May 2019 Family Law Case Watch

Do you wish to change your child’s surname following 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 has been absent from the child’s life for the best part of eight years.

Also read: June 2019 Family Law Case Watch

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 an 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 lives 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]”.

2. The mother has been the sole person responsible for all decisions and care relating to the child since 2012.

3. 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 are 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 the 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.

4. 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 child custody 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.