U and E
[2005] FCWA 21
•2 MARCH 2005
JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA
| ACT: | FAMILY LAW ACT 1975 | ||
| LOCATION: | PERTH | ||
| CITATION: | U and E [2005] FCWA 21 | ||
| CORAM | : PENNY J | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN | : U |
Applicant/Father
AND
ERespondent/Mother
Catchwords:
Children's issues - change of name
Legislation:
Family Court Act 1997
Category: Not Reportable
Representation:
Counsel:
| Applicant: | Self Represented Litigant |
| Respondent: | Ms R Reader |
| Department for | |
| Community Development: | Mr D Childs |
Solicitors:
| Applicant: | Self Represented Litigant |
| Respondent: | Legal Aid WA |
| Department for | |
| Community Development: | Legal Practice Services, |
| Department for Community Development |
Case(s) referred to in judgment(s):
Chapman and Palmer (1978) FLC 90-510
Flanagan & Handcock (2002) FLC 93-102
1 Before me are a number of applications and responses filed by the father Mr U (“the applicant”) and the mother Ms E (“the respondent”) relating to the surnames of three children. The first is the applicant’s From 1 Application filed 24 June 2004, in which he seeks an injunction to prevent the respondent from registering the parties’ child DL, born 21 December 2002, with the Registrar of Births, Deaths and Marriages, with any surname other than U. He also seeks an injunction to prevent the respondent from changing DL’s name, or the child WL’s name without his written consent.
2 The respondent in her Form 1A Response filed 22 October 2004, seeks to register DL with the surname of E. In her Form 1 Application, filed 30 September 2004, she seeks to change the name of the child registered as WL U to WL E. The respondent also filed a From 2 Application, on 17 January 2004, in which she seeks to register the child J in the name of J E-H.
Background and history of the children and relationship of the parties
3 WL was born on 18 February 1997 in Queensland. Her biological father is BA. He has had no contact with her since she was born.
4 The parties began a relationship in May 1998. They agreed to raise WL with the applicant as her “father figure”. In March 2000, they applied to have the applicant named as WL’s father on her birth certificate and for WL’s surname to be changed to U. Despite having her name changed the respondent says she and the applicant continued to refer to WL with the surname E.
5 In 2000 the parties moved to Western Australia and two years later DL was born. The respondent says she did not complete or sign forms for the registration of DL’s birth and left the documents with the applicant. He says the respondent did sign the documents, however, they were never registered.
6 In July 2003 the parties separated. It appears that the separation occurred in violent circumstances and the respondent moved to live in a refuge.
7 In January 2004, the respondent was advised by the Department of Community Development (DCD) that DL’s birth was never registered. Around this time the applicant forwarded the registration form for the birth of DL to the respondent, using the surname U.
8 On 13 February 2004, orders were made by consent in the Children’s Court that WL and DL be committed to the care of the DCD for 5 years. The girls are currently in foster care and have not had contact with the applicant since they were taken into care.
9 On 12 July 2004 the respondent gave birth to a son J. She believes J’s father is her partner RH, however, she acknowledges there was a brief period of reconciliation with the applicant, which raises the possibility that the applicant is J’s father.
10 On 2 March 2004, the applicant wrote a letter to the Registrar of Births Deaths and Marriages denying that J was his son. He then changed his position and on 14 July 2004 filed a Form 2 Application claiming to be the biological father and wanting him registered with the name of U.
11 On 11 August 2004 an interim injunction was granted restraining the respondent from registering J with the Registrar of Births Deaths and Marriages and the child was to undergo parentage testing procedures. The cost of this was to be shared. J has remained in the respondent’s care. She currently resides with RH.
12 The orders requiring each of the parties to undertake parentage testing procedures have not been carried out. In September 2004 the respondent paid her half of the monies to Genetic Technologies Corporation Pty Ltd. She has been waiting to undergo the testing with J at any time. The applicant has failed to provide his monies or undergo the test, despite several reminders by the respondent’s counsel and notification from Genetic Technologies that they have not received the monies. He stated that he would pay the monies and undergo the test if given extra time.
13 In considering an application for a change of name the best interests of the child are the paramount consideration. Flanagan & Handcock (2002) FLC 93-102.
14 In Chapman and Palmer (1978) FLC 90-510 the Full Court stated that when considering an application for change of name, the Court was to balance in its discretion the factors for and against a change. The Full Court also set out a number of factors which should be taken into account when considering what would be in the best interests of the children. These are:
• the short and long term effects of any change in the child's surname;
•
any embarrassment likely to be experienced by the child if his or her name is different from that of the parent with custody or care and control;
•
any confusion of identity which may arise for the child if his or her name is changed or not changed;
•
the effect any change in the surname may have on the relationship between the child and the parent whose name the child bore during the marriage; and
• the effect of frequent or random changes of name.
