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 of 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

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

2. 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

3. 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

4. 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

5. 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.

6. 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

1. These are parenting proceedings in relation to the children B, C and D Jorah, respectively born in 2001, 2002 and 2005. 

2. 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. 

3. This Court on 30 April 2012 made final orders in relation to the subject children which provided, inter alia, that the mother have sole parental responsibility for each of the children, that the children live with the mother and that the father, Mr Jorah, spend no time with the children.

Background

1. The background behind the no-time orders are more particularly set out in the mother’s affidavit in support, together with the interim Magellan report tendered in the previous proceedings dated 2 February 2011, and the Family Report dated 8 December 2011. 

2. At the time of making the final orders on 30 April 2012, the father had left Australia to travel to Country E.  He had been represented in the proceedings up until that date, and at final hearing, his legal representative informed the Court that he had no knowledge as to the father’s circumstances in returning to Country E.

3. Since making the final orders, the mother has had no contact or communication with the father, the children have had no communication or contact with the father and at the time of making the final orders, the children had not seen the father for more than 12 months.

4. It has now been some years since the children have had any contact with the father.  The mother has had no contact with the father, nor is she aware of his current circumstances or where he is living.  She has no phone number or email address for him. The mother had heard from some members of her family in Country E the father had remarried in that country. 

5. Since final orders, the mother has not received any child support or financial support for the children, and the children continue to express fears of their father, particularly the child B, who remains hyper-vigilant in relation to her safety and has constant anxiety about the possibility of seeing her father. 

6. The children continue to receive therapeutic assistance to manage their fear and anxiety arising from circumstances during cohabitation that are more fully set out in the reports referred to above. 

7. The mother asks that orders be made on an ex parte basis. The Court is satisfied that it is appropriate in all circumstances to dispense with such rules that are not being complied with to facilitate this Court proceeding to determine the application on an ex parte basis.

8. The law in relation to change of name effectively requires the Court to have regard to the best interests of the children, and the relevant principles in relation to parenting proceedings are set out more fully in Goode & Goode 2006 FCA 1346, and the pathway to be followed by the Court was confirmed by the High Court in MRR & GRR (2010) HCA 4.

9. Section 60B outlines the objects and principles underlying the legislation in relation to children, and section 60CA provides that in deciding whether to make a particular parenting order, the Court must regard the interests of the children as the paramount consideration.

10. Section 60CC sets out the best interest considerations in relation to the children being the primary – subsection (2) – and additional considerations, subsection (3). 

11. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it’s in the best interests of the children for the children’s parents to have equal shared parental responsibility.  That is not an issue in the current proceedings, as by orders made by Collier J on 30 April 2012, the mother is to have sole parental responsibility for each of the children.

12. Accordingly, the considerations before the Court fall to be determined by reason of the application of the best interest principle set out in section 60CC of the legislation. 

13. The Court has had regard to each of the additional and primary considerations set out in the legislation, and particularly having regard to the protective considerations more fully set out in section 60CC(2)(b), that is, the need to protect the children from physical or psychological harm.

14. The nature of orders relating to a child's surname was considered by the Full Court of the Family Court in Flanagan v Handcock [2000] FamCA 150. It is apparent from the Full Court's decision that whichever way one analyses a change of name issue, that is by reference to a section 68B injunction or a section 65D parenting order, either directly or indirectly the paramountcy principle is applicable.

15. There are numerous decisions that pre-date the 1995 Family Law Act 1975 amendments relating to a child's surname.

16. In Foocks v McCarthy [1993] FamCA 117; (1994) FLC 92-450 Warnick J held:

    There is only one principle that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents.

17. The factors frequently considered in determining whether there should be any change to a child's name include:

    a)Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control;

    b)Any confusion of identity which may arise for the child if his or her name is changed or is not changed;

    c)The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;

    d)The effect of frequent or random changes of name;

    e)The contact that the non-custodial parent has had and is likely to have in the future with the child;

    f)The degree of identification that the child or children have with their non-custodial parent; and

    g)The degree of identification which the child or children have with the parent with whom they live.

18. The Court is satisfied that in all of the circumstances, it is appropriate and in the best interests of the children that orders be made facilitating the children to change their surname to that of the mother.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 16 September 2013.

Associate: 

Date:  8 October 2013