Faraj & Latif
[2021] FCCA 1807
•6 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Faraj & Latif [2021] FCCA 1807
File number: MLC 12745 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 6 August 2021 Catchwords: FAMILY LAW – parenting - name change – changing a child’s name – where mother seeks to change child’s name – where mother already has sole parental responsibility including for child’s name Legislation: Family Law Act 1975 (Cth), ss 4, 60CA, 60CC, 64B Cases cited: A & Z (2006) FLC ¶93-257
Chapman & Palmer (1978) FLC ¶90-510
Hiron & Tourle [2021] FCCA 1270
Lysons & Lysons (2019) FLC ¶93-891
Reynolds & Sherman (2015) FLC ¶93-659
Number of paragraphs: 32 Date of hearing: 29 April 2021 Place: Melbourne Solicitor for the Applicant: Mr I Robertson of Ian Robertson Legal The Respondent: No Appearance ORDERS
MLC 12745 of 2020 BETWEEN: MS FARAJ
Applicant
AND: MR LATIF
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
6 AUGUST 2021
THE COURT DECLARES THAT:
1.It is in the best interests of the child X born in 2010 to be known as X.
THE COURT ORDERS THAT:
2.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 to X.
THE COURT DIRECTS THAT:
3.The Applicant Mother serve a sealed copy of this order 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:
4.All extant applications are otherwise 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.
IT IS NOTED that publication of this judgment under the pseudonym Faraj & Latif is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
The application before the court concerns the name of the child X (‘the child’) who is aged 11. The Applicant Mother, Ms Faraj (‘the Mother’) is aged 38 and is a public servant. The Respondent Father is Mr Latif (‘the Father’) and is 38. The Mother married her current husband Mr B in 2018 and they have one child together, C, who is aged 1.
The Mother seeks orders to change the child’s surname from Latif to Faraj. The proposed new surname ‘Faraj’ is that of the Mother’s new husband and is the surname used by the Mother, her husband and their young daughter. I find that the reality is that the Mother seeks orders to give practical effect to an earlier order for sole parental authority.
BACKGROUND
The Mother was born in Country D and the Father was born in Country E. The parents met in Country E on or about 2008, commenced living together in 2009 and were married in 2009. Their child X was born in 2010.
The parents moved from Country E to Australia in 2011 but separated shortly thereafter in July 2011. The Mother deposes that the Father returned to Country E in July 2011 but returned some time later. They did not reconcile their relationship and the Father returned to Country E permanently on or about February 2012. Since then the Father’s communication with the child has been limited.
PROCEDURAL HISTORY
This is the third application of family law proceedings initiated by the Mother. The Mother initiated proceedings in July 2011 shortly after separation and orders were made by then Federal Magistrate Whelan on 25 July 2011. The Father did not attend at that hearing. Those orders included the following:
…
4. The child live with the Applicant Mother.
5.The child spend time with the Respondent Father by agreement between the parties.
…
7.The Mother is to forward a copy of these Orders to the Father at his address in Country E (if known).
8.A copy of these Orders be forwarded by the Court via electronic communication to the Respondent Father’s email address at (email omitted).
The Mother filed a second application on 17 April 2019 and orders were made on 29 May 2019 by Judge Stewart. The Father did not attend at that hearing either. Those orders included the following:
…
2.All further service of the Mother’s Initiating Application filed 17 April 2019 be dispensed with.
3.The child X (“X”) born in 2010 live with the Mother.
4. The Mother have sole parental responsibility for X.
5.The parties communicate in writing about the welfare, development and wellbeing of X and all communication remain child focused.
…
10.The Mother provide to the Father by email updates at least two times per year of X’s educational progress, social progress and photos.
11.The Mother keep the Father informed in the event that X suffers any serious illness and/or injury and, in the event that X requires medical treatment or hospitalisation as soon as practicable.
(emphasis added)
UNDEFENDED HEARING
The first issue to determine is whether this hearing should proceed in the absence of the Father. I refer to my previous decision in the matter of Hiron & Tourle [2021] FCCA 1270 regarding undefended hearings and recite paragraphs [14] and [21]-[25] below:
[14]An undefended hearing is a difficult matter. It means that there is no assistance obtained from the other side. All important aspects of the matter must be proved on admissible evidence. Ordinarily in an undefended hearing it is expected and assumed that the other side that is not participating in the hearing will have had the opportunity to look at such evidence as has been provided to them. Then the court can more readily proceed on the basis of the non appearing party having been provided with all of the evidence and draw the inference that party has chosen not to participate in the proceedings or to make any application.
