Scoskinski and Szok - [2008] FamCA 438

FAMILY COURT OF AUSTRALIA

SCOSKINSKI & SZOK

[2008] FamCA 438

FAMILY LAW – CHILDREN – change of name

Family Law Act 1975 (Cth) s 60CC

Fooks v McCarthy (1994) FLC 92-450
Flanagan v Handcock (2001) FLC 93-074
Henry & Donald (2007) Fam CA 876
Re Skipworth; Maney and Skipworth (1989) FLC 92-018
Director-General, Dept of Community Services v Adoptive Parents (2006) 34 Fam LR 372

APPLICANT:

Mr Scoskinski

RESPONDENT:

Ms Szok

FILE NUMBER:

SYC

5336

2007

DATE DELIVERED:

13 June 2008

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

12 February 2008 and
19 March 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

The mother and father are restrained from using any name other than Szok for the female child of the parties born in October 2005 called in the birth registration … Szok.
The mother and father must ensure that the child uses only that name.
With the consent of the mother, the mother is restrained from using any other surname other than Szok.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5336 of 2007

Mr Scoskinski

Applicant

And

Ms Szoc

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The only issue remaining outstanding in this matter is the surname by which the parties’ child born in October 2005 (2 years 5 months) will be known.
The mother uses the surname Szoc. The father uses the surname Scoskinski.
The child has been known since her birth by the surname Szoc. The mother asserts that this was an agreement the parties reached by themselves shortly after the child’s birth. The father alleges that there was collusion between the mother and her current partner prior to the birth and immediately after the birth and that he was led into an agreement as to the child’s name shortly after her birth in circumstances, in which, upon reflection, he now believes were fraudulent.
On 12 February 2008 I made final parenting orders in relation to the child, resolving all other outstanding issues between the parties in the following terms:
1.The parents of [the child] born […] October 2005 (“[the child]”) have equal shared parental responsibility.
2.Until the mother engages in full time employment or [the child] starts school, [the child] will spend time with her father from 5.30pm Friday to 8.30am Monday each week and otherwise live with her mother.
3.Upon the happening of either the two events referred to in Order 2, then the current arrangement will change so that [the child] spends the following time with her father:
Week 1:
3.1.     5.30pm Monday to 8.30am Wednesday
3.2.     5.30pm Friday to 8.30am Monday
Week 2:
3.3.     5.30pm Wednesday to 8.30am Friday
and [the child] otherwise live with her mother.
4.[The child] will spend one half the gazetted schools holidays with each of…

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.

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Details

Case: [2008] FamCA 438
Decision Date: 13 June 2008

CaseChat Overview and Summary

In the matter of *Scoskinski and Szok*, heard before Watts J, the dispute concerned the surname of a female child born in October 2005. The child was registered with the surname Szok, but the parents, the mother and father, were using a different surname, Scoskinski, for her. This led to an application for orders regarding the child's surname.

The central legal issue before the court was whether to make orders restraining the parents from using a surname other than Szok for the child and requiring the child to use only that surname. A further issue arose concerning the mother's use of surnames, with a specific question as to whether she should be restrained from using any surname other than Szok, subject to her consent.

Watts J reasoned that the court had the power to make such orders under the relevant family law legislation, particularly where it was in the best interests of the child. The judge considered the implications of the child being known by two different surnames and the potential confusion and difficulties this could create. The court ultimately made orders restraining both the mother and father from using any name other than Szok for the child and mandating that the child use only that surname. Additionally, with the mother's consent, she was restrained from using any surname other than Szok.

Orders

Orders of the court

The mother and father are restrained from using any name other than Szok for the female child of the parties born in October 2005 called in the birth registration … Szok.

The mother and father must ensure that the child uses only that name.

With the consent of the mother, the mother is restrained from using any other surname other than Szok.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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