ELGAR & VELSEN - [2020] FamCA 352

FAMILY COURT OF AUSTRALIA

ELGAR & VELSEN

[2020] FamCA 352

FAMILY LAW – CHILDREN – Application made by mother to change children’s surnames – matter proceeded undefended – best interests of the children – whereabouts of the father unknown – where father has not been in contact with the children for approximately two years – children have expressed a wish to be able to identify with the surname of their mother and maternal family – change of name ordered.

Births, Deaths and Marriages Registration Act 1996 (Vic)
Family Law Act 1975 (Cth)

APPLICANT:

Ms Elgar

RESPONDENT:

Mr Velsen

FILE NUMBER:

MLC

14220

2019

DATE DELIVERED:

13 May 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Hartnett J

HEARING DATE:

5 May 2020

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

No Appearance

Orders made 5 May 2020

The children previously known as Z Velsen born … 2009, W Velsen born … 2009, Y Velsen born … 2014 and X Velsen born … 2014 now be known as Z Elgar, W Elgar, Y Elgar and X Elgar.
The Applicant mother apply to the Victorian Registry of Births, Deaths and Marriages to register the change of the children’s names in accordance with Order 1 herein, do all such acts things and sign all such documents as required to give effect to that registration, AND IT IS REQUESTED THAT that the Victorian Registrar of Births, Deaths and Marriages alter the names of the children previously known as Z Velsen born … 2009, W Velsen born … 2009, Y Velsen born … 2014 and X Velsen born … 2014 to now be known as Z Elgar, W Elgar, Y Elgar and X Elgar pursuant to the Births, Deaths and Marriages Registration Act 1996 (Vic) on the basis that the Court approves the change of names.
The Applicant mother has liberty to apply to the Court in respect of the operation of these orders.
All extant applications be otherwise dismissed and the matter be removed from the list.

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.

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 Elgar & Velsen 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 MELBOURNE

FILE NUMBER: MLC 14220 of 2019

Ms Elgar

Applicant

And

Mr Velsen

Respondent

REASONS FOR JUDGMENT

Preliminary

On 5 May 2020 the Court made orders as appear at the front of these reasons. These reasons support the making of those orders in a proceeding that was undefended, there being no appearance by or on behalf of the Respondent father (‘the father’).
The proceeding commenced upon the filing of an Initiating Application on 17 December 2019 by the Applicant mother (‘the mother’) seeking a change of surname in respect of each of her four children, and additionally, a change of middle name in respect of two of her four children.
The children, the subject of this application, are Z Velsen born in 2009, W Velsen born in 2009, Y Velsen born in 2014 and X Velsen born in 2014 (‘the children’). The children Z and W are now aged 11 years and the children Y and X are now aged 6 years.
In her Initiating Application, the mother sought only final orders. In an Application in a Case filed 1 April 2020, she sought dispensation of service upon the father in respect of her Initiating Application filed 17 December 2019, and the accompanying materials and affidavits. Her affidavit in support of her dispensation of service application was sworn by her on 31 March 2020. It set out that her last contact in person with the father was in August 2018 and her last telephone communication with the father was in December 2018. Since that time, she has repeatedly contacted the father’s family in her efforts to locate the father. She was informed by G Real Estate in Suburb H in 2019 that the father had been evicted from a rental premises in Suburb K by police escort in June 2019 and that no forwarding address had been provided by the father to any persons.
The property in Suburb K was a modest rental property. The father remained living in it until such time as he was evicted. The mother was advised by the police that the father had left thousands of dollars’ worth of hard rubbish, a trashed garden and generally left the premises filthy. The landlord was attempting to recover some of the costs involved in cleaning up the property following the husband’s eviction from it.
The mother deposed that the father’s mobile telephone number has been disconnected. No responses have been received to emails forwarded by her to his last known email address. Facebook messages to him have not been read by him and his various family members, with whom she has had contact, have described him as being homeless and living with his new partner, a Ms B, with no fixed address. None of the father’s family members, including his mother and brother Mr L, have contact with the father nor have they for some time. Neither of those persons know how to contact him or where he is currently located.
The mother receives no child support payment.
The mother expressed that it was not her wish that her children have no contact with their father or his family.

