Bondal & Ram
[2021] FedCFamC2F 187
•4 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bondal & Ram [2021] FedCFamC2F 187
File number: MLC 631 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 4 October 2021 Catchwords: FAMILY LAW – FINAL PARENTING – Undefended – change of child’s name – where mother already has an order for sole parental responsibility – where court is satisfied father is aware of proceedings – orders made – matter finalised. Legislation: Evidence Act 1995 (Cth), s 144
Family Law Act 1975 (Cth), s 4
Division: Division 2 Family Law Number of paragraphs: 13 Date of hearing: 4 October 2021 Place: Melbourne The Applicant: Appeared In Person The Respondent: No Appearance ORDERS
MLC 631 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BONDAL
Applicant
AND: MR RAM
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
4 OCTOBER 2021
THE COURT DECLARES THAT:
1.It is in the best interests of the child currently known as ‘X’ RAM born in 2016 to be now known as X BONDAL.
THE COURT ORDERS THAT:
2.The Applicant Mother, Ms Bondal is authorised to apply to the Registrar of Births, Deaths and Marriages in and for the State of Victoria to change the name of the child previously registered as ‘X RAM’ to X BONDAL.
THE COURT DIRECTS THAT:
3.The Applicant Mother serve a sealed copy of this order upon the Registrar of Births, Deaths and Marriages in and for the State of Victoria who is requested to give effect to any such application.
THE COURT ORDERS THAT:
4.All extant applications are otherwise dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Bondal & Ram has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. In this matter, an application comes before me to change the name of the child, X Ram to X Bondal. The Father's name is Mr Ram (‘the Father’). The Mother's name is Ms Bondal (‘the Mother’). Both parties were of the Sikh religion and/or cultural tradition. The parties were married in Melbourne in 2014 and X was born in 2016.
The parties separated when X was about 8 weeks old when the police took out a safety notice excluding the Father from the former matrimonial home. On 20 July 2016, the day following the safety notice, as far as the Mother knows, the Father left Australia for India and has resided there since. On 25 July 2016, an intervention order was made. A divorce was granted or decree nisi on 2 May 2020.
On 17 October 2020, the Mother's barrister, Mr Jassar, emailed to the Father an application and an affidavit in the previous proceedings between them. The Father's response of Saturday, 17 October 2020 at 11.48am is set out below where the Father did not make any objection.
Hello Mr Jassar,
Earlier which document you have sent by the mail, I signed them and it’s all ready been posted to you. I have no objection. If there is any other papers to sign plz can you email them and mark them where I have to sign and I will send you back by the email.
Thanks.
The Mother's only way of connecting with the Father is by writing to him at the previous email address. As at 17 October 2020, there is no doubt that email address is the Father's email address, as the Mother has asserted that it was, provided those instructions to her barrister and there had been a response. I am satisfied on the balance on probabilities that that is the Father's email address.
The Father had further documents emailed to him according to the Mother on 31 October 2020 and there was no response. On 7 December 2020, final orders were made giving the Mother sole parental responsibility. What was intended by that order was that the Mother would have sole parental responsibility for long-term issues concerning the child.
In these proceedings issued on 21 January 2021, the Mother seeks an order of the Court permitting her in the usual terms to change the child's name and to request that the Registrar of Births, Deaths and Marriages make that necessary alteration. The Mother told me that she had communicated with the Father on the only known address, which was a postal address in India where the Father's parents lived or had once lived. I was not satisfied that that was sufficient notice to him.
On further questions from me, I learned of the … .com email address from the Mother. The Mother did not wish to herself email the Father because, she said, she was concerned at harassment by him to that email address.
Putting aside whether that that was realistic or not, at my request my associate emailed documents to the Father on 7 July 2021, noting that the matter was next returnable in court on 9 July 2021. There was no response to that email from my associate. On 9 July 2021, I determined that there was insufficient notice to the Father (that is only two days) of the application and so I adjourned the proceedings to a date to be fixed. On or about 30 August 2020, the proceedings were allocated this date, 4 October 2020. On 1 October 2021 my associate sent a follow up email, and those three emails are in evidence as exhibit ‘C1’.
This court, by the December 2020 orders, made an order for the Mother to have sole parental responsibility that included, by inference, sole responsibility for decisions as to long term issues. The proceedings are pursuant to the Family Law Act 1975 (Cth) (‘the Act’) and the definition of major long term issues in section 4 of the Act is 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:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
By that existing final order, the Mother could change the child's name. In substance the Mother now seeks an order that would gives practical effect to the previous final order.
I am satisfied that the Father has had notice, and in the circumstance where there has been no reply and no what is colloquially known as a “bounce back”, I am satisfied that the Father has received those emails at that address. I take notice pursuant to section 144 of the Evidence Act 1995 (Cth) that to send an email to a valid email address on a domain such as … .com, where there is no response, including no failed sender or bounce back message, that means that the Father has received the email/s. I am satisfied on the balance of probabilities that he had notice of these proceedings today, on 7 July 2021, 30 August 2021, and again, on 1 October 2021.
In all of the circumstances, I am satisfied that the change of the name as the Mother seeks is in the child's best interests. I had previously raised with her the issue of maintaining in the child's name some reference to the Father's name, not as a surname or family name, but as a middle name. That arose in the context of the Mother's name containing the word Bondal, being the cultural signification of that culture for a female person. I raised with the Mother whether it would be in the child's interests to maintain the word "Ram" as a cultural reminder of his culture as a male person. The Mother reflected upon that and determined that she did not wish that.
In the circumstances where the Mother already has sole parental responsibility and seeks orders that merely give effect to the existing final order, I am not in a position to impose my view of what may have assisted the child in having that relic or only semblance of connection with his Father. His Father has not spent time with communicated with, called or paid a dollar for his welfare since leaving Australia in 2016. They are my reasons.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 14 October 2021
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