DUA
[2020] FamCA 299
•30 April 2020
FAMILY COURT OF AUSTRALIA
| DUA | [2020] FamCA 299 |
| FAMILY LAW – CHILDREN – CHANGE OF SURNAME – Where undefended hearing – Where discrete issue as to child’s surname – Where mother’s death is imminent due to cancer – Where mother seeks that the child be known by mother’s surname – Where father of child is said to be deceased – Where appropriate matter proceed on an undefended basis – Consideration of best interests principles – Orders made that the mother be permitted to register the child’s surname as mother’s surname. |
| Births Deaths and Marriages Registration Act 1995 (NSW) ss 28(3), 28(5) Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 68B |
| Flanagan v Handcock [2000] FamCA 150 Fooks v McCarthy (1994) FLC 92-450 Goode & Goode 2006 FCA 1346 MRR v GR (2010) HCA 4 |
| APPLICANT: | Ms Dua |
| RESPONDENT: |
| FILE NUMBER: | PAC | 4009 | of | 2019 |
| DATE DELIVERED: | 30 April 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 9 April 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Godden Lawyers |
| SOLICITOR FOR THE RESPONDENT: |
Orders Made On 9 April 2020
The mother Ms Dua is authorised to apply to the Registrar of Births, Deaths and Marriages NSW that the child registered as X born … 2013 be now registered as X Dua.
Pursuant to s 28(5) of the Births Deaths and Marriages Act 1995 (NSW) the Registrar register the child’s name in the form specified in the previous order.
The Court forward a sealed copy of this order to the Registrar of Births, Deaths and Marriages NSW.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dua has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4009 of 2019
| Ms Dua |
Applicant
And
Respondent
REASONS FOR JUDGMENT
Introduction
These are discrete parenting proceedings commenced by the applicant mother by Initiating Application filed 24 February 2020.
The application relates solely to the question of the name of the child X born in 2013 (“the child”) who at the time of the hearing was six years old.
The proceedings were dealt with on an expedited basis given the mother has been diagnosed with cancer.
The father has had no involvement in the proceedings as it is understood that he passed away some years ago. Accordingly, the matter was heard on an undefended basis.
At trial, the mother relied upon the following documents:
a)her Initiating Application filed 24 February 2020;
b)her affidavit filed 24 February 2020;
c)an affidavit by the maternal grandfather filed on 27 March 2020.
The mother sought orders that she be permitted to amend the child’s surname such that it be registered as the mother’s surname and not the father’s.
The maternal grandfather to whom parental responsibility for the child was allocated in the event the mother is deceased was served a copy of the mother’s application in accordance with court orders. In his affidavit filed 27 March 2020, the maternal grandfather indicated that he did not wish to file a Response but that he supported the mother’s application.
Orders were made by the Court in the terms sought by the mother on 9 April 2020 and reasons were reserved. These are those reasons.
Context
The mother is currently aged 50 and has been diagnosed with cancer with limited prognosis.
The mother commenced a relationship with the father of the subject child in around 2004 but the parties never married. They separated on a final basis in 2014 shortly after the child was born.
There is another child of the parties’ relationship, an older daughter aged 12 (“the older child”) who is not the subject of these proceedings. It suffices to say, however, that this child carries the mother’s surname and as such, at the birth of the younger child to whom these proceedings relate the parties decided that the younger child have the father’s surname in order to be “fair”.
Following separation, the father moved back to his home country Country B and had intermittent involvement in the children’s lives in the months that followed.
The mother then became the primary carer for the children and both she and the children ceased contact with the father in late 2014.
In 2016 the mother and the children travelled to Country B with the maternal grandparents at which time the children enquired as to their father. The mother then made attempts to contact the father including via his friends but was unsuccessful. She then deposes that another friend of the father’s later told her that he was deceased.