[21]In the Family Court of Australia (another Court which also exercises jurisdiction under the Family Law Act 1975) rules exist to expedite resolution of disputes and those rules from the Family Law Rules 2004 include:
Rule 1.04the main purpose of these rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case; and
Rule 11.02(1) If a step is taken after the time specified for taking the step by these rules, the regulations or a procedural order, the step is of no effect.
Rule 11.02(2) If a party does not comply with these rules, the regulations or a procedural order, the court may:
…
(c) determine the case as if it were undefended.
…
[22]In Zane & Allan (2008) FLC ¶93-378 (‘Zane & Allan’) at [8] the majority observed:
[8]The expression “undefended” is not defined, or otherwise explained in the Rules. However the explanatory guide to the rules (which is expressly stated not to be part of the rules) explains the term “undefended basis” in the following way:
“…The court may order that a hearing or trial may proceed, because of the respondent’s failure to comply with the rule or order, as if a response had not been filed the court may make orders set out in the application on being satisfied by evidence that the orders should be made.”
[23]In the rules that apply to the Federal Circuit Court of Australia there is no reference to an “undefended” hearing. The Federal Circuit Court Rules 2001 provide in different language an equivalent to the main purpose rule of the Family Law Rules 2004 described above:
Rule 1.03(1)The object of these rules is to assist the just, efficient and economical resolution of proceedings.
[24]The Federal Circuit Court Rules 2001 at Division 13.1A deal with an order or judgement on default. Those rules do not mention an undefended hearing and at first blush do not sit comfortably with the issues to be frequently determined in this court including the best interests of children and what are just and equitable orders to be made in regard to property alteration or settlement.
The Full Court of the Family Court in A & Z (2006) FLC ¶93-257 set out at [66] as to why Family Law Act1975 (Cth) (‘the Act’) applications cannot lead to a ‘judgment by default’.
[66]The term undefended proceedings was also referred to in Lanceley and Lanceley (1994) FLC ¶92-491. The Full Court considered the position of a respondent who took no active part in proceedings. Barblett DCJ, Frederico and Lindenmayer JJ said at 81,104:
…Unlike some other jurisdictions, such a circumstance does not and cannot lead, in this Court, to a ‘judgment by default’ in favour of the applicant, because the Court must still decide, on the evidence before it, that the applicant is entitled, in law, to the relief claimed and that, in the exercise of its discretion, it is appropriate to grant that relief…
SUFFICIENT SERVICE
The Mother filed her current application on 20 November 2020. On 23 November 2020 the Mother sent the Father a WhatsApp message advising him that important Federal Circuit Court of Australia documents had been sent to his email. The Mother also attached her documents to that email. The Father responded to those messages on 23 and 25 November 2020:
23 November 2020
What is that for
Not understand
Ok Ms Faraj never mind
Thank you very much
U can do what u want
Because I never want be like this
I never thought can be like this. U erase delete everything. But one thing
I always Love u both for Forever and ever
25 November 2020
Congrat for ur new baby u deserve it can get rich man can buy u everything U can delete my name in X name no more Latif And one thing hope u happy and please keep love X for forever. I always love him forever and ever. God bless.
The application was listed for first mention in the duty list on 23 February 2021. On 16 February 2021, my associates had sent an email to both parties advising them that the hearing would be heard electronically via Microsoft Teams with instructions on how to attend.
That same day the Father responded to my associates (which is marked as exhibit ‘C1 29.04.2021’) as follows:
Thank you for the email since Ms Faraj having family matter problem with me, since i move to Australia was 2011 with X and Ms Faraj. Dont really care what Ms Faraj want did to me .she has 3 time marriage now right. The problem is not on me. Problem is on her and her mom.
perhap hope Judge O'shanessy dont agree to erase delete Latif name on X Latif name. Only that hope one day i can meet with my son . I cant imagine if she get another marraige again again to change my son name ..
