FAMILY LAW ACT 1975

TN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT DARWIN

No. 34 of 1981

In the Marriage of:

MICHAEL JAMES COLEMAN
Husband
AND:

PAULINE DAPHNE TOKARCZYK
Wife

CORAM:	NADER J

REASONS FOR JUDGMENT
(delivered 13 October 1987)

This started as an application by Pauline Daphne Tokarczyk for an order that she be permitted to call the child of the marriage by the surname Tokarczyk for all purposes except on her birth certificate.	The child's surname is Coleman.	In the course of the proceedings, on 23 September 1987, I allowed an amendment of the order sought, so that the applicant now asks for

an order that the child hereafter be known as and described on all documents except on her birth certificate as Nancy Leanne Tokarczyk.

In general it was contended on behalf of the applicant that the welfare of the child would be better served and promoted by her being known as Tokarczyk than as Coleman, except in her birth certificate.	A number of arguments were put in support of the application.

The applicant and the respondent were married at Cairns, Queensland on 31 January 1976. Nancy was born on 6 October 1979. The applicant and the respondent separated on 16 February 1980.
On 11 February 1981 Gallop J placed the child in the custody of the applicant.	On 5 April 1983 Forster CJ defined the terms of access.	The parties were divorced on 14 October 1985.	On 20 December 1985 the applicant and Mr Tokarczyk, with whom she had been living since about 1983, were married.	Nancy will be eight years old on 6 October 1987.	Nancy has been living with the applicant and Mr Tokarczyk since about 1983 when they first commenced to live together.

In about April 1986 the applicant changed Nancy's name unilaterally from Coleman to Tokarczyk: that is, it was done without the consent of the respondent.	The chanqe was made at Nancy's primary school, on the Medicare Card and on a bank account.	The day before the school vacation the respondent

complained to the school authorities about the change of name. The solicitor for the applicant, informed me that it is the policy of the NT Department of Education that a child's name cannot be changed formally at a school except by order of a court.		It is a notorious fact that there are large numbers of children at NT schools who were born to marriages which have since dissolved.	There must be many children in situations similar to that of Nancy.	Nancy continues, therefore, to be known on school records as Coleman, although it is likely she is informally known as Tokarczyk.	The applicant and Mr Tokarczyk have a child of their union, Kara Ivy Tokarczyk, born on 31 May 1986.	There has been a lack of agreement concerning the custody of Nancy evidenced by the number of court disputes between the parties.

I observed carefully both the applicant and the respondent in the witness box and generally during the hearing. I have considered the affidavits.	I have formed opinions of the parties.	In a case such as this it is preferable not to elaborate unfavourable impressions if possible, but it is necessary for me to say that while the applicant was basically
truthful, within that broad limit she was prepared to rationalise a justification for her case.	She seemed inflexible of disposition and inconsiderate of the respondent.	Despite a show of reasonableness, I concluded that she was not well disposed towards the respondent, and does not consider his feelings or wishes.	This does not directly touch on the welfare of Nancy,

but it does reflect on the general disposition of the applicant which must indirectly influence the development of Nancy.	I would not like to see the influence of the respondent on Nancy, slight as it must now be, reduced further.	From my observations of him, I think his influence would be good.	Nor, in my opinion, has the applicant given due weight to the importance of the relationship between the respondent and Nancy: that of father and daughter.

The respondent has access to Nancy.	No overt criticism was made of him in the applicant's case.

I am not overly moved by allegations of Nancy's desire, expressed to the applicant at this early stage in her life, to be a full member of the Tokarczyk family, dominated as she must be by the influence of the applicant and Mr Tokarczyk.	Such a change ought not to be made for reasons of childish sentiment.
In my opinion it will be soon enough when she is more mature to make such a decision.	When she is older and ceases to be an immediate member of the Tokarczyk household, moving with freedom between her mother and father's households, she may regret a change of surname made in her childhood.	The reasons given for wanting the change are vague and unconvincing, but more significantly, they are reasons of limited duration.	I would not like to see a change that may have lasting repercussions made for very temporary reasons.		When the age of custody has passed the reasons given by the applicant for wanting the change will largely have disappeared.

There is no sufficient reason for changing Nancy's surname.	She may at first be disappointed, especially if the applicant does not deal with her in a mature and positive way.  It would be most desirable if her mother and Mr Tokarczyk were to explain to Nancy that she is already a full member of their family notwithstanding her name.	It should be explained that her name recognises the respondent's paternity, a recognition that she may desire when she is older.		Then she will be able to make up her own mind about her surname.		In the meantime, I  believe the formal connexion with her paternity ought not to be broken.

I dismiss the application.