AB v CD [2026] NSWDC 134

Catchwords: CHILDREN – dispute as to naming of a child – power of the Court to grant injunctive relief – whether an undertaking as to damages should be given District Court New South Wales Medium Neutral Citation: AB v CD [2026] NSWDC 134 Hearing dates: 22 April 2026 Date of orders: 22 April 2026 Decision date: 22 April 2026 Jurisdiction: Civil Before: Dicker SC DCJ Decision: 1. Orders in accordance with the document headed “ Orders ” as signed and dated 22 April 2026 by Dicker DCJ and placed with the papers. 2. The Summons is listed for directions and if appropriate, further hearing of the interim relief sought in prayers 1 to 8 at 11am on 29 April 2026 with an estimate of one to two hours. Catchwords: CHILDREN – dispute as to naming of a child – power of the Court to grant injunctive relief – whether an undertaking as to damages should be given Legislation Cited: Births, Deaths and Marriages Registration Act 1995 (NSW) District Court Act 1973 (NSW) Cases Cited: ABC v O’Neill [2006] HCA 46; (2006) 227 CLR 57 In the matter of Islamic Association of Western Suburbs of Sydney Incorporated [2025] NSWSC 1465 Kerry v New South Wales Ice Skating Association [2025] NSWSC 833 Mahommed v Unicomb [2017] NSWCA 65 Nichles v Attorney ‑ General for New South Wales [2025] NSWCA 132 Option Funds Management Ltd (receivers and managers appointed) as trustee for the Option SIV Real Estate Fund v Zhao [2025] NSWSC 1376 Pelechowski v The Registrar, Court of Appeal (1999) 198 CLR 435 Category: Procedural rulings Parties: AB (Plaintiff) CD (First Defendant) Registrar of Births, Deaths & Marriages (Second Defendant) Representation: Counsel: J Parrish (Plaintiff) Ex parte Solicitors: XXX (Plaintiff) Ex parte File Number(s): 2026/00XXX JUDGMENT – EX TEMPORE Before the Court is an ex parte application for certain injunctive relief brought by the plaintiff pursuant to a Summons filed on 21 April 2026. In support of the application, the plaintiff read: The affidavit of EF dated 21 April 2026; and The affidavit of AB dated 21 April 2026. The plaintiff also tendered E xhibit AY ‑ 1 to the affidavit of AB dated 21 April 2026 and a letter dated 21 April 2026 from the solicitors currently acting for the defendant. The background to the matter is that the plaintiff and the defendant are husband and wife. The evidence establishes that they formed a relationship sometime in 2015 and married in February 2017. The evidence also establishes that there are two children of the marriage: one, a girl, G , born in August 2021, and thus nearly five years of age; the second child is a boy, recently born. It appears from the evidence before me that the plaintiff recently travelled overseas for some reason. While he was overseas, contact between the plaintiff and the defendant terminated. When he returned home, he realised that there had been a breakdown in the relationship between him and his wife, and since that time most of the contact between the parties has been through legal practitioners. Serious allegations have been made against the plaintiff by the defendant, and an interim apprehended domestic violence order has been made against him. The plaintiff will vigorously defend the allegations giving rise to that order. It appears that there are also related proceedings in the Federal Circuit and Family Court of Australia. The plaintiff is concerned in relation to not only defending the allegations made against him giving rise to the apprehended domestic violence order, but also to regularise the position so he can have proper access and interaction with his small daughter and baby son. The material before me shows extensive correspondence between the solicitors for the parties relating to the naming of the baby boy. At present, the plaintiff does not even know, on the evidence, when the boy was born . I t is clear that the boy was born recently. It seems, from all the evidence, although I do not know whether it is the current position, that the defendant does not dispute that when the child ’ s birth is registered, that the surname of the child should be the same as the surname of the father. As I said, whether that is still the position is unclear. What is concerning to the plaintiff father is the potential other name or names for the child. There seems to be a dispute about that . I t is undoubtedly the case that this Court has certain powers relating to a dispute about a child ’ s name under the Births, Deaths and Marriages Registration Act 1995 (NSW). Ultimately, any dispute in relation to the child ’ s name, unless it can be resolved, will need to be determined by the Court. It appears that under the Births, Deaths and Marriages Registration Act 1995 (NSW) ( “ BDM Act ” ) , the Court has certain powers, including under s 19 to order the registration of a birth or the inclusion of registrable information about a birth or a child ’ s parents . U nder s 22 the Court has the power to determine a dispute about a child ’ s name, including the power to order the R egistrar to register the child ’ s name in the form specified in an order made by the Court. In the application today, Mr Parrish of counsel, who appears for the plaintiff, submits that the Court has a number of sources of power, including a power under its general power to order an injunction for an action under s 44, as that is properly construed taking into account the definition of “ action ” in s 4 of the District Court Act 1973 (NSW) and the jurisdiction of the Court set out in s 9. It is submitted, in essence, that the Court has the power to grant an ancillary injunctive order under s 46 of the District Court Act , taking into account the definition of “ action ” as used in s 44(1)(a) of the District Court Act , and also ha s the power conferred under the BDM Act in the light of s 9(1)(b) of the District Court Act . Obviously, the Court looks at the position in an ex parte application as to whether it is reasonably arguable that it has the power to make the orders sought . In Mahommed v Unicomb [2017] NSWCA 65, Ward JA (with whom Macfarlan JA and McDougall J agreed) considered the jurisdiction of the Court and made clear that the District Court, as an inferior court of record, has only the jurisdiction conferred on it by statute, either expressly or by necessary implication. Her Honour then went on to set out the Court ’ s jurisdiction arising from ss 9 and 44 of the District Court Act . That decision primarily concerned the Court ’ s equitable and related jurisdiction. It is clear from the decision of the High Court in Pelechowski v The Registrar, Court