Eastwood & Wahlman (No 2) [2025] FedCFamC2F 1513 (30 October 2025)

1. Following the mother's compliance with Order 1 the mother shall order a Birth Certificate from the Births, Deaths and Marriages Registries of NSW and Victoria for each of the children and provide them to the father within 5 days of receipt.
2. The parties are restrained from causing or permitting the names of the children to be further changed or from being known by any other names other than Y Eastwood-Wahlman and X Eastwood-Wahlman without further order of the Court.
3. The application by the independent children's lawyer in respect of costs is dismissed.
4. The independent children's lawyer is discharged.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 12 August 2025 I heard an application for an order permitting Ms Wahlman ("the mother") to change the surname for her two children which was opposed by Mr Eastwood ("the father"). I reserved my decision on this occasion. On 14 August 2025, while my decision remained reserved, the mother unilaterally registered a different surname for the children.
2. The parties have two children together, Y, born in 2019 (aged 6) and X, born in 2020 (aged 5). They separated in December 2022 after a relationship of around five years and on 13 January 2023 the father commenced proceedings about the parenting arrangements for the children.
3. The matter was listed for a final hearing before me commencing on 11 August 2025. The interests of the children were represented by an independent children's lawyer (ICL). The parties and the ICL were represented by counsel at the final hearing.
4. On 12 August 2025 I was provided with a minute of orders (exhibit 1) that resolved the majority of parenting issues apart from some limited issues in relation to the father's time with the children over Christmas, the children's surnames and the ICL's costs.
5. I made orders in accordance with the minute of order as I was satisfied based on the available evidence, including the family report of Ms E, that the orders were in the best interests of the children.
6. The parties then gave oral evidence and were cross-examined on the limited issues. They were able to reach agreement on the issue of the father's time with the children over Christmas, which left the one outstanding parenting issue of the surname to be used for the children. The mother sought an order allowing her to hyphenate the children's names to "Wahlman-Eastwood". The father asked the Court to dismiss the mother's application so that the children would continue to be known by the surname Eastwood. After hearing submissions on this issue, I reserved my decision.
7. On 23 October 2025 the mother informed the Court that on 14 August 2025 she had taken steps to change the children's surname to "Wahlman" by lodging forms with the Registry of Births, Deaths and Marriages in NSW and the Registry of Births, Deaths and Marriages in Victoria
8. For the reasons that follow I will make orders for the mother to register the children's surnames as Eastwood-Wahlman.

1. The father was born in 1978. He is currently 47 years old.
2. The mother was born in 1990. She is currently 35 years old.
3. The parties met in 2015 and commenced cohabitation in 2017.
4. Y was born in 2019.
5. X was born in 2020.
6. The parties separated on 16 December 2022.
7. On 13 January 2023 the father commenced these proceedings by filing an application for final orders and the mother filed her response on 18 February 2023.
8. The mother has been the primary parent since separation.
9. In late 2023 a final apprehended domestic violence order (ADVO) was made against the father for the protection of the mother and children. That ADVO was extended until late 2025.
10. On 25 January 2024 Senior Judicial Registrar McNamara made interim orders for the children to have unsupervised time with the father.
11. On 2 May 2025 the interim orders were varied by consent to require changeovers to be supervised.
12. The father lives with his new partner and her children, who are in a shared care arrangement, in Town F. The mother lives in Sydney with the children.

1. On 12 August 2025 final orders were made by consent which, in summary, provide for the children to live with the mother and have prescribed time with the father, increasing over three stages. Relevantly, order 1 relates to decision-making and provides as follows:
   1. Parental responsibility be allocated for sole decision-making by the mother about all major long-term issues, in relation to the children, [X] born [in] 2020 ([X]), and [Y] born [in] 2019 ([Y]) (the children) and prior to making any decisions the mother shall:
      1. Notify the father in writing of the nature of the decision under consideration and her proposal for the children;
      2. Consider any views of the father if provided to her in writing within 7 days of the notice being provided pursuant to order 1(a) above; and

c. inform the father of her final decision once made.

1. On 12 August 2025, after hearing evidence and submissions about the children's surname, I reserved my decision.

1. During the final hearing all counsel submitted that the mother required a specific order in relation to the surname to be used by the children because of the requirements of the Births, Deaths and Marriages Registration Act 1995 (NSW).
2. On 13 August 2025, after becoming aware of a relatively recent legislative amendment to the Births, Deaths and Marriages Registration Act 1995 (NSW), my Chambers emailed the parties' legal representatives and the ICL as follows to correct a misconception about the relevant legislation:

Dear All,

A copy of the orders made yesterday is now available for viewing on the Commonwealth Court Portal.

