Donate Child Support Calculator
Skip navigation

Worthwhile to appeal change of name decision - never married

Add Topic

FLC of WA decided against request to hyphenate childs surname

Hi all,

I am new to this site after researching the internet for the past few hours. My issue is stated below:

After a 2.5 year self represented court preceding we had one final matter, to hyphenate my sons surname to include mine. At the time of his birth the mother states uncertainty as to who the father was so I was omitted on the birth certificate and no input into the surname. My name is listed as the father now but the mother changed the surname of the child from her maiden name to her now husbands surname. The Magistrate handed his decision a few weeks ago and although he referred to the common cases discussed such as:

 
Beach v Stemmler (1979) FLC 90-692
 
Chapman and Palmer (1978) FLC 90-510
 
Flanagan and Handock (2001) FLC 93-074
 
Mahony and McKenzie (1993) FLC 92-408
 
I couldn't find the above mentioned cases on AustLii, perhaps outdated or not archived. Would like to know if I can find them to read or any matters for my situation where an unmarried parent seeks to hyphenate the name and appeal a decision against this.

The Magistrate decided to keep the surname unchanged and his reasoning was the inclusion of my surname would likely cause more disruption than benefits. I don't accept this finding and it seems he couldn't make a judgement based on our evidence. He only questioned us at the stand, no witnesses or cross examination. He also made mention to the child turning 6 however I did mention my wishes about the surname early in the court proceedings.

A major issue was our mirrored views on the type of relationship we were in and the time I spent with my son during and after the birth. We were not asked to bring in witnesses or further documented evidence we just spoke our cases. I believe this would have proven we were in a relationship and I was around after the birth in a supportive role.

From my understanding I was told to appeal would require a point of law or to prove something was incorrect. Also that no new evidence can be entered. The FLC of WA appeal form mentioned appealing if you believe the decision was unfair. When I rang for appeal protocol I was informed as we were never married the appeal would need to go to the Court of Appeals at the Supreme Court as a civil matter.

I tried getting legal advice form the citizens Advice Bureau but they told me my matter was too complex and couldn't provide any further information. I would like some help to find out if I have a case for appeal rather than going to Supreme court which becomes complicated and possibly expensive.

Further complicating the matter is that I was informed that instead of 28 days I only have 21 days to file for an appeal which was today. I need to get the appeal in urgently with an affidavit asking for extension and reasoning.

Appreciate any assistance with this matter.


Thanks
You may not like the advice and I give it with only the limited information you have provided and I am making some assumptions.

I can see it is very unfair for you but the stark reality is that in these circumstances your chances of success are slim.

The courts reasons I am assuming are; the child is nearly 6, has never had your name, mother has remarried, child now shares her surname. The benefit to name change now is for you and not child.

Sorry to be blunt but I want to help. This is not my view but what I suspect the court has and will continue to take into account.

This does not preclude you from appealing but these are the matters you will need to take into account and provide the court with a reason why it is in the best interest of the child to share your surname. Also to get an extension you will a fairly good reason why. This is not easy either.
If you attend a solicitors office you can get a free initial consultation and they can perhaps provide further.

"When there is no enemy within, the enemies outside can not hurt you"

Executive of SRL-Resources

Change of Childs name - Case requirements

I didnt have much trouble finding a number of cases

Here is one you might look at. I have attached some PDF files
Between: Gary Ian Fooks Husband and Ann-Maree Mccarthy Wife [1993] FamCA 117; (1994) FLC 92-450 Family Law (11 November 1993)
FAMILY COURT OF AUSTRALIA
BETWEEN: GARY IAN FOOKS
HUSBAND
AND ANN-MAREE McCARTHY

WIFE

No. BR2770 of 1993
Number of pages - 6
(1994) FLC 92-450
Family Law

COURT

IN THE FAMILY COURT OF AUSTRALIA
WARNICK J

CATCHWORDS

Family Law - Children - Name of child - Use of combined surname.

Family Law - Injunctions - Welfare of child - Custodial parent restrained from using new surname for child - Principles applicable.

Chapman and Palmer (1978) FLC 90-510, followed.

