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RECENT CASE: Lysons & Lysons and Anor [2019] FamCAFC 29

In a recent Full Court decision, the Family Court found that the primary judge had not erred in refusing a Mother’s application to change her child’s name.

The child, X, was born in 2016 to parents who commenced their relationship in 2014. Upon separation, the child’s mother indicated that she intended to revert to her maiden name, and have the child’s name changed to match.

At first instance, Judge Vasta maintained that the child was to keep the surname granted to him at birth on the basis that it was an essential part of the formation of the child’s identity. His Honour held that maintaining the child’s surname to be that with which he was christened at birth was crucial to X’s understanding of ‘why he was called into this world’. His Honour went on to explain that X was ‘called into this world because his parents made a decision, out of love, that he should exist and be raised by them together’.

It was held that the Applicant’s petition to change the child’s name painted X himself as ‘no more than a commodity’ over which his parents each assumed control. In rejecting the application, the Court maintained that though the parties had separated, the intention regarding X’s life was not to be erased.

Upon decision, the Applicant Mother appealed to the Full Court of the Family Court. The appeal was made on the basis that the primary judge had erred in their decision, and had not considered the best interests of the child.

The factors considered in determining whether there should be any change to a child’s name include:

  1. Any embarrassment likely to be experienced by the child if his or her name is different from the parent with who they live;
  2. The effect any name change would have on the relationship between parent and child;
  3. Any confusion of identity which may arise from the name change; and
  4. The effect of frequent or random name changes.

The submission made by the applicant was that the primary judge had erred because he did not consider the above factors. It was accepted by the Court that the above factors are essential in determining whether to grant an order of name change. However, the issue lay in the Applicant’s original submission which did not include any of the above factors, but instead rested solely upon her desire for sole parental responsibility. The Applicant mother conflated her submission for sole parental responsibility with that of her right to change the child’s surname.

Such conflation resulted in her inability to appeal on the basis that the Primary Judge had erred in not considering the above factors. On appeal, a party is bound by the manner in which they conducted their case at trial, and where the point ought to be raised on appeal could have been met at the trial by the calling of evidence, it cannot be raised for the first time on appeal (Suttor v Gundowda Pty Ltd [1950] HCA 35). It followed that the Applicant Mother’s appeal on the above grounds, was dismissed.


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