Dimitriou & Bedrosian
[2021] FedCFamC2F 596
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dimitriou & Bedrosian [2021] FedCFamC2F 596
File number(s): MLC 5536 of 2019 Judgment of: JUDGE BENDER Date of judgment: 4 November 2021 Catchwords: FAMILY LAW – PARENTING – The Mother’s application for parenting orders – the Father has not filed any material and has not participated in proceedings – the Father has had no involvement with the child since the child was born and the child has never met the Father.
HELD – Leave granted to proceed on an undefended basis – the Mother to have sole parental responsibility for the child – the child live with the Mother – the child’s surname be changed to that of the Mother’s surname – the Mother be authorised to obtain a passport for the child without the consent of the Father.
Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 24 Date of hearing: 4 November 2021 Place: Melbourne Counsel for the Applicant: Ms Ferrari Solicitor for the Applicant: Lanham Lawyers Counsel for the Respondent: The Respondent did not appear ORDERS
MLC 5536 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DIMITRIOU
Applicant
AND: MR BEDROSIAN
Respondent
ORDER MADE BY:
JUDGE BENDER
DATE OF ORDER:
4 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The Mother have sole parental responsibility for the child of the marriage X born in 2018 (“X”).
2.X live with the Mother.
3.The child previously known as X BEDROSIAN born in 2018 now be known as X DIMITRIOU.
4.The Mother apply to the Victorian Registry of Births, Deaths and Marriages to register the change of X’s name, in accordance with order 3 herein and do all such acts and things and sign all such documents as may be required to give effect to that registration.
5.Each of the parties, their servants and agents henceforth exclusively use the name X DIMITRIOU as the name of the child and not cause or permit any other person to use any name other than X DIMITRIOU as the child’s name.
6.The Mother is authorised to apply for and receive an Australian passport for X DIMITRIOU born in 2018 without first obtaining the written consent of the Father.
AND THE COURT NOTES THAT:
A.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
B.Pursuant to r.10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the court may vary or set aside a judgment or order made in the absence of a party.
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 Dimitriou & Bedrosian has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Revised from Transcript)JUDGE BENDER:
INTRODUCTION
This is the Mother’s application for parenting orders in relation to the parties’ 3 year old daughter X BEDROSIAN born in 2018 (“X”).
The Mother is seeking orders that she have sole parental responsibility for X, that X live with her, that she be able to change X’s surname to “Dimitriou”, which is the Mother’s surname and that the Mother be able to obtain travel documents without the written consent of the Father.
BACKGROUND
The Mother was born in 1992 and is 29 years of age.
The Father was born in 1986 and is 35 years of age.
The parties married in 2015 and separated on 20 May 2018, some five weeks after X’s birth.
Following separation, the Father completely disappeared from the lives of the Mother and X.
From the material filed by the Mother, it would appear that the Father has returned to Country C, though this is not known for certain despite the Mother’s very best endeavours to try and locate him.
Since the parties separation the Father has had absolutely no contact with the Mother or X.
The Mother obtained a divorce from the Father in December 2019. All efforts were made for service of the divorce application on the Father and ultimately orders were made for substituted service in relation to that application.
The Mother filed an Initiating Application in these proceedings on 20 April 2021 and that application first came before Registrar Sudholz (now Senior Judicial Registrar Sudholz) on 24 June 2021.
On that occasion Registrar Sudholz made orders for substituted service and required the Father to participate in the proceedings if he so chose. An order was otherwise made that in the event the Father failed to appear or be legally represented today, then the Mother would have leave to seek to proceed on an undefended basis.
The solicitors representing the Mother filed an affidavit on 13 October 2021 confirming that they have complied in every regard with the requirements for service upon the Father in accordance with Registrar Sudholz’s orders of 24 June 2021.
There is no appearance by or on behalf of the Father today and neither the Mother or her legal representatives have received any response from the Father in relation to the documents served upon him.
I am satisfied the Father is aware of today’s hearing and the application before the Court and the implications for him if he fails to participate in these proceedings. He has chosen not to do so. I am therefore of the view that the Mother’s application in this matter should proceed on an undefended basis and the matter be heard today.
PARENTING ORDERS
The orders sought by the Mother have been set out in paragraph 2 of this judgment.
The Mother has re-married and deposes in her affidavit filed 1 July 2021 that her now husband is for all intents and purposes X’s father.
Because the Father in these proceedings is named on X’s birth certificate, there is a vast number of ramifications for the Mother in the context of being able to organise a passport, medical issues and educational issues without the Father’s consent.
Understandably, the Mother seeks an order for sole parental responsibility so that she can continue to do what she has done since X was born, which is look after her and make all the relevant decisions necessary for her care.
As noted, the Mother also seeks an order that X has the same surname as her and her now Husband. It is submitted on behalf of the Mother that it is clearly in X’s best interests that her surname is the same as that of her family and her primary carers. I am in heated agreement with the Mother’s Counsel in this regard.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the considerations the Court must take into account when making parenting orders. The paramount consideration is that any order the Court makes be in the best interests of the children.
In this matter it is quite clear that the best interests of X are met by her Mother having sole parental responsibility for her, given that she has never actually met her Father and he has no involvement in her life.
It then follows for completeness that there be an order for X to live with the Mother.
In relation to the change of X’s surname it is clearly in X’s best interests to have the same surname as “her family”.
In all of the circumstances as set out in this judgment, I will make orders on an undefended basis that the Mother have sole parental responsibility for X, that X live with the Mother, that the Mother apply to the Registrar of Births, Deaths and Marriages to change X’s surname to Dimitriou and that the Mother be permitted to obtain a passport for X without first obtaining the consent of the Father.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender. Associate:
Dated: 4 November 2021
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