MARTINEZ & RAWLINSON
[2017] FCCA 3103
•13 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARTINEZ & RAWLINSON | [2017] FCCA 3103 |
| Catchwords: FAMILY LAW – Children – parenting application – whether mother should have sole parental responsibility – whether order should be made for child to live with mother – failure of respondent to engage in the proceedings – order for sole parental responsibility and child to live with mother. FAMILY LAW – Children – change of name – whether order should be made for a change of name for the child – order made. FAMILY LAW – Children – parenting application – application for Australian Passport – failure of respondent to engage in the proceedings – order made. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 65D, 69R, 69U, 69V, 69VA, 69W, Part VII, Part VII Division 12, Sub-Division D Child Support (Assessment) Act 1989, ss.29 (2), 106A |
| Cases cited: Mr A and Ms B & Ms S (2005) FamCA 655 Kemble v Ebner [2008] FamCA 579 Chapman & Palmer (1978) FLC 90-510 |
| Applicant: | MS MARTINEZ |
| Respondent: | MR RAWLINSON |
| File Number: | CAC 859 of 2017 |
| Judgment of: | Judge Tonkin |
| Hearing dates: | 23 October 2017 & 8 December 2017 |
| Date of Last Submission: | 8 December 2017 |
| Delivered at: | Canberra |
| Delivered on: | 13 December 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Aid ACT |
| Solicitors for the Respondent: | No appearance by or on behalf of the Respondent |
ORDERS
The Court declares that, pursuant to section 69VA of the Family Law Act 1975, the Respondent, Mr Rawlinson, is the father of the child, X born (omitted) 2013 (“the child”) for the purposes of these proceedings and for all the laws of the Commonwealth.
The Court declares that, pursuant to section 106A of the Child Support Assessment Act 1989, the Respondent, Mr Rawlinson should be assessed in relation to the costs of the child, X born (omitted) 2013 because Mr Rawlinson is a parent of the said child.
The mother shall have sole parental responsibility for the child.
The child shall live with his mother.
From the date of these orders the child X born (omitted) 2013 shall be known as “X.”
The mother may apply for and execute an application for an Australian travel document (Passport) for the child without obtaining the prior consent and/or signature of the respondent father.
The mother shall be permitted to travel with the child temporarily outside the Commonwealth of Australia without the consent of the respondent father.
The mother shall retain custody of any passport for the child.
The Registry Manager shall provide forthwith a copy of these orders to the appropriate person at Department of Foreign Affairs and Trade (“DFAT”).
The mother has leave to provide a copy of this judgment in support of her application, if any, under the Births, Deaths and Marriages Act (ACT).
IT IS NOTED that publication of this judgment under the pseudonym Martinez & Rawlinson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 859 of 2017
| MS MARTINEZ |
Applicant
And
| MR RAWLINSON |
Respondent
REASONS FOR JUDGMENT
Introduction
There are several issues for determination in these proceedings, the primary issue being whether a declaration of parentage should be made with respect to the respondent in circumstances where:
(a)a person’s name (other than the respondent’s name) has been entered as a parent of a child in a register of births under a law of the Territory; and
(b)the respondent has declined to participate in the proceedings.
Though several attempts were made to serve him with both the mother’s initiating application and amended application, the respondent failed to participate in the proceedings.
Procedural history
The mother filed her initiating application on 17 May 2017 seeking a declaration pursuant to section 106A of the Child Support (Assessment) Act 1989 that the respondent Mr Rawlinson be assessed for child support in relation to the child X born (omitted) 2013 (“X”). In addition she sought an Order that the respondent’s name “be placed on X’s birth certificate” and that the respondent pay the costs of the application.
The matter first came before the Court on 26 September 2017. The mother was represented by a solicitor and there was no appearance by the respondent. Leave was granted to the mother to effect substituted service of her initiating application and affidavits on Ms A. The mother alleged Ms A was the current partner of the respondent and they resided at the same address.
