May 2019 Family Law Case Watch

Do you wish to change your child’s surname following a separation from your former partner? Alternatively, has a request been made by your former partner to change your child’s surname?

The recent case of Teke & Cefai [2019] FamCA 114 (“Teke & Cefai”) considered the question of changing a child’s name in peculiar circumstances of a father having been absent from the child’s life for the best part of eight years.

Background

In this case an Application to change a child’s name was made to the Family Court of Australia by the mother in respect of a child of the relationship, born in 2010, following a separation from the father and subsequent Consent Orders being made in 2012. The Application initially came before the Court in November 2018 however was adjourned on two occasions to provide the father with an opportunity to appear and respond to the proceedings. Directions were made that all parties attend or be represented at the Hearing with all Orders and filed documents to be served on the father by way of email.

On 26 February 2019, the judge found that the father had no interest or responsibility for the child given that he had never complied with the Consent Orders in 2012 and did not appear before the Court in respect of the most recent Application by the mother. The judge was satisfied that the father was served with the relevant documents and provided with sufficient opportunity to participate in the proceedings and that the matter could proceed without his interests being taken into account.

Law/Application

In accordance with the mother’s Application, the judge discharged the orders made in 2012 and ordered that the child live with the mother and that she have sole responsibility for all decisions of a major, long-term nature. The judge then turned his attention to the mother’s request to change the child’s surname to that of her own.

Pursuant to the Victorian equivalent of section 28 of the Births, Deaths and Marriages Registration Act (NSW) 1995, a Court is permitted to approve a proposed name change if it finds that it is in the child’s best interests.

In considering whether to approve the proposed change of the child’s name in this matter, the judge took into account the following factors:

  1. The father had shown little interest in the child since 2012. He had not provided any financial support nor had he provided any recognition of the child’s birthday or other special days. The mother indicated that 2013 was the last time she received communication from the father until November 2017 when he sent her an email. The judge stated that that “email is quoted in the affidavit and it is enlightening to indicate how he shows a complete lack of responsibility [for the child]”.
  1. The mother has been the sole person responsible for all decisions and care relating to the child since 2012.
  1. The best interests of the child pursuant to sections 60CA and s60CC of the Family Law Act 1975 (Cth), including:
  • One of the primary considerations being the child having a meaningful relationship with both parents was considered however it was the judge’s view that, “The child cannot benefit from a relationship that does not exist”.
  • The child’s views based on her maturity and level of understanding pursuant to section 60CC(3)(g). In this matter it was found that the child was at a stage in life where identity is an issue for her and her surname is causing her embarrassment and distress.

For a period of approximately six (6) months the child had asked her mother at least once a week why she could not change her name as having her father’s surname caused her distress. The distress arose when her name was called out at school assembly and children around her ask why she has two surnames when she does not have a father. The child recognises that children normally have a father and she does not understand why that is not the situation for her.

  1. The child would argue that she did not understand why she is required to keep her father’s name when she does not know where her father is or, indeed, who he is.

The judge ultimately approved the mother’s proposal to change the child’s name.

A similar line of reasoning was adopted by the Family Court of Australia in the earlier case of Reagan & Orton [2016] FamCA 330.

Conclusion

Changing a child’s surname is not considered lightly by the Family Court of Australia as it is a “major long-term issue” affecting the care, welfare and development of the child (section 4, Family Law Act 1975 (Cth)). As such it cannot be determined by only one parent. It is not often that the consent of the other parent to change the child’s surname is obtained as ordinarily the other parent will not agree to sever the bond that is created by having the same surname and wishes to “continue” the family name.

Applications to change a child’s name are often contested and the likelihood of succeeding in Court will depend entirely on the facts and evidence available in support of a particular case, as well as the judge’s discretion. It is important to remember that any decision with respect to a child concerning major long-term issues should be made jointly, and if Court intervention is required, will be made having regard to the best interests of that particular child.

If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professional family lawyers available to help you.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

Moving out of Sydney after Separation

Are you seeking to relocate with your child?

Or are you facing a relocation application by your former spouse?

Read on to find out more about family law relocation applications.

In making a decision in respect of parenting arrangements, including the determination of relocation applications, the Court takes into account the primary considerations as set out in Section 60CC of the Family Law Act 1975 as to what is in the best interests of the child.

In determining what is in the child’s best interest the Court must take into account the following primary considerations in accordance with Section 60CC of the Family Law Act 1975:

  1. The benefit to the child of having a meaningful relationship with both of the child’s parents; and
  2. The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.

When making a parenting order in relation to a child, the court must apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. We note, however, that the presumption of equal shared parental responsibility is rebutted in circumstances where family violence has occurred.

Further, pursuant to section 65DAA of the Family Law Act 1975, if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

  1. Consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
  2. Consider whether the child spending equal time with each of the parents is reasonably practicable; and
  3. If it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

So, how does the above relate to a relocation application?

Firstly, no particular section of the Family Law Act 1975, specifically sets out the law in respect of the issue of relocation. Rather, each relocation case is considered in the context of the best interests of the children and particularly Part VII of the Family Law Act 1975.

In the case of A v A: Relocation Approach (2000) FLC the Full Court of the Family Court set out an approach to be used as a guide in determining parenting cases involving relocation. When considering parenting orders in the context of a relocation application by one parent, the case of A v A stands as authority for the following:

  1. That the issues of relocation and the best interests of the child must be considered as interdependent matters;
  2. A persuasive argument in support of or against, the proposed relocation does not need to be set out;
  3. The interests of both the relocating parent and the non-relocating parent must be evaluated in the context of the best interests of the child;
  4. The Court is not obliged to disregard the legitimate interests of the parents. However, where there is a conflict between the legitimate interest of the child’s parents, the paramount consideration of the child’s best interest interests must be given priority.
  5. The parent seeking to vary the present arrangements and ultimately change the child’s place of residence bears the onus of satisfying the Court that the relocation is in the child’s best interests.

Other considerations that the Court will take into account when determining a relocation application account include:

  1. Whether a meaningful relationship between the child and the non-relocating parent could be maintained despite the reduced time with the non-relocating parent. Also relevant to this consideration are the child’s age and the relocating parent’s willingness to facilitate a relationship.
  2. The benefit to the child having a meaningful relationship with both parents.
  3. The need to protect the child from physical or psychological harm and from being subject or exposed to abuse, neglect or family violence.
  4. Any views expressed by the child.
  5. The nature of the relationship the child has with each parent and others.
  6. The extent to which each parent has taken, or failed to take, the opportunity to participate in making decisions about major long term issues, spending time, communicating with and maintaining the child.
  7. The likely effect of the proposed move on the child.
  8. Whether the practical difficulty and expense of the child spending time with the other parent will substantially affect the child’s right to maintain personal relations and contact with both parents on a regular basis. For example, if the child is an infant, telephone contact is difficult meaning that communication with the other parent is limited.
  9. Whether an order which is sought would be least likely to lead to further court proceedings being initiated by the other party.

FAQS – here are some of the questions that we are asked frequently:

  1. Can I move overseas or interstate with my child without the permission of their father/mother?
  2. What if I can’t afford to stay in Sydney but my partner is refusing to agree to me relocating?
  3. Will my partner be successful in relocating with my child?

If you are considering relocating or your partner is attempting to relocate with your child or you have pondered any of the above questions, we are available to talk about how best to approach this particular situation and look forward to hearing from you.  We are conveniently located in St Leonards on Sydney’s Northshore within easy walking distance of the train station. Please contact us to find out more or speak to one of our specialists on 94370010 or email enquiries@familylawyersdw.com.au

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.