Father Fails in Application to Restrain Mother from Using her Maiden Name for Child

Background

 In the recent case of Ambrose & Bead [2017] FCCA 681 (21 March 2017), Judge Henderson heard the father’s application for an injunction restraining the mother from using any name for their pre-school aged child (“X”) other than the child’s registered surname (“Ambrose”).

The mother had been using her maiden name (“Bead”) for the child’s surname since the child’s birth. The mother wished to continue to use that name but was prepared to accept a hyphenated surname.

The Father’s Submission

The father’s case was that the child having a different surname to him would alienate him from his child. The father made this assertion despite final orders for the child to spend ultimately significant and substantial time with him during holidays, weekends, festivals, and before and after schools as he ages.

The surname of his son was an important issue for the father.

The Mother’s Submission

The mother’s case was that the father was not ready to be a father and effectively left her on her own with her son, as a form of abandonment.

The mother asserted that she told the father she was using her surname, Bead, as X’s surname in August 2013 and that the father had known since at least that time that this was the surname she has used for their son.

Analysis of the Case

It is clear from both the mother and the father’s submission, and particular from the father’s affidavit that X is confused at times about his surname.

The father believed that if X’s surname was changed from “Ambrose”, it would continue to make it more difficult for him to practically fulfill his duties and responsibilities to X in circumstances where on a practical level Ms Bead is, and will continue to be, the parent who has the primary contact with others involved in X’s life such as education, healthcare and otherwise.

According to the Court, that assertion by the father is incorrect as the surname of a child in no way has any impact upon the parents capacity or obligations and duties to their child, or the capacity to parent their child or be involved in all aspects of their child’s life.

The Court stated that if the father just thought  this, it would mean that for the former partner who did not change her surname from the name she had at marriage, but whose children have the name of their father, it would be  difficult to practically fulfil her duties and responsibilities to her children. According to the Court, the surname of a child has absolutely no impediment whatsoever to a parent exercising parental responsibility and this father was well placed to exercise parental responsibility towards his son.

The Court also did not accept that  X having a separate surname, or a different surname to either of his parents, would impact on his relationship with them. He is their child, they are his parents, and his surname or his parents surname is not an issue for X.

The case of Flanagan & Handcock [2001] FamCA 189 was referred to. In that case, the children had a clear sense of identification with their father and it was inappropriate, the Court found, to ask the mother to change the surname she had chosen for the children. X had a clear identification, knowledge of his father and understanding who his father is and to change his surname now would be merely confusing for the child.

The Court also referred to the decision in Mahoney & Mackenzie [1993] FamCA. In this case, a hyphenated name was determined by the Court to be an order in the children’s best interests as that would reflect each parent’s surname for the child. In the present case, however, the father did not agree to a hyphenated name.

The Court stated that there was no concern that X did not know who his father is, he clearly does know who his father is. Additionally, the Court determined to change a children’s surname to their father’s name to ameliorate the father’s resentment and anger at the children not having his surname, and that such an order would make it easier or better for them in terms of their relationship with the father.

If the Court had formed the view that that was the attitude of Mr Ambrose, then the Court would be concerned to make any orders for Mr Ambrose to spend time with his son. That, however, was not the attitude of the father. He would never have anger or resentment towards his son for decisions the Court may make.

The Court stated that to change X’s surname now to Ambrose when he has known himself as X, and not have some hyphenation of both names, would be significantly confusing to X. Therefore, it was held not to be in the child’s best interests.

Ultimately the applicant’s case was dismissed.

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