Tks lots i wish u all have nice day
The duty list hearing was heard by a registrar of this court on 23 February 2021. The Father did not attend the hearing. The registrar made orders dispensing with personal service as follows:
1.Pursuant to rule 6.14(1) of the Federal Circuit Court Rules 2001, service on the Respondent of the Applicant’s application filed 20 November 2020 and the supporting material may be effected by the Applicant, as soon as practicable:
(a)sending an SMS to the Respondent as soon as practicable in the following form:
"Proceedings in the Federal Circuit Court have been commenced against you. You should contact the National Enquiry Centre on 1300 352 000."
(b)sending a private message to the respondent via email in the following form:
“Mr Latif
Proceedings have been commenced against you in the Federal Circuit Court by Ms Faraj. The court has made orders dispensing with personal service. You should contact the National Enquiry Centre on 1300 352 000 if you wish to participate in the proceedings.”
2.Pursuant to rule 6.14(3) of the Federal Circuit Court Rules 2001, service will be taken to have been effected 7 days after the steps set out in paragraph 1 above are completed.
3.Once served the Father is to file and serve a Response and any supporting material by 6 April 2021
4.In the event that the Respondent fails to file material or appear on the next occasion, the matter may proceed on an undefended basis.
5.The Applicant is to file and serve any further material in support of her application on or before 16 March 2021.
6.On or before 4.00pm on 23 March 2021, the Applicant file an affidavit attesting to service as provided for in these orders.
7.The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 29 April 2021 at 10.00am for an undefended hearing.
On 19 March 2021 the Mother filed an affidavit of service outlining her compliance and attempts of service with the above orders of the registrar of 23 February 2021. On 26 February 2021 the Mother sent to the Father via text message and WhatsApp, the message in accordance with order 1(a) of the registrar’s orders. It appears the text messages failed to send but the WhatsApp message was delivered. The Father responded to the WhatsApp message as follows:
26 February 2021 at 4.13pm
“I don’t understand”
27 February 2021 between 1.16am and 1.21am
“I dont understand what email you send"
"U can so what u want Ms Faraj"
"I just want see u happy"
"I really appreciate everything have done already 10 year time so fast"
"U are good Mother for X"
"I just hope one day I can meet him"
"I love him for forever
“I swear to Allah"
The Mother also sent an email to the Father in accordance with 1(b) of the registrars’ orders. On 16 March 2021 the Mother has sent a further email and WhatsApp message to the Father attaching documents. The Father responded to the WhatsApp message with “ok”.
The Mother filed her amended application on 29 March 2021 and filed a second affidavit of service on 7 April 2021. That affidavit of service outlines further communication from the Mother to the Father on 29 March 2021 attaching her documents and advising the Father of the proceedings.
The matter came before me on 29 April 2021. The hearing was heard via Microsoft Teams. On 22 April 2021, my associates sent an email to both parties advising that the matter would be heard via Microsoft Teams and provided instructions on how to attend. The Father did not attend.
THE APPLICABLE LAW
The Full Court stated in Reynolds & Sherman (2015) FLC ¶93-659 (‘Reynolds & Sherman’) that it was the Courts tentative view that an order dealing with the child’s name falls within the broad terms of section 64B of the Act and is therefore a parenting order. In Reynolds & Sherman the Full Court observed:
[53]The trial judge was not asked to consider whether any of the proposed orders would constitute a “parenting order”, although in her reasons she characterised part of the relief sought by the father as being “an injunction”. Given that the matter was not raised below, and given that we do not have the benefit of full argument, it is not proper to express a concluded view as to whether Order 2 was a “parenting order”. However, our tentative view is that an order dealing with a child’s name falls within the broad terms of s 64B(2)(i) and is therefore a “parenting order”.
[54]If our tentative view is correct, her Honour was obliged to consider the matters in s 60CC, at least to the extent they were relevant. Her Honour did not do so, electing instead to apply authorities such as Chapman and Palmer (1978) FLC ¶90-510 and Beach and Stemmler (1979) FLC ¶90-692, which were decided prior to the 2006 amendments that introduced s 64(B)(2) in its present form.