of Appeal (1999) 198 CLR 435 that this Court does have a limited jurisdiction, including under s 46. In particular, I refer to the decision of the plurality at paras 41 ‑ 44. However, the plurality in Pelechowski also indicated its approval for the concept that the existence of powers in an inferior court also include s those powers which the court must possess by way of necessarily implication : at [50]-[51]. In Nichles v Attorney ‑ General for New South Wales [2025] NSWCA 132, Ward P emphasised in para 37 that the District Court possesses no inherent or supervisory jurisdiction . I t possesses only the jurisdiction expressly conferred on it by statute or arising by necessary implication for the effective exercise of a jurisdiction which is expressly conferred on it. The decision of Pelechowski above was referred to by her Honour . In the recent decision of Kerry v New South Wales Ice Skating Association [2025] NSWSC 833, Rothman J in the Supreme Court made clear, relying on Pelechowski , that the term “ necessary ” in relation to implying jurisdiction in a court means a power to make orders “ which are reasonably required or legally ancillary to the accomplishment of the specific remedies “ provided. That effectively refers to para 50 of Pelechowski and is consistent with the decision s in Mahommed v Unicomb and Nichles , above. The Court, as has been stated above, has certain powers under the BDM Act . However, it seems to me, on an interlocutory ex parte basis, that taking into account the Court ’ s powers that it has under s s 19 and 22 of the BDM Act , that it is reasonably arguable that those powers, by necessarily implication, in order for the effective exercise of the jurisdiction which is expressly conferred by the BDM Act , include a power to give relief by way of injunction to prevent something occurring. I think there is some force in the submission made by Mr Parrish for the applicant that there is a general obligation on a party to register a child ’ s name within a certain period of time, and that because of that obligation , there is a risk that the mother may feel obliged to register the child ’ s name. That risk, in my view, gathers some force by the 21 April 2026 Brigid Justice letter, which is exhibit B on the application. Accordingly, taking into account the reference to the Court having civil jurisdiction consisting of jurisdiction conferred on it by “ any other Act ” (s 9(1) of the District Court Act 1973 ), in my view it is strongly arguable that that power extends to the giving of ancillary equitable relief under s 46, it being then an action which gives the Court the necessary implied jurisdiction. I am less favoured to Mr Parrish ’ s other submission in relation to s 44. I do not have any evidence or authority in the current situation that the Court would have jurisdiction under s 44(1)(a) of the District Court Act , as it is unclear to me that this action would have been assigned to the Common Law Division at the relevant date . If , however , the Court has jurisdiction under the BDM Act , then it would appear that the Court would have ancillary powers, at least on an interlocutory ex parte basis, under s 46. I therefore turn to the requirements for an interlocutory injunction. As is clear from the decision of the High Court in ABC v O ’ Neill [2006] HCA 46; (2006) 227 CLR 57 at 68, in an application for an interlocutory injunction, the Court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff ’ s entitlement to relief , has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown the balance of convenience favours the granting of an injunction. In my view, there is clearly a serious question to be tried as to the proper name for the child and whether it should be a particular first name and should have the inclusion of the plaintiff ’ s surname. Although the Court has the power to remedy the register, in my view it is important to preserve the status quo until the issue of the proper name is determined. In relation to the balance of convenience, there appears to be no prejudice to the defendant in relation to preventing the registration of the name of the child pending the determination of the issue. The defendant is represented by lawyers and the issues between the parties on the name front are well developed. The Court would only propose giving injunctive relief for a short period of time, and bringing the matter back in a few days ’ time for further argument and, if necessary, with an early timetable being ordered for the hearing. I am satisfied that the plaintiff here clearly has an interest in the naming of the child and, while ultimate success by an order for his version of the name is by no means assured, the matter is a serious and not speculative one. I refer in particular to the analysis of the requirements to give injunctions by Nixon J In the matter of Islamic Association of Western Suburbs of Sydney Incorporated [2025] NSWSC 1465 at paras 22 and following, and by Slattery J in Option Funds Management Ltd (receivers and managers appointed) as trustee for the Option SIV Real Estate Fund v Zhao [2025] NSWSC 1376 at paras 43 and following. For the above reasons, in my view, on an ex parte interlocutory basis, there should be injunctive relief as sought . I will now settle the orders to be made in order to achieve that. [THERE WAS THEN DISCUSSION WITH COUNSEL IN RELATION TO THE PROPOSED ORDERS] An issue has arisen in relation to whether the usual undertaking as to damages would be appropriate to be given by the plaintiff. The rules provide for a usual undertaking as to damages : Part 25.8 . Generally speaking, it provides that, in the event that injunctive relief is ultimately set aside, the applicant gives an undertaking to be responsible for any damages arising from the interim orders. This is an unusual case. It relates to a dispute in relation to the naming of the child in question. There does not appear readily to me to be a circumstance in which the defendant could potentially suffer any financial loss as a result of the injunctive orders. In those circumstances, it seems, in this unusual case, that it is not necessary to give the orders only on the basis that the usual undertaking as to damages is given by the applicant . Accordingly, that undertaking will not be required from the applicant on this application. The formal order made by the Court is as follows: Orders in accordance with the document headed Orders as signed and dated 22 April 2026 by Dicker DCJ and placed with the papers. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 May 2026