A Child’s Surname – Case summary of Reynolds & Sherman

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A child’s surname can be a sensitive issue in Family Law matters.  The Full Court of the Family Court recently set out the importance of considering the Section 60CC matters of the Family Law Act 1975 in determining a child’s surname in the case of Reynolds & Sherman [2015] FamCAFC 128.

Brief Relevant Facts

Here, the Mother and the Father had a son who was born in 2013.

The Mother and the Father never lived together, but were involved in a “fleeting” relationship that ended shortly after the Mother fell pregnant with the child.

Although their relationship had been acrimonious, the parents consented to Orders for equal shared parental responsibility, and for the Father to spend regular time with the child (with a requirement for them to attend mediation upon the child turning three years of age “for the purpose of making arrangements for the child to spend overnight time with the Father.”)

Issue in Dispute

Here, the only issue in dispute was whether the child should have his mother’s surname, or a hyphenated surname combining the names of both parents.

As a result, the boy’s name had not yet been registered.

Both parties filed an Affidavit, but also referred in their submissions to a comprehensive Family Report.

The matter was set down for a Hearing (limited to one hour) in the Federal Circuit Court on 2 October 2014.

After a hearing that took approximately 30 minutes, the Trial Judge reserved her decision.

Trial Judge’s Decision

Judgement was delivered on 23 October 2014 and the following Orders were made by the Trial Judge:

(2) That the child be known only as [C Sherman-Reynolds].

 (3) That the parties be restrained and an injunction hereby issue requiring the parties to use the   

      surname [Sherman-Reynolds] at all times, both in writing and orally when referring to the

      child’s surname.”

The Mother subsequently appealed to the Full Court of the Family Court (“the Full Court”) of which the above Orders made by the Trial Judge were stayed, pending the outcome of the Mother’s appeal.

Full Court’s Decision

The Mother successfully appealed.

The success of the Mother’s appeal was largely based on the Mother not being afforded procedural fairness in having cross-examination explained to her as well as that the Trial Judge had “prejudged” her matter, given Her Honour had formed a “preliminary view” prior to hearing any evidence.

In addition, the Full Court took a tentative view that the Section 60CC matters of the Family Law Act 1975 were relevant, important and should have been considered in determining the child’s best interests.

If you think that you have a legal issue relating to changing a child’s surname, contact us

Speak with one of our Family Law Lawyers to discuss your child’s surname, please feel free to contact our office on (07) 3252 0011 and make an appointment through one of our Business Development Officers today.