Ellsom & Hannewell

Case [2021] FCCA 1779

FEDERAL CIRCUIT COURT OF AUSTRALIA

Ellsom & Hannewell [2021] FCCA 1779

File number: MLC 3774 of 2021
Judgment of: JUDGE O'SHANNESSY
Date of judgment: 23 July 2021
Catchwords: FAMILY LAW – undefended final hearing – where mother is seeking sole parental responsibility – name change – where mother is seeking to remove father’s name – service by email – inference from no email ‘bounce back’ – service by Facebook messenger – allegations of family violence – orders made.   
Legislation:

Family Law Act 1975 (Cth) ss 60CA, 64B, 69ZT.

Evidence Act 1995 (Cth) ss 79, 144.
Cases cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Chapman & Palmer (1978) FLC ¶90-510

Hiron & Tourle [2021] FCCA 1270

Jones v Tobin [2002] FCA 1150

McGregor & McGregor (2012) FLC ¶93-507

Reynolds & Sherman (2015) FLC ¶93-659

Zane & Allan (2008) FLC ¶93-378

S Odgers, Uniform Evidence Law, (Thomson Reuters, 15th ed, 2020).     
Number of paragraphs: 66
Date of hearing: 23 July 2021
Place: Melbourne (via Microsoft Teams)
The Applicant: Appeared In Person
The Respondent:  No Appearance

ORDERS

MLC 3774 of 2021
BETWEEN:

MS ELLSOM

Applicant
AND:

MR HANNEWELL

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

23 JULY 2021

THE COURT DECLARES THAT:

1.It is in the best interests of the child X ELLSOM-HANNEWELL born in 2009 to be known as X ELLSOM.

2.It is in the best interests of the child Y ELLSOM-HANNEWELL born in 2011 to be known as Y ELLSOM.

THE COURT ORDERS THAT:

3.The Applicant Mother is 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 ELLSOM-HANNEWELL to X ELLSOM.

4.The Applicant Mother is 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 Y ELLSOM-HANNEWELL to Y ELLSOM.

THE COURT DIRECTS THAT:

5.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.

THE COURT ORDERS THAT:

6.The Applicant Mother have sole parental responsibility for the care, welfare and development of the children X ELLSOM born in 2009 and Y ELLSOM born in 2011 ('the children').

7.The children live with the Applicant Mother.

THE COURT DECLARES THAT:

8.Pursuant to ss.7 and 11 of the Australian Passports Act2005 (Cth) and the court being satisfied that it is not practicable to obtain the consent of the Respondent Father to enable the children of the relationship X ELLSOM (previously known as X ELLSOM-HANNEWELL) born in 2009 and Y ELLSOM (previously known as Y ELLSOM-HANNEWELL) born in 2011 to obtain an Australian Passport to travel internationally, the Court makes the following orders:

IT IS ORDERED BY THE COURT THAT:

9.The Applicant Mother of the children X ELLSOM (previously known as X ELLSOM-HANNEWELL)…

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Details
AGLC
Ellsom & Hannewell [2021] FCCA 1779
Case
[2021] FCCA 1779
Decision Date

CaseChat Overview and Summary

In the matter of *Ellsom & Hannewell*, heard by O'Shannessy J in the Federal Circuit Court of Australia, the applicant mother sought orders concerning her two children, X and Y, born in 2009 and 2011 respectively. The dispute centred on the children's surnames, parental responsibility, living arrangements, and the ability to obtain Australian passports for international travel, with the respondent father residing overseas and having had no contact with the children for approximately ten years.

The court was required to determine whether it was in the best interests of the children to have their surnames changed from Ellsom-Hannewell to Ellsom. Additionally, the court needed to decide on the issue of sole parental responsibility for the children's care, welfare, and development, and whether the children should live with the applicant mother. A further significant legal issue was whether the court had the authority to permit the applicant mother to apply for Australian passports for the children and allow them to travel internationally without the respondent father's consent, given the father's lack of contact and refusal to consent.

O'Shannessy J applied the paramount principle that the best interests of the child are the primary consideration in all matters relating to their welfare. The court found that it was in the best interests of both X and Y to be known as X Ellsom and Y Ellsom, respectively. This decision was informed by the children's expressed wishes and the significant period of time they had lived in Australia without contact from their father. The court also declared that the applicant mother should have sole parental responsibility for the children and that they should live with her. Crucially, referencing sections 7 and 11 of the *Australian Passports Act 2005* (Cth), the court was satisfied that it was not practicable to obtain the respondent father's consent for the children to obtain Australian passports and travel internationally. The court reasoned that the father's lack of contact and his explicit refusal to consent to the name change, coupled with his location overseas, made obtaining his signature for passport applications and international travel impractical.