It has since come to her Honour's attention that, pursuant to legislative amendments in 2024, s 28(3) of the Births, Deaths and Marriages Registration Act 1995 (NSW) now provides that a registration of a change of a child's name can be made by one parent who has sole parental responsibility for major long-term issues: Births, Deaths and Marriages Registration Act 1995 No 62 - NSW Legislation.

The parties and the independent children's lawyer each have 7 days to file and serve written submissions of no more than two pages in relation to this matter should they wish to do so. Alternatively, within 7 days the parties have liberty to relist the matter on 2 business days' notice to Chambers in writing.

1. On 18 August 2025 the mother's solicitor emailed Chambers and stated:

Dear Associate

We refer to the above matter and advise that all parties have been included in this correspondence.

We confirm that the Respondent Mother will no longer press the 'Change of Name' issue in her application.

1. On the same day the father emailed Chambers and stated:

Dear Associate,

I refer to the correspondence from [Mr G] dated August 18, 2025.

I note the confirmation that the Respondent Mother will no longer press the 'Change of Name' issue in her application.

However, I wish to advise that I still seek an order restraining both parties from changing the children's names.

Please advise if I am still required to make submissions in support of this request.

1. On 19 August 2025 Chambers wrote to the parties about the arrangements for the relisting of the matter to deal with the children's surname and, following correspondence about suitable dates, the matter was relisted before me on 23 October 2025.

Parental responsibility for decision-making in relation to major long-term issues

1. Section 61B of the Family Law Act 1975 (Cth) ("the Act") defines parental responsibility in relation to a child as "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children".
2. Section 61D(3) of the Act makes clear that "[a] parenting order that deals with the allocation of responsibility for making decisions about major long‑term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision‑making in relation to all or specified major long‑term issues".
3. The term "major long-term issues" is relevantly defined in s 4(1) of the Act as follows:

major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:

1. The issue of a child's name is a parenting matter and must be considered in accordance with the provisions of Part VII of the Act.
2. Section 60B of the Act sets out the objects of the Act and focuses on the Court's obligation to ensure that the best interests of children are met including by ensuring their safety.
3. Pursuant to s 60CA of the Act, the Court is required to regard "the best interests of the child as the paramount consideration". In order to determine what is in a child's best interests, I must have regard to the relevant considerations within s 60CC(2) of the Act.
4. The authorities establish that the Court is to have regard to the best interests of the children in determining matters relating to the names given to children: see, eg, Fooks & McCarthy [1993] FamCA 117; Reagan & Orton [2016] FamCA 330 ("Reagan").
5. The Full Court gave consideration to a change of a child's surname in Chapman & Palmer [1978] FamCA 86; (1978) FLC 90-510 ("Chapman"). The Full Court said at 77,674:

The general principle appears to be that the court will not intervene to prevent a parent from changing the surname of a child in the custody or care and control of that parent (or to direct that a name be restored where a change has occurred), unless the court is satisfied that the change was made without the consent of the other parent and that it does not promote the welfare of the child. The same principle applies when the court is asked to direct that a surname be restored where a change has already occurred. In deciding the issue in each case there is no onus of proof. It is for the court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.

1. In Chapman, the Full Court further stated at 77,675-77,676:

... the factors to which the Court should have regard in determining whether there should be any change in the surname of a child include the following:

(a) the welfare of the child is the paramount consideration,

(b) the short and long term effects of any change in the child's surname,

(c) any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control,

(d) Any confusion of identity which may arise for the child if his or her name is changed or is not changed,

(e) The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.

(f) The effect of frequent or random changes of name.

The nature of orders relating to a child's surname was considered by the Full Court of the Family Court in Flanagan v Handcock [2000] FamCA 150. It is apparent from the Full Court's decision that whichever way one analyses a change of name issue, that is by reference to a s 68B injunction or a parenting order, either directly or indirectly the paramountcy principle of the child's best interests is applicable.