An affidavit of substituted service was filed on 13 October 2017. The process server confirmed he had served the relevant documents on Ms A of (omitted) and she had accepted service.
The matter next came before the Court on 23 October 2017 the mother represented by a solicitor there being no appearance by the respondent. The Court ordered that the respondent file and serve any response and affidavit on or before 8 December 2017. Again an Order was made that the respondent be served via substituted service on Ms A. The Orders contained a notation setting out the orders the Court proposed to make on the next occasion on a final basis should the respondent not engage in the proceedings. The Orders noted that the matter was likely to proceed to undefended hearing on 8 December 2017 should Mr Rawlinson fail to attend.
On 23 November 2017 the mother filed an amended initiating application seeking additional orders.
On 28 November 2017 an attempt to serve the respondent with the amended application was made. Ms A on this occasion refused to accept the documents which were placed at her feet by the process server.
The matter next came before the Court on 8 December 2017. The respondent failed to attend. The applicant’s solicitor filed written submissions. The matter was adjourned to 13 December 2017 for judgment.
Orders sought
In her Initiating Application filed 17 May 2017, the applicant mother sought the following final orders:
1. That the Court declares pursuant to Section 106A of the Child Support Assessment Act 1989, that the applicant, is entitled to apply to the Child Support Agency for an assessment of child support in relation to the child, X, born (omitted) 2013, from the respondent, Mr Rawlinson.
2. That the respondent, within three months of the Order, pay to the applicant or the applicant’s nominee the costs of and incidental to this Application.
3. That within 7 days of the date of this Order the respondent do all things and sign all documents necessary to cause his registration on the child’s birth certificate with the ACT Registrar of Births, Deaths and Marriages, with such Application to be made pursuant to section 16 of the Births, Deaths and Marriages Registration Act 1997 (ACT)
The mother filed an Amended Application on 23 November 2017 seeking the following orders:
1. That the Court declares pursuant to Section 106A of the Child Support Assessment) Act 1989, that the applicant, is entitled to apply to the Child Support Agency for an assessment of child support in relation to the child, X, born (omitted) 2013, from the respondent, Mr Rawlinson.
2. The Court declares pursuant to s 69VA of the Family Law Act 1975 that the respondent, Mr Rawlinson, is the father of the child, X, born (omitted) 2013 for the purpose of these proceedings and for all law of the Commonwealth.
3. That the mother, Ms Martinez, have sole parental responsibility of the child, X, born (omitted) 2013.
4. That the mother, Ms Martinez, be entitled to make an application to the Registrar of Births Deaths and Marriages to cause the child's birth certificate to be amended pursuant to the Births. Deaths and Marriages Registration Act 1997 (ACT), and that the mother be entitled to make that application without the signature of the father.
5. That the mother, Ms Martinez, be entitled to make an application to the Registrar of Births Deaths and Marriages pursuant to the Births. Deaths and Marriages Registration Act 1997 (ACT) to cause a change to the name of the child, X, born (omitted) 2013, to be changed to X, and that the mother be entitled to make that application without the signature of the father.
6. That the mother, Ms Martinez, be entitled to make an application to Australian Passport Office to apply for a passport for the child, and that the mother be entitled to make that application without the signature of the father.
Documents relied on
The mother relied on affidavits sworn by her on 17 May 2017, 18 September 2017 and 23 November 2017.
Background
The mother deposed that she had been in an “on-off” relationship with Mr P during the period between 2011 and 2014. In early (omitted) 2012 she continued her relationship with Mr P but indicated she had not had sexual intercourse with him for about a month.
On 19 October 2012 the mother left Mr P as “he had given her a black eye.” She met Mr Rawlinson at (omitted). She had known Mr Rawlinson for about a year prior to that meeting and on (omitted) 2012 he invited her to spend a few days with him at his friend’s farm in (omitted). She did so and stayed at the farm with Mr Rawlinson and between (omitted) 2012 and (omitted) 2012. During that time, the mother had sexual intercourse with Mr Rawlinson approximately three times.