Mahony  and McKenzie [1993] FamCA 78; (1993) FLC 92-408, considered. Ms McCarthy and Mr Fooks commenced cohabitation in April 1985 and were married on 23 May 1987. On marriage the wife took the husband's name. A child was born on 15 October 1990 and his birth was registered under the husband's name. The parties separated in August 1991 and the wife reverted to her maiden name of "McCarthy". The mother had custody of the child and the father had access and paid child maintenance.

The child was enrolled by the wife at a day care centre at Brisbane under the hyphenated name "McCarthy-Fooks". This name was not used prior to March/April 1993 when the mother moved to Brisbane from Sydney. There were occasions mid-year and in August and September 1993 when the wife also used the name "McCarthy" for the child.  The father brought an application on 6 August 1993 for an injunction to restrain the mother from using any name for the child other than "Fooks".

I also advise the following pre-action procedures unless you appeal.

(Family Law Rules, Sch 1, Part 2 and requirements under s 60I of the Family Law Act 1975)

Rule 1.05 stipulates that parties must comply with the pre-action procedures set out in Sch 1.

As of 1 July 2007 parties wishing to apply for an order under Pt VII must first attend on a registered family dispute resolution practitioner in an attempt to try and resolve the matter.

A certificate pursuant to s 60I(8) must be obtained from a registered family dispute resolution practitioner. The certificate from the family dispute resolution practitioner can be in one of four forms:

From 1 July 2008, the obligations on parties to resolve matters by means other than litigation will increase.

Regardless of that here are the key details you need to think about

Relevant sections of the Family Law Act

Section 68B provides the court the power to make such an order or grant such injunction as it considers appropriate for the welfare of the child.

Section 65E deals with the child's best interests being the paramount consideration in deciding whether to make a particular parenting order.

Section 68F provides guidelines to assist the court in determining what is in a child's best interests.

Section 114(3) provides the court with a wide power to grant injunctions.

Section 67ZC provides the general power of the court to make orders relating to the welfare of children.

Relevant Rules

Orders to be sought will need to be specific. In your case you cannot lodge for new orders. You can only appeal ona  point of law. No new evidence UNLESS there has been a significant miscarriage of justice and procedural unfairness.

Typically the sorts of things you need to show in your primary affidavidt would have been:


    ☐ Personal details.

    ☐ History of the relationship.

    ☐ Any history of litigation.

    ☐ Contact the child has with each parent.

    ☐ The name that the child was born with.

    ☐ The presence of a birth certificate.

    ☐ Any changes made to the birth certificate, and the reasons for such changes.

    ☐ Any discussions and conversations involving the parents and significant others concerning the child's name (not including without prejudice negotiations). Was consent ever provided in light of these conversations?

    ☐ The use of the name in relation to schools, medical records, sporting clubs etc.

    ☐ Why the name change is opposed.

    ☐ What knowledge there is of any use of the other name.

    ☐ Perceived detriment to the child in using the other name.

    ☐ Attempts to resolve the issue.

    ☐ Family ties.

    ☐ Ties to the name. INCLUDED here any cultural or religous issues in relation to the name. i.e Maori heritage

    ☐ How long the original name was used.

    ☐ Benefits to the child of retention of the original name.

    ☐ Any evidence of confusion in the child with the new name.

Relevant case law

The law was originally set out in Chapman and Palmer (1978) FLC and held that each case was to be dealt with in a way that would promote the welfare of the child.

Matters for consideration were:

    ☐ Welfare of the child as the paramount consideration.

    ☐ Short and long term effects of a change.

    ☐ Any embarrassment to the child.

    ☐ Any confusion of identity.

    ☐ Effect a change in name would/may have with the parent whose name the child bore in the marriage.

Additional factors were identified in Beach and Stemmler (1979) FLC to be:

    ☐ Advantages both short and long term in a change.

    ☐ Contact father has had with the child.

    ☐ Degree of identification with the father and mother.

    ☐ Degree of identification with any new child.

    ☐ Father's wishes.

In Fooks and McCarthy (1994) FLC 92-450 Warnick J identified that there was only one principle  the welfare of the child is the paramount consideration.