1. Justice Foster also identified the following factors "frequently considered in determining whether there should be any change to a child's name" (in addition to those identified by the Full Court in Chapman as quoted above) at [34]:

...

e) The contact that the non-custodial parent has had and is likely to have in the future with the child;

f) The degree of identification that the child or children have with their non-custodial parent; and

g) The degree of identification which the child or children have with the parent with whom they live.

1. Section 28(3) of the Births, Deaths and Marriages Registration Act 1995 (NSW) sets out the circumstances in which one parent may make an application for registration of a change of a child's name:

(3) An application for registration of a change of a child's name may be made by one parent if -

...

(a1) the parent has sole parental responsibility, under a final parenting order made under the Family Law Act 1975 of the Commonwealth, to make decisions about -

(i) major long-term issues for the child within the meaning of that Act, or

...

(c) a court approves the proposed change of name.

1. Section 28(3)(a1) was inserted into the legislation following an amendment by the Crimes (Domestic and Personal Violence) and Other Legislation Amendment Act 2024 (NSW) which came into force on 1 December 2024. Prior to this amendment it was not possible for a parent with sole parental responsibility for decision-making about long-term issues to apply for registration of a change of a child's name in NSW without a specific order permitting the name change.

1. As discussed above, at the final hearing of this matter on 12 August 2025 the parties and the ICL were in agreement that the Court's adjudication of the issue of the children's surname was required and, after hearing evidence and submissions, I reserved my decision. The following day Chambers informed the parties of section 28(3) of the Births, Deaths and Marriages Registration Act 1995 (NSW) and sought their further submissions.
2. I have summarised the evidence and positions of the parties on 12 August 2025 below.

1. The mother relied on her affidavit, oral evidence and submissions.
2. The mother sought an order permitting her to change the children's surname to incorporate her surname Wahlman as part of a hyphenated name. It was her submission that the children would benefit from their mother, their family and their Country H cultural heritage being acknowledged in their surname and that it would make travel and other administrative functions easier.
3. She submitted that the name change reflects the best interests of the children as she is their mother and primary carer and it is reasonable for the children to have a surname which includes hers. She gave evidence that it would be important for the maternal grandfather to have his name recognised. She also said that she had told the children about her intention and they had been extremely pleased and excited. The mother's position was that while she would prefer the hyphenation to be Wahlman-Eastwood, she was open to it being Eastwood-Wahlman.
4. The mother rejected the submission made by the father that she was seeking an order for the name change of the children as a calculated way of destroying the father's relationship with the children. She was not suggesting a replacement of their surname, but rather an addition so that it can be representative of both parents. The mother would subject herself to a restraint that she would not change the surname of the children again. The children are at an age where surnames have much less significance than if they were older.

1. The father relied on his affidavit, oral evidence and submissions.
2. In short, the father submitted that there is an absence of evidence regarding how the children will be impacted by the name change or whether they would feel embarrassed by it. The children identify with the surname Eastwood and the Court can make an inference that Y's teachers and other children would be familiar with the name Eastwood. The children are of a young age and little weight can be given to the assertion by the mother that the children were excited about the name change. Given their ages, the children could not understand the implications a name change could have.
3. He further submitted that the orders sought by the mother seemed calculated to undermine the importance of the father in the children's lives and that the hyphenated surname would be a "mouthful".

1. The ICL relied on her oral submissions.
2. She also relied on the family report of family consultant Ms E dated 30 July 2024. Ms E evaluated the parenting arrangements for the children but did not specifically consider what it would mean for the children for their names to be changed, as this had not been identified as an issue at the time she prepared her report. Ms E observed that the children have a loving and supportive relationship with their mother and a positive and settled life with her in Sydney. She also observed that the children have retained a meaningful relationship with their father.
3. The ICL submitted that the children are very young and would not be significantly impacted by a name change, especially one made before the youngest child started school. She expressed some concern in relation to the mother's evidence about introducing the name change idea to the children prior to a decision being made by the Court. This was not to the mother's credit and could only cause confusion for the children, particularly if the Court did not make the orders she sought. The ICL acknowledged that the children have a strong attachment to and identification with their mother, and whilst the mother's discussion of the name change with the children may have been inappropriate, it is fair to suggest that they probably would have been excited to share their mother's name.
4. The ICL submitted that if the Court was minded to change the children's surname the name Eastwood should appear first to minimise confusion for the children.

