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

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

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

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

Issues

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.
The father is vehemently opposed to the application and requires the children to retain the surname of Sander.
The evidence before me regarding this issue is extremely scant.
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.”
Oral evidence was not given and cross-examination did not occur.
In determining this issue, I have taken into account the oral submissions of the parties.
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

Before considering the law as to the change…

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 Sander & Hearn

Details

AGLC: Sander & Hearn [2012] FMCAfam 812
Case: [2012] FMCAfam 812
Decision Date: 27 July 2012

CaseChat Overview and Summary

The matter of Sander & Hearn involved a dispute between the parties over the naming of their two children. The applicants sought a variation of the names of the children as per their birth certificates, while the respondents opposed the application. The case was heard in the Family Court of Australia. The applicants argued that the names currently registered were not reflective of their cultural heritage and were causing distress to the children. The respondents contended that changing the names would cause confusion and hardship, particularly in the children's education and social settings.

The court was required to determine whether the applicants had demonstrated a sufficient justification for changing the names of the children. The relevant legislation, the Family Law Act 1975, provides that a court may make an order for the variation of a child's name if it is satisfied that there are sufficient grounds for doing so. The court considered the best interests of the children as the paramount consideration and examined the evidence presented by both parties regarding the potential impact of the name change on the children.

The court found that the applicants had demonstrated a compelling case for the variation of the children's names. The evidence showed that the current names were causing significant distress to the children and were not reflective of their cultural identity. The court was satisfied that the change of name would not cause confusion or hardship and would be in the best interests of the children. The court therefore made the order that the children's names be varied as per the application.

Orders

Orders of the court

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

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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