The mother reconciled with Mr P on (omitted) 2012 but did not recommence a sexual relationship with him until (omitted) 2012.
In (omitted) 2012, the mother became concerned she may be pregnant. She attended the (omitted) Medical Centre in (omitted) 2012 to undertake a pregnancy test. The doctor confirmed she was pregnant.
The mother deposed that at her first ultrasound appointment with Dr W of (omitted) Medical Centre he told her “the date of conception would have been between (omitted) and (omitted)”. She said she advised Mr Rawlinson “straight away” that she had conceived his child when they had been together. According to the mother, Mr Rawlinson responded, “that’s impossible. I can’t have children after my bike accident” and “don’t let anyone find out where we have been.”
The mother said she did not advise Mr P that she believed Mr Rawlinson was the child’s father. She deposed that Mr P was “extremely violent” towards her during their relationship and she feared his reaction to this news.
X was born on (omitted) 2013. The mother and Mr P were still in a relationship at the time. She registered Mr P on X’s birth certificate.
She and Mr P ended their relationship on a final basis on 14 July 2014 after Mr P physically assaulted her. In relation to this assault, Mr P was convicted of assault occasioning grievous bodily harm according to the mother.
DNA Test in relation to Mr Rawlinson
The mother deposed that when X was about 9 months old she asked Mr Rawlinson to undergo a DNA test in relation to the paternity of X. Mr Rawlinson agreed to this and the mother ordered a DNA test from the internet through a company named (omitted) Labs.
She gave the kit to Mr Rawlinson at the (omitted) and Mr Rawlinson agreed to provide a sample. Approximately one week later he provided the mother with a sealed pack containing his sample accompanied by the required completed paperwork. The mother then sent the kit, including a sample from X, to (omitted) Labs.
Approximately two weeks later, the mother received results in the mail from (omitted) Labs indicating that “there is a >99.99% chance that Mr Rawlinson is the father of X” (annexed to the mother’s affidavit at annexure B were copies of the relevant document).
The mother met Mr Rawlinson at the home of his then partner Ms K and discussed the results with him. During the conversation, the mother deposed that Mr Rawlinson said to her “you don’t believe that do you? They just want your money”.
In December 2014 the mother again attempted to speak to Mr Rawlinson about the DNA test results at which point he said, “I won’t believe any DNA tests unless they are done by my doctor, Dr J”. The mother called Dr J’s office and arranged an appointment for both her and Mr Rawlinson to attend for the purposes of conducting further DNA tests. The mother said she confirmed the details of the appointment with Mr Rawlinson and he agreed to attend. She attended the appointment with Dr J but Mr Rawlinson did not. During the appointment, Dr J called Mr Rawlinson. She heard Dr J say to Mr Rawlinson, “if you need another test to be satisfied, do it through DNA Labs”.
Accordingly the mother arranged for the DNA Labs paperwork to be sent to Mr Rawlinson but was unable to get in touch with him or speak to him about it. She said she called Mr Rawlinson every day for approximately one month but was unable to reach him. Between June and August 2016 the mother said that she and Mr Rawlinson were in frequent contact but when she tried to raise the issue of X with him he would change the subject.
On 22 February 2017 the mother caused her solicitors to send a letter to Mr Rawlinson containing a statutory declaration for him to sign acknowledging that he was X’s father. Mr Rawlinson has not returned the statutory declaration nor did he reply to the letter sent to him by the mother’s solicitor.
On 10 March 2017 the mother made an application to Centrelink for an assessment of child support in relation to X naming Mr Rawlinson as his father. Her application was refused on the basis that Centrelink was not satisfied that Mr Rawlinson was X’s father. It is not clear what supporting documentation, if any, the mother attached to her application.
