L and M (No.2)

[2002] FMCAfam 190

FEDERAL MAGISTRATES COURT OF AUSTRALIA

L & M (No. 2) [2002] FMCAfam 190

FAMILY LAW – Residence – proceeding undefended – Mother disappeared after interim hearing – declaration of name – declaration re name on birth certificate where no certificate had been accepted by Registrar of Births, Deaths & Marriages.

Applicant: M L

Respondent: D G M

File No: ZM 2642 of 2002

Delivered on: 17 June 2002

Delivered at: Melbourne

Hearing Date: 17 June 2002

Judgment of: Bryant CFM

REPRESENTATION

Counsel for the Applicant: Mr Kennedy

Solicitors for the Applicant:

Counsel for the Respondent: No appearance

Solicitors for the Respondent: No appearance

Counsel for the Child Representative: Mr Howman

Solicitors for the Child Representative:

ORDERS

IT IS ORDERED

1. THAT Order (3) of the Orders made on 23 January 2000 that the Mother be permitted to call the said child B A L M be and are hereby discharged.

2. THAT the Court declares that it is in the best interest of the child that his birth be registered in the name of BM L.

3. THAT the Father be at liberty to take all steps necessary to register the birth of the said child as BM L and the Registrar of Births, Deaths and Marriages in the State of Victoria be requested to issue a birth certificate for the said child in the name of BM L

4. THAT all outstanding Applications otherwise be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

ZM 2642 of 2002

M L

Applicant

And

D G M

Respondent

REASONS FOR JUDGMENT

This issue remained to be determined at the conclusion of an undefended hearing regarding residence of the child BM L born 5 January 1999.

Change of name

1. In his Affidavit file 14 June 2002, the Father sought an order in the following terms:

   “That I be permitted to register the child at the Registry of Births, Deaths and Marriages under the name “BM L””

   In paragraph 17 of his Affidavit he said that since B has been in his care, he has tried to make appropriate arrangements concerning Centrelink and Medicare.  Each agency has indicated to him that he needed to produce to the agency B’s birth certificate.  He had made enquiries at the Registry of Birth, Deaths and Marriages, Victoria and those enquiries reveal that the Registry has received from the Mother an application to register Benjamin’s birth but as that Application has alterations thereon, the Registry will not accept the Application.  Accordingly, the Registry of Births, Deaths and Marriages is unable to issue a birth certificate for B because his registration is yet to be accepted with the Registry.

2. The original Application for registration of B’s birth as signed by himself and the Mother sought to have him registered under the name “BM L”.  He says that apparently after the Application was executed by him, the Mother has made alterations seeking to register the child in the name “B A L M”.  It appears to be as a result of those alterations that the Registrar refused to accept the alterations.

3. On 24 January 2000, in circumstances in which there was no appearance for the Father, a Registrar of the Family Court of Australia made an Order for residence to the Mother and an Order which said:

   “That the Mother be permitted to call the said child B A L M.”

   I note that there was no formal declaration as to the change of his name.

4. I accept the evidence on its face, of the Father, that there is no birth certificate available for B, and that he requires a birth certificate.  I am further satisfied from his evidence that it was the original intention to register him as BM L. 

5. I am also aware that this application and the material upon which it is based has not come to the attention of the Mother.  The reason for that is set out in my reasons for judgment in relation to residence.  The Mother has moved from her present address, chosen to make her present whereabouts unknown and ceased contact with B. In these circumstances, it was impossible for the Father to serve her with this material.

6. I am satisfied in all the circumstances that it is in the interest of B that he have a birth certificate for the purposes (amongst others) referred to by the Father.  I am further satisfied that that birth certificate should be in the name in which the parties originally intended to register his name, namely BM L. 

7. As far as the Order of 24 January 2000 is concerned, it does not in fact go to the issue of the registration of the name, and in any event, it seems to me to be appropriate that I should discharge that order. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate:  Mardi Jarvis

Date:  12 August 2002