Hicks and Hicks and Anor

[2013] FCCA 495

FEDERAL CIRCUIT COURT OF AUSTRALIA

HICKS & HICKS & ANOR [2013] FCCA 495

Catchwords:
FAMILY LAW – Parenting – application by paternal aunt – mother deceased – father taken away by [E] government officials – not seen since – no respondent to the application – whether justiciable dispute – best interests of children – name change.

Legislation:
Births, Deaths and Marriages Registration Act 1996 (Vic), ss.26, 28
Family Law Act 1975, ss.11F, 60B, 60CA, 60CC, 61DA

Cases cited:
Arabatzis & Severino [2013] FamCA 117
Kenneally & Kenneally & Anor (2012) 269 FLR 171; [2012] FMCAfam 921
Re Nayak [2011] FamCA 491

Applicant: MS HICKS

First Respondent: MR HICKS

Second Respondent: MS ORDELL

File Number: MLC 511 of 2013

Judgment of: Judge Riley

Hearing dates: 26 March 2013, 9 and 24 April 2013 and 7 June 2013

Date of Last Submission: 7 June 2013

Delivered at: Melbourne

Delivered on: 13 June 2013

REPRESENTATION

Counsel for the Applicant: Dr Alexander

Solicitors for the Applicant: Monash Oakleigh Legal Service

Counsel for the First Respondent: No appearance

Solicitors for the First Respondent: The first respondent was not represented

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: The second respondent was not represented

ORDERS  

1. The applicant have sole parental responsibility for [U] born [in] 1995, [V] born [in] 1997, [W] born [in] 1999, [X] born [in] 2001, [Y] born [in] 2004 and [Z] born [in] 2008 (“the children”).

2. The children live with the applicant.

3. There be liberty to apply in relation to the names of each of the children.

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

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLC 511 of 2013

MS HICKS

Applicant

And

MR HICKS

First Respondent

MS ORDELL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for parenting orders in respect of [U] born [in] 1995, [V] born [in] 1997, [W] born [in] 1999, [X] born [in] 2001, [Y] born [in] 2004 and [Z] born [in] 2008 (“the children”).

2. The six children were apparently all born in [E].  They range in age from almost 18 years to five years old.  They came to Australia with the applicant, who is their paternal aunt, on 7 May 2011.

3. The applicant seeks orders that:

   a)she have sole parental responsibility for the children;

   b)the children live with her; and

   c)each of the children have added to his or her name the family name of Hicks.

4. The person named as the second respondent is the children’s mother.  The applicant said in her affidavit sworn on 24 January 2013 that the children’s mother died in [E] on 5 March 2010.  The applicant exhibited a death certificate which appears to be in respect of the children’s mother.  It indicates that she died of a sickness.  As she is dead, the children’s mother cannot be a respondent to this proceeding.

5. The first respondent is the children’s father and the applicant’s brother.  The applicant said in her affidavit sworn on 24 January 2013 that she understood that:

   a)her brother was accused of conspiring against the [E] government;

   b)one night in September 2007, officials from the government attacked him and took him away; and

   c)no one has heard from him since.

6. It seems that the applicant presumes that her brother, the first named respondent, is dead.  If that is correct, and there is no evidence to the contrary, the first named respondent cannot be a respondent to this proceeding.

7. Consequently, when the matter came on for its first mention on

   
   

   26 March 2013, the applicant advised the court that there was no respondent to the proceeding.  The effect of that is that there was no contradictor. 

8. In an attempt to generate a contradictor, I made orders on 26 March 2013 that included a request that Victoria Legal Aid appoint an independent children’s lawyer for the children.  However, that request was refused, apparently because the Legal Aid guidelines do not permit funding for children in the situation of the children in this case. 

Previously decided cases

1. I am aware of two decisions of the Family Court of Australia that dealt with similar situations to the present.  They are Re Nayak [2011] FamCA 491 and Arabatzis & Severino [2013] FamCA 117. In both cases, both parents of the child or children were apparently dead or missing and a family member brought the application. In both cases, the Family Court accepted the unchallenged evidence of the family member, without making any additional enquiries, and granted sole parental responsibility to that family member. In neither case did the Family Court address the legislative or other foundation on which such a decision could be made. Consequently, it is not possible to ascertain the ratio decidendi of either case that I ought to follow.  The two Family Court decisions appear to turn entirely on their own facts. 

2. Harman FM, as his Honour then was, also dealt with a similar situation in Kenneally & Kenneally & Anor (2012) 269 FLR 171; [2012] FMCAfam 921. In that case, the proceedings were brought by the uncle of a nine year old girl. Her parents, and many other people, died when their boat sank off Christmas Island on 15 December 2010. His Honour considered whether, in the absence of a respondent, there could be a justiciable dispute before the court.

