Mahoub and Ferrante - [2013] FamCA 905

FAMILY COURT OF AUSTRALIA

MAHOUB & FERRANTE

[2013] FamCA 905

FAMILY LAW – CHILDREN – Child related proceedings – Change of name – Best interests of the child – International travel – Where the mother has previously stated an intention to take the child to a country that is not a signatory to the Hague Convention.

Family Law Act 1975 (Cth)
Births, Deaths and Marriages Registration Act 2003 (Qld) s 17

Flanagan v Handcock (2001) FLC 93-074

APPLICANT:

Mr Mahoub

RESPONDENT:

Ms Ferrante

INDEPENDENT CHILDREN’S LAWYER:

Julie Harrington

FILE NUMBER:

BRC

4925

2011

DATE DELIVERED:

22 November 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

2, 3 & 4 April and
20 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Selfridge

SOLICITOR FOR THE APPLICANT:

Legal Aid Queensland

COUNSEL FOR THE RESPONDENT:

Ms McDiarmid (on 3, 4 & 5 April 2013) and
Ms Ferrante in Person on 20 November 2013

SOLICITOR FOR THE RESPONDENT:

Armstrong Legal

(on 2, 3 & 4 April 2013)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dr Sayers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Harrington Family Lawyers

Orders

In addition to the Orders made on 20 November 2013, it is further ordered:

That both the Mother and the Father forthwith join in making application, using the Queensland Government’s prescribed Form 4C pursuant to the Births, Deaths and Marriages Registration Act 2003 (Qld), to the Registrar of Births, Deaths and Marriages, Queensland, to register a change of the name of the child, B Mahoub born …, in the change of name register so as to include as a third “first name” the name “Ferrante” after his existing first name “B”.
That each of the Mother and the Father is restrained and an injunction is issued restraining each of them from causing the child to be registered, enrolled, listed or known anywhere by a family name (or surname) other than “Mahoub” and the Mother shall forthwith take all steps and do all things necessary to have the child’s family name (or surname) correctly registered, enrolled, listed or known as “Mahoub” where she may have previously caused it to be registered, enrolled, listed or known otherwise.
That each of the Mother and the Father is restrained and an injunction is issued restraining each of them from making application for a passport to issue for the child by any Government of any country without the prior written agreement of the other parent.
(a) That the Mother and the Father and their servants and agents are restrained and an injunction is issued restraining each of them from removing or attempting to remove or causing or permitting the removal of the said child, B Ferrante Mahoub born … 2011 (male) from the Commonwealth of Australia.
(b)That B Ferrante Mahoub born … 2011 is hereby restrained from leaving the Commonwealth of Australia.
That it is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child, B Ferrante…

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 Mahoub and Ferrante

Details

AGLC: Mahoub and Ferrante [2013] FamCA 905
Case: [2013] FamCA 905
Decision Date: 22 November 2013

CaseChat Overview and Summary

This matter concerned an application before Forrest J concerning the child B Mahoub. The dispute involved the registration of the child's name and surname, and the potential removal of the child from Australia.

The court was required to determine whether to order the registration of a third first name for the child, "Ferrante," and to restrain the parents from registering the child's surname as anything other than "Mahoub." Further, the court had to consider injunctions preventing the parents from applying for a passport for the child without the other's consent, and from removing the child from Australia.

Forrest J ordered that both parents join in an application to register "Ferrante" as a third first name for the child. The court also issued injunctions restraining both parents from registering the child's surname as anything other than "Mahoub," and requiring the mother to rectify any previous incorrect registrations. Injunctions were also granted to prevent either parent from applying for a passport for the child without the other's written agreement, and to restrain both parents and their agents from removing the child from Australia. The child himself was also restrained from leaving the Commonwealth.

The court further requested the Australian Federal Police to place the child's name on the Airport Watch List to prevent his removal from Australia, with this order to cease on 22 April 2025 unless discharged earlier. The Independent Children's Lawyer was discharged.

Orders

Orders of the court

In addition to the Orders made on 20 November 2013, it is further ordered:

That both the Mother and the Father forthwith join in making application, using the Queensland Government’s prescribed Form 4C pursuant to the Births, Deaths and Marriages Registration Act 2003 (Qld), to the Registrar of Births, Deaths and Marriages, Queensland, to register a change of the name of the child, B Mahoub born …, in the change of name register so as to include as a third “first name” the name “Ferrante” after his existing first name “B”.

That each of the Mother and the Father is restrained and an injunction is issued restraining each of them from causing the child to be registered, enrolled, listed or known anywhere by a family name (or surname) other than “Mahoub” and the Mother shall forthwith take all steps and do all things necessary to have the child’s family name (or surname) correctly registered, enrolled, listed or known as “Mahoub” where she may have previously caused it to be registered, enrolled, listed or known otherwise.

That each of the Mother and the Father is restrained and an injunction is issued restraining each of them from making application for a passport to issue for the child by any Government of any country without the prior written agreement of the other parent.

(a) That the Mother and the Father and their servants and agents are restrained and an injunction is issued restraining each of them from removing or attempting to remove or causing or permitting the removal of the said child, B Ferrante Mahoub born … 2011 (male) from the Commonwealth of Australia.

(b) That B Ferrante Mahoub born … 2011 is hereby restrained from leaving the Commonwealth of Australia.

That it is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child, B Ferrante Mahoub born … 2011 (male), on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia for the purpose of preventing removal of the child from Australia in breach of these orders and maintain the child on the Airport Watch List and this order ceases to have effect on 22 April 2025 unless discharged by earlier order.

That upon expiration of the period referred to in Order 5 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s names from the Watch List.

That the Independent Children’s Lawyer is discharged.

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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