DNA Test in relation to Mr P
In March 2016 the mother deposed that Mr P engaged solicitors to contact her in relation to DNA testing regarding himself and X. She agreed to make X available for the purposes of the testing procedure which took place in April 2016. The parentage testing procedure was conducted in accordance with Part IIA of the Family Law Regulations 1984 (‘Regulations’) and was annexed to the mother’s affidavit sworn 11 May 2017 at annexure C. The report indicates that Mr P is excluded from identification as the biological father of the child.
Attempts to engage the Respondent
The mother filed an affidavit on 18 September 2017 in which she deposed to having attempted service of her Initiating Application on Mr Rawlinson on multiple occasions.
On 17 May 2017 she caused her solicitor to attempt service on Mr Rawlinson at the address (omitted). The mother said that she had previously picked Mr Rawlinson up from and dropped him off at that address for a birthday party sometime in 2015. She visited Mr Rawlinson at the same address on two further occasions on 25 July 2016 and 7 September 2016.
In July 2017 the mother’s solicitor advised her that a process server had been engaged to serve the mother’s Initiating Application on Mr Rawlinson but that had been unsuccessful. The mother annexed the process server’s affidavit of service to her affidavit sworn 18 September 2017. The process server’s affidavit indicated that the mother’s Initiating Application was served on Ms A on 27 September 2017. The process server noted that a woman living at (omitted) identified herself as Ms A, Mr Rawlinson’s partner and said that Mr Rawlinson was “out”.
The mother filed a further affidavit of service on 28 November 2017 wherein the process server deposed to serving Ms A with a copy of the mother’s amended application and affidavit filed on 23 November 2017. The documents were left at Ms A’s feet as she refused to accept them.
I am satisfied that the mother made reasonable attempts to serve the respondent with her application for a declaration and that the respondent has determined not to participate in the proceedings. I accept the mother’s unchallenged evidence that the respondent is aware the mother is of the belief that X is his son. Further I accept that she has advised the respondent of proof that he is X’s father through an online DNA test. Further I accept that she arranged for further paternity testing to be carried out by the respondent’s GP Dr J and the respondent declined to attend that appointment. I accept that the mother has exhausted all avenues in an attempt to require the respondent to engage with and participate in these proceedings.
The Law
Part VII Division 12, Sub-Division D of the Family Law Act1975 (Cth) (“the Act”) contains various presumptions the court is to assume for the purposes of determining the parentage of a subject child. Section 69R of the Act provides:
“If a person's name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child.”
Section 69U of the Act relevantly provides:
“A presumption arising under this Subdivision is rebuttable by proof on a balance of probabilities.”
It is not in dispute that the respondent’s name is not entered on X’s birth certificate. Mr P is named at the child’s father on the birth certificate. It follows then that X’s birth certificate creates a rebuttable presumption that Mr P is X’s father.
In Mr A and Ms B & Ms S (2005) FamCA 655 Brown J said:
“Presumptions of law are arbitrary in so much as they apply to a basic fact situation without regard to the individual case before the Court. The presumption created by section 69R is rebuttable; the conclusion as to the existence of the presumed fact (in this case that the person whose name is entered in the register is the parent of the child) must be drawn in the absence of evidence to the contrary. This “rule of presumption” does little more than reflect the probative value of the basic fact. The evidence needed to rebut a rebuttable presumption of law can vary from presumption to presumption.”
In G & H (1994) FLC 92 – 504 Brennan and McHugh JJ dismissing an appeal from the Full Court said at p.81,244:
“We do not suggest that paternity is not a serious issue. It is serious because paternity carries with it both significant privileges and grave responsibilities, only some of which relate to monetary obligations. The attribution of paternity may be seen by a child’s mother to be no more than the means of procuring a maintenance order during the child’s infancy, but a finding that a particular man is the child’s father might well be of the greatest significance to the child in establishing his or her lifetime identity. But, when a Court is deciding whether a party on whom rests the burden of proving an issue on the balance of probabilities has discharged that burden, regard must be had to that party’s ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce available evidence in response.”