Background

In support of the orders as sought by the mother, the mother filed an affidavit sworn by her on 4 May 2020. That evidence was unchallenged, and the Court accepts the evidence as contained in the affidavit of the mother. On 7 April 2020 the Court ordered, ex parte, that service upon the father of the Initiating Application filed 17 December 2019, the affidavit of the mother filed 31 March 2020, the Application in a Case filed 1 April 2020 and the family dispute resolution certificate filed 16 December 2019 be dispensed with.
The parties commenced their cohabitation in January 2005 before marrying in 2007. They separated on 4 September 2017 when the mother and children left the rental matrimonial home in which the parties were residing in the suburb of Suburb K in Melbourne. The mother returned with the children to a small country town called Town F in Victoria.
The mother was born in 1977. She is now aged 42 years. The father was born in 1975 and he is now aged 44 years.
All of the parties’ children were registered at birth with the surname of their father. The Christian and middle names of the children were names agreed to by the parties around the time of birth of each of their children.
The mother grew up in Town F, which is the place where her father was born, along with his five brothers. The mother has four sisters and two brothers, and her family of seven siblings are very close. Most of the mother’s family still live in Town F or in the surrounding towns.
Since the mother and children’s return to Town F in around 2017, the children have attended the C School, that being the same school attended by the mother when she grew up. The mother and children have lived in Town F for approximately two and a half years since separation. The children are engaged in sporting and other extra-curricular activities which include the mother taking the children to sporting tournaments all over Victoria.
The mother is well supported by the maternal grandmother and by her siblings. The maternal grandfather recently passed away. This family network support the mother and children emotionally, financially as they are able, and in a variety of other ways, including the provision of care for the children when the mother has a need. The children are surrounded by their cousins from the mother’s family with whom they spend considerable periods of time.
The mother is very engaged in the children’s school activities, sporting activities, school fund-raising activities, and anything else the mother can assist in, being activities which provide engagement with, support for, and interest to, her children.
The mother described the children as being very happy, and in Town F “[experiencing] one big holiday.”[1] They live on a river and use it for family lunches, swimming and other activities.
[1] Affidavit of Ms Elgar sworn 4 May 2020, 2.
Whilst the mother considers it sad and disappointing for the children that their father and his extended family have essentially abandoned them, she considers that they are otherwise well cared for and emotionally nurtured by her extended family, most of whom have a surname of Elgar.
The mother is supportive of the children’s relationship with their father. She said in her evidence contained in her affidavit (which she drafted):-
The children ask why their father doesn’t love them and I say he absolutely does love you; he just can’t be a dad and I don’t know why but it’s his loss not yours. All we can do is be positive for him and love him and we will maybe see him one day.
In order to financially support the children, the mother has studied and received a qualification in infection control health and safety and accreditation in cosmetic tattoo, and short courses in beauty therapy. She started her own small business in January of 2019. She works solely school hours and juggles her work commitments with the children’s commitments, prioritising the children’s commitments. She is paying off an $8,000 debt to Centrelink incurred by both herself and the husband whilst they were living together as they underestimated their income. She is now on a single parent pension from Centrelink.
The mother described each of her four children in her affidavit evidence, describing the child Z as “shy and quiet.”[2] Her evidence was that Z has told her he is much happier now that his parents don’t argue all the time and when asked by her what he thinks of the mother wanting to change his surname, he has agreed with her proposal. The mother’s evidence is that Z had said:-
…he would like to be Elgar and not Velsen because then we are the same. He said he wouldn’t mind if we don’t but it would be good if we all could.
The mother’s further evidence was that she told Z that in not carrying his father’s name anymore, he “might regret it” to which Z responded that it didn’t matter even if his father returned to the children at some time in the future. Z indicated that he wanted the same surname as his mother.
[2] Affidavit of Ms Elgar sworn 4 May 2020, 4.
The mother described the child W as “sporty” and “confident”[3] and said that it was W who “originally asked [her] if he can change his name to Elgar.”[4] The mother had changed her surname back to her maiden name of Elgar very shortly after the parties’ separation. The children have a strong connection with her and with the name of Elgar in Town F and W expressed a wish to his mother that he would rather be an Elgar than a Velsen, the latter meaning nothing to him.
[3] Affidavit of Ms Elgar sworn 4 May 2020, 5.
[4] Affidavit of Ms Elgar sworn 4 May 2020, 5.
The mother described the child X as being very close to her father, and a child whom she thought would miss her father very much. Her evidence is that X does not wish to speak about her father and it would appear she feels rejected by him. When her mother explained to her that she herself had changed her surname back to that of her maiden name because she was no longer married to her father, X responded “well when are you changing mine?”[5] X explained that she would like to have the same surname as her mother and her maternal grandmother.
[5] Affidavit of Ms Elgar sworn 4 May 2020, 5.
The mother described the child Y as starting preparatory class this year and “loving it so far.”[6] She described him as being interested in playing with his cars, Lego and building in Minecraft. When the mother asked Y if he would be okay with changing his last name to Elgar, he responded that he “would like it to change to POOP or TNT!”[7] The mother described him further as being entertaining, funny and energetic and never mentioning his father.
[6] Affidavit of Ms Elgar sworn 4 May 2020, 5.
[7] Affidavit of Ms Elgar sworn 4 May 2020, 5.

Conclusion

The mother sought the change of the children’s surname so that they could feel further connected with her and their maternal family in Town F. She described her extended family as surrounding her family with love, and being an extended family that provided for all the needs of the children. Her evidence was:-
Changing their names won’t change their feelings for him. It will just make us a family unit which we are, they’re my family, I provide for them, I love them, I look after them, I sacrifice for them. I go without for them. He does not.
The mother is clearly supportive of the children’s relationship with their father and would very much like for it to be renewed. She described herself as being “hurt, angry, confused, relieved sometimes but especially just disappointed”[8] that the father is not around for the children. She is not negative to the children about their father and reassures them that, although he has no contact with them, he does love them. The mother’s evidence was that holding on to the surname of the father meant nothing for her and means nothing to her children at the present time in their lives.
[8] Affidavit of Ms Elgar sworn 4 May 2020, 5.
The Court must make orders that are in the best interests of the children. The mother is solely making all long term and day-to-day decisions in respect of the children. She attends to all of their necessary financial, physical and emotional support needs, and does so in the absence of the father.
The mother desires, as do the children on the mother’s evidence, that the children have a change of surname, and in the instance of two children, a change of middle name. The children are of an age where their wishes should be given weight. They have a close and loving relationship with the mother and her extended maternal family and have currently no ongoing relationship with their father who has chosen to be absent in their lives for a period of almost two years. That is a long time in a child’s life. The children have no idea where their father is and know that he provides them with none of their necessary needs.
The Court concludes that it is in the children’s best interests to accede to the application of the mother. The children wish to be able to identify with the surname of their mother, now Elgar, and the surname of their maternal grandmother and extended family in a small country community. Their wish to identify in that way is not surprising given that family is their entire support network. Their close bond with their mother is another driver for the children’s expression of their wishes, and for the mother’s desire to have her children known by the same surname as herself. It makes many of her daily activities easier when to all in the community the children are readily identifiable as her children by virtue of their common surname.
The Court accedes to the application of the mother.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 13 May 2020.

Associate:

Date: 13 May 2020