3. After a careful examination of the relevant legislation and authorities, his Honour concluded that the court does have jurisdiction in cases such as this.  For reasons of judicial comity, I am obliged to follow Kenneally, unless I am satisfied that it is plainly wrong. I am not satisfied that it is plainly wrong, so I do follow it.  With respect, I consider the reasoning in paragraphs 16 to 18 of Kenneally to be particularly persuasive.

Independent evidence

1. Nevertheless, unlike Harman FM, I do consider that it is desirable in cases such as the present for the court to undertake some investigations of its own to obtain evidence that is independent of the applicant.  Although the court may have jurisdiction to make orders where there is no respondent, it is still necessary for that jurisdiction to be exercised on a sound basis. 

2. Normally, our adversarial system ensures that all relevant material is placed before the court. All relevant material might not be placed before the court where only one party appears in court.  Obviously, where the best interests of children are concerned, it is desirable that as much relevant material as is reasonably available is placed before the court.

3. Without engaging in a fully inquisitorial process, the court does have powers to gather independent evidence, through the issuing of subpoenas of the court’s own motion, and by requiring counselling under s.11F of the Family Law Act 1975. It seems to me that such steps are appropriate where the best interests of children are concerned and where there is no contradictor. 

4. When the matter returned to court on 9 April 2013, I made orders for counselling under s.11F of the Family Law Act 1975.  That occurred on 7 May 2013.  The counsellor reported as follows:

   Background

   The current matter involves the application of the paternal aunt, Ms Hicks for Final Orders on the following:

   ·    For the paternal aunt to have sole parental responsibility of the children

   ·    for the children to live with their paternal aunt

   ·    That the surname of the children be changed to “Hicks”

   Ms Hicks brought the children to live with her in Australia following the death of their mother (in 2010) and the disappearance of their father (in 2007).

   Current situation

   ·    Currently the six children live with the paternal aunt in a three bedroom community housing home in [suburb omitted]. Ms Hicks reports the family is on a waiting list for a five bedroom home.

   ·    The children attend school in [L]; the three older children attend [L] Secondary School and the three younger children attend [L] Primary School. Ms Hicks reports the children are all doing well at school.

   ·    Ms Hicks has three adult children who live independently in nearby suburbs.

   ·    Ms Hicks reports that she is applying for sole parental responsibility for the children, and for the children to live with her in order to provide the children with a sense of long term security. She reports that the decision to change the children’s surname to “Hicks” is a way of remembering the children’s father as his surname was “Hicks”, as is the paternal aunt’s.

   ·    Ms Hicks also reported that the children would like to use their new names in their applications for Australian citizenship.

   Summary of agreement(s) reached

   ·    The children all agreed that they loved living with their aunt, that they wanted to continue living with their aunt, and that they would like to change their name to “Hicks” as this was their father’s name.

   Family safety factors

   ·    There are no safety concerns.

   Issues relating to the children

   ·    The older children were interviewed separately and [Y] and [Z] were interviewed together. However the children’s reports were very similar and so are summarised together here.

   ·    Several of the older children reported that they were very happy when their aunt invited them to come and live with her in Australia. They reported that their family had strong affectionate ties to their aunt and that following the death of their mother the aunt had been instrumental in providing financial and emotional support to the children.

   ·    The older children acknowledged that the transition to Australia from [E] was difficult due to language difficulties. The children reported that their school was extremely supportive and provided English as a Second Language classes to assist the children.

   ·    The children were all very positive about their school experiences and extracurricular activities. All of the children report being happier in Australia than in [E].

   ·    The children report their links to extended family is important to them. They report that they frequently visit the cousins that live in Australia and are able to keep in touch with friends and family members in [E] through email and telephone contact.

   ·    The children have contact with the wider [E] community in Melbourne through participation in cultural celebrations such as Independence Day and an annual [E] Festival. 

   ·    Ms Hicks reports that the children are Muslim but that they do not attend Islam school and observe religious practices at home. [U] and [V] reported their religious practice is not strict but is no different to what they were used to doing in [E].

   Summary;

   ·    The children were well presented in both a physical sense and in their personal conduct; they were very polite and well-mannered.

   ·    The children have experienced trauma and this would explain the high degree of compliance and cooperation both displayed and reported by the children.

   ·    It was clear from their accounts that life in Australia far exceeds the experiences and opportunities offered by life in [E] and the warm relationship the children have with their aunt has helped them to feel optimistic about their future.