[55]But even if our tentative view is wrong, the child’s best interests were still a most important consideration, and some consideration of the relevant matters in s 60CC would therefore have been desirable…
In Lysons & Lysons (2019) FLC ¶93-891 at [22] (‘Lysons’) the Full Court unequivocally approved the earlier tentative statement Reynolds & Sherman:
[22]It is entirely correct to say that orders as to a child’s name a parenting orders within the meaning of section 64B of the act and therefore must be made in the child’s best interests taking into account the considerations raised by section 60CC (Reynolds & Sherman (2015) FLC 93-659).
Section 64B of the Act includes:
(1) A parenting order is:
(a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
(2) A parenting order may deal with one or more of the following:
…
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The Full Court decision of Chapman & Palmer (1978) FLC ¶90-510 (‘Chapman & Palmer’) stated:
To summarise, the factors to which the Courts should have regard in determining whether there should be any change in the surname of a child include the following:
(a) the welfare of the child is the paramount consideration,
(b) the short and long term effects of any change in the child's surname,
(c)any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.
(d)Any confusion of identity which may arise for the child if his or her name is changed or is not changed.
(e)The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.
(f) The effect of frequent or random changes of name.
Chapman & Palmer forms the major part of the pre 2006 authorities and Reynolds & Sherman cautions against, and Lysons rules against only applying those principles. However the principles of Chapman & Palmer, applied over many years, still provide assistance and wisdom and I take those matters into account to the extent they are relevant to this case and consistent with Part VII of the Act. Section 60CC(3)(m), any other fact or circumstance that the court thinks is relevant, commands me to do so.
CONSIDERATIONS IN CHANGING A CHILD’S NAME
As this is a parenting order, I must take into account Part VII of the Act. Section 60CA states:
60CA Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The additional considerations I must take into account are limited by the fact that the Mother already has an order for sole parental responsibility and therefore has the responsibility of major long term issues for the child. Major long term issues is defined at section 4 of the Act as:
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
(emphasis added)
Additional Considerations in section 60CC(3)
The relevant additional considerations at section 60CC(3) are as follows:
The views expressed by the child
I am required to consider any views expressed by the child. The Mother deposes at paragraph 5 of her affidavit filed 15 March 2021 that:
5.X has said to me that he would like to change his surname to Faraj. He mentioned to me recently that he told his friends at school that he is in the process of changing his name.
The nature of the child’s relationship with his parents
I am required to consider the nature of the child’s relationship with his parents. It is clear that the child has a close relationship with his Mother.
I take into account the Mother keeps the concept of who the child’s father is by facilitating his phone calls to the child from time to time. I take into account the Father would prefer the child to keep his name.
At the hearing I asked the Mother for further details of the child’s relationship with the Father. The Mother told me that the communication is ‘sporadic’. At the time of the hearing on 29 April 2021, the Father had last spoken to the child on his birthday the week before for a few minutes and the time before that was August 2020. The Mother said that a couple of times a year would be average (see: p 8 of the transcript).
Of the relationship between the child and Mr B (the Mother’s new husband) the Mother deposes in her affidavit of 20 November 2020:
47X considers Mr B to be his father . Mr B is also very proud to have X as his son .
48Mr B always introduces X as his son . X also introduces Mr B as his father.
49X calls Mr B , 'dad ', 'daddy' and ' papa ' at all times , both at home and in other settings .
50X and Mr B have a very close relationship and definitely see each other as one family. They love each other very much
Mother already has responsibility for the child’s name
By section 60CC(3)(m) I am to take into account any other fact or circumstance that is relevant. The matter of the greatest significance in this decision is that the final order of 29 May 2019 gave the Mother sole parental responsibility and that includes sole parental responsibility for “the child’s name”. That decision has already been made. I am not a court of review of that order.
Because of the requirements of the Victorian office of Births, Deaths and Marriages, the Mother seeks a further order that gives practical effect to the order for sole parental responsibility. These orders do not change who the child’s father is. They will change the recording of his name. The most significant question thus becomes is it in the child’s best interests to give practical effect to that existing order? I find that it is.
CONCLUSION
I therefore make the declaration that it is in the best interests of the child to have the surname Faraj and request that the Registrar of Births, Deaths and Marriages for Victoria give effect to that.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 6 August 2021w
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