Short and long term effects of any change in the child's surname
15 WL and DL have been placed together in foster care for a period of 5 years. They have had a very unstable and troubled childhood. It is therefore very important for any further changes in their lives to be minimised so as to promote stability.
16 The effect of a change on WL will be greater then for DL as she identifies herself as an E and has expressed a wish to have the same surname as her mother. As DL is only 2 years old, the short- term effect of any change will be of little significance, however, the girls are closely bonded and are not living with either of their parents or other family members. It is therefore important that the girls share the same surname, so they will have a shared sense of identity and family. In the future this shared name will be important for DL.
Any embarrassment likely to be experienced by the child if his or her name is different from that of the parent with custody or care and control;
17 WL’s carers, teachers and friends know her by the surname of E. Under these circumstances, I do consider there is some risk of embarrassment for her if her name is changed.
18 There is also the risk of embarrassment if the children have different surnames. This is especially so because the girls are under the care and protection of the DCD and think of themselves as a family group. There may also be some embarrassment if the girls have a different surname to their mother as she has been their primary caregiver until they were taken into care by the DCD. She has continued to have contact with the girls. If RH is the father of J, their brother will also share the name E.
Any confusion of identity which may arise for the child if his or her name is changed or not changed;
19 I am satisfied WL has been known by third parties as an E and that she identifies herself as an E. This has been the name used with various educational institutions where she has been enrolled, for Medicare purposes, for Centrelink matters, for medical purposes, by the DCD, agencies in Queensland and South Australia, the Children’s Court, the police and in documents at the Family Court. The father has even referred to her with the surname E. She has only been a U on the registration form. To commence using the surname U will cause WL confusion and require explanation to various organisations. WL has not had an easy childhood. Her biological father has not been involved in her life, she has had to live in a refuge and now has been placed in care. It is vitally important that WL, in the future, has as little disruption to her life as possible.
20 I also accept DL has been known by third parties as an E. This includes by the respondent, her current carers, the DCD, the Courts and police. To change her name will also cause some confusion to her carers.
The effect any change in the surname may have on the relationship between the child and the parent whose name the child bore during the marriage
21 The applicant is concerned that a change in name will effect the relationship he has with his daughters. I do not accept this is the case. The applicant is not WL’s biological father. He has had no contact with the girls since they were taken into care. As a result they do not have a close relationship with him. There are a number of issues relating to violence which must be investigated before any contact can be resumed between the applicant and the girls.
22 The respondent has been the primary caregiver for the children until they were committed to the care of the DCD. She is having contact with the girls.
The effect of frequent or random changes of name
23 It is undesirable for children and the community for names to be changed regularly. WL’s name has been changed once previously. It is unlikely that there will be any further attempt to change her name. There is no suggestion, for example, that it is likely that the respondent will seek to have her name changed to her partner’s name.
Conclusion
24 After giving the matter careful consideration in my view the possible benefits to WL of changing her surname to E are outweighed by the possible adverse consequences. In particular I consider that there will be:
•
embarrassment for WL if she is referred to by any other surname than E; and
• unnecessary confusion for WL and those with whom she associates. In addition it is WL’s wish to be known as E.
25 I am satisfied it is in the girls best interests to have the same surname. They are closely bonded to one another and need to have a family identity, therefore it is in DL's best interests she have the surname E.
26 In relation to J, the applicant has been asked to undergo parentage testing. It is the respondent’s evidence that her partner RH is his biological father. She has taken the required steps for the testing to be done. Despite ample opportunity the applicant has still failed to deposit his money and have the test done. Because there is some evidence that the applicant could be the biological father of J I shall give him one more chance. If he does not undergo the test as required by the orders within 14 days, I will give the respondent leave to register J in the name of E-H. J is already 6 months old and it is in his best interests that he is registered as soon as possible.
Proposed Orders
1 The applicant has 14 days to complete parentage testing, at Genetic Technologies Corporation Pty Ltd.
2 If the applicant fails to complete the parentage testing within 14 days, paragraphs 1, 2 and 3 of the orders made on 11 August 2004 by the Court of Petty Sessions be discharged and the respondent is permitted to register the child J, born 12 July 2004, with the surname of E-H with the Registrar of Births Deaths and Marriages.
3 Should the applicant complete the parentage testing as required then there be liberty to apply in relation to the child J.
4 The respondent be given leave to change the surname of the child WL born 18 February 1997, from U to E.
5. The Registrar of Births Deaths and Marriages in the State of Western Australia be directed and is authorised to alter the Birth Certificate of WL to reflect the change in the WL’s surname from U to E.
6. The respondent be given leave to register the child DL, born 21 December 2002, with the surname of E with the Registrar of Births Deaths and Marriages.
7. The applications and responses are otherwise dismissed.
I certify that the preceding [26] paragraphs are a true copy of the
reasons for
judgment delivered by this Honourable Court
Associate
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