from that of their mother;

   h)Lastly the application for change of name appears to be more of an application to benefit the mother, now that the mother has decided to revert to her maiden name, rather than being an application made in the best interests of the children. 

2. I therefore order that the children’s surname remain the name of “Sander”.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of L. Turner FM

Date:  7 August 2012