LAIDLAW & WALSTRUM

[2021] FCCA 350

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAIDLAW & WALSTRUM [2021] FCCA 350

Catchwords:
FAMILY LAW – Final hearing held where mother elects not to participate in the proceeding – live with and spend time orders made as sought by the father and Independent Children’s Lawyer – father’s application to change child’s surname granted.

Applicant: MR LAIDLAW

Respondent: MS WALSTRUM

File Number: DGC 3150 of 2020

Judgment of: Judge Burchardt

Hearing date: 2 February 2021

Date of Last Submission: 2 February 2021

Delivered at: Dandenong

Delivered on: 2 February 2021

REPRESENTATION

Counsel for the Applicant: Self-Represented

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: Self-Represented

Solicitors for the Respondent: Not applicable

Counsel for the Independent Children's Lawyer: White Cleland Lawyers

Solicitors for the Independent Children's Lawyer: Ms Walters

ORDERS

THE COURT DECLARES THAT:

1. It is in the best interests of the child X born in 2007 to be known as X.

THE COURT ORDERS THAT:

1. The child previously known as X born in 2007 now be known as X

2. The Applicant apply to the Victorian Registry of Births, Deaths and Marriages to register the change of the child’s name, in accordance with Order 2, and do all such acts and things and sign all such documents as may be required to give effect to that registration.

3. The order appointing the Independent Children’s Lawyer dated 7 December 2020 be discharged.

4. All previous Orders be discharged.

5. The child X born in 2007 live with the Father.

6. The child spend time and communicate with the Mother as agreed between the Mother and Father in writing.

7. The Mother’s partner Mr B is not to be present during any time spent between the Mother and X.

8. The Father is to keep the Mother informed of his current contact details including telephone number and address at all times.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3150 of 2020

MR LAIDLAW

Applicant

And

MS WALSTRUM

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. In this matter the father filed his originating application as long ago as 16 September 2020.  It is clear from the affidavit of service filed 30 September 2020 that the mother is aware of these proceedings and, from what I have been told by the Independent Children’s Lawyer this morning, it is clear that she is aware of the hearing today and has made a conscious decision not to attend.  In those circumstances it seems to me quite clear to be in the best interests of the administration of justice to proceed to making final orders.

2. A departmental report on one view of the matter does not take the matter much farther but I note that the child, X, who was born in 2007 and is therefore now 13 years old, has been living with the father since December 2019 and there has been an intervention order against the mother since January 2020.

3. The father lives with his partner and their child who is a half-sibling to X and who has the surname Laidlaw.  The orders sought in terms of the live with arrangements are obviously eminently sound in the face of the history of the matter.  X will live with the father and there will be time as agreed with the mother.

4. The first order in respect of which I sought submissions was a proposed order that the mother’s partner, Mr B, not be present during any time that the mother spends with X.  Reading Mr B’s style as a correspondent in what I understand to be Facebook posts appended to the father’s affidavit, the first thing that is apparent about Mr B is he comes across as an extremely angry and aggressive person, which is how the father himself has described him this morning.  The father tells me that X is scared of him and I can readily understand why.  I notice that the partner, Mr B, sees fit to describe Mr Laidlaw as “the biggest weak dog of all.”

   So I think that rather puts those observations in proper context.  In the circumstances, I think an order restraining the mother from having her partner present at any time she spends with X is eminently sound.

5. The next question is the matter of a change of name.  The father seeks that the child’s name be changed to Laidlaw without the consent of the mother.  The fact is that X’s surname, D, is not that of any of her half-siblings, whether those who are called Walstrum, which is the mother’s name, or Laidlaw, which is the father’s name.  X lives with her father and her half-sibling who also has the surname Laidlaw.  The father tells me that the child asks every day why she cannot have his name and has expressed a desire that I be informed of that wish.

6. Changes of name, as the authorities make clear, are all about the best interests of the child.  They include things such as social embarrassment caused from having a different surname to other family members; the child’s sense of identity and so on.  All those criteria are clearly met in this instance and it is, in my view, quite clear that it is in the child’s best interests that her surname be changed, given that she lives with her father and has not spent any time with her mother and lives in a household where the other members of the household have his name.  It is obviously preferable that the father’s name be chosen.

7. On that footing, there will be final orders in terms of the minutes agreed by the Independent Children’s Lawyer and the father; the mother not appearing.

RECORDED : NOT TRANSCRIBED

1. I will discharge the appointment of the ICL.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 24 February 2021