CDJ v VAJ

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kelly & Huber has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 26 September 2025, a judge of the Federal Circuit and Family Court of Australia (Division 2), made a suite of parenting orders in relation to the parties' two children, born in 2017 and 2020.
2. Amongst the orders that were made was the following:
   1. The mother and father be restrained from using or being party to or complicit in the use of any surname for the children, [X Huber] born [in 2017] and [Y Huber] born [in 2020] other than the name "[Huber]" and, in particular, from using or being party to or complicit in the use of the name "[Kelly-Huber]" for the said children.
3. The mother has appealed the making of that order. The Independent Children's Lawyer supports the appeal. The respondent father indicated in his Summary of Argument that he adopted a neutral position in respect of the appeal, although his oral submissions suggested he opposed the appeal.
4. The appeal is from a discretionary decision, so the following principles apply (House v The King (1936) 55 CLR 499 at 504-505):

...The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred...

1. Essentially, the mother's complaint on the appeal is that the primary judge did not take into account the children's use of the mother's surname for several years, particularly in sporting events where they have won trophies which display the mother's surname on them. The children's educational and travel records use the same name.
2. The difficulty is that this evidence was not before the primary judge. It is contained in an affidavit affirmed on 13 October 2025 and is the subject of an application to adduce further evidence on the appeal.
3. Evidence that was available to be used at the hearing, as this was, is normally not admitted on appeal (CDJ v VAJ (1998) 197 CLR 172 at 55]).
4. The Independent Children's Lawyer submitted that it would be in the best interests of the children for that evidence to be adduced in the appeal. I shall return to that shortly.
5. The primary judge's reasons essentially consist of the following:
   1. Taking into consideration the matters identified by the Full Court [in Flanagan v Handcock (2001) FLC 93-074] and the submissions of counsel, I attach weight to the following factors in concluding the children's surname should not be hyphenated:

(1) until the parties separated nearly three years ago, I infer the children would have identified and used the surname [Huber]. The children are still young and if the mother has, as she deposed, allowed the children to assume the surname of [Kelly] and improperly obtained Government identification with her surname on it, she can undo this act;

(2) the children do not attend at mainstream schools where their surname may be called out in class roll calls or printed on documents such as class awards, further strengthening their connection and identification with the mother's surname. As such there is likely to be little, to no embarrassment or confusion to the children in the mother reverting to calling them [Huber] when she takes them to the doctors or organisations that utilise the children's surname; and

(3) whilst the children will continue to live with the mother and it is not disputed that they enjoy a close relationship with her, the father has not sought to distance himself from the children and has actively pursued a relationship with the children by virtue of the current proceedings before the court. The children have a right to have a relationship with the father and to share in his identity.

1. The Independent Children's Lawyer submitted that there was no basis for the primary judge to find that the mother "improperly obtained Government identification with her surname on it". There is no evidence to that effect and it cannot be inferred merely from the use of the mother's name on the children's Medicare cards.
2. As to sub-paragraph (2), the Family Report writer noted that the children did not appear to be socially isolated despite being home-schooled (Family Report of Dr B dated 12 May 2025, paragraph 2). It is unclear therefore why there would be "no embarrassment or confusion to the children in the mother reverting to calling them [Huber]". If they are in a social setting there may well be some embarrassment or confusion.
3. I would add, that given the ages of the children, particularly the younger, that the children would have no great memory of the use of the father's surname.
4. Finally, in sub-paragraph (3), the primary judge did not consider whether or not the children could share in the father's identity by being known as "Kelly-Huber" (which was the name proposed by the mother and the Independent Children's Lawyer) or whether that connection could only be maintained by the use of "Huber" alone.
5. Her Honour said:
   1. The mother's changing of the children's surname and willingness to allow the children to identify with the changed surname, is suggestive, in the court's view, of a punitive response by the mother toward the father and an attempt to diminish the father's connection and importance in the children's lives.
6. Again, whilst that may be so, the focus is on the mother's behaviour as opposed to what is in the best interests of the children.
7. There is force in the submissions of the Independent Children's Lawyer and I am satisfied that error has been demonstrated by the taking into account of irrelevant material and failing to have regards to relevant issues.
8. It is necessary for me to re-exercise the discretion. In the circumstances, it is appropriate therefore to have regard to the further evidence.
9. It follows therefore that the Application in an Appeal succeeds. Having regard to that evidence, which shows that the children have a strong association with the surname "Kelly", it is therefore in the best interests of the children for them to continue the use of that name.
10. However, as the primary judge said, it is important for them to retain some connection with the father's identity.
11. Taking all these matters into account, I am persuaded that the appropriate surname for the children is "Kelly-Huber" and there will be an order to that effect accordingly.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.