Zacharia and Zacharia - [2017] FamCA 482

FAMILY COURT OF AUSTRALIA

ZACHARIA & ZACHARIA

[2017] FamCA 482

FAMILY LAW – CHILDREN – Ex Tempore Judgment – Where substantive parenting issues finalised by consent – Where discrete issue as to the child’s surname outstanding – Where the mother seeks that the child’s surname be hyphenated and contain both parents’ names – Where regard had to the child’s young age – Where the child has a meaningful relationship and identifies with both parents – Where a it is in the best interests of the child to have a hyphenated surname – Orders made.

Births Deaths and Marriages Registration Act 1995 (Cth) s 28
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Chou & Parsons [2017] FamCA 65
In the Marriage of Beach & Stemmler (1979) FLC 90-692
In the Marriage of Chapman & Palmer (1978) FLC 90-510
In the Marriage of George & Radford (1976) FLC 90-060
Reynolds & Sherman [2016] FamCAFC 240

APPLICANT:

Mr Zacharia

RESPONDENT:

Ms Zacharia

FILE NUMBER:

ADC

4589

2014

DATE DELIVERED:

23 June 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Hannam J

HEARING DATE:

23 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Horvat

SOLICITOR FOR THE APPLICANT:

Judith Jordan

COUNSEL FOR THE RESPONDENT:

Ms Dickson

SOLICITOR FOR THE RESPONDENT:

Howe Jenkin

Orders

That both parties do all things and sign all documents necessary to change the surname of B with the Registry of Births Deaths and Marriages and with any other body or institution holding records or enrolments in respect of the child and that pursuant to section 28(5) of the Birth Deaths and Marriages Registration Act 1995 the Registrar register the child’s name in the form specified above and that both parties be restrained by injunction thereafter from changing B’s name and/or referring in any way to, or calling B by any name other than B Zacharia-H and from using any other name to register or enrol B with any group, body or institution.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zacharia & Zacharia has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4589 of 2014