In G & H (supra) Deane, Dawson and Gaudron JJ said at 81,248:
“There are several presumptions in division 7 of part VII (which division includes s.69R) which are "rebuttable by proof on a balance on probabilities". Those presumptions proceed on a basis which is diametrically opposed to the notion that, in maintenance proceedings, the biological fact of parentage involves an important or grave allegation to which few regard must be had before a finding is made in that regard. Rather, the presumptions operate in the interests of the child and provide the basis for the imposition of parental duties and responsibilities unless and until proof to the contrary is forthcoming.”
The High Court also said in G & H (ibid) “the presumptions operate in the interests of the child and provide the basis for the imposition of parental duties and responsibilities unless and until proof to the contrary is forthcoming.”
Section 69V of the Act provides:
“If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order requiring any person to give such evidence as is material to the question.”
The respondent has been given every opportunity to engage and participate in these proceedings to which he has declined.
The mother relied on the following evidence:
(a)During the time X was conceived the mother had sexual intercourse with Mr Rawlinson. She did not have sexual intercourse with Mr P during this period;
(b)The mother communicated to Mr Rawlinson at the earliest opportunity that he was the father of her then unborn child (X);
(c)The mother obtained an online parentage test using a sample of the respondent’s DNA and the child’s DNA. The test result indicated that there is a >99.99% chance that Mr Rawlinson is the father of X;
(d)Mr P obtained a parentage test that was conducted in accordance with the Family Law Act and Regulations. The test result indicated that Mr P “is excluded from identification as the biological father of X.”
I am satisfied that there is sufficient evidence to rebut the presumption that Mr P is the parent of X.
Section 69VA of the Act provides:
“As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.”
The mother deposed to engaging in sexual intercourse with Mr Rawlinson between (omitted) and (omitted) 2012. In April 2014 she caused a DNA test to be undertaken by Mr Rawlinson and X and that report indicated that there is a >99.99% chance that Mr Rawlinson is the father of X. Although this DNA test was not a “parentage testing procedure” conducted in accordance with the Act and the Regulations, it is clear that section 69W of the Act grants the Court a broad discretion to determine upon what evidence it may receive under section 69V to support a declaration of parentage under section 69VA.
I have considered the entirety of the mother’s unchallenged evidence and I am satisfied on the evidence that the mother has established that Mr Rawlinson is the father of the child X born (omitted) 2013. I make the declaration of parentage pursuant to section 69VA of the Act accordingly. In addition I make an order that Mr Rawlinson be assessed for the payment of child support for his child X.
Parenting order
Part VII of the Act deals with orders relating to children. Section 65D of the Act gives the Court the power to make such parenting orders as it thinks proper. Section 60CA of the Act requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The mother sought an order for sole parental responsibility. She did not formally apply for an order that the child live with her.
The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC. There are two primary considerations under section 60CC (2) of the Act:
“(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
The Court is required to consider both the objects and principles of the Act (not repeated here) when making a determination. I have taken into account the objects and principles under the Act.
The Court is required to consider the additional considerations under section 60CC (3) of the Act when making a decision.
The mother filed written submissions addressing the primary and additional considerations as follows:
(a)The child does not know the respondent. The mother has not had any response from attempts to contact the respondent since 13 September 2016 (paragraph 8 A2)[1];
[1] Section 60CC 2(a)
(b)The respondent has not engaged in these proceedings nor responded to correspondence from the mother's solicitor. He has not responded to attempts by the mother to contact him since September 2016 (paragraph 8 A2).[2]
[2] Section 60 CC 3(C) (i)
(c)The respondent has not been in the presence of the child since he was 2 years old. He has made no request to spend time with the child; [3]
[3] Section 60 CC 3 (C) (ii)
(d)He has made no request to communicate with the child.[4]
[4] Section 60 CC 3 ( c) (iii)
(e)The mother has been responsible for meeting all obligations to maintain the child including any financial obligations.[5]
(f)The child does not have a relationship with the respondent.[6]
(g)The mother has been the child's sole carer since he was 12 months old (para 5 Al). She has made all decisions relating to both the child’s long term and day to day care, welfare and development in the absence of the respondent. The mother has appropriately sourced therapeutic intervention for the child (paragraph 9 and 10 A3);[7]
(h)The child currently shares a name with a man who has been excluded as the child’s father through parentage testing conducted in accordance with the provisions of the Family Law Act and Regulations.
