Cameron McKenzie Without reading the case, this is a very typical outcome. The underlying contention is the mother’s conduct is seeking to marginalise the father, through parental responsibility and seeking to change the children’s surname. A child’s name is an issue of parental responsibility (Flanagan v Handcock (2001) FLC 93-04) and once the court afforded equal shared parental responsibility, seeking to change the surname was always going to be difficult.
Chapman and Palmer [1978] FLC 90-510 sets out 6 factors to consider, for and against the name change with the welfare of child being paramount. The 6 factors include:
(1) the welfare of the child is the paramount consideration;
(2) the short and long term effects of any child in the child's surname;
(3) any embarrassment likely to be suffered by the child if its name is different from that of the parent with custody or parent control;
(4) any confusion of identity which may arise for the child if his or her name is changed or not changed;
(5) 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;
(6) the effect of frequent or random changes of name
In Beach v Stemmler (1979) FLC 90-692, Connor J took into account the matters set out in Chapman v Palmer. He mentioned certain additional matters that may be relevant including:
(7) 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;
(8) the contact that the husband has had and is likely to have in the future with the children;
(9) the degree of identification that the children now have with their father;
(10) the desire of the father that the original name be restored .
After some personal research it might be argued that other factors could be successfully argued.
(11) Age of the child and impact & confusion to the child which builds upon factor (4).
(12) It is generally considered accepted practice in Australia that a child, particularly a male, adopts the father's surname.
(13) It must be considered that the same issue arises if the mother seeks orders for her maiden name for the child but intends to change her surname upon any marriage in the future.
(14) Whether the mother has any other children with a different father and surname.
(15) Cultural issues were raised in Putrino & Jackson (1978) 4 Fam LR 71; FLC 90-441, where Lusink J found that the child's Italian family had a great deal to offer him. Her Honour held that the child should continue to bear that surname and be able to enjoy the benefits of his association with that family.
(16) Propagation of the family name and any other offspring of the father's siblings.
(17) Contraventions, undertaking and requests to desist of using non birth registered name.
Hyphenated Surnames (touched on in DL & W)
(18) hyphenated surname might create difficulty in spelling or become excessively long.
(19) If a parent is using another surname (e.g. maiden name) in everyday use, other than the birth certificate, although seeking orders for a hyphenated surname. It appears without merit to seeks orders for a hyphenated name without never attempting to use that hyphenated name in everyday use.
However, it depends on the judge on the day, favour for a party and other issues on the day. The decision of Warnick J in Mahony v McKenzie (1993) FLC 92-204, refers to a case where a child had been registered in the father's surname at birth and the mother reverted to the use of her family name after the parties separated. The father found out that the child was attending preschool under the mother's surname and sought orders to ensure that the child was known by his surname. In that case Warnick J attached no significance to the fact that the child's surname had been registered as the father's surname at birth.