Millewicz and Arrabakovic

[2008] FamCA 235

FAMILY COURT OF AUSTRALIA

MILLEWICZ & ARRABAKOVIC [2008] FamCA 235

FAMILY LAW – CHILDREN – Order made for change of a child’s surname – Not opposed by the father.

Family Law Act 1975 (Cth) (as amended)

Chapman v Palmer (1978) FLC 90-510

APPLICANT: Ms Millewicz

RESPONDENT: Mr Arrabakovic

FILE NUMBER: MLC 12579 of 2007

DATE DELIVERED: 31 March 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 31 March 2008

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the child … born on … July 1996 live with the Applicant (mother) who shall be solely responsible for her day to day care, welfare and development together with her long term care, welfare and development.

2. That no orders be made for the Respondent (father) to spend time with the said child.

3. That the Registrar of Births, Deaths and Marriages Register change the name of the child from … Arrabakovic born on … July 1996 to that of … Millewicz.

IT IS DIRECTED

1. That the ex tempore judgment delivered this day be transcribed and placed on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12579 of 2007

Ms Millewicz

Applicant

And

Mr Arrabakovic

Respondent

REASONS FOR JUDGMENT

1. I have before me an Initiating Application brought by the mother which appears to have been filed on 30 November 2007.  It commenced by way of an Application for Consent Orders on that day and there is now on the court file a further Initiating Application which does not bear a court filing date.  By that application, the mother seeks an order that she have, as she describes it, “all parental rights” to the parties’ child, who was born in July 1996, and to change the child's surname from that of ARRABAKOVIC to that of MILLEWICZ.

2. I have read the Initiating Application in which the mother makes it clear that she “does everything” for the child’s best interests and deposed that she will continue to do so.  She said that the father does not care “… if she is alive or not.  This is very sad for me to write.”

3. The mother deposed that she has endeavoured to find the husband “for child support”, but that he failed to accord “any respect to the fact” that he was the father.  The matter, in any event, came before the court on 13 March 2008 when Senior Registrar FitzGibbon ordered that all extant applications be adjourned to this day, directing that the mother advise the father of the adjourned date.  This she did. 

4. It is enlightening to the reader to include in this short extempore judgment the contents of the father's letter, for it reaches the pinnacle, in my view, of irresponsible parenting.  However, that is his choice.  The letter, being addressed to Senior Registrar FitzGibbon of the Family Court at Melbourne reads as follows:

   “My name is […], date of birth […].  I was told by [the mother] that I have to write a letter to the courts, that I have been served by [the mother] with the order made by courts.  I know that the new date for the court is 31st March 2008 at 10 am.  I have no interest in attending in the court, nor do I have any interest of the court's decision in regards to my daughter […] born […] July 1996.  I have signed all documents to give [the mother] all parental rights.  I do not have any objections that [the child’s] surname from [Arrabakovic] to [Millewicz] may change.  If her surname changes, I really don't have any interest or care.  I do not see my daughter, nor do I want to in future.  I have given my permission already, I have filled out all paper work that was asked from me.  I, [name], have no interest in the court's decision, nor do I wish to waste my time.  If you have any queries, you can contact me on (and sets out a mobile telephone number) or the above address.”

5. I mark that letter Exhibit “A” and I mark the birth certificate of the child, Exhibit “B”.  The mother seeks a name change of the child from that of “[Arrabakovic]” to “[Millewicz]”.  The issue of a change of a child's surname comes before the court quite often.  The well established principles governing such a situation have been spelled out by the Full Court thirty years ago in Chapman v Palmer (1978) FLC 90-510. There it was held, amongst a number of things, that in deciding the issue in each case, there was no onus of proof. It is for the court to balance, in its discretion, the factors for and against change. The guiding principle is that the best interests of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parties.

6. In its judgment (particularly at page 77-675) the court summarised the factors which the court may take into account in determining whether there should be any change in the surname of a child, and emphasised that the welfare of the child is the paramount consideration.  The court then went on to set out a number of other factors such as the short and long-term effects of any change, any embarrassment likely to be experienced by the child, any confusion of identity and the like, none of which really are relevant in this matter because of the letter to which I have earlier referred that was written by the father to this court.

7. It appears to me to be in the child’s best interests, in these straightened circumstances, that her surname be changed from that of “[Arrabakovic]” to that of “[Millewicz]”.  I propose to make the orders accordingly.  There will be no orders made for the father to spend time with the child.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  11 April 2008