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CS v SMR[2016] QMC 12

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

CS v SMR [2016] QMC 12

PARTIES:

CS

v

SMR

FILE NO/S:

 

DIVISION:

Magistrates Courts

PROCEEDING:

Change of Name Application

ORIGINATING COURT:

Redcliffe

DELIVERED ON:

22 March, 2016

HEARING DATE:

25 February, 2016

MAGISTRATE:

M Bucknall

ORDER:

The application is dismissed

CATCHWORDS:

Change of Name, Best interests of a child

CASES:

Chapman v Palmer [1978] FLC 90-510

Mahoub & Ferrante [2013] Fam CA 905

The Marriage of Beach W.G.R. and Stemmler, G.E. 1979(FLC) 90-692

In the Marriage of ARTHUR-J R B and COMBEN, S (1977) FLC 90-245

LEGISLATION:

Births, Deaths and Marriages Registration Act 2003 (Qld)

Births, Deaths and Marriages Registration Regulation 2015

Family Law Act 1975

Background

  1. [1]
    This is an application whereby the applicant mother seeks an order of the court that the surnames of the two children the subject of the application be changed from their current surname of “CS” to “C”.
  1. [2]
    The application first came before the Court on the 6th of October 2015.
  1. [3]
    On that date the application was adjourned to the Registry to be brought back on after the parties had attended mediation.
  1. [4]
    The Acting Magistrate at the time noted that the father had expressed a strong desire for the children to retain his name and for the matter to proceed to mediation.
  1. [5]
    The matter was before me on 25 February 2016 when a hearing took place.
  1. [6]
    The hearing was conducted in part on the papers whereby I considered the mother’s application and an affidavit sworn by the mother on 30 April 2015 and further I heard evidence from both the mother and the respondent father
  1. [7]
    It was the case that the matter did proceed to a mediation prior to the hearing and a parenting plan was tendered and received as Exhibit 1.
  1. [8]
    I note that paragraph 1 of that parenting plan provided that each of the parents will have equal shared responsibility for the children and further that the children are to live with the mother and to spend time with the father as set out in the parenting plan.
  1. [9]
    The father gave evidence that he was opposed to the making of an order providing for a change of the children’s names.
  1. [10]
    He further indicated that he wished to play a significant part in the children’s lives and that in his view since the mother had remarried that the applicant had attempted to frustrate his relationship with the two children.
  1. [11]
    The basis of the mother’s application is that she has remarried and now goes by the hyphenated name of “CT”, “T” being the name of her new husband.
  1. [12]
    She also indicated in the affidavit in support of her application that both children were originally known by the name of “S”.
  1. [13]
    In 2012 following an application made by her names of both children were changed to “CS” so as to include her maiden name. She also deposes in her affidavit that subsequent to the children’s names being changed in 2012 that Mr T and herself have had a further child together who is known by the name of “CT”.
  1. [14]
    She says that the children the subject of this application wish to open bank accounts in the name of CT and do not understand why they cannot have the same last name as herself.

The Law

  1. [15]
    Section 17 of the Births, Deaths and Marriages Registration Act 2003 provides:

17 Application to register change of child’s name

  1. (1)
    This section applies if -
  1. (a)
    a child’s birth or adoption was registered in Queensland; or
  1. (b)
    a child was born outside Australia, but the child ordinarily resides in Queensland.
  1. (2)
    The child’s parents may apply, in the approved form, to register a change of child’s name in the change of name register.
  1. (3)
    However, 1 of the parents may apply to register a change of the child’s name if-
  1. (a)
    the parent is the only parent of the child entered in the relevant child register or shown on the child’s birth certificate; or
  1. (b)
    the other parent is dead; or
  1. (c)
    a Magistrates Court approves the change of name.

Note –

Under section 56, a regulation may prescribe information that a court may consider when deciding or changing a child’s name”.

  1. (6)
    A Magistrates Court may, on application by a child’s parent or guardian, approve a proposed change of name for the child if satisfied-
  1. (a)
  1. (b)
    the change is in the child’s best interests.

  1. [16]
    Section 56 of the legislation provides that the Governor in Council may make regulations under this Act.