Consequently, the court ordered that the applicant mother be authorised to change the children's registered names to X Ellsom and Y Ellsom and to apply for Australian passports for them, permitting international travel without the respondent father's consent. The court also ordered that the children live with the applicant mother and that she have sole parental responsibility for their care, welfare, and development. All other extant applications were dismissed.

Orders

Orders of the court

MLC 3774 of 2021

BETWEEN:

MS ELLSOM

Applicant

AND:

MR HANNEWELL

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

23 JULY 2021

THE COURT DECLARES THAT:

1. It is in the best interests of the child X ELLSOM-HANNEWELL born in 2009 to be known as X ELLSOM.

2. It is in the best interests of the child Y ELLSOM-HANNEWELL born in 2011 to be known as Y ELLSOM.

THE COURT ORDERS THAT:

3. The Applicant Mother is 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 ELLSOM-HANNEWELL to X ELLSOM.

4. The Applicant Mother is 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 Y ELLSOM-HANNEWELL to Y ELLSOM.

THE COURT DIRECTS THAT:

5. 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.

THE COURT ORDERS THAT:

6. The Applicant Mother have sole parental responsibility for the care, welfare and development of the children X ELLSOM born in 2009 and Y ELLSOM born in 2011 ('the children').

7. The children live with the Applicant Mother.

THE COURT DECLARES THAT:

8. Pursuant to ss.7 and 11 of the Australian Passports Act 2005 (Cth) and the court being satisfied that it is not practicable to obtain the consent of the Respondent Father to enable the children of the relationship X ELLSOM (previously known as X ELLSOM-HANNEWELL) born in 2009 and Y ELLSOM (previously known as Y ELLSOM-HANNEWELL) born in 2011 to obtain an Australian Passport to travel internationally, the Court makes the following orders:

IT IS ORDERED BY THE COURT THAT:

9. The Applicant Mother of the children X ELLSOM (previously known as X ELLSOM-HANNEWELL) born in 2009 and Y ELLSOM (previously known as Y ELLSOM-HANNEWELL) born in 2011 be permitted to apply for an Australian Passport to enable the children to travel internationally notwithstanding that the Father of the children has not signed the passport application form and furthermore the said children be permitted to travel internationally without the permission of the Respondent Father.

10. All extant applications otherwise be dismissed.

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.

Background

Background to the litigation

Hence, I have jurisdiction to hear this matter undefended or with only the involvement of the Mother. BACKGROUND A short summary of the circumstances is necessary. The Mother lives in Australia and is aged 48. The Father, as far as the Mother knows, lives in Country B and is aged 47. Those parents have two children, X, now aged 12, and Y, now aged 10. The parties commenced cohabitation in 2008 in Country B, and X was born during that relationship but on an occasion when the Mother had returned to Australia. Following X's birth the Mother returned to Country B and for a short period resumed cohabitation with the Father. The Mother was subjected to vicious and injurious family violence by the Father, and I will refer to the event that surrounded this time later in the judgment. The Mother ended the relationship with the Father in or about 2010 by which stage she was pregnant with Y. Following the Country B equivalent of Children's Court Child Protection proceedings the Mother moved with the children from Country B to Australia shortly prior to Y's birth. The Mother deposes, and I accept, that save for Facebook Messenger and email communication in late 2020 she has otherwise not had any contact with the Father. The children have not had any contact with their Father since coming to Australia ten years ago. SUFFICIENT SERVICE It was in that context that in November 2020 the Mother, via the assistance of social media known as Facebook, contacted the Father in or around November 2020. The Mother deposes, and I accept, that in that Facebook “Messenger” communication she first sought confirmation from him of his email address. He provided the email to which I find the Mother has sent court documents. After learning of the confirmation of the Father's email, the Mother sent him a letter which stated:Hello, (the Father)I am writing to obtain your permission to change the boys' surname. The boys have told me they would like their name to be Ellsom, like mine. I would like you to agree to this. Could you please sign and date this letter to confirm you give your permission for this.Kind regards, (the Mother) The letter provided a place for the Father to sign if he so consented. Following sending an email with that letter attached to the address and I note that is the same email address which is referred to in the affidavits of service filed by the Mother to which I will come shortly, the Mother then, by Facebook Messenger, advised the Father:“I have sent you an email to your address above.” On 26 November 2020 at 11.27 pm Australian Eastern Standard Time the Father responded:“I have received your email. Quite a slap in the face.” The Mother responded:“Can you please sign the letter and send it back.” The Father responded:“I have replied to your email request.” The Father then sent another email message where he complained about the Mother not responding to previous messages asking about the boys, and in that message he asked to contact the boys over Skype or a phone call. He stated:“…I will not accept an email about it. Your choice, Ms Ellsom. I am not signing that paper you sent.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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