Jamison and Martin

[2015] FCCA 272

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAMISON & MARTIN [2015] FCCA 272

Catchwords:
FAMILY LAW – Children – Parenting Orders – variation of earlier orders – parental responsibility – sole parental responsibility – passport – change of name – where applicant seeks to change the surname of the parties’ child – best interests of the child – 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.60B, 60CA, 60CC, 61DA, 65DAA, 65Y

Births, Deaths and Marriages Registration Act 1995 (NSW), ss.22, 28

Cases cited:
Beach & Stemmler (1979) 5 Fam LR Note 13; FLC 90-692
Chapman & Palmer (1978) 4 Fam LR 462; FLC 90-510
Gerald & Kenwood [2013] FCCA 2038
Whinney & Kelleher [2013] FCCA 1939

Applicant: MR JAMISON

Respondent: MS MARTIN

File Number: CRC 34 of 2010

Judgment of: Judge Scarlett

Hearing date: 29 January 2015

Date of Last Submission: 29 January 2015

Delivered at: Sydney

Delivered on: 29 January 2015

REPRESENTATION

Applicant: In person

Respondent: No appearance

ORDERS

1. Leave to proceed ex parte.

2. All previous parenting Orders are discharged.

3. The Applicant Father is to have sole parental responsibility for the child [X] MARTIN born [omitted] 1999.

4. The child [X] is to live with the Father.

5. The Respondent Mother is to spend time with the child [X] as agreed between the parties.

6. The child [X] is permitted to travel internationally as provided by s.11(1)(b) of the Australian Passports Act 2005 and for this purpose the Father is permitted to apply for the issue of an Australian passport to the child [X] under the provisions of s.11(4)(b)(i) of the Australian Passports Act 2005.

7. The child’s passport is to remain in the Father’s possession at all times.

8. The name of the child [X] MARTIN born [omitted] 1999 is changed to [X] JAMISON.

9. As provided by s.28 of the Births, Deaths and Marriages Registration Act 1995 (NSW), the Applicant Father 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] MARTIN as [X] JAMISON.

10. 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] MARTIN as [X] JAMISON.

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

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

CRC 34 of 2010

MR JAMISON

Applicant

And

MS MARTIN

Respondent

REASONS FOR JUDGMENT

Application

1. This is a matter that has been before the Court in one form or another for some years, and it has certainly been marked by the fact that the Father has sought various parenting orders for his daughter, [X], since the matters first came before me in the year 2010. The Father, in fact, is seeking a variation of orders that were made in 2011 and subsequently.  It is also the fact that the Mother has at no time attended Court since this matter came into my docket in 2010.

Background

1. There has been a previous application to allow the Father to obtain a passport for the child and take her out of Australia for a holiday to the United Kingdom to spend time with family, and I made those orders ex parte once I was satisfied the Mother had been aware of them.

Orders sought

1. It is significant that the Father is seeking an order for sole parental responsibility. There has been in place an order for equal shared parental responsibility, but it is clear from the evidence that for no time, certainly in the last four years or so, has the Mother exercised any parental responsibility or sought to do so.  It is difficult to see how it could be in this child’s best interests for equal shared parental responsibility to continue in the present circumstances.

2. I also have to consider the question of whether it is in this child’s best interests for her name to be changed.  There are a number of decisions of this Court relying on earlier decisions of the Family Court of Australia relating to that.  The matter has been dealt with in a decision of Whinney & Kelleher[1] in 2013, also Gerald & Kenwood[2] made that same year In those decisions the Court has followed decisions of the Family Court of Australia in Chapman & Palmer[3] and Beach & Stemmler[4].

   [1] [2013] FCCA 1939

   [2] [2013] FCCA 2038

   [3] (1978) 4 Fam LR 462; FLC 90-510

   [4] (1979) 5 Fam LR Note 13; FLC 90-692

3. The principles, in effect, are the best interests of the child, 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, any confusion of identity that may arise for the child if the child’s name is or is not changed, the amount of contact that the other parent has had with the child and the degree of identification that the child has with each parent.

Conclusions

1. It is quite clear on the evidence that certainly for the last four or more years this child has been living with her father.  She has had little and now no contact with her mother.  She has little, if any, identification with her mother and a very strong identification with her father.  It is also very clear from the affidavit evidence that this child desires that her name be officially changed and has, in fact, of her own initiative taken to using that name on public media.  It would seem to me that noting that this is the start of the school term, that this is the time for that change to be made.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  29 January 2015