(i)The child last had contact with Mr P when he was 12 months old (paragraph 11 A3).
(j)The child currently shares a surname with a man who assaulted the mother and who was convicted of assaulting her causing grievous bodily harm.
(k)The child has recently been referred to a psychiatrist in relation to disclosures the child made regarding events he recalled wherein Mr P physically assaulted his mother in his presence (paragraph 6 and 7 A3);
(l)The mother has been the child's primary carer for his entire life and has been his sole carer since final separation from Mr P following the physically assault upon her.[8]
(m)The child refers to himself as “X” (paragraph 13 A3). He becomes distressed when he hears the name “Mr P” (para 12 A3);[9]
(n)The mother’s proposed orders will prevent her from being required to make further applications to the Court.[10]
[5] Section 60 CC 3 (ca)
[6] Section 60CC 3 (d) (i)
[7] Section 60 CC 3 (f)
[8] Section 60CC 3(b) (i) (ii)
[9] Section 60CC 2(b)
[10] Section 60 CC 3(1)
Given the significant issues raised in this matter, I am satisfied that it is in the child’s best interests to make an order that X live with his mother. I am satisfied that the respondent refuses to acknowledge that X is his child. I am satisfied that the respondent is aware of the proceedings and has elected not to participate in the proceedings. I am not satisfied that there is any benefit to the child having a relationship with the respondent. He does not recognise the child as his own and does not currently have any relationship with the child. He does not spend time or communicate with the child. Should his view change in the future, he can bring an application to spend time with the child. Family violence is not alleged against the respondent.
Regarding the additional considerations, I am satisfied that the mother has been the child’s primary carer since birth and has been solely responsible for his day to day care. She has made all major decisions for the child without the input of the respondent and has maintained the child since birth including solely maintaining the child financially. In this regard, she has had no assistance from the respondent.
The mother has shown a strong commitment to the responsibilities of parenthood including attempting to ensure that the child has an opportunity to know his father. I accept that she has acted at all times and will continue to act in X’s best interests. I am satisfied that it is in the child’s best interests to order that X live with his mother.
Parental responsibility
Pursuant to section 61DA(1) of Act “when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.” Under subsection 61DA(2) of the Act the presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in (a) abuse of the child or another child who was a member of the parent’s family; or (b) family violence. The issue of family violence in relation to the respondent does not arise. However the mother contends and I accept that she suffered a serious assault at the hands of Mr P who is named as the child’s father on the birth certificate but has been excluded as the child’s biological father through parentage testing.
Under subsection 61DA(4) of the Act, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. I have made a declaration that the respondent be declared to be X’s parent. It is apparent that he is disinterested in the child and has no desire to participate with the mother in making major decisions for the child’s long term welfare, care and development.
Due to the father’s refusal to acknowledge that X is his child and refusal to engage in the proceedings, I am satisfied that the presumption for equal shared parental responsibility is rebutted. Given that the mother has from the outset solely cared for X and has made all major decisions for X in the absence of any other parent, I am satisfied that it is in X’s best interests that the mother have sole parental responsibility for X. I make that order.
Change of name application
The mother did not formally apply to the Court for a parenting Order permitting her to change the child’s surname though she requested the Court make an order allowing her to cause the child’s name to be changed and the birth certificate to be amended under the Births, Deaths and Marriages Act (ACT).