   ·    The children all reported a strong future focus with an emphasis on professional goals.

   ·    It appears that the name change to “Hicks” will provide the children with not only a stronger connection to their father but also a stronger connection to their new lives and identities in Australia.

   ·    It should also be noted that the current accommodation (featuring three bedrooms) does not meet the developmental needs of six children, and in particular [X], who will find the lack of privacy increasingly difficult as he matures.

   Recommendations:

   ·    That the children live with their paternal aunt.

   ·    That the children be able to add “Hicks” to the end of their name.

   ·    If the Court were to release this document to the Department of Housing, it is hoped this might expedite the application for more appropriate accommodation.

5. On 24 April 2013, I ordered that subpoenas be issued:

   a)to the Department of Immigration and Citizenship (“DIAC”) in respect of the children, their parents and the applicant;

   b)to [L] Primary School, in respect of the three younger children; and

   c)to [L] Secondary School in respect of the three older children.

6. The applicant agreed to the court examining the material returned under subpoena.

7. DIAC provided information that indicated that:

   a)the children met the requirements for the grant of orphan relative subclass 117 visas;

   b)the department had sighted birth certificates for the children; and

   c)an immigration officer was satisfied of the relationship between the sponsor (the applicant in this proceeding) and the visa applicants (the children in this proceeding) and believed that their situation was genuine.

8. The records provided by DIAC included a statement by the present applicant which elaborated on her claims in relation to what had happened to the children’s parents, photographs of the family in [E] and school records from [E] relating to the children.  

9. [L] Primary School provided information indicating that three younger children were enrolled in the school, they had an acceptable number of absences from school, the applicant was their adoptive parent and they had been born in [E]. 

10. [L] Secondary School provided information indicating that the three older children were enrolled in the school, they had an acceptable number of absences from school, they were doing well academically and they showed a very good attitude.

11. The subpoenas to both schools required any psychological records to be provided but none were.  I assume that means that none of the children were seeing the school counsellor.

The applicant’s evidence

1. The applicant herself provided evidence in the form of two affidavits sworn by herself, the first sworn on 24 January 2013 and the second sworn on 22 April 2013.  The applicant also provided an affidavit sworn on 3 April 2013 by Ms A, a social worker.  Ms A said in her affidavit that:

   1.I make this Affidavit in support of the Applicant MS HICKS.

   2.I am a qualified social worker. I hold a Bachelor of Arts and a Bachelor of Social Work from [omitted] University. I graduated in 1998.

   3.I am employed as a family case work counsellor at [omitted] in the State of Victoria. I have worked there since October 2010.

   4.I have known the Applicant and her family since August 2012. She is one of my clients. Ms Hicks was referred to our Community Health Service by [omitted] which is a housing service in [omitted] to help link her family into community services and to provide general support.

   5.Ms Hicks and I meet approximately every two weeks. This arrangement will continue as required.

   6.I have home visited Ms Hicks and found her home to be more than adequate. The home environment is clean, appropriate and child-friendly and has all facilities.

   7.I have met four of Ms Hicks’s nieces and nephews at their home. They were well-mannered, happy and well-presented children. I have also spent time with the three youngest children outside their home in a local playground. Again they were well-mannered and happily engaged in play.

   8.As part of my work, I have spoken to the welfare officer Mr K at [L] Secondary School where the three oldest children attend school. That was in November 2012 near the end of the school year. From the school’s point of view, the children were progressing well and doing well at school.

   8.In all my contact with Ms Hicks, I have observed that she is doing an amazing job as a fulltime carer and ‘parent’ of her six nieces and nephews all aged under 18 years. She attends to all their needs. She is very dedicated and committed to their care and has provided them with a loving and nurturing home and family life. She is linked in with government and community services.

   9.The children had difficult experiences before they came to Australia. Ms Hicks provides them with love, stability and security.

   10.I support Ms Hicks in her Application and consider the orders sought by her to be in the children’s best interests. 

2. The applicant said in her affidavits that:

   a.she was born in [E] in 1964;

   b.she came to Australia in 2001 as a refugee;

   c.one of her children came to Australia with her and two other children came to Australia in 2003;

   d.initially, the applicant worked in Australia as a [occupation omitted];

   e.she is now unemployed;

   f.she is in good health except for neck and shoulder pain;

   g.she is divorced;

   h.her children are now adults and are living independently;

   i.after the children’s mother died in 2010, the children were living in [E] with their elderly maternal grandparents and neighbours;

   j.the applicant returned to [E] and was granted guardianship of the children in [E] on 20 October 2010;[1]