56 Regulation-making power

  1. (1)
    The Governor in Council may make regulations under this Act.
  1. (2)
    For example, a regulation may-
  1. (e)
    prescribe information that a court may consider when deciding or changing a child’s name; and …”
  1. [17]
    Section 9 of the Births, Deaths and Marriages Registration Regulation 2015 specifically provides: -

9.  Information court may consider when approving change of child’s name-Act, s 17

In deciding under section 17(6)(b) of the Act whether a proposed change of name for a child is in the child’s best interest, the matters to which the Magistrates Court may have regard include the following—

  1. (a)
    the number of previous changes of the child’s name;
  1. (b)
    the views of the child’s parents on the change of name, to the extent the parents’ views are available;
  1. (c)
    the views of the child’s guardians on the change of name, to the extent the guardians’ views are available;
  1. (d)
    the child’s views on the change of name, to the extent the child’s views are available;
  1. (e)
    the likely impact of the change of name on the child;
  1. (f)
    the child’s cultural, ethnic or indigenous background and whether the change of name is likely to adversely impact on the child’s cultural, ethnic or indigenous identity.”
  1. [18]
    Also noted is that s 21 of the Birth, Deaths and Marriages Act 2003 provides for a limitation on the number of name changes in particular s 21(1) provides:

21. Limit on number of name changes

  1. (1)
    An application to register the change of a person’s name may be made only -
  1. (a)
    for the change of a child’s first names—once before the child reaches 18 years; or
  1. (b)
    otherwise—once in every 1-year period.
  1. (2)
    However, subsection (1) does not apply if a Magistrates Court has, because of exceptional circumstances, approved the change of name.

Example of exceptional circumstances—

to protect the child from domestic violence”

  1. [19]
    Section 9 of the Birth, Deaths and Marriages Regulation 2015 sets out various matters which the court is required to have regard to when considering whether a proposed change of name is in the child’s best interest.
  1. [20]
    In relation to the number of previous changes of the children’s names it is noted that the children’s names have already been changed once in 2012.
  1. [21]
    The views of both parents have been ascertained, with both parents appearing on the hearing and with the father opposing the application.
  1. [22]
    In relation to ascertaining the views of the children there is no reliable evidence before the court to ascertain what those views and wishes are or what the likely impact on the children of a further change of name will be.
  1. [23]
    I note that these are still quite young children (5 and 7) and that if the application is granted then this would mean that they would be known by what would now be a third surname.
  1. [24]
    Whilst the proposed name will provide some consistency with the name of their mother and their half sibling, it will mean that their father’s name which at one time consisted the whole of their surname, would now be replaced with the name of their mother and their step-father.
  1. [25]
    There is no evidence before me to suggest how any change of name, or for that matter the retention of their current name will impact on their cultural, ethnic or indigenous identity or background.
  1. [26]
    This application is also one which is able to be brought under the Family Law Act 1975, whereby one of the courts having jurisdiction under that legislation is able  in relation to a range of children’s issues, make orders subject  to those orders being in the best interests of the children.
  1. [27]
    These types of orders generally fall under the ambit of parental responsibility and the determination of specific issues concerning the care, welfare and development of the children.
  1. [28]
    It is noteworthy that in this matter, the parties have already entered into a parenting plan which provides for an agreement on a range of children’s issues including the allocation of parental responsibility.
  1. [29]
    Section 63C of the Family Law Act 1975 deals with the meaning of a parenting plan and in particular s 63C(2) provides as follows:

Meaning of parenting plan and related terms

  1. (2)
    A parenting plan may deal with one or more of the following:
  1. (a)
    the person or persons with whom a child is to live;
  1. (b)
    the time a child is to spend with another person or other persons;
  1. (c)
    the allocation of parental responsibility for a child;
  1. (d)
    if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility…;

….

  1. (i)
    any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
  1. [30]
    The name that the children will be known by, and legally recognised as, clearly falls within the parameters of a matter going to decisions about the care, welfare and development of the children.

