Holford and Osborne

[2014] FCCA 1700

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLFORD & OSBORNE [2014] FCCA 1700

Catchwords:
FAMILY LAW – Children – parenting orders – change of name – best interests of the child – parental responsibility – sole parental responsibility – passport – Australian passport – issue of Australian passport – travel – international travel – permission for child to travel internationally.

Legislation:

Australian Passports Act 2005 (Cth), s.11

Family Law Act 1975 (Cth), ss.60CA, 61DA, 65Y

Births, Deaths and Marriages Registration Act 1995 (NSW), ss.22, 28
Federal Circuit Court Rules 2001, r.13.03C

Cases cited:
Beach & Stemmler (1979) 5 Fam LR Note 13; FLC 90-510
Chapman & Palmer (1978) 4 Fam LR 462; FLC 90-510
Goode & Goode [2006] FamCA 1346; (2006 36 Fam LR 422; FLC 93-286
Whinney & Kelleher [2013] FCCA 1939

Applicant: MS HOLFORD

Respondent: MR OSBORNE

File Number: SYC 2340 of 2014

Judgment of: Judge Scarlett

Hearing date: 21 July 2014

Date of Last Submission: 21 July 2014

Delivered at: Sydney

Delivered on: 21 July 2014

REPRESENTATION

Solicitor for the Applicant: Ms Doueihy

Solicitors for the Applicant: Freedman & Gopalan Solicitors

The Respondent: No appearance

ORDERS

1. Leave to proceed ex parte.

2. The Applicant mother is to have sole parental responsibility for the child [X] OSBORNE born [in] 1999.

3. The name of the child [X] OSBORNE born [in] 1999 is changed to [X] HOLFORD.

4. As provided by section 28 of the Births, Deaths and Marriages Registration Act 1995 (NSW) the Applicant Mother is given leave to apply to the Registrar of Births, Deaths and Marriages in and for the State of New South Wales to register the name of the child formerly known as [X] OSBORNE as [X] HOLFORD.

5. The Registrar of Births, Deaths and Marriages in and for the State of New South Wales is ordered to register the name of the child formerly known as [X] OSBORNE as [X] HOLFORD.

6. The Applicant Mother is permitted to take the child [X] HOLFORD born [in] 1999 out of Australia to a place outside Australia in accordance with s.65Y(2)(b) of the Family Law Act 1975.

7. The child [X] HOLFORD born [in] 1999 is permitted to travel internationally as provided by s.11(1)(b) of the Australian Passports Act 2005 and for this purpose the Applicant mother is permitted to apply for the issue of an Australian passport to the child [X] HOLFORD under the provisions of s.11(4)(b) of the Australian Passports Act 2005.   

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2340 of 2014

MS HOLFORD

Applicant

And

MR OSBORNE

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Mother of a girl named [X] to change the child’s surname and to be able to apply for a passport in the child’s new name without the consent of the child’s father.

2. The child’s father lives in the United Kingdom. It is the Mother’s case that he has not seen his daughter since she was six weeks old. The child is now 15 years old, having been born on [omitted] 1999.

3. After some inquiries, the Mother has been able to serve sealed copies of the Application and supporting affidavit on the father. He has not filed any Response or affidavit, nor did he attend court.

Background

1. The facts relied upon by the Mother are set out in her affidavit sworn or affirmed[1] on 17^th April 2014.

   [1] The attestation clause does not say which

2. The parties were married on [omitted] 1998 at [omitted] in the United Kingdom. The parties separated on 1^st May 1999 and were divorced in 2001. On 7^th February 2001 a decree nisi was pronounced by the Family Court of Australia at Sydney. The decree became absolute on 8^th March 2001.

3. The child of the marriage, [X] Osborne, has lived with her mother ever since.

4. The Mother married Mr H in October 2005. They have one child.

5. The Mother engaged a firm of private investigators in [omitted] to trace the current address of the Father, and they provided this information in a letter dated 23^rd January 2014.

6. The Mother’s former solicitors wrote to the Father on 13^th February 2014 enclosing the necessary documentation for him to record his consent to change the child’s surname from Osborne to Holford, the surname used by the Mother and the other members of her family. The Mother deposed that she did not receive a reply to that letter.

7. The Mother commenced proceedings in this Court by filing an Application and an affidavit in support on 17^th April 2014. Sealed copies of the Application and affidavit were served on the Respondent Father on 6^th May 2014.

8. The Respondent has not filed a Response or an affidavit or any other document in reply, nor has he attended Court.   

Evidence and Submission

1. The Applicant relied on the following:

   a)her affidavit of 17^th April 2014;

   b)the affidavit of her solicitor, Anne-Marie Doueihy, of 22^nd May 2014, to which was annexed copies of correspondence with process servers in the United Kingdom and an affidavit of Mr A, a process server, sworn on 13^th May 2014, in which he deposed that he had served copies of the necessary documents on the Respondent on 6^th May 2014; and

   c)an Amended Minute of Order seeking sole parental responsibility for the child.