Mr Zacharia

Applicant

And

Ms Zacharia

Respondent

EX TEMPORE REASONS FOR JUDGMENT

B is a little boy of three and a half. His parents, Mr Zacharia, (“the father”), and Ms Zacharia, also known as Ms H, (“the mother”), who separated when B was 10 months old, have reached agreement concerning most matters relating to the child’s future parenting. Final orders reflecting this agreement were made earlier this week. The mother also seeks a further order with respect to a change of the child’s surname, seeking that it be hyphenated and contain both parents’ surnames, which is opposed by the father. Both parties agree, however, that once the issue of the child’s surname has been resolved the parties should be restrained from using any other surname for the child.
The father, who is 37, is of Country J heritage. The mother, who is 34, is of Country K heritage. The parents met in November 2009 and were married in 2012. The parties’ only child, B, (“the child”) was born in 2014. The child’s birth was registered with the surname of the father only, and at that stage the mother was also using the husband’s surname for all purposes herself. The parties separated in November 2014, when the child was 10 months old. The mother moved out of the former family home, taking the child with her.
The father commenced parenting proceedings in December 2014, and on 10 February 2015 interim orders were made with the consent of the parties, which provided for the parties to share equally parental responsibility for the child, for the child to live with the mother and spend substantial defined time with the father. Initially the father’s time with the child was supervised, but over time that requirement was not continued. The final orders made by the parties provide for the parents to equally share parental responsibility for the child, who will live with the mother and spend increasing time with the father, amounting to substantial and significant time.
The child is now three years and five months old. There is no dispute between the parties that the child recognises his Christian name, although he cannot spell or write it. There is no dispute that currently the child’s Christian name only is used at his childcare centre and that he is to commence kindergarten in January 2018. The parties have also not yet obtained a passport for the child.
The mother says that she has since reverted to using her maiden name of H for all purposes, though I note in documents filed in the parenting proceeding, including her affidavit, she uses the surname Zacharia. She says that she has not repartnered and has no intention of changing her maiden name if that were to occur.
In Reynolds & Sherman[1] the Full Court confirmed the position than an order as to a child’s name is a parenting order pursuant to section 64B(2)(i) and that the paramount consideration in making such an order is the best interests of the child. According to the Full Court, in determining whether a change of name is in the best interests of a child, the court may have regard to a number of factors, including but not limited to comparative short- and long-term effects of a change of name, whether the child has a meaningful relationship and identifies with each parent and the name they bear and whether the child would be unnecessarily subjected to confusion of identity following any change of name. Other factors are referred to in various cases cited in Reynolds & Sherman and referred to in submissions by the parties today, including In the marriage of George & Radford[2], In the marriage of Chapman & Palmer[3] and In the marriage of Beach & Stemmler[4].
[1] [2016] FamCAFC 240.
[2] (1976) FLC 90-060.
[3] (1978) FLC 90-510.
[4] (1979) FLC 90-692.
The objects of Part VII of the Family Law Act1975 (Cth) (“the Act”) and the principles underlying it set out in section 60B form the frame-work for the part of the Act dealing with parenting. According to section 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of a child as a paramount consideration. Section 60CC sets out the primary considerations and additional considerations to be considered by a court in determining what is in the child’s best interests.
The primary considerations under section 60CC(2) are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to abuse, neglect or family violence. The issue of the need to protect the child from harm does not arise in this application, as there is no suggestion of any of those matters in each of the parents’ household.
The final orders made with respect to the child’s parenting arrangements ensure that this child receives the benefit of having meaningful relationship with both of his parents. The child’s meaningful relationship with each of his parents will be unaffected, whether the mother’s proposed order is made or not.
Most of the additional considerations are not particularly relevant to this application, given its limited nature, except the consideration relating to the life-style and background, including culture and traditions of the child and either parent, under section 60CC(3)(g), to which the father contends significant weight should be given.
The father is of Country J heritage, in which he says the tradition is followed, that a child bears the surname of his father. The father also contends that this is the tradition in Country K culture, being the tradition of the mother.
While in my view some weight should be given to the cultural heritage of both parents, which seem to follow the tradition of a child adopting the father’s surname, this is not a particularly weighty factor. Traditions of all cultures change over time, and the tradition of children adopting the paternal surname, which has existed in many cultures, has eroded over time, especially in the context of a multicultural society such as contemporary Australia.
The father also attaches weight to the fact that both parents agreed that the child would have his surname when he was born and expresses some concern that the mother has referred to the child with her surname only in one social context, being a posting to a social media site. He also notes that on one occasion, according to the mother’s affidavit, the child himself has expressed that his surname is that of the mother. As I understand it, the father is concerned that this use of the mother’s surname by or in reference to the child was not a matter about which he was consulted.
In relation to the contention concerning the child continuing to use the name that the parents agreed upon when the child was born, as I said in Chou & Parsons[5], in my view, separated parents should not necessarily be bound to agreements they made prior to separation, especially where, for other reasons relating to the best interests, it’s appropriate for the child’s name to be changed.
[5] [2017] FamCA 65.
The mother attaches particular weight to the fact that she has been the primary care-giver for the child since separation and the care arrangement with respect to the child’s future involves him spending more time in the mother’s care than in the father’s. In these circumstances she contends that the child having a hyphenated surname which bears both parents’ names will recognise the child’s maternal and paternal heritage. I note that it is not the case that the mother seeks to substitute her surname for the child’s surname.
Having regard to the matters set out in Reynolds & Sherman (supra), I attach weight to the child’s very young age when considering the comparative short- and long-term effects of a change of name. At this stage, when it would appear that the child may have none or very limited understanding of his surname, except possibly that it is different from the surname of his mother and maternal family members, there should be no short-term effects of a change as proposed by the mother. It is also, in my view, unlikely that there will be long-term effects if the name change is made now when the child is shortly to be enrolled in kindergarten and has not yet had a passport issued to him.
So far as the other matters raised in Reynolds & Sherman (supra) are concerned, there is no doubt that the child has a meaningful relationship and identifies with each parent. Currently, however, there is no external or formal identification with the mother, as her surname does not form part of the child’s name. There is no likelihood that the child would be unnecessarily subjected to confusion of identify following any change in surname.
The father raises as an alternative to the order proposed by the mother that in recognition of the maternal and paternal heritage the child adopt the mother’s surname as an additional middle name. I accept the submission made on behalf of the mother, that in contemporary Australian culture there is little role for a middle name and in all likelihood this would quickly fall away or not be utilised by the child or parents in any setting.
I do not accept the contention of the father that if the child’s surname were hyphenated over time the father’s surname may also fall away and the child would be known simply by the mother’s surname. This is, in my view, unlikely, particularly as each of the parties has consented to an additional order imposing a restraint on the child being known by any other name.
In my view, it is in the best interests of the child to have a surname which combines elements of each part of the child’s heritage. The proposal of the father for the child to incorporate the mother’s surname as a middle name will not result, for the reasons given, in his maternal identity being recognised in his name. There appear to be, in my view, no negative consequences of the mother’s proposal, and there are advantages to the child as referred to. In my view, the fact that the parties adopted the father’s name as the child’s surname when he was born and their relationship was intact and that it was in accordance with the cultural traditions of both parties is insufficient of itself to lead to the conclusion that it is not in the interests of the child to change his surname as proposed by the mother. I am satisfied that the mother’s proposal for a change of the child’s surname is in his best interests.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 23 June 2017.

Legal Associate:

Date: 7 July 2017