Faraj & Latif

Case [2021] FCCA 1807

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

  1. 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.

  2. 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

  3. 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. 

  4. The parents…

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Details
AGLC
Faraj & Latif [2021] FCCA 1807
Case
[2021] FCCA 1807
Decision Date

CaseChat Overview and Summary

In the matter of *Faraj & Latif*, heard by O'Shannessy J in the Federal Circuit Court of Australia, the applicant mother, Ms Faraj, sought orders to change the surname of her child, X, from Latif to Faraj. The dispute arose in the context of prior family law proceedings concerning the child's upbringing and parental responsibility, following the separation of the child's parents, who were born in different countries. The father, Mr Latif, had returned to his country of origin and had limited communication with the child since 2012.

The court was required to determine whether it was in the best interests of the child, X, to have their surname changed to Faraj, which is the surname of the mother's current husband and the name used by the mother and her new family. A further issue was whether the hearing should proceed in the absence of the father, who had not attended previous hearings. The court considered the principles governing undefended hearings and the court's power to make orders in such circumstances, referencing relevant rules and case law concerning the just and timely resolution of proceedings.

O'Shannessy J reasoned that the mother's application was effectively seeking to give practical effect to an earlier order granting her sole parental responsibility for the child. The judge found that changing the child's surname to Faraj was in the child's best interests, noting that this would not alter the child's paternity but would align the child's recorded name with the mother's current family unit. The court also determined that the proceedings could validly proceed as an undefended hearing, given the father's prior non-participation.

The court declared that it was in the best interests of the child X to be known as X. Consequently, the mother was authorised to apply to the Registrar of Births, Deaths and Marriages in Victoria to change the child's registered name from X to X. The court directed that a sealed copy of the order be served on the Registrar, requesting them to give effect to the application. All other extant applications in the matter were dismissed.

Orders

Orders of the court

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.

Background

Background to the litigation

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; andRule 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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