RAE & WALLER
[2012] FMCAfam 520
•1 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAE & WALLER | [2012] FMCAfam 520 |
| FAMILY LAW – Change of name. |
| Family Law Act 1975, ss.60CC, 60B, 60CA, 61DA, 65DAA Registration of Births, Deaths and Marriages Act (NSW) 1995, s.28 International Convention on the Rights of the Child |
| Mabov Queensland [1992] HCA 23 Minister of Ethnic Affairs v Teoh [1995] HCA 20 B & B & Minister for Immigrationand Multicultural and Indigenous Affairs [2003] FamCA 621 |
| Applicant: | MS RAE |
| Respondent: | MR WALLER |
| File Number: | PAC 1005 of 2012 |
| Judgment of: | Harman FM |
| Hearing date: | 1 May 2012 |
| Date of Last Submission: | 1 May 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 1 May 2012 |
ORDERS
The mother of X (otherwise known for all intents and purposes as X) shall have, to the extent that it is necessary to give effect to these orders and specifically to give effect to orders made by the Court 6 April 2006 and today, sole parental responsibility for him.
It is noted that Ms Rae shall be and is hereby, as the sole person with parental responsibility for X, authorised to do all things, sign all documents and give all consents and instructions necessary to apply for and effect a change of the surname recorded for X, born (omitted) 1995, so that his birth certificate shall thereafter record his surname as Rae.
Pursuant to s.28 of the Registration of Births, Deaths and Marriages Act (NSW) 1995, the registrar of the Registry of Births, Deaths and Marriages is requested, directed and authorised to give effect to the above change of surname.
It is noted that the above orders are consistent with and in enforcement of orders made 6 October 2006 and which required, authorised and permitted the above change of surname and which change has not previously occurred as X’s father has failed to do that required of him to give effect to that order.
All issues are removed from the list of cases awaiting hearing.
IT IS NOTED that publication of this judgment under the pseudonym Rae & Waller is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1005 of 2012
| MS RAE |
Applicant
And
| MR WALLER |
Respondent
REASONS FOR JUDGMENT
These proceedings are commenced by way of an application filed 8 March 2012.
The applicant in the proceedings is Ms Rae who is the mother of the child or young person the subject of the proceedings being X.
The application seeks orders with respect to the surname to be used by that young person who is otherwise recorded on his birth certificate by the surname of his father who is the respondent in these proceedings and being Mr Waller.
Service
The application, whilst filed on 8 March 2012, has not been personally served as would be required by the Federal Magistrates Act 1999 and Federal Magistrates Court Rules 2001. I am satisfied; however, that personal or special service should be dispensed with.
I have had the benefit of reading and considering the affidavit of Ms Rae filed on 8 March 2012 together with brief oral evidence from her this morning.
In her affidavit Ms Rae has made clear that she has, since January 2012, been communicating with Mr Waller via Facebook. That is, perhaps, a more constructive use of social media than the Court is used to experiencing being all too familiar with it being a tool used to perpetrate dispute and denigration and the “airing of dirty laundry” by and between litigants.
During the above communication it has been suggested to Mr Waller that he could or would cooperate in signing necessary documentation to effect a change of name and issue of an amended birth certificate for this young person and so that he can continue to be known by the surname of Rae.
The evidence would appear to make clear and I am so satisfied that this young person has adopted and used that name for some years and certainly since shortly after the making of orders on 6 April 2006. Those orders provided at order 4 as follows:
“That the father shall do all things and sign all documents required to effect the change of the child’s name to X.”
To some extent the order that is sought today or the orders that are sought today might be suggested as being res judicata in the sense that orders have already been made, in the exercise of the Court’s discretion, requiring action by Mr Waller to give effect to the very intent espoused by the orders now sought. However, the wording of such order and the absence of an order pursuant to s.106A of the Family Law Act 1975 authorising a registrar to sign documents in the place and instead of another person in default would require a fresh application to the Court. Accordingly, I am satisfied that such issues of res judicata cannot and should not be an estoppel to the application proceeding.