At a later stage, the mother again made enquires through a friend in Country B as to the father’s death. That friend had told the mother words to the effect of “[t]he hospital does not have a death certificate for [the father]. [The father] was married when he died and I don’t want to disturb his widow during her mourning by asking for it”. As a result, no death certificate for the father was procured by the mother.
In August 2019 the mother and the maternal grandfather made an application to the Court for the maternal grandfather to hold parental responsibility for the children in the event of the mother’s death and that the children also live with him thereafter. The mother was diagnosed with stage cancer in around November 2018 and given a limited prognosis. The paternal grandparents have never been a part of the children’s lives and the children do not, otherwise, have any extended paternal or maternal family.
Child Responsive Memorandum as to the Consent Orders
On 23 September 2019 the mother and maternal grandfather met with a family consultant and were interviewed and observed with the children as part of the Child Responsive Program. In his Memorandum to Court dated 25 September 2019 the family consultant concluded that “no reasons were identified to suggest that the proposed consent orders are not in the best interests of the children”.
Subsequently, on 3 October 2019, the following consent orders were made by a Registrar of the Court:
(1)That the mother shall have sole parental responsibility for [the older child] born in 2007 and [the younger child] born in 2013 (‘the children’).
(2)That in the event that the mother is deceased, the respondent maternal grandfather shall have sole parental responsibility for [the children].
(3)That the children shall live with the mother and the maternal grandfather.
(4)The respondent maternal grandfather is permitted to take the children X born in 2013 and X Dua born in 2007 out of Australia to a place outside Australia in accordance with s 65Y(2)(b) of the Family Law Act 1975.
(5)The children X born in 2013 and X Dua born in 2007 are permitted to travel internationally as provided by s 11(1)(b) of the Australian Passports Act 2005 and for this purpose the respondent maternal grandfather is permitted to apply for the issue of an Australian passport to the children under the provisions of s 11(4)(b)(i) of the Australian Passports Act 2005.
The mother and the children continue to reside in the same household as the maternal grandfather and the consent orders made on 3 October 2019 remain in place.
The proceedings
On 24 February 2020 the mother commenced these proceedings.
On 24 March 2020 the matter went before a Registrar who directed the mother to serve her Initiating Application and supporting affidavit filed 24 February 2020 upon the maternal grandfather. On this occasion service of the mother’s application upon the father was also dispensed with by a Registrar following an oral application made by the mother’s solicitor.
On 27 March 2020 the maternal grandfather was served a copy of the mother’s application by the mother’s solicitor.
On 2 April 2020 the matter was again before the Registrar and orders were made that the mother file an Affidavit of Service proving compliance with the order for service upon the maternal grandfather. Orders were also made that the matter be listed for an undefended hearing on 9 April 2020 and that the mother’s solicitor advise the maternal grandfather of this date and the specific court arrangements should he wish to participate.
The matter was heard on an undefended basis on 9 April 2020 with the mother’s solicitor appearing by phone. No appearance was made by or on behalf of the maternal grandfather.
Procedural fairness
As discussed above, it is the mother’s evidence that the father is now deceased. In circumstances where there is no evidence to suggest otherwise, and notwithstanding the absence of his death certificate, the Court is easily satisfied that it is appropriate for the matter to proceed on an undefended basis.
In any event, orders were made by a Registrar on 24 March 2020 that service of the mother’s application upon the father be dispensed with.
Further, although the maternal grandfather did not file material in response to the mother’s application he did indicate by Affidavit that he supported the mother’s position.
The child’s name
Notwithstanding that the mother has sole parental responsibility for the child pursuant to consent orders made on 3 October 2019, ss 28(3) and (5) of the Births Deaths and Marriages Registration Act 1995 (NSW) relevantly provides:
(3)An application for registration of a change of a child’s name may be made by one parent if:
(a)the applicant is the sole parent named in the registration of the child’s birth under this Act or any other law (including a corresponding law), or
(b)there is no other surviving parent of the child, or
(c)a court approves the proposed change of name.
