Gormon and Garnaut

[2010] FamCA 1225

FAMILY COURT OF AUSTRALIA

GORMON & GARNAUT [2010] FamCA 1225

FAMILY LAW – CHILDREN – Change of surname – Orders sought pursuant to Births Deaths and Marriages Act 1997 (ACT)

Births Deaths and Marriages Act 1997 (ACT)
Family Law Act 1975 (Cth) ss 60CA, 64B(1), 64B(2)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)s 5(1)
Jurisdiction of Courts (Cross-vesting) Act 1994 (ACT) s 5(1)

APPLICANT: Ms Gormon

RESPONDENT: Mr Garnaut

FILE NUMBER: CAC 1505 of 2010

DATE DELIVERED: 10 November 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 10 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D. Moore

SOLICITOR FOR THE APPLICANT: KJB Law

COUNSEL FOR THE RESPONDENT: No appearance by or on behalf of the respondent

Orders

1. That Ms Gormon have sole parental responsibility for J, born … October 1998;

2. Pursuant to the Jurisdiction of Courts (Cross-vesting) Act (ACT and the Commonwealth), and in accordance with section 19 subsection (3) of the Births, Deaths and Marriages Act 1997 of the ACT, I:

   (a)Approve the change of J’s surname from that of Garnaut to that of Gormon;

   (b)I request and direct the Registrar of Births, Deaths and Marriages of the ACT to amend the registration of J’s surname on the appropriate register to that of “Gormon”.

   (c)I note that J was born on … October 1998.

3. This matter is removed from the pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Gorman & Garnaut is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:    CAC 1505 of 2010

MS GORMON

Applicant

And

MR GARNAUT

Respondent

REASONS FOR JUDGMENT

1. In this matter, on the last occasion the matter was before me on 27 October 2010, the biological father, Mr Garnaut, telephoned the Court.  The application was then discussed in open Court.  At that point the father indicated that he was ill, but had not consulted a lawyer, and did not agree with the application, or the orders that were being sought.  I adjourned the matter until this day to enable that consultation to occur.  I note that the father is not in Court and is not represented in court.

2. I am informed by the Court Officer – and I report it so it is on the record – that he was successful in establishing a telephone communication with the father.  But when the father was advised that he would be rung back on the Court phone he is now not answering the phone.  In those circumstances, in my opinion, he has not attended, and therefore the matter ought to proceed without his presence.

3. In this matter the application filed on 16 September 2010 seeks an order in relation to sole parental responsibility, but seeks at the same time an order which would ordinarily be made by the Supreme Court of the Australian Capital Territory (ACT) under the terms of the Births, Deaths and Marriages Act 1997 (ACT).  The jurisdiction afforded to the Supreme Court in relation to that Act is one which I am able to exercise by reason of the jurisdiction of the Court’s Jurisdiction of Courts (Cross-vesting) Acts of the Commonwealth and the ACT.[1]

   [1] Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 5(1) and Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) s 5(1) refers.

4. The evidence before me is contained in two affidavits.  I have had some supplementary evidence this morning from the mother, which confirms, inter alia, that it would have been open to the father to have established contact with her if he wanted to, and also that there is no secret so far as the child is concerned about the identity of her father.  At the moment the child apparently does not wish to pursue the relationship with her father, for reasons, which in the circumstances appear to be entirely sensible.

5. But I accept the mother’s assurance that if the child did seek to establish contact with her father that she would facilitate that, but would take sensible precautions to ensure that the child’s psychological health is not damaged as a consequence. 

6. Based on all the information I have, I have little doubt that it is appropriate that I should make an order that the mother have to sole parental responsibility for the child.  I am also satisfied that the order that I am being asked to make falls within the definition of a parenting order[2] under the Family Law Act 1975 (Cth), and, as such, it should be made on the basis that the paramount consideration should be the child’s best interests.[3]

   [2] Family Law Act 1975 (Cth) s 64B(1) & (2) refers.

   [3] Family Law Act 1975 (Cth) s 60CA.

7. I have no doubt, based on the evidence I have before me in this matter, and in default of there being any contrary evidence from the father, who has not attended Court this day, that it is in the child’s best interests that I should make an order that will permit her to be known by the surname of both her mother and her step-father at present.  I will make the order accordingly. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks on 10 November 2010. 

Senior Legal Associate:

Date: 21 December 2010