COVEY & BURNEY

[2015] FCCA 1890

FEDERAL CIRCUIT COURT OF AUSTRALIA

COVEY & BURNEY [2015] FCCA 1890

Catchwords:
FAMILY LAW – Ex tempore ruling on application to change name of a child.

Legislation:
Family Law Act 1975

Applicant: MS COVEY

Respondent: MR BURNEY

File Number: MLC 1284 of 2015

Judgment of: Judge Burchardt

Hearing date: 10 June 2015

Date of Last Submission: 10 June 2015

Delivered at: Melbourne

Delivered on: 10 June 2015

REPRESENTATION

Counsel for the Applicant: Mr O’Donnell

Solicitors for the Applicant: Not provided

The Respondent: No appearance

ORDERS

THE COURT DECLARES THAT:

1. It is in the best interests of the child X born (omitted) 2000 to be known as X.

THE COURT ORDERS THAT:

1. The mother be 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 to X.

2. The parties be exempted from attending family dispute resolution pursuant to s.60I of the Family Law Act 1975.

3. Dispense with service upon the father.

THE COURT DIRECTS THAT:

1. A sealed copy of this order be served 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.

IT IS NOTED that publication of this judgment under the pseudonym Covey & Burney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 1284 of 2015

MS COVEY

Applicant

And

MR BURNEY

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant in this case is the mother of a child whose name on his birth certificate appears to be X, born on (omitted) 2000. I say “appears to be”, because the mother’s affidavit suggests that the child was originally registered in her own unmarried name, but that this was crossed out by the respondent. I am not quite sure how the respondent would have been able to do that, but I accept for present purposes that that is what the child was registered as.

2. The mother seeks to change the child’s name by the exclusion of the names “X”, which are the personal names of the respondent, and to change the surname to her own and that of her husband.  She deposes that she had a violent and controlling relationship with the respondent and there is certainly no shortage of account of that in the material before the Court.

3. Things progressed in such a fashion that following separation, by consent, orders were made on 29 August 2002 before Federal Magistrate Hartnett, as her Honour then was, which provided for supervised time by the father with the child, as agreed with the mother.  I am told that in fact the last time the father saw the child was prior to those orders in February of 2002.  He has never paid child support and has not seen X nor sought to be in any way involved in his life since then.  Indeed, the best endeavours the mother has been able to make, bearing in mind restrictions on the provision of information by statutory authorities, give no insight as to where he may now be.  There is some hearsay evidence that he may have been incarcerated since separation on more than one occasion.

4. The applicant has had the good fortune to make a new and far better relationship with Mr Covey, who has, in effect, been in a parental role for X since he was a tiny child.  Indeed, X did not know until relatively recently that Mr Covey was not his biological father.  The mother tells me he was told last year and handled it very maturely.  That is very good news.

5. Mr Covey deposes, as does the applicant mother, that the child is an integral part of the family, that he regards himself, in fact, as being a child of both of them, and would like to have his name changed to have the same surname. The mother seeks to excise the memory of somebody whom X would not remember, or if he did have some vestigial memory, would only remember as a person filled with violence and rage.

6. It is well-established that these change of name cases are all about the best interests of the child.  It is not necessary to quote authority to establish such a proposition, it being so well-established.

7. Plainly, on the facts of this case as they stand, I should make the orders as sought and I will do so.  It is clearly in X’s best interests to have the same name as his other siblings.  It is the name by which he has, to all effects and purposes, always been known.  It reflects the reality of his life.  It would, doubtless, distress him if the orders were not made.

8. Accordingly, on all fronts, it is quite clear that these orders should be made, save that the order for the change will be made in the usual format that the Court produces.  Self-evidently, should Mr Burney feel that this decision is wrong or unfair to him, he has his rights under the Court’s rules, bearing in mind that he is not present today.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  10 July 2015