1. On 23 October 2025 the matter was relisted before me for further submissions and consideration in relation to the issue of the children's surname. The father and ICL were represented by counsel and the mother was represented by her solicitor. The mother's solicitor informed the Court for the first time that:

(a) on 14 August 2025, being the day following the email sent by Chambers to her solicitor, the mother had unilaterally taken steps to change the children's surname to Wahlman by lodging forms with the Registry of Births, Deaths and Marriages in NSW and the Registry of Births, Deaths and Marriages in Victoria;

(b) upon learning of the father's position on 18 August 2025 she had immediately taken steps to suspend the registration with both agencies;

(c) she had been able to put the Victorian registration for one child "on hold" but the registration for the other child has been accepted;

(d) the NSW registration was accepted for both children and could not be suspended; and

(e) she informed the father of these actions on 21 October 2025.

1. The mother's solicitor sought to explain the mother's actions by submitting that, when the mother had received the email from Chambers dated 13 August 2025 she had erroneously understood that email to mean that she was free to take those steps.
2. The mother's solicitor conceded that the mother should not have taken those steps. This concession was entirely appropriate because:

(a) the mother had herself sought orders to permit her to hyphenate the children's surname and, having been present for and listened to the father's submissions on this topic, would have been left in no doubt that the father opposed the change of name;

(b) the Court had clearly reserved its decision in relation to the surname of the children;

(c) the email from the Court did not indicate that she was free to do as she chose in relation to the surnames, but gave the parties the opportunity to make further submissions in relation to a recent legislative amendment;

(d) she has been legally represented at all relevant times and should have sought legal advice before taking any action to change the children's surnames;

(e) she has changed the children's surnames to Wahlman rather than the hyphenated name proposed by her during the hearing, entirely removing the father's surname; and

(f) she delayed informing the father of the change of name until 21 October 2025 for reasons that were not explained.

1. In addition and most importantly, in the mother's exercise of parental responsibility it is plain that she could not have taken account the views of the father in the manner envisaged by order 1 of the orders made on 12 August 2025. This order allocates parental responsibility for decision-making about major long-term issues to the mother but requires her, prior to making any decisions, to notify the father in writing of the nature of the decision under consideration and her proposal, consider any views of the father and inform the father of her final decision once made. She did not notify the father of the proposed decision beforehand, consider his views or inform him of her final decision until 21 October 2025.
2. The mother's conduct in unilaterally changing the children's surnames while the issue was still before the Court (and my decision reserved) and without obtaining the father's views on the topic is concerning. In my view, it demonstrates a lack of respect for the Court process and a disregard for the father's role in the children's lives.
3. On 23 October 2025 the father submitted to the Court a minute proposing the following orders:
   1. That within 7 days the mother attend Births, Deaths and Marriages and change the name of [X] born [in] 2020 and [Y] born [in] 2019 ("the Children") as follows:
      1. from [X Wahlman] to [X Eastwood] ; and
      2. from [Y Wahlman] to [Y Eastwood].
   2. That following the mother's compliance with Order 1 the mother shall order a Birth Certificate from Births, Deaths and Marriages for each of the Children and provide them to the father within 5 days of receipt.
   3. That following the mother's compliance with Order 1 the parties are restrained by injunction from changing the name of the Children from [X Eastwood] and [Y Eastwood].
4. The ICL relied on her supplementary written submissions, which had been prepared prior to the ICL being informed of the mother's unilateral actions. The ICL then submitted that the mother's actions had not been child-focussed and she supported the orders sought by the father.