Relevant Case Law

  1. [31]
    According to my research, and that of the Supreme Court Library, there are no reported cases concerning similar matters pursuant to the relevant provisions under the Births, Deaths and Marriages Registration Act 2003 and the Births, Deaths and Marriages Registration Regulation 2015
  1. [32]
    There are however many cases determined under the Family Law Act concerning similar applications.
  1. [33]
    Those cases provide some guidance when determining the current matter, noting that any such application under the Family Law Act 1975 is also one where any  order which may be made is one which is also required to be in the child’s best interests as is the requirement for the current application to which s 17 (6) (b) of the Births, Deaths and Marriages Registration Act 2003 applies.
  1. [34]
    The seminal Family Law decision appears to be: In the marriage of Chapman and Palmer (1978) FLC 90-510.  Many other cases have followed since that time.
  1. [35]
    In the decision of Mahoub & Ferrante [2013] Fam CA 905 Justice Forrest at paragraph 12 of that decision confirmed that an application to change the child’s surname is:

An order such as that sought by the mother can, no doubt, be made by this court.  Such an order is a parenting order and, like all parenting orders, it must be made having regard to the best interests of the child rather than the rights, expectations and wishes of the parents.  Various matters to be considered and evaluated have emerged out of past decisions of the Court.  The child should not be subjected unnecessarily to any confusion of identity.  The short and long term effects of any change of name must be considered.  The advantages, both in the short and long term which may accrue to the child if the name remains as it is now, must be considered.  The present and ongoing involvement of both parents in the life of the child must be considered.  Due consideration must also be given to the fact of the child’s current name registration and any earlier agreement that evidenced.  …”

  1. [36]
    In that decision Justice Forrest granted the mother’s application to change the child’s surname to incorporate the surnames of both herself and the child’s father and ordered that pursuant to section 17 of the Births, Deaths and Marriages Registration Act 2003 (Qld) that the parents apply to register a change of the child’s name in the Change of Name Register.
  1. [37]
    In the decision of The Marriage of Beach W.G.R. and Stemmler G.E. 1979 (FLC) 90-692 the Family Court of Western Australia dismissed an application brought by the father seeking to restrain the mother from changing the child’s surname to that of her new husband.
  1. [38]
    In that case the father had only had limited time with the children, and it was not disputed that the children identified with the mother’s present husband.
  1. [39]
    His Honour Justice Connor considered the relevant matters as contained in the decision of Chapman v Palmer and set them out as follows:
  1. (a)
    The welfare of the child is the paramount consideration.
  1. (b)
    The short and long term effects of any change in the child’s surname.
  1. (c)
    Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.
  1. (d)
    Any confusion of identity which may arise for the child if his or her name is changed or is not changed.
  1. (e)
    The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.
  1. (f)
    The effect of frequent or random changes of name.
  1. [40]
    In that decision the Court took into account the relevant matters as identified in Chapman v Palmer together with the following matters:
  • The advantages both in the short term and in the long term which will accrue to the children if their name remains as it is now.
  • The contact that the husband has had and is likely to have in the future with the children.
  • The degree of identification the children now have with their father.
  • The degree of identification which the children have now with their mother and their step-father.
  • The degree of identification which the children will have with the child that is about to be born to their mother and any likely confusion in the future if their fathers’ surname was restored.
  • The desire of the father that the original name be restored.
  1. [41]
    His Honour further went on to say:

In many cases it might be convenient for a custodial parent to have a child’s name changed but I do not believe that mere convenience by itself is a sufficient reason for changing a name.

  1. [42]
    The decision of In the Marriage of ARTHUR- J R B and COMBEN, S (1977) FLC 90-245 Justice Demack considered an application brought by the father seeking to restrain the mother from changing the surname of the children.
  1. [43]
    The mother made what Justice Demack described as a “strong plea” that she be allowed to use the name of “Comben” for the children. His Honour said:

She claimed this was necessary to give the children a sense of belonging to the Comben family, and she said she has had personal experience of the difficulties for children arising from broken families.

It is not disputed that Mr Arthur will have continuing contact with the children.

  1. [44]
    In that decision the Court did grant an injunction restraining the mother from using the name of Comben for the children and said:

… I am satisfied that to allow the proposed name would only add another major cause for friction.

While the embarrassment that the children feel at school is significant, it does not in my opinion outweigh the other factors in this case.  The children will have continuous contact with their father, all possible sources of friction must be kept to a minimum, and the children need to know and understand their identity within the Arthur family, as well as cope with the embarrassment at school of having a surname different from the mother.