2. The Applicant gave oral evidence.

3. The Applicant’s solicitor, Ms Doueihy, handed up a written submission in point form and made a short oral submission.

The law to be applied

1. When a Court is considering whether to make a parenting order in respect of a child, it is required by s.60CA of the Family Law Act 1975 (Cth) to regard the best interests of the child as the paramount consideration. The court is also required by s.61DA of the Act when making a parenting order to 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. However, this presumption does not apply in cases of abuse or family violence and may be rebutted by evidence that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility.

2. When a court is considering whether or not to change the surname of a child, the court is guided by a number of authorities, including Chapman & Palmer[2]and Beach & Stemmler[3], (see also Whinney & Kelleher[4] ). The Court should consider a number of factors, such as:

   a)the best interests of the child;

   b)any embarrassment likely to be experienced by the child if the child’s name is different from that of the parent with whom the child normally lives;

   c)any confusion of identity that may arise for the child if the child’s name is or is not changed;

   d)the amount of contact that the other parent has had with the child; and

   e)the degree of identification the child has with each parent.

   [2] (1978) 4 Fam LR 462; FLC 90-510

   [3] (1979) 5 Fam LR Note 13; FLC 90-692

   [4] [2013] FCCA 1939

3. The applicable legislation in New South Wales to deal with a change of name is the Births, Deaths and Marriages Registration Act 1995 (NSW). Subsection 22(3) of that Act provides:

   (3)If any court (including any court of another State or the Commonwealth) resolves a dispute about a child’s name, the court may order the Registrar to register the child’s name in a form specified in the order.

4. Thus, it can be seen that this Court, being a Court of the Commonwealth, may, under s.22(3) of the Act, order the Registrar of Births, Deaths and Marriages in New South Wales to register the change of the child’s name (Whinney & Kelleher[5] at [15]).

   [5] supra

5. Section 28 of the Births, Deaths and Marriages Registration Act also provides for registration of a change of a child’s name in similar terms to s.22(3). The section says, relevantly:

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

   …

   (c) a court approves the proposed change of name.

   …

   (5)If any court (including any court of another State or the Commonwealth) approves a proposed name for a child, the court may order the Registrar to register the child’s name in a form specified in the order.

6. Where a court makes an order changing the surname of a child, it is not necessary to order the other parent to sign any document. The court itself is given the power by the Act to order the Registrar to register the child’s name.

7. The Mother seeks an order that the consent of the Father for the application for a passport for the child should be dispensed with and that she should be at liberty to apply for an Australian passport for the child.

8. Section 11 of the Australian Passports Act 2005 (Cth) sets out the circumstances in which an Australian passport may be issued to a child without the consent of one of the child’s parents.

9. Subsection 11(1) provides:

   The Minister must not issue an Australian passport to a child unless:

   (a)each person who has parental responsibility for the child consents to the child travelling internationally; or

   (b)an order of a court of the Commonwealth or a State or a Territory permits the child to travel internationally.

10. Subsection 11(4) provides:

    For the purposes of subsection (1), a reference to:

    (a)a person consenting to a child travelling internationally includes a reference to a person consenting to the issue of an Australian passport to the child; or

    (b)an order of a court permitting a child to travel internationally includes a reference to an order permitting:

    (i)     the issue of an Australian passport to the child; or

    (ii)contact outside Australia between the child and another person.

11. The term parental responsibility is defined in s.11(5) of the Act.

12. The Court has power under s.65Y of the Family Law Act 1975 to make an order permitting a child to be taken or sent outside Australia.

Conclusions

1. The Respondent did not attend Court. I have decided to proceed with the hearing generally under the provisions of Rule 13.03C.

2. In my view, even though the Applicant did not originally seek an order for sole parental responsibility for the child, the question of parental responsibility must be considered see Goode & Goode[6]). This is not, to my mind, a matter where it is in the child’s best interests for her parents to have equal shared parental responsibility for her.

   [6] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

3. The evidence from the Mother is that the Father has had no contact or communication with the child since she was six weeks of age. She is now aged 15 years and 4 months. The Father and daughter would not recognise each other if they were to meet face to face.

4. This is a case where an order should be made that the Mother should have sole parental responsibility for the child.

5. The Mother’s evidence supports her case for the proposed change of surname. At present, this girl bears the surname of a man with whom she has no relationship. Her mother and her sister have the surname of Holford and she is known by that name at school. The Mother has deposed in her affidavit that the child has raised the question of her surname with her on a number of occasions, claiming that it is “really frustrating and embarrassing” to have to explain to people that she has a father who does not want to have anything to do with her.[7]

   [7] Affidavit of Ms Holford 17.4.2014 at [17]

6. I am satisfied that it is in the child’s best interests to change her surname from Osborne to Holford and I will order accordingly.

7. That leads to the question of the child’s passport. It must follow that if this child is to change her surname, then she should have a passport in the new name. Australian passports have a life of ten years and it would be inconvenient and embarrassing for this child to have a passport bearing the name that she wishes to be rid of.

8. The Respondent has had no communication or contact with this child since she was a baby. There is no reason why he should have any say in whether she has an Australian passport or not. Her mother has been her primary caregiver. She should be able to obtain a passport for her daughter without difficulty or inconvenience. I propose to make the necessary orders.  

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  30 July 2014