The Full Court (Kay, Finn and Holden JJ) in Flanagan and Hancock (2001) FLC also considered the issue of whether or not the best interest test applied to s 68B. Kay and Holden JJ in a separate judgment stated that if the paramountcy principle was not decisive, it was certainly relevant and needed to be given careful consideration, which it was. Their Honours without fully expanding on the point, also held that in relation to injunctions that related to a child's name, the true nature of the injunction application may well be governed not by s 68B (which is the section that specifically refers to injunctions concerning children), but by s 65D, (that being a more generally expressed provision of the Act concerning children). Finn J however held that under s 68B(1), the court may grant such injunction ``as it considers appropriate for the welfare of the child''. Therefore the welfare of the child is the paramount consideration or essential test for an exercise of the jurisdiction under s 68B(1).

The father sought leave to appeal to the High Court which was granted in October 2001. However, in May 2002 the mother moved on a motion seeking to revoke the grant of special leave. The High Court revoked the grant of special leave on all grounds. In relation to the issue regarding the child's name Kirby J was the only judge who refused to revoke the grant of special leave. This case has been reported as Handcock and Flanagan (2002) FLC.

Submissions to be made

Each of these cases are simply fact based.

The facts must be intertwined with the law, particularly to show that a change of name is contrary to the best interests of the child.

In opposing any application, the link with the past experience and the present parent/child relationship must be emphasised.

What must be countered is any suggestion that the child associates with the new name to the exclusion of the older name.


Most of this should have already been dealt with at trial.

At this late stage I have to agree with Patronus and Patronus is no couch potatoe arm chair general in this area… I have however attached a few cases. You really need to have a point of law to make an appeal. I have not read your judgement of course but you will need to seriously think hard on it after you have reviewed these posts and some of the attached materials. If it gives you any solace of comfort your son will love you and appreciate you regardless of what name is used. I have been involved in a few cases involving name change and the dads seem to be far more worried about the name than the children. When the child is old enough to worry about it they can change their name legally. Sometimes the use of your name will not be able to be avoided. When you have school holidays and you are on the ski slopes or at swim school and dad enrols son they will automatically assume your surname anyway and there will be many unavoidable moments like that. Your son will get used to both names. As he gets older he may well decide to use your surname anyway.

Attachment


Attachment


Attachment


Attachment

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Firstly I'd like to thank you Patronus (I'm a huge Potter fan myself) and Secretary SPCA for your efforts in responding. Just to clarify a few things. The decision was made on 12th August which gives me 21 days being that we were never married to file an appeal. So I have till this Friday and this is not done in the Family Court but the Supreme Court as a civil matter.

Secretary SPCA can you refer me to where you found these cases as I searched AustLii and their advanced search link below by entering the names of the persons involved in the case i.e. "Chapman and Palmer"

http://www.austlii.edu.au/form/search1.html?mask=au/cases/cth/FamCA

I have attached the judgements to this post, the conclusion/decision is made on attachement "06" please inform me if I forgot to black out any of the names of the parties involved so I can request to remove/replace that attachment. From my understanding the appeal in the Supreme Court does not require the mediation certificate. Plus we tried mediation 2 years ago before starting the FLC case in 2008. It was back then that I requested an order about the surname so it puzzles me when one of the contributing factors to the Magistrates decision is that the child is now turning 6. I requested it when he was 3.

As mentioned for the appeal I require a point of law and this is where I am stumped. I was also under the impression I could appeal on unfairness. I did everything right and from what I could find in my rushed research seems a good point. It is listed below from this link:

http://www.romalegal.net/familylaw/childrennaming.htm



In a recent decision the Court indicated that a further option may be available, namely a hyphenated name (see Mahoney v McKenzie (1993) FLC 92-408). In that case, the mother proposed that the child be known by a hyphenated surname which was a combination of her own and the fathers surname. The court (per Warnick J) held:

         that the court attached no significance  to the manner of the registration, which was the husbands surname, and did not find a particular attachment or identification with either parents surnames;

           a number  of benefits could be expected to arise from the use of a hyphenated surname for the child, because:


o        he had an ongoing relationship with both of his parents, although they did not live together;


o        the hyphenated surname might facilitate the recognition by others of his circumstances and the ease with which the child had accepted such circumstances;


o        the use of hyphenated surnames offered him a middle road in times of rapidly changing social attitudes.



When you mention the factors in making a decision the Magistrate didn't explain how these factors influenced his decision. An example is "Contact father has with the child." So based on our contact in the past which the Magistrate seems to not have been able to ascertain a truth about, how did that have an effect on the decision? - Was it that due to a lack of contact he should have been leaning more towards agreeing to hyphenating the name or that we had sufficient contact that he didn't believe it was necessary to hyphenate the name?