In Kemble v Ebner [2008] FamCA 579 Faulks DCJ (as he then was) dealt with an application by Ms Kemble (the same sex partner of Ms Ebner) who had two children as a result of artificial reproductive technology the child L born June 2003 conceived as a result of the ovum of Ms K and the child H born August 2005 conceived as a result of the ovum of Ms E for orders under section 19 of the Parentage Act 2004 (ACT) that the applicant be declared a parent of the children. Further the applicant sought an order that pursuant to section 16 of the Births, Deaths and Marriages Act 1997 (ACT) the registrar general amend the register in respect of the birth of the child L to include the applicant as a parent of the said child and the registrar general amend the register in respect of the birth of the child H to include the applicant as a parent of the said child.
The Family Court determined that:
“the Family Court as a Federal Court in the ACT exercising cross vested jurisdiction of the Supreme Court of the ACT may make a declaration under the Parentage Act (ACT) which would then constitute for the purposes of the Child Support (Assessment) Act a finding by a Federal Court albeit exercising state or territory jurisdiction that K is a parent of the child. Such declaration under the Parentage Act would properly qualify as an order or a finding under section 29 (2) of the Child Support (Assessment) Act. This would have the effect of grounding an appropriate application for an administrative assessment. This presents a unique opportunity if that is the correct word, for making orders of the sort that are being asked for, because of the fact that the ACT Supreme Court jurisdiction could still be cross – vested to this Court.”
He determined that the Court had jurisdiction in relation to the Parentage Act 2004 (ACT) which would have the effect of declaring Ms Kemble to be a parent.
The Federal Circuit Court does not have jurisdiction under the Births, Deaths and Marriages Act or indeed under the Parentage Act 2004 in reliance on the Jurisdiction of Courts (Cross Vesting) Act 1987.
Under section 40(2) of the Births, Deaths and Marriages Act 1997 (ACT) the registrar – general must, if satisfied that, in view of a finding of a court, an entry in the register is incorrect, correct the register in accordance with the finding. A “court” means a court of the Territory, the Commonwealth, a State or another Territory.
This Court is satisfied that notwithstanding Mr P is registered as the father of the child on the birth certificate, the presumption that Mr P is the parent of X is rebutted. The mother may make an application for the registrar to correct the register. She does not require an order to that effect.
Pursuant to section 16 paragraph (1)(e) of the Births, Deaths and Marriages Act 1997 (ACT) the registrar – general must include information about a child’s parent in the register after registration of the child’s birth if “a court makes a finding that a particular person is a parent of the child.”
This Court has made a declaration that Mr Rawlinson is the parent and X. The mother may make an application for the registrar to include that information in the register. She does not require an order to that effect.
I am satisfied that the respondent is well aware that the mother wishes the child’s name to be changed. He has been served with all documents relied on by the mother in these proceedings. The mother provided the following evidence to support a change to the child’s name:
(a)The child’s name is currently registered as X. The circumstances in which that occurred are addressed above. Mr P has been excluded as the child’s biological father through parentage testing. The child last had contact with Mr P when the child was about 12 months old;
(b)The child has no relationship with Mr P. The child has no relationship with the respondent;
(c)The child is an extremely anxious child. He refers to Mr P as the “monster.” Each night according to the mother the child requests his mother “check the doors and windows are locked so the monster can’t get us;”
(d)On 18 November 2017 the child disclosed to his maternal grandparents “when I was a baby I saw mummy get the shit beaten out of her. Mummy had black eyes. I was in the bouncer that shook and the high chair with the spots. I couldn’t walk or talk to protect her;”
(e)The mother reports that the child has nightmares about the “monster.” He wakes up screaming and tells his mother “he is there, watch out mum.” This occurs once or twice a week;
(f)The mother deposed she has never discussed matters involving Mr P with the child. The child attended his GP and was placed under a Mental Health Plan. He was referred to the (omitted) Psychology Centre for Children and Families in October 2017. His psychologist recently referred him to a psychiatrist given the complexity of the child’s condition. The child had made reference by name to “Mr P” and advised his psychologist that he witnessed his mother being physically abused by him and he (the child) was afraid Mr P would return and hurt his mother or him;
(g)The child refers to himself as “X” (para 13 A3). He becomes distressed when he hears the name “Mr P” (para 12 A3);[11]
(h)Given the child’s level of distress his teachers now refer to him as “X” however he is enrolled as X;
[11] Section 60CC 2(b)
I accept the mother’s unchallenged evidence. The change of name for X not only accords with his wishes but retaining the name “Mr P” is causing X significant emotional and psychological harm to the extent that he suffers nightmares, becomes extremely distressed and fearful and has been referred to a psychiatrist for support.