I shall therefore grant the injunction to restrain Mrs Comben from using the name of Comben for the children…

Conclusions

  1. [45]
    This is a matter where the parties are still in dispute as to various aspects of parenting issues concerning the children.
  1. [46]
    Whilst the parties have been to mediation and whilst a parenting plan has been developed both parents gave evidence that the terms of that parenting plan are either not being fully implemented or are presenting some problems.
  1. [47]
    It would appear that unless there is a resolution of the outstanding issues between the parties then the matter will need to proceed before a Family Law Court to determine all outstanding issues.
  1. [48]
    This is a matter where it is difficult to find how a change of name as proposed by the mother can be consistent with the best interests of the children.
  1. [49]
    This is a matter where there is an ongoing relationship between the children and each of the parents and one where the father either does spend time with the children or seeks to spend further time with the children.
  1. [50]
    This is also a matter where the father has taken an opportunity to participate in making decisions about issues in relation to the children and to spend time with the children.
  1. [51]
    There is little evidence of the nature of the relationship between the children and Mr T.
  1. [52]
    Whilst there may be some embarrassment felt by the children by having a different name to that of their mother and their half sibling, the fact is that their names still share something in common with the name of both their mother and their half sibling.
  1. [53]
    A change of name in the way proposed by the mother will not in any sense recognise the sense of identity that the children would have in relation to their father, particularly in circumstances where it is envisaged that the father will have continuing contact with the children.
  1. [54]
    Further, as was pointed out in the decision of ARTHUR and COMBEN, the proposed change to their names would only add another cause for friction between these parties which is not in the best interests of the children given that their parents will continue to retain equal and shared parental responsibility for issues concerning the children and will need to jointly make decisions concerning their care, welfare and development.
  1. [55]
    The application brought by the mother fails to appreciate the impact that a change to their surname is likely to have on the children.
  1. [56]
    The mother fails to fully recognise that it is the children’s best interests that the court must look at and not the best interests of the mother.
  1. [57]
    The mother at paragraph 7 of her affidavit deposed:

For me as a woman it was never my intent to lose my maiden name I am an only child and hold my parents with high respect it was my choice to keep my name but also include that of my husband. Some may think a child having two last names is not necessary however we are living in a more modernised world things aren’t how they once were. Even though my children are only five and seven I believe it’s very important to be able to understand their point of view and in this its [sic]simply I want to be like my mum and sister, having the children with different last names makes a separation and that is something I never wish my children to feel.

  1. [58]
    To grant the application would mean that to some large part the father’s shared parental responsibility, and the allocation of that parental responsibility would be impacted upon in a material way and one, which in any event may be the subject of one of a number of outstanding issues which should properly be determined at a later stage by one of the Family Law Courts rather than this court looking at a change of name application in isolation to, and separately from all those other long term and day to day issues affecting the parenting and the care, welfare and development of these children.
  1. [59]
    I find that it is not in the best interest of these children for an order to be made by changing their surname as proposed by the mother and accordingly the applicant’s application is dismissed.
  1. [60]
    Following the hearing of this matter and following my giving consideration to the application and drafting my reasons for this decision, it came to my attention that Mr T appeared before a court constituted by myself in a criminal matter whereby it is alleged that he assaulted Ms CT whilst subject to a Domestic Violence protection order.
  1. [61]
    I note at the time of hearing a bail application that the applicant in this matter, Ms CT, was present in court and supportive of Mr T in relation to his application for bail.
  1. [62]
    The criminal matter concerning Mr T has been adjourned and an order for bail was made by myself coupled with conditions that he not have any contact with either the two children the subject of this application, or the child of Ms CT and himself and further that he not have any further contact with or approach Ms CT.
  1. [63]
    These matters have played no consideration in my determining this matter as it was not evidence or a fact that I was informed of by the parties at the time of the hearing.
  1. [64]
    I make mention of it however as it is sometimes the case that information does come to the court’s attention which is relevant to an application.
  1. [65]
    The information that did come to light simply reinforces my view that the change of name application falls within the realm of an issue which properly should be considered by one of the Family Law Courts together with all other outstanding issues and that all relevant issues that may be considered under the Family Law Act including the presence of family violence  can be considered at a later time by one of the courts exercising jurisdiction under that legislation.

Mark Bucknall

Magistrate

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Editorial Notes

  • Published Case Name:

    CS v SMR

  • Shortened Case Name:

    CS v SMR

  • MNC:

    [2016] QMC 12

  • Court:

    QMC

  • Judge(s):

    M Bucknall

  • Date:

    22 Mar 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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