I think it was unfair we couldn't bring in more evidence or witnesses. Some factors in the decision appear to be the mother being uncertain of who the father was. I mentioned that both she and her ex partner could not have children after years of trying. She told me she slept with him once and when I saw a GP he said that the date they slept together was outside a 2 week range for a baby to be conceived. The Magistrate seemed to ignore this fact instead stating he is convinced the mother was uncertain of the father. Can I use this in the appeal?

What makes it difficult is that my name was not on the birth certificate as the father so she was able to change his name without my consent, even though she lied on the BDM form but as mentioned this is allowable and not punishable for lying to BDM. Another point is that we were in a relationship and I was around before during and after the birth. This could have easily been established by witness accounts from friends, family and coworkers who saw my ex drop me to work, go shopping and pushing the pram together etc. Again the Magistrate seems ot have disregarded our mirroring statements.

So I don't know what all those factors have to do with the decision. I understand the other factors which relate more closely to the child such as any negative impact on his life. Here the Magistrate made referal to the child turning 6 and beginning formal education. Yet I have a close friend who is a school teacher, he says that it is very common and not disruptive for kids to change their names or have them hyphenated. It happened every semester.

The person I have been seeking advice from has requested a lawyer associate of his contact me tomorrow and go over the decision and any chance of wining and appeal at the Supreme court. My worry is also the costs involved if I lose and perhaps another drawn out battle I would like to avoid due to recently being diagnosed with a life changing condition. I also acknowledge that the paramount thing here is the child and if he so chooses when he is older he can amend his name as he sees fit.

I was wondering if I can contact someone direct for further advice as I have tried legal aid and Citizens Advice Bureau. I have had experiences in the past with legal firms who give general advice. As you can see in this predicament it is more complex but I strongly feel that the Magistrate was trying to give concessions in his findings as well and he even states the mother sees her immediate family as the childs only family. This would make you think it would be of more benefit to add the hyphenates surname. Also i did raise the cultural issue but again this seems ot have been over looked.


Thanks and I will read the cases. 









ERROR: Corrupt attachment
Appeals do not need a certificate.

I know WA is a little different but why, if you are appealing a family law judgement, do you need to appeal to the Supreme court? Check to see if this is correct.
If it is in the Family Court(appeals) there will be a fee, of around $600- unless you have a concession card. You can lodge an appeal with minimal information, to get in before the deadline, and if you later withdraw it there would be limited or no costs, depending how the other party responded.

Having been in the "system" for a while you will know that the Family Law Act is more of guide than stringent legislation when applied by courts. In appeals judgements are open to even more interpretation. To succeed in an appeal you either need to have a specific point which needs to be made thoroughly or a sympathetic judge who will interpret a decision to your liking(the second happens more than it should but it is just as likely they will support the other party and hit you with costs etc) having said this appeals are a little more sympathetic to appeals on specific matters, rather than blanket appeals.

Case law states that a trial judge needs to consider important issues and provide an explanation.  An appellate judge may find it sufficient for them to say in one sentence "I have considered this" or require them to thoroughly explain themselves in several paragraphs. Such is the variation of interpretation in appeal judgement and why they can support who they like best.

Judicial fairness is a relevant point but there is a vast difference between what you think is unfair and judicial fairness.

These are the cases on grounds of appeals that are commonly cited. They contain within them references to earlier established cases.

Pender & Hayward(2007)FamCA1526
Whisler & Whisler 2010 FamCAFC

Hope this helps

PS

Patronus is not a reference to Harry Potter 

"When there is no enemy within, the enemies outside can not hurt you"

Executive of SRL-Resources
Couple of things:
triple_beam said
The Magistrate decided to keep the surname unchanged and his reasoning was the inclusion of my surname would likely cause more disruption than benefits.
The Magistrate has considered and made a determination with reasoning considering the best interests of the child.
triple_beam said
I don't accept this finding and it seems he couldn't make a judgement based on our evidence. He only questioned us at the stand, no witnesses or cross examination. He also made mention to the child turning 6 however I did mention my wishes about the surname early in the court proceedings.
That may be so but the Magistrate decided otherwise. Also there is little mention of the other parent the step parent here. There would have bene a consideration in the relationship with that parent and the child also.

