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Reynolds & Sherman [2016] FamCAFC 240 (29 November 2016)

The Full Court of the Family Court of Australia sat in Brisbane on 1 August 2016 to hear the appeal of a mother “Ms Reynolds” about an order that her child with Mr Sherman have the hyphenated surname “Reynolds-Sherman”. Reynolds and Sherman are pseudonyms approved by the Chief Justice of the Family Court of Australia.

Previously, orders had been made in the Federal Circuit Court of Australia that the child be known by the surname Sherman-Reynolds. The mother appealed that order successfully and the Full Court sent the matter back down to the Federal Circuit Court for a rehearing.

The court determined that it had power to make orders as to the name of a child. The court also determined that the best interests of the child must be the paramount consideration when working out what order to make in relation to the child’s name.

No one disagreed that this was the correct approach.

The background to this matter is as follows:

  • The mother and father were in a relationship for about a month and never lived together.
  • Their child was born in 2013 and since that time has lived primarily with the mother.
  • On 23 October 2014 the mother and father reached parenting orders by consent that provided for the child to initially spend supervised time with the father, then progressing to unsupervised time, then to mediation to look at progressing to overnight time.
  • The Court ordered that the child be known by the surname “Sherman-Reynolds”.
  • The mother appealed that order and on 30 June 2015 the full court set aside that order and remitted the matter for rehearing.

At the re-hearing, the trial judge still found that a hyphenated name was in the child’s best interests because it would enhance his sense of identity with both his father and the mother and their extended families.

The mother appealed again.

In the second appeal, the Full Court noted that for the appeal to be successful the mother needed to do more than persuade the court that it would have come to a different decision – she needed to show that the trial judge made an error.

The mother submitted that the trial judge had failed to take into account matters, including:

  • that the father had initially denied paternity when first contacted by the child support agency;
  • that the father had previously used a different surname for the child;
  • that the father was only seeking to antagonise the mother by seeking a hyphenated surname;
  • that the mother feared that the father would disengage with the child in future.

Each of these were rejected by the Full Court.

The mother submitted that it would be confusing for the child to have a hyphenated name, particularly when the child lived primarily with the mother and attended the same school as where the mother is training to be a teacher.

The trial judge disagreed, finding that the father was committed to building a relationship with the child.

The Full Court observed that it was common for children to have a different surname from at least one of their parents, even in intact relationships.

The appeal was dismissed and the mother ordered to pay the Husband’s costs.