Otherwise, with respect to service however, it is clear from the material filed and which I accept being unchallenged as it is that:
a)The address of Mr Waller at which he presently resides or at which he is presently engaged in employment – there being some contention as to whether he is or he is not employed– is not known to Ms Rae.
b)Documents have been forwarded to Mr Waller both prior to the proceedings (as regards an application for change of registration of the young person’s name) and since the commencement of proceedings by post and they have not been returned. The documents have been forwarded to the last known address held by Ms Rae.
c)Since the proceedings were commenced, communications have occurred by Facebook making clear to Mr Waller that the proceedings exist, what is being sought and the return date of same.
d)The oral evidence given by Ms Rae this morning deposes to reads onto the court record text messages forwarded between her and Mr Waller on 29 April. They indicate clearly and in the most unambiguous terms the fact that the matter is before the Court today, what is sought and in fact going so far as to provide to Mr Waller the National Enquiry Centre telephone number and encouraging him to contact the Court to arrange to appear by telephone should he wish to.
I am satisfied that nothing more could possibly be or could have been done by Ms Rae to bring the matter to Mr Waller’s attention without incurring substantial cost or artificiality (such as advertising in a newspaper).
It would be open to the Court to make orders today which require further attempts at personal service. However, the financial circumstances of Ms Rae would suggest that these would create significant if not untold hardship. Further, I am satisfied that attempts such as electoral searches and the like are unlikely to elicit any information of any great assistance.
I am also satisfied that even if such steps were taken and based upon the evidence that is before me that this would not alter the circumstances present in this matter. I am satisfied that it is unlikely that Mr Waller would having advised clearly and unambiguously by his text messaging response on 29 April that he does not propose to participate in the proceedings and will, to use his words, “leave the decision to the Court”.
I am also satisfied, by reference to the International Convention on the Rights of the Child, that it is appropriate for the matter to proceed.
The evidence
The young person to whom these proceedings relate is nearly 17 years of age. He has completed his secondary education and is employed as an apprentice carpenter. The application is suggested, in paragraph 4 of the affidavit, to be sought in accordance with that young adult’s views and wishes and deposes that he wholly and fully supports that position.
The relationship between this young person and his father would appear, at least since 2006, to have been less than fulsome. The orders made in October 2006 which provide that this young man is to have time and communicate with his father in accordance with his wishes. That is suggestive that the parties and the Court had, at that time, been cognisant of this young man’s views and position and I infer that orders have been made correspondingly to address his position. Also, it is suggestive and I am satisfied that I can appropriately infer that the level of commitment by this young man’s father to his relationship with his son, at that time, was such that he did not wish to pursue any further or more specific order.
The evidence would suggest that the order providing for time and communication in accordance with this young man’s wishes has indeed led to or reflected a breakdown of the relationship and estrangement between him and his father. That is not any fault of this young man as it is the obligation and the responsibility of the parent to pursue such matters.
With regard to all of the above evidence I am satisfied that I can and should unconditionally dispense with further personal service of process upon the father and so that the matter can and should properly proceed before me today.
Legislative Pathway
With respect to the issue of change of name there are a wealth of authorities of the Full Court, single instance decisions of Family Court Judges and of my fellow Federal Magistrates relating to same. However, it is trite to note that an application for change of name is an application under Part VII of the Family Law Act 1975 and, accordingly, is an application to which the divisions of s.60CA apply, being the paramountcy of the child’s best interests.
I apologise to this young man if he is referred to in these reasons at any time as a child because clearly he is not. He is a young man with a life of his own who is doing well, notwithstanding the absence of support emotionally, financially or otherwise from his father. He is, in all respects, an adult and a mature person exercising his own life. It remains, however, that the legislation refers to him as a child and that until he attains the age of 18 years, he is under a legal incapacity to effect a number of decisions in his own life and, accordingly, orders are sought by those who are seized, somewhat artificially in the context of this case, with his care and nurture, being his mother, including to effect change.
As an application under Part VII I am required to consider the objects and principles of the legislation. Those objects and principles at present and until 7 June this year do not incorporate all provisions of the International Convention on the Rights of the Child, although the obligations created by Australia’s signature thereto remain relevant to informing the decision-making process. See Mabov Queensland [1992] HCA 23, Minister of Ethnic Affairs v Teoh [1995] HCA 20, B & B & Minister for Immigrationand Multicultural and Indigenous Affairs [2003] FamCA 621.
The objects and principles provide very little