Be mindful of S121 rules also here. This is a public forum. You cannot publish case details here.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Secretary SPCA said
Couple of things:
triple_beam said
The Magistrate decided to keep the surname unchanged and his reasoning was the inclusion of my surname would likely cause more disruption than benefits.
The Magistrate has considered and made a determination with reasoning considering the best interests of the child.
I would have like a more indepth reasoning, we were given the decision and case closed. Based on the findings do you still believe I have little chance of winning an appeal and shouldn't bother?
triple_beam said
I don't accept this finding and it seems he couldn't make a judgement based on our evidence. He only questioned us at the stand, no witnesses or cross examination. He also made mention to the child turning 6 however I did mention my wishes about the surname early in the court proceedings.
Secretary SPCA said
That may be so but the Magistrate decided otherwise. Also there is little mention of the other parent the step parent here. There would have bene a consideration in the relationship with that parent and the child also.
He is aware of incidents between the step parent and myself and other members of my family.
Secretary SPCA said
Be mindful of S121 rules also here. This is a public forum. You cannot publish case details here.
If I have broken a rule S121 by publishing the case can I have them removed by a moderator? So my appeal was going to be on: In a recent decision the Court indicated that a further option may be available, namely a hyphenated name (see Mahoney v McKenzie (1993) FLC 92-408). In that case, the mother proposed that the child be known by a hyphenated surname which was a combination of her own and the fathers surname. The court (per Warnick J) held: that the court attached no significance to the manner of the registration, which was the husbands surname, and did not find a particular attachment or identification with either parents surnames; a number of benefits could be expected to arise from the use of a hyphenated surname for the child, because: o he had an ongoing relationship with both of his parents, although they did not live together; o the hyphenated surname might facilitate the recognition by others of his circumstances and the ease with which the child had accepted such circumstances; o the use of hyphenated surnames offered him a middle road in times of rapidly changing social attitudes. Do you think that won't hold up in an appeal in the Supreme Court? I found out I need to appeal to the Supreme court because it involves the Family Law Act and we were never married. Appeal is 21 days to file and must be on a point of law. I confirmed this with the Supreme Court appeals division as well. I am waiting to hear back from a lawyer as to if I have a chance to go ahead by filing before COB Friday.

Appeals in WA

An appeal lies as of right from the Family Court of Western Australia in the exercise of State jurisdiction to the Full Court of the Supreme Court of Western Australia; see sec 81(2a) of the Family Court Act 1975 (WA).

The procedure applicable to an appeal from the Family Court of Western Australia in a State matter is specified in the amended Order 64 ("Appeals from Court of Inferior Jurisdiction and from Arbitrators'') together with Order 63 (``Appeals to the Full Court, New Trials'') of the Rules of the Supreme Court, 1971 (WA).

An appeal to the Supreme Court from the Family Court of Western Australia must be instituted by notice of motion (O 63, r 2(1)) which must be filed and served on all parties directly affected by the appeal and on the Registrar of the Family Court within 21 days from the date of the judgment or order appealed from, or within such extended time as may be fixed by the Full Court, a Judge or the Master of the Supreme Court: O 64, r 3(2).

Subject to the special provisions of O 64, r 3, the general provisions of the Rules of the Supreme Court set out in O 63 relating to appeals to the Full Court from a Judge of the Supreme Court apply so far as is practicable to appeals to the Full Court from the State Family Court: O 64, r 3(1).

As a result of the particular sub-rule just referred to, an appeal may be made from either the whole or any part of a judgment or order of the State Family Court: O 63, r 2(2). Moreover, by virtue of sec 81(2) of the Family Court Act 1975 (WA), an appeal will lie inter alia from an order dismissing an application or complaint, or an order refusing to make an order, or an order dismissing an appeal from a court of summary jurisdiction. The appeal itself is by way of rehearing: O 63, r 2(1).

Upon an appeal from the State Family Court the Full Court has power to affirm, reverse, or vary the judgment or order that is the subject of the appeal, and it also has power to make such decree as it believes ought to have been made at first instance Family Court Act, sec 81(2a). See also O 63, r 10 ("General powers of the Court'') and r 12 ("Powers of the Full Court as to new trial'').