   [1] The applicant produced in Exhibit H to her affidavit sworn on 24 January 2013 what purports to be a translation of a decision of an [E] court granting her guardianship of the children.

   k.the children were granted visas to come to Australia;[2]

   [2] From the receipt that is part of exhibit I to the applicant’s affidavit sworn on 24 January 2013, the children appear to have been granted Orphan Relative visas.

   l. the children arrived in Australia on 7 May 2011;

   m.the children have all been granted permanent residency in Australia;[3]

   n.the children are attending school in Australia;

   o.except that some of them have eczema and/or asthma, all of the children are in good health;

   p.the applicant receives Centrelink benefits for the six children;[4]

   q.the applicant rents housing for herself and the children through the Department of Human Services;[5]

   r.the applicant became an Australian citizen on 26 January 2004;[6]

   s.the children are included on the applicant’s Medicare card;[7]

   t.the applicant would like to add the family name Hicks to the children’s names so that the children have the same surname as the applicant and their father; and

   u.in [E], there is a certain system for naming people (which is different to the usual system in Australia).

   [3] Exhibits B to G to the applicant’s affidavit sworn on 24 January 2013 are copies of the children’s [E] passports with Australian visas noting that they may stay in Australia indefinitely.

   [4] The applicant produced in exhibit A to her affidavit sworn on 22 April 2013 a copy of her Centrelink card which includes five of the children.

   [5] The applicant produced in exhibit B to her affidavit sworn on 22 April 2013 a copy of a letter from the Department of Human Services regarding her rental payments and confirming that the six children are part of her household.

   [6] The applicant produced in exhibit C to her affidavit sworn on 22 April 2013 a copy of her citizenship certificate.

   [7] The applicant produced in exhibit D to her affidavit sworn on 22 April 2013 a copy of her Medicare card.

Best interests of the child

1. Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)    to maintain a connection with that culture; and

   (b)to have the support, opportunity and encouragement necessary:

   (i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

   (ii)to develop a positive appreciation of that culture.

   (4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

   Note:The text of the Convention is set out in Australian Treaty Series 1991 No.4 ([1991] ATS 4).  In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website ( type="1">

   Section 60CA of the Act provides that:

   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.

   However, the best interests of the child are not the only consideration.

   Section 60CC(1) of the Act relevantly provides that:

   Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

   The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations. 

   Subsection 60CC(2A) provides that:

   In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   I will address the relevant considerations in order.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

1. Sadly, both of the children’s parents appear to be dead.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. There is no suggestion, in either the applicant’s evidence or in the independent evidence, of any abuse, neglect or family violence in this case.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The s.11F report indicates that the children all reported that they love living with the applicant, they wish to continue to do so, and they would like to add Hicks to their name as this was their father’s name.

2. The children vary in age between five and 17 years of age.  Obviously, the court should give a great deal of weight to the views of the older children, but not so much weight to the views of the younger children.  However, as it happens, the views of all of the children coincide.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i)         each of the child’s parents; and

(ii)    other persons (including any grandparent or other relative of the child)

1. Nothing was put to the court about the nature of the relationship that the children had with their parents. They appear from the s.11F report to have a very positive and loving relationship with the applicant, their paternal aunt, as well with other members of the extended family.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)         to participate in making decisions about major long-term issues in relation to the child; and

(ii)    to spend time with the child; and

(iii)   to communicate with the child

1. It seems that the children’s parents did all the appropriate things until the father’s disappearance in 2007 and the mother’s death in 2010.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. Again, it seems that the children’s parents did all the appropriate things until the father’s disappearance in 2007 and the mother’s death in 2010.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)         either of his or her parents; or

(ii)        any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. It is not proposed that there be any change in the children’s circumstances.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. Obviously, this factor has no application in the present case.

Section 60CC(3)(f) the capacity of:

(i)         each of the child’s parents; and

(ii)    any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. The parents are no longer able to care for the children.  By all accounts, the applicant has the capacity to provide for all of the needs of the children.

Section 60CC(3)(g)           the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The children and their parents are of [E] culture, background and tradition.  The applicant is also of that culture, background and tradition and is able to foster the children’s understanding of their [E] culture, background and tradition.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)    the likely impact any proposed parenting order under this Part will have on that right;

1. This factor does not apply in this case.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. This factor does not apply in this case.  Having said that, the applicant appears to demonstrating an admirable attitude to the responsibilities of parenting the children.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

1. There is no suggestion that there is any family violence involving the children or any member of their family.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

(i)         the nature of the order;

(ii)    the circumstances in which the order was made;

(iii)       any evidence admitted in proceedings for the order;

(iv)   any findings made by the court in, or in proceedings for, the order;

(v)    any other relevant matter

1. There is no suggestion that there is any family violence order involving the children or any member of their family.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. It would be preferable to make the order that would be the least likely to lead to the institution of further proceedings.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

1. There are no other relevant facts or circumstances.

Equal shared parental responsibility

1. Section 61DA of the Act provides as follows:

   (1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)family violence.

