Crawley and Anor and Rankin

[2008] FamCA 1235

FAMILY COURT OF AUSTRALIA

CRAWLEY AND ANOR & RANKIN [2008] FamCA 1235

FAMILY LAW – CHILDREN – With whom a child lives – ex parte application by biological mother and social father – biological father unable to be located –  non-biological but long term social parent standing in loco parentis – change of children’s names where children have no proven connection with the heritage of their names – application for new passports for the children

Family Law Act 1975 (Cth)

APPLICANTS: Mrs and Mr Crawley

RESPONDENT: Mr Rankin

FILE NUMBER: MLC 8745 of 2008

DATE DELIVERED: 2 October 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 2 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M. Wilson

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

Orders

On the matter of Crawley & Rankin, MLC 8745 of 2008, the minutes of orders filed this day, as amended, initialled and dated by me this day and marked exhibit "A" and directed that they remain on the court file, I order, on an ex parte basis, in accordance with the minutes, to be engrossed on the provisional electronic copy in the appropriate form by the solicitors for the applicants within seven days.  They include an order dismissing applications and removing them from the list of cases awaiting hearing. 

IT IS ORDERED BY CONSENT

1. That service of these proceedings and orders upon the respondent MR RANKIN be dispensed with.

2. That the requirement that the parties attend Family Dispute Resolution under section 60I of the Family Law Act 1975 be dispensed with.

3. That the firstnamed applicant MRS CRAWLEY (in the following orders referred to as “the wife") and the secondnamed applicant MR CRAWLEY (in the following orders referred to as "the husband") have equal shared parental responsibility for the children W born … October 1993 and T born … June 1995 ("the children").

4. That the children live with the husband and wife.

5. That the children be permitted to travel internationally with the husband and/or the wife.

6. That the husband and wife do all such acts and things and sign all such documents as may be necessary to change the children's names from W RANKIN to P CRAWLEY and from T RANKIN to T CRAWLEY.

7. That for the purpose of giving effect to paragraph 6 hereof the husband and the wife be and are hereby authorised to apply to change the registration of the children's names from W RANKIN to P CRAWLEY and from T RANKIN to T CRAWLEY.

AND IT IS REQUESTED

1. That the Registrar of Births, Deaths and Marriages of the State of Victoria do all things to give effect to paragraph 7 hereof.

IT IS FURTHER ORDERED

1. That the husband and wife be authorised to do all acts and things and execute all documents to enable valid Australian passports and valid United States Visas and/or passports (if required) to issue in the names of the children.

2. That pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

3. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel for the firstnamed and secondnamed applicants.

4. That all extant applications be otherwise dismissed and the proceedings removed from the list of cases maintained by the Court.

IT IS NOTED that publication of this judgment under the pseudonym Crawley and Anor & Rankin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8745 of 2008

MR AND MRS CRAWLEY

Applicants

And

MR RANKIN

Respondent

REASONS FOR JUDGMENT

1. The proceedings come before me on an ex parte basis in circumstances in which I am satisfied that the affidavit material relied on on behalf of the applicants is consistent and credible.  There is no reason for me to question the veracity of it and I accordingly accept it in its entirety. 

2. In the circumstances, it is not necessary for me to go into the detailed history of this matter, suffice to say that the two children of the present applicants are in turn the biological children of the wife, the first applicant, and the social children of the second applicant. 

3. That family dynamic has existed for approximately 10 years and I am satisfied, on all of the material, that - certainly the biological mother, but more particularly the social father, the second applicant, stands in loco parentis of these children and is their father in every respect other than biological. 

4. The husband, as I will refer to him, is an American citizen, the wife is an Australian citizen.  One of the children was born in Australia and the other one was born in America.  They want to return to live in America.

5. The biological father of the children has not been in communication in any way with the children for many years and I am satisfied, particularly on the affidavit of the private investigator, that the biological father is nowhere to be found.  He has, on the material, acted quite inappropriately towards these children.  I am satisfied, on all the material, that he might pose some degree of risk to them and the consequence of his not seeing them into the future not only does not trouble me but appears to me, on the all of the evidence, to be in their best interests. 

6. There is no need for me to go into the detailed legislative structure. I find that it is appropriate, first, that all questions of service on the biological father, the respondent, should be dispensed with, and I also find that it is appropriate under section 60I of the Act, that any requirement for the parties to attend family dispute resolution be dispensed with.

7. By virtue of the fact that both applicants stand in loco parentis of these children, it is appropriate that they should have equal shared parental responsibility and that there should be an order that they live with both the applicants. 

8. I will make an order for the obtaining of passports, notwithstanding the fact that the biological father does not consent.  On one view, that may not be necessary, but, out of an abundance of caution I will nevertheless do so. 

9. There will be no order which will prevent any travel whatsoever or any decision by the applicants, who will have the shared parental responsibility as to where to live with the children.

10. As far as the names are concerned, the power of the Court under the state law as established by the Registration of Births, Deaths and Marriages Act of the State of Victoria is very limited.  This Court is not a "court" for the purposes of that act and so I am unable, as a matter of jurisdiction, to direct the Registrar of Births, Deaths and Marriages of this state to amend the register for a change of name. 

11. However, in the circumstances, and particularly given that there is at least a significant question mark as to whether the biological father, the respondent, does have any indigenous association and has got nothing to do with the children and that the children have had no contact with any indigenous connection which they may have, it is appropriate that the names be changed in accordance with the applications.  I will be ordering accordingly. 

12. Otherwise, the proceedings will be dismissed and removed from the list of cases maintained by the court. 

I certify that the preceding paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin 

Associate: 

Date:  17 April 2009