Unless the Full Court or a Judge of the Supreme Court otherwise orders, an appeal must be entered for hearing for the first sittings of the Full Court appointed to be held after the expiration of eight weeks from the institution of the appeal; the entry itself must be made at least one month before the day appointed for the commencement of those sittings: O 63, r 7(1), (2).

Based on what I read here it may be worth having a go with the warnick j precedent .

You will need to fill out teh relevant form with specifically,  the grounds relied upon in support of the appeal; see Rules of the Supreme Court, O 63 r 2(2), (3).]

In compiling the notice of appeal it should be observed that by O 63 r 2(2), an appellant may appeal from the whole or any part of a judgment or order and the notice of appeal must state whether the whole or only part of such judgment or order is complained of; in the latter case the notice must specify the part concerned. The notice must also state briefly, but specifically, the grounds relied upon in support of the appeal and what judgment the appellant seeks in lieu of that appealed from. Rule 2(3) then provides that it is not sufficient to allege that a judgment or order is against the evidence or the weight of the evidence or that it is wrong in law; the notice must specify the particulars relied on to demonstrate that it is against the evidence or the weight of the evidence, or the specific reasons why it is alleged to be wrong in law, as the case may be.

You must DEMONSTRATE and demonstrate from the evidence in YOUR case.
One interesting appeal in WA not related to your case

ECKETT & ECKETT
(2010) FLC
Family Court citation: [2010] FamCAFC

In the Full Court of the Family Court of Australia at Perth
Judgment delivered 12 March 2010

Family law  Appeal  Jurisdiction  Jurisdiction of Family Court of Australia  Proper avenue of appeal from Family Law Magistrates  Western Australia family law system  Statutory interpretation  Interpretation of "application" provisions  Family Law Act 1975 (Cth), s 94AAA(1A).
  
This was an appeal against orders made by a family law magistrate in the Magistrates Court of Western Australia.

The primary proposition of the appellant was that the Family Law Act 1975 (Cth) is a code and "must be read as a single document and (subject to the Constitution) as meaning what it says". It was further submitted that the terms of s 94AAA(1A)(a) are quite clear and the fact that the proceedings had been transferred to the Magistrates Court after having been instituted in the Family Court of Western Australia was irrelevant. It was submitted that item 27 does not limit or affect the prima facie meaning of s 94AAA(1A)(a) and that any drafting error in item 27 does not result in any limitation on the clear terms of s 94AAA(1A) since otherwise for all practical purposes this subsection would be "redundant". The respondent conceded that the appeal had merit but submitted that the Full Court of the Family Court of Australia lacked power to hear it.

The respondent contended that the 2006 amendments effected by items 20 and 26 had no application because the proceedings giving rise to the appeal were not instituted in the Magistrates Court of Western Australia but rather were instituted in the Family Court of Western Australia and were then transferred to the Federal Magistrates Court of Western Australia. It was argued that the appeal could only be determined by a judge of the Family Court of Western Australia by way of a hearing de novo.

Held: appeal allowed.

1. The outcome of the appeal turned on the construction of one provision of the Jurisdiction of Courts (Family Law) Act 2006 (Cth).

2. The Family Law Act 1975 (Cth) should be seen as a "code" in that, for example, it must be treated as the repository for all substantive legislative provisions governing appeals from courts exercising jurisdiction under the Act.

3. There will be occasions when it will be necessary to have regard to Acts which have amended the principal Act.

4. The purpose of the 2006 Amendment Act was clearly to support the existing system by increasing the jurisdictional limits of the Federal Magistrates Court of Western Australia and providing an appeal structure which reflects the expertise of the specialist family law magistrates. Hence, in the case of all proceedings instituted after the commencement of Pt 1 of Sch 1 of that Act, the right of appeal under the Family Law Act 1975 (Cth) from all decrees of family law magistrates is to the Family Court of Australia constituted by a Full Court, save where the chief justice otherwise directs.
You will need to look to specific legal grounds in the first instant.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Thanks for your effort and support in this matter. I have amended my account details to show my email, I understand people here are busy but was wondering if I could provide other form of contact details for a verbal discussion due to the time left to file an appeal. Or perhaps a brief notice to appeal should suffice and request leave to appeal to give time to do more research and perhaps ask for legal aid. I have been refused legal aid in the past though based on income.