The Full Court in Chapman & Palmer (1978) FLC 90-510 set out the criteria the Court is required to consider when determining whether to change a child’s name. The Court indicated:-
(a)The welfare of the child is a paramount consideration;
(b)It is important to consider both the short term and the long term effect of any change in the child’s name;
(c)Whether there would be any confusion of the child’s identify which may arise if the name is or isn’t changed;
(d)Whether the child is likely to experience any embarrassment if the name is different from the parent who has the primary care; and
(e)The effect any change in surname may have on the relationship between the child and the parent whose name the child bears.
I find it is in the child’s best interests to change his surname from “Mr P” to “Martinez.” The child wishes to be known as Martinez. He has lived his life in his mother’s primary care and she bears that surname. He identifies himself as “X.” The respondent “Rawlinson” does not acknowledge the child and the child does not identify with the respondent nor does he have any relationship with him.
It is contrary to the child’s best interests that he continue to be known as X. The child is an anxious child who is fearful for Mr P and appears to have a recollection of witnessing his mother being physically assaulted by Mr P. Such is the detrimental impact Mr P has had on the child, he feels unsafe and unable to protect his mother and himself from Mr P and exhibits distress when reference is made to him as X. I intend to make an order in the child’s best interests that from the date of these orders the child be known as “X.” In my view it would be detrimental to the child’s welfare if the Court did not make an order permitting the mother to change the child’s name.
Passport application
The mother is seeking an order pursuant to section 11 of the Australian Passports Act 2005 (Cth) (“the APA”) that she be authorised to solely sign and obtain or renew passports and visas for the child X. The child X is an Australian citizen who is entitled on an application to the Minister to be issued with an Australian passport (Section 7 (1) APA). The application must be in the approved form (Section 7 (3) APA).
Subsection 11 (1) of the APA provides that the Minister must not issue an Australian travel document to a child unless:
(a)Each person who has parental responsibility for the child consents to the child having an Australian travel document; or
(b)An order of a Court of the Commonwealth, State or Territory permits:
(i) The child to have an Australian travel document; or
(ii) The child to travel internationally; or
(iii) The child to live or spend time with another person who is outside Australia.
Parental consent is not required if any one of the three types of Orders referred to in section 11 (1) (b) of the APA is made.
In Kuebler and Kuebler (1978) FLC 90-434 the Full Court of the Family Court (per Ashgun SJ, Gun and Yewell JJ) set out the following factors which should be considered in applications to temporarily remove a child or children from Australia:
·the length of the proposed stay out of the jurisdiction;
·the bona fides of the application;
·the effect on the child of any depravation of access;
The mother has pursuant to orders of this Court, sole parental responsibility for the child. She is solely responsible for his care and maintenance. The child lives with his mother. He has no relationship with his father. The respondent has failed to acknowledge that he is the child’s father, failed to participate in any decisions involving the child and failed to spend time with the child. Though the mother has not specified the occasions she intends to travel internationally with the child the Court is satisfied that any travel proposed will have no impact on the respondent. The Court is satisfied that the mother takes her responsibilities as a parent seriously and provides appropriate care for the child at all times. It is in the child’s best interests that orders be made for the mother to obtain an Australian passport for the child and that the child be permitted to travel internationally with his mother as she considers appropriate.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Tonkin
Date: 13 December 2017
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Costs
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Procedural Fairness
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Remedies
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Statutory Construction
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