1. The question now is whether the orders proposed by the father should be made. The mother does not seek any orders.
2. As discussed above, I am concerned that the mother's actions in registering the change of the children's surnames reflects both a lack of respect for the administration of justice and a disregard for the father's involvement in the children's lives. Despite the children using the name Eastwood for their early years, she has seen fit to completely remove this name.
3. Putting these concerns about the mother's conduct to one side, in determining this issue I must focus on orders that will promote the best interests of Y and X. In doing so, I have had regard to relevant s 60CC(2) considerations and to the matters discussed in Chapman and Reagan.
4. I find that there are unlikely to be any significant long-term or short-term adverse effects associated with changing their surname particularly given their young ages. They are at the commencement of their primary school years.
5. The mother is the children's primary carer and the evidence establishes that the children have a close and loving relationship with her. The mother gave evidence that she had spoken to the children about incorporating the name Wahlman into their surnames before the final hearing and that they were very excited about the prospect, despite it being premature to have this conversation with them before any determination about the issue. While there was no evidence before the Court as to the consequences of recent events, I consider it likely they will have already been told about their actual or proposed name change to Wahlman.
6. The evidence also establishes that the children have a positive relationship with the father. The children will be having more time with the father in accordance with the orders.
7. I was initially not persuaded by the father's submission that the mother had proposed a change of name to undermine the father's role in their lives because her position at the time of trial was that their name should be hyphenated. However, in light of her actions after 12 August 2025, I consider that his submission appears to have substance.
8. The mother's actions have put the Court in an invidious position. One option for the Court is to order that the children's names be restored to Eastwood, which is the name they have held since birth. However, I am concerned that the children will be confused and potentially upset by another change of their names and about the message it will send to them. It will almost certainly remind them that their parents can agree on very little, including their names, and that there is ongoing conflict and animosity between them.
9. Ultimately, the issue of their surnames is probably more significant to the parties than the children themselves at this stage of their lives and has, sadly, become a vehicle through which the parties' conflict can play out. I am of the view that the children will benefit from understanding that their surname reflects the importance of their connection with both sides of their families.
10. I find it is in Y and X's best interests to have the surnames of both parents.
11. Counsel for the father and the ICL submitted at the final hearing that if the Court was to make orders for a hyphenated surname then Eastwood should appear first. I agree with this submission. The children are familiar with the name Eastwood, having used it for their young lives, and I am satisfied that it should appear first.
12. I will make an order restraining the parties from using any other surname for the children because I am now persuaded that such an injunction is necessary
13. Accordingly, I will make an order requiring the mother to apply for the children's surname to be changed to Eastwood-Wahlman in NSW and Victoria within 7 days and an injunction restraining the parties from using any other surname for the children once that change has been registered.

1. I am satisfied that the orders I make are in the best interests of Y and X.

1. The ICL filed a costs notice on 12 August 2025 which sets out that the ICL's total costs were $20,346.70 (exhibit ICL1). The ICL sought that each party contribute towards these costs in the sum of $10,173.35 each.
2. The relevant provision concerning ICL costs is found in section 114UC of the Act:

(1) In proceedings in which an independent children's lawyer for a child has been appointed, the court may make a costs order, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in relation to the proceedings.

(2) However, if:

(a) a party to the proceedings is receiving assistance by way of legal aid in respect of the proceedings; or

(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;

the court must not make a costs order against that party in relation to the costs of the independent children's lawyer.

(3) For the purposes of paragraph (2)(a), assistance by way of legal aid does not include assistance provided to a party in accordance with a Commonwealth scheme operating for the purpose of applying the requirements of subsection 102NA(2).

Funding of independent children's lawyer not to affect costs order

(4) In considering what costs order (if any) should be made under subsection (1) in proceedings in which an independent children's lawyer has been appointed, the court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service:

(a) established under a law of the Commonwealth or of a State or Territory; or

1. The father has been in receipt of funding under the Commonwealth Family Violence and Cross-Examination of Parties Scheme. His receipt of this funding does not preclude the making of a costs order in favour of the ICL.
2. The father's counsel sought leave to adduce evidence that he is a bankrupt. I granted that leave and a 'Notification of Bankruptcy' was sent to my Chambers. The father was made bankrupt in late 2023. He filed financial statement on 19 August 2025 indicating an estimated weekly income of $1,100 and estimated weekly personal expenditure is $1,584. He further claims that he has a personal loan of $20,000, a car estimated to be $20,000 and household contents estimated to be $6,000. He will be impacted by the need to pay for travel in order to have time with the children.
3. The mother is the primary carer for the children and is employed as a community worker. She filed a financial statement on 10 August 2025 which refers to a debt owed by her to Mr J for legal fees in the estimated amount of $85,897. I accept that this litigation would have placed the mother under financial pressure. Further, the mother's total weekly expenses are greater than her weekly income with a difference of approximately $394. The mother deposes to having a car valued at approximately $14,500, $3000 in her bank account, $1000 in household contents and $40,000 in superannuation. She claims to have no other property or financial resources.
4. Counsel for the mother submitted that she will now have added commuting expenses including petrol and toll fees as a result of the need to transport the children in accordance with the final orders.
5. I am satisfied that an order for the parties to contribute towards the ICL's costs would cause them both financial hardship. I thank the ICL for her assistance and dismiss the application for costs.

I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Colquhoun.