That's an interesting point that I must also serve the Family Court of Western Australia. From my experience there is some leniency with procedures to an extent. My predicament is I have to process payroll on Friday and unfortunately the lawyer who was supposed to contact me today did not. Tomorrow morning the person I have been getting advice from will be contacting the lawyer then myself for further instruction.

As chance would have it I am picking up my son on Friday so I will be able to serve the other party upon arrival. If she doesn't accept I can either place it on the ground or in her mail box but I know she will attempt to throw it back into my car, perhaps a friend as a witness might be a good idea.

I've attached a draft notice of appeal omitting any direct reference to the case. But am unsure on what is required to complete it succesfully based on not being versed on the Family Court Act and the whole appeal process. I do have a friend who is studying law and have been asking him for help as well. He was surprised at my progress and research so far, even suggesting I study law with him :lol:

Furthermore if I am to ask for leave to appeal then I believe I need to also file a supporting affidavit which will require finding a JP to sign off on too. In which case I would also be required to seek further assistance in making sure that is accepted at the Supreme Court. From what I have read it seems the Supreme court process of appeal will be much more efficient and faster.

Question: From my understanding I can not enter new evidence only that which has already been stated/presented in the case. Is that evidence across the whole two and a half year period since starting the case or only from the last hearing regarding the surname?

Being that it is close to 1:00 AM I am unable to read and absorb all this information you have posted but I will be forwarding it to my friend and the person I get legal advice from, hopefully he will on-forward to the lawyer. The lawyer should be cognisant of the warnick j precedent however I myself at this moment in time would struggle to apply.

Secretary SPCA said
In compiling the notice of appeal it should be observed that by O 63 r 2(2), an appellant may appeal from the whole or any part of a judgment or order and the notice of appeal must state whether the whole or only part of such judgment or order is complained of; in the latter case the notice must specify the part concerned. The notice must also state briefly, but specifically, the grounds relied upon in support of the appeal and what judgment the appellant seeks in lieu of that appealed from. Rule 2(3) then provides that it is not sufficient to allege that a judgment or order is against the evidence or the weight of the evidence or that it is wrong in law; the notice must specify the particulars relied on to demonstrate that it is against the evidence or the weight of the evidence, or the specific reasons why it is alleged to be wrong in law, as the case may be.
Based on that and if I understand correctly I would be appealing the whole judgement, being that there was only one judgement made. That is the surname is to remain unchanged. Making things more complicated is the fact that I have yet to have the formal court stamped orders sent out and the last page of the documents handed on the day said For those reasons the following order will be made: All applications before the Court be and are hereby dismissed.

That is just procedure I am sure the official order will say something like surname to remain unchanged. Back to my appeal though…So I would be appealing the whole judgement. The next part is I need to state the grounds. Here is where my friend studying law sent me a long email on unfairness and judicial unfairness. Again I have had no time to read as my nights have been spent doing work for my payroll due Friday.

My grounds could be briefly stated as unfairness, is this where I would have to mention the warnick j precedent?

Could I use these below points as grounds for appeal somehow?

Paragraph 5 mentions her uncertainty as to the father. Not sure if and how this would effect any decision but I stated that not only could her ex and her not have kids after trying for 5 years but a GP I consulted said that when they slept together it was outside of the 2 week period where conception in embryo happens. She has stated earlier that she slept with im multiple times though.

Paragraph 15 mentions that the mother perceives mine and my sons relationship as friends then this would mean that adding the hyphenated name would help build that relationship. However the Magistrate believe it is already a loving relationship.

Paragraph 24 mentions disruption at school. Although not brought up you could hopefully apply the law of common sense that in 2011 having amended surnames is very common and he hasn't started year 1 yet only pre primary.

Paragraph 27 mentions the Magistrates belief that the mother sees her immediate family as my sons only family. She has done plenty to try and exclude myself and my family in the past, I have given plenty of evidence for that. So wouldn't the hyphenated name help to strengthen his affiliation to his father and his family?

My judgement I would seek would be the original request I made two and a half years ago when we were still seeing a Family Law Court consultant, to add my name to my sons name.

Rule 2(3) then provides that it is not sufficient to allege that a judgment or order is against the evidence or the weight of the evidence or that it is wrong in law; the notice must specify the particulars relied on to demonstrate that it is against the evidence or the weight of the evidence, or the specific reasons why it is alleged to be wrong in law, as the case may be.

