Jorah and Jorah - [2013] FamCA 847

FAMILY COURT OF AUSTRALIA

JORAH & JORAH

[2013] FamCA 847

FAMILY LAW – CHILDREN - Child related proceedings – change of surname where whereabouts of father not known for some years – service of application dispensed with – history of abuse and domestic violence prior to separation – children especially eldest child remain fearful of the father – mother already has sole parental responsibility for children – in best interests of children to permit change of surname.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 68B

Goode & Goode [2006] FCA 1346
MRR & GRR (2010) HCA 4
Flanagan v Handcock [2000] FamCA 150
Foocks v McCarthy [1993] FamCA 117; (1994) FLC 92-450

APPLICANT:

Ms Jorah

RESPONDENT:

Mr Jorah

FILE NUMBER:

PAC

3444

2008

DATE DELIVERED:

16 September 2013

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

16 September 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mahony Family Lawyers

Orders

Compliance with any rules so as to facilitate this matter being heard on an ex parte basis be dispensed with.
The Mother Ms Jorah be authorised to apply to the Registrar of Births Deaths and Marriages, New South Wales that the Child registered as B Jorah born … 2001 be now registered as B Sohara
The Mother Ms Jorah be authorised to apply to the Registrar of Births Deaths and Marriages, New South Wales that the Child registered as C Jorah born … 2002 be now registered as C Sohara
The Mother Ms Jorah be authorised to apply to the Registrar of Births Deaths and Marriages, New South Wales that the Child registered as D Jorah born … 2005 be now registered as D Sohara
Pursuant to section 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW), the Registrar register the Children’s names in the forms specified in the previous orders.
The Court forward a sealed copy of this Order to the Registrar of Births Deaths and Marriages, New South Wales.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zorah & Zorah has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3444 of 2008

Ms Jorah

Applicant

And

Mr Jorah

Respondent

REASONS FOR JUDGMENT

The Proceedings

These are parenting proceedings in relation to the children B, C and D Jorah, respectively born in 2001, 2002 and 2005.
The mother by application filed on 30 August 2013 seeks orders to the effect that she be permitted to change the names of the children to adopt her maiden surname of Sohara in circumstances more particularly set out in her affidavit filed in support of that application, filed on 30 August 2013. The three children are the children of the applicant and the respondent father.
This Court on 30 April 2012 made final orders in relation to the subject children which provided, inter alia, that the mother have sole…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jorah and Jorah

Details

AGLC: Jorah and Jorah [2013] FamCA 847
Case: [2013] FamCA 847
Decision Date: 16 September 2013

CaseChat Overview and Summary

In the matter of *Jorah and Jorah*, Foster J of the Supreme Court of New South Wales considered an application by the Mother, Ms Jorah, concerning the registration of her children's surnames. The dispute centred on the desire of the Mother to change the registered surnames of her three children, B Jorah, C Jorah, and D Jorah, from "Jorah" to "Sohara".

The primary legal issue before the Court was whether it had the authority to permit the change of the children's registered surnames. This involved an interpretation of the *Births, Deaths and Marriages Registration Act 1995* (NSW), specifically section 28(5), which governs the registration of names. The Court also had to consider whether it was appropriate to grant such an order on an *ex parte* basis, meaning without the other parent being present or formally notified.

Foster J reasoned that the Court possessed the power to authorise such a change under the relevant legislation. The Court dispensed with the usual procedural requirements to facilitate an *ex parte* hearing, indicating a recognition of the specific circumstances of the application. The Court ultimately ordered that the Mother be authorised to apply to the Registrar of Births, Deaths and Marriages, New South Wales, to change the registered surnames of the three children from "Jorah" to "Sohara". The Registrar was directed to register the children's names in the new form, and a sealed copy of the order was to be forwarded to the Registrar.

Orders

Orders of the court

Compliance with any rules so as to facilitate this matter being heard on an ex parte basis be dispensed with.

The Mother Ms Jorah be authorised to apply to the Registrar of Births Deaths and Marriages, New South Wales that the Child registered as B Jorah born … 2001 be now registered as B Sohara

The Mother Ms Jorah be authorised to apply to the Registrar of Births Deaths and Marriages, New South Wales that the Child registered as C Jorah born … 2002 be now registered as C Sohara

The Mother Ms Jorah be authorised to apply to the Registrar of Births Deaths and Marriages, New South Wales that the Child registered as D Jorah born … 2005 be now registered as D Sohara

Pursuant to section 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW), the Registrar register the Children’s names in the forms specified in the previous orders.

The Court forward a sealed copy of this Order to the Registrar of Births Deaths and Marriages, New South Wales.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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