Ince and Withers

[2014] FCCA 1633

FEDERAL CIRCUIT COURT OF AUSTRALIA

INCE & WITHERS [2014] FCCA 1633

Catchwords:
FAMILY LAW – Children – Parenting Orders – change of child's name – best interests of child – where respondent did not attend court – where respondent cannot be found – where applicant seeks to change child’s given name – best interests of the child – parental responsibility – sole parental responsibility – Australian passport – issue of Australian passport – travel – international travel – permission for children to travel internationally.

Legislation:

Australian Passports Act 2005 (Cth), s.11
Family Law Act 1975 (Cth), ss.60CA, 61DA, 65Y
Births, Deaths and Marriages Act 1995 (NSW), s.28

Cases cited:
Beach & Stemmler (1979) 5 Fam LR Note 13; FLC 90-692
Chapman & Palmer (1978) 4 Fam LR 462; FLC 90-510
Whinney & Kelleher [2013] FCCA 1939

Applicant: MS INCE

Respondent: MR WITHERS

File Number: SYC 4676 of 2013

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 Anderson

Solicitors for the Applicant: Aboriginal Legal Service NSW/ACT

The Respondent: No appearance

ORDERS

1. The Applicant is granted leave to proceed ex parte.

2. The name of the child X born (omitted) 1999 is changed to X.

3. The Applicant mother is authorised to apply to the Registrar of Births, Deaths and Marriages in and for the State of New South Wales that the name of the child registered as X born (omitted) 1999 now be registered as X.

4. As provided by s.28(5) of the Births, Deaths and Marriages Registration Act 1995 (NSW) the Registrar of Births, Deaths and Marriages in and for the State of New South Wales is to register the names of the child in the form specified in the immediately preceding Order.

5. The Applicant mother is to take all reasonable steps to serve a sealed copy of these Orders upon the said Registrar of Births, Deaths and Marriages within 28 days of receipt of a sealed copy of these Orders.

6. The children W born (omitted) 1998, X born (omitted) 1999, Y born (omitted) 2001 and Z born (omitted) 2005 are permitted to travel outside the Commonwealth of Australia and for this purpose the mother is permitted to make an application for an Australian passport and/or an application for the renewal of an Australian passport for the children without the consent of the Respondent father.

7. AND THE COURT NOTES THAT the Orders made in proceedings between the parties on 3 December 2013 include an order for sole parental responsibility in the mother’s favour and do not provide for time to be spent by the children with the father nor communication between him and them, continuing and on the above basis the mother should thus be taken both for the purposes of the Family Law Act 1975 and section 11 of the Australian Passports Act 2005 to be a person with sole parental responsibility and thus the sole person whose consent or execution of any document as required to obtain Australian passports or other documents for the children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4676 of 2013

MS INCE

Applicant

And

MR WITHERS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Mother of four children for orders that:

   a)a spelling error in first name of her daughter born on (omitted) 1999 should be corrected by the Registrar of Births, Deaths and Marriages; and

   b)that she should be permitted to travel outside Australia with the children and, for that purpose, she should be able to apply for passports for them without the need to obtain the consent of the children’s father.

2. The Father cannot be located. He did not attend Court.

Background

1. The parties have four children:

   a)W, who was born on (omitted) 1998;

   b)X, who was born on (omitted) 1999;

   c)Y, who was born on (omitted) 2001; and

   d)Z, who was born on (omitted) 2005.

2. All four of the children live with the Applicant.

3. There have been previous proceedings between the parties in this Court relating to the children. On 3^rd December 2013 the Court made orders after an undefended hearing where the Mother was given leave to proceed in the absence of the Father, providing that:

   a)the children were to live with the Mother;

   b)the Mother was to have sole parental responsibility for the children; and

   c)the Father was restrained from taking possession of the children except as expressly authorised in writing by the Mother.

Evidence and Submission

1. The Mother relied on her affidavit of 2^nd April 2014. She also gave oral evidence.

2. The Father did not attend Court and the mother does not know where he can be located. She deposed that she has received no communication as at all from him since the Orders were made.

3. It is the Mother’s case that the name of the child X was incorrectly spelt as “X”. When she discovered the error, she contacted the Registry of Births, Deaths and Marriages but was told that she would have to pay a fee to rectify the error. Whilst she and the Father agreed that they would have the error corrected, they always had other more pressing financial commitments during their relationship.

4. However, the child X, who is now 15 years old, has been asking her to have the spelling corrected, as she wishes to obtain a tax file number, a driver’s licence and a job. She has said to the Mother words to the effect of:

   “It’s embarrassing with my name spelt wrong. I want to have it changed so all the documents will be the proper spelling.”[1]

   [1] Affidavit of Ms Ince  2.4.2014 at [10]

5. The Mother also deposed that when she made an application to the Registry of Births, Deaths and Marriages in February 2014 she was informed that the Order of this Court made on 3^rd December 2013 giving her sole parental responsibility for the children was not sufficient to authorise her to apply to change her child’s name by herself.

6. It is also the Mother’s case that she wishes to travel overseas with the children at some date in the future. Whilst she does not have any immediate plans she intends to start saving for a holiday. The Mother candidly deposed in her affidavit:

   I verily believe that I will not be able to get Mr Withers[2] to sign any application I might make to the Australian Passport Office for a passport for the children. I am concerned about wasting the Court’s resources and the Aboriginal Legal Service to make a further application to the Court to be able to travel overseas when I have more concrete plans. For this reason I make the application now to the Court to obtain a passport for each of the children without Mr Withers’ consent.[3]

   [2] i.e. the Respondent

   [3] Affidavit of Ms Ince 2.4.2014 at [17]

Change of Name

1. An order changing a child’s name is a parenting order. 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.

2. 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 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. In this case, however, the Court has already made an order that the mother should have sole parental responsibility for the children as recently as 3^rd December last year, and there is no change in circumstances that would warrant varying that particular order.

3. When the Court is considering whether to make an order changing a child’s name, the Court will be guided by a number of authorities, including Chapman & Palmer[4] and Beach & Stemmler[5], (see also Whinney & Kelleher[6]). The Court should consider such factors 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.

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

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

   [6] [2013] FCCA 1939

4. Not all of these considerations arise in the present case, especially as the change that is sought is a change to the spelling of the child’s first name in order to correct an error.

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

6. Section 28 of the act provides for registration of a change to a child’s name and 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.

7. 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 to order the Registrar to register the child’s name[7].

   [7] Whinney & Kelleher (supra) at [20]

Passports

1. 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.

2. 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.

3. 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.

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

5. 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. Again, I have decided to grant leave to proceed ex parte.

2. The child herself wishes to have an order made changing the spelling of her name on her birth certificate, as it is the Mother’s evidence that an error was made when the child’s birth was registered. The Mother has given evidence that the child herself has expressed a strong wish to have this error remedied before she applies for a tax file number or a driver’s licence.

3. It was also the Mother’s evidence that she and the Father had decided to take the necessary steps to remedy the spelling error once they had the funds. It is unlikely that the Father would object to an order being made correcting the spelling of the child’s first name.

4. The Mother has given evidence that she doubts that she would be able to get the Father to sign any application for passports for the children. She has certainly not been able to get him to attend Court and has given evidence that she just does not know his whereabouts.

5. Whilst the Mother does not have any plan for an overseas trip with the children at the present time, that is not a reason why she should not apply for passports for them. The children are Australian citizens by birth. It is the right of an Australian citizen to possess an Australian passport.

6. I propose to make the orders that the Mother seeks.    

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  21 July 2014