...
(5)If any court (including any court of another State or the Commonwealth) approves a proposed name for a child, the court may order the Registrar to register the child’s name in a form specified in the order.
A change of name requires the Court to have regard to the best interests of the child.
The relevant principles in relation to parenting proceedings are set out more fully in Goode & Goode 2006 FCA 1346, and the pathway to be followed by the Court was confirmed by the High Court in MRR v GR (2010) HCA 4.
Section 60B outlines the objects and principles underlying the legislation in relation to children, and s 60CA provides that in deciding whether to make a particular parenting order, the Court must regard the interests of the child as the paramount consideration.
Section 60CC sets out the best interest considerations in relation to the child being the primary – subsection (2) – and additional considerations, subsection (3).
Parental responsibility is not an issue in the current proceedings, as previous orders were made that the mother is to have sole parental responsibility for the child.
Accordingly, the considerations before the Court fall to be determined by reason of the application of the best interest principles set out in s 60CC of the legislation.
The Court has had regard to each of the additional and primary considerations set out in the legislation.
This is a discrete issue for determination.
The nature of orders relating to a child's surname was considered by the Full Court of the Family Court in Flanagan v Handcock [2000] FamCA 150. It is apparent from the Full Court's decision that whichever way one analyses a change of name issue, that is by reference to a s 68B injunction or a parenting order, either directly or indirectly the paramountcy principle of the child’s best interests is applicable.
In Fooks v McCarthy (1994) FLC 92-450 Warnick J held:
There is only one principle that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents.
The factors frequently considered in determining whether there should be any change to a child's name include:
a)Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control;
b)Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
c)The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
d)The effect of frequent or random changes of name;
e)The contact that the non-custodial parent has had and is likely to have in the future with the child;
f)The degree of identification that the child or children have with their non-custodial parent; and
g)The degree of identification which the child or children have with the parent with whom they live.
As is clear from the mother’s evidence, the child has spent little time with the father having just been born just prior to the father relocating back to Country B at the parties’ separation. Following separation, the father only contacted the mother “on very few occasions … to check in on the children”. Otherwise, the father has played no active role in the child’s life in the years before his death. He is believed to be deceased.
The child is nearly seven years of age. Having regard to the child’s age and the father’s lack of engagement in her life the strong inference must be that the child has a strong attachment to the mother as her primary carer.
It is also the mother’s case that the child has no other family ties than to the maternal family who effectively consists of the maternal grandfather and the older child only. She insists that amending the child’s surname from that of the father’s will make the child feel that her real family ties are reflected in her legal name. It is the mother’s observation that notwithstanding the child’s registered birth name, the child identifies with the mother’s surname and has even preferred that she be referred to by this name at school.
Given the mother’s health condition and as it thereby appears that her death is regrettably imminent, it is her wish that the children share surnames so that they are also “link[ed] to each other and to [her] memory”. On at least one occasion the child is said to have told the mother words to the effect of “your last name is Dua and [the older child]’s name is Dua why do I have to be different?” and “I wish my last name is Dua like you and [the older child] so we can all be the same”.
Further, although the issue to be determined in these proceedings was not a live issue explored by the family consultant when his report was made, the family consultant nevertheless provides some insight as to considerations relating to the best interests of the child.
In his Memorandum to Court upon which the mother relied in her previous consent application and which was exhibited in these proceedings (Exh: “A”), the family consultant reported that other than the immediate maternal family there are no other family options available in relation to the future care of the children and that the child “desired” to remain living with the maternal family if the mother does not survive her illness. The child is also reported as providing no negative sentiments about the maternal family.
In the circumstances of this matter, it is readily apparent that having regard to the discussion and the relevant considerations above and the reality of there being no relationship between the father and child, it is in the child’s best interests that the mother be permitted to adopt her surname for the child.
Orders will be made accordingly.
I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 30 April 2020.
Associate:
Date: 30 April 2020