   (3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

2. Obviously, the parents in this case cannot have equal shared parental responsibility for the children.

Conclusions

1. I consider that, on the basis of all the evidence before me, it is in the best interests of the children that they live with the applicant.  There is no suggestion of any other person with whom the children could reasonably live.  The applicant’s care of the children appears to be admirable.  It is in the children’s best interest that the applicant has sole parental responsibility for them, so that she can make all the necessary decisions for them as and when required.  There will be orders to that effect.

2. In addition, the applicant proposes that the court orders that:

   … the said children by henceforth known as:

   [U] HICKS

   [V] HICKS

   [W] HICKS

   [X] HICKS

   [Y] HICKS

   and  [Z] HICKS

3. The applicant also proposes that the court requests that:

   … pursuant to ss 26(3) and 26(4) of the Births, Deaths and Marriages Registration Act 1996 (Vic), the Registrar of the Births, Deaths and Marriages in the State of Victoria register the children’s names as:

   [U] HICKS

   [V] HICKS

   [W] HICKS

   [X] HICKS

   [Y] HICKS

   and  [Z] HICKS

4. Section 26 of the Births, Deaths and Marriages Registration Act 1996 (Vic) (“the Registration Act”) provides as follows:

   (1)   The parents of a child-

   (a)  who is domiciled or ordinarily resident in the State; or

   (b)  whose birth is registered in the State-

   may apply to the Registrar, in a form approved by the Registrar, for registration of a change of the child's name.

   (2) An application for registration of a change of a child's name must be accompanied by the prescribed fee.

   (3) An application for registration of a change of a child's name may be made by one parent if-

   (a)the applicant is the sole parent named in the registration of the child's birth under this Act or any other law; or

   (b)  there is no other surviving parent of the child; or

   (c)  the Court approves the proposed change of name.

   (4) The Court may, on application by a child's parent, approve a proposed change of name for the child if satisfied that the change is in the child's best interests.

   (5) If the parents of a child are dead, cannot be found, or for some other reason cannot exercise their parental responsibilities to a child, the child's guardian may apply for registration of a change of the child's name.

5. The applicant proposed that the court make orders pursuant to ss.26(3) and (4) of the Registration Act. However, subsection (3) permits one parent of a child to apply for a change of a child’s name if that parent is the only parent, or the only surviving parent, named in the registration of the child’s birth, or the Court approves the name change. The applicant in the present case is not a parent of the children. The “Court” is defined in s.4 of the Registration Act to mean the County Court of Victoria. Subsection 26(3) of the Registration Act has no application in the present circumstances.

6. Subsection 26(4) of the Registration Act permits the County Court, on an application made by a parent, to approve a proposed change of name. The applicant is not a parent of the children. This court is not the County Court of Victoria. Subsection 26(4) of the Registration Act has no application in the present proceedings.

7. Subsection 28(2) of the Registration Act provides that:

   If the Registrar is satisfied that the name of a person whose birth is registered in a State has been changed under another law or by order of a court, the change of name may be registered under this Act.

8. That provision only applies where a child’s birth has already been registered in the State of Victoria. It is that provision, as I understand it, under which this court’s orders for name changes are given effect. It does not apply in the present case because the children’s births have not already been registered in Victoria. I note that the court referred to in s.28(2) of the Registration Act is not confined to the County Court, because that provision refers to “a court” rather “the Court”. It is only the latter that is defined to mean the County Court.

9. However, s.26(5) of the Registration Act makes provision for a guardian to apply to the Registrar for a change of a child’s name. The applicant will, in effect, be the children’s guardian, once the orders in this proceeding are pronounced.

10. The Registration Act establishes certain preconditions for the Registrar to register a change of a child’s name. It appears that the applicant will be readily able to satisfy those preconditions.

11. Counsel for the applicant was unable to point to a provision of the Registration Act under which this court could properly make the orders that she seeks. It appears that the applicant will be able to achieve the result she wants by a direct application to the Registrar of Births, Deaths and Marriages. Consequently, I will make no order at present for the change of the children’s names.

12. However, I will reserve liberty to apply in relation to the change of name issue, in case the applicant has difficulty with her application to the Registrar and she is able to point to a proper foundation for the orders that she seeks from this court.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Riley.

Associate: 

Date:  13 June 2013