Here is where I might be stumped though, hopefully if I get the appeal in I can work on that in due time.

Secretary SPCA said
You will need to look to specific legal grounds in the first instant.
Not sure what you mean here, I assume I need to find a legal ground to appeal. Not sure how or where to find that answer or if what I have currently will even suffice for the notice of appeal. I do have hope for a fair chance to have the case heard though.


Thanks

Last edit: by Artemis

triple_beam said
Question: From my understanding I can not enter new evidence only that which has already been stated/presented in the case. Is that evidence across the whole two and a half year period since starting the case or only from the last hearing regarding the surname?
I am not sure that is the case. I do not read that in O 63 r 2(2), an appellant may appeal from the whole or any part of a judgment or order and the notice of appeal must state whether the whole or only part of such judgement or order is complained of; in the latter case the notice must specify the part concerned. The notice must also state briefly, but specifically, the grounds relied upon in support of the appeal and what judgement the appellant seeks in lieu of that appealed from. Rule 2(3) then provides that it is not sufficient to allege that a judgment or order is against the evidence or the weight of the evidence or that it is wrong in law; the notice must specify the particulars relied on to demonstrate that it is against the evidence or the weight of the evidence, or the specific reasons why it is alleged to be wrong in law, as the case may be. I read it as you can bring in any amount of additional material to support your appeal arguments.
triple_beam said
Secretary SPCA said
In compiling the notice of appeal it should be observed that by O 63 r 2(2), an appellant may appeal from the whole or any part of a judgment or order and the notice of appeal must state whether the whole or only part of such judgment or order is complained of; in the latter case the notice must specify the part concerned. The notice must also state briefly, but specifically, the grounds relied upon in support of the appeal and what judgment the appellant seeks in lieu of that appealed from. Rule 2(3) then provides that it is not sufficient to allege that a judgment or order is against the evidence or the weight of the evidence or that it is wrong in law; the notice must specify the particulars relied on to demonstrate that it is against the evidence or the weight of the evidence, or the specific reasons why it is alleged to be wrong in law, as the case may be.
Based on that and if I understand correctly I would be appealing the whole judgement, being that there was only one judgement made.
I was of the view it was the name that was the issue. Why would you spend a quadzillion hours (which you don't have) trying to appeal the whole case when all you are unhappy with is the name. Unfortunately I am in an extreme time poor state currently due to exams and assignments but you could contact the SRL Resources group. I am not sure what they can do in one day.


Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Yes I am appealing the issue of the surname, I am satisfied with the other judgements made and had a lot of orders go in my favour. I was so confident this would too and I strongly believe it is for the benefit of my son as well.

Spoke to a lawyer today who was kind enough to give me advice over the phone at no cost. I did confirm although people at the FLC and Supreme court were uncertain, that I am to appeal to the Supreme Court.

The lawyer believe that its a 50/50 chance but leaning more towards the appeal being dismissed as the Magistrate will be given discretion. Also that I should self represent as a lawyer couldn't do much for me. I should be able to self represent.

He said 2 points for my grounds for appeal:

1) That the Magistrate did not follow the criteria set out in the Chapman and Palmer case - I will have to read the case properly to know what he means here but I should have time for that after I get the appeal in. In which time I hope to contact the SLR resource group.

2) He also said something about the Magistrate not following correct procedure in that he considered additional/secondary points before considering primary points for this case. again here i do not know the specifics of this ground of appeal but will breifly state it in my appeal notice for now and expand when we progress.

The lawyer said he can't speak on the evidence I gave at trial but I'd need to 'beef' it up. Perhaps subpeoa a teacher to say that disruption is minimal. He said that could be a double edge sword if his teacher gives a negative statement. The guy I get advice from suggested someone else such as from the education department. Is there any literature on name changes in schools. Also the lawyer said at age 5 going on 6 and only being in primary school I could argue his identity has not formed yet perhaps.

He confirmed that the Magistrate stating about the mother only including her immediate family as our sons only family would be a strong point to raise.

Tomorrow then I just need to hand in the notice of appeal and  affidavit for leave. I should be fine and should be getting assistance from the law firm even to fill in my initial documents, I don't mind paying for that.

Good luck with your exams : )
1 guest and 0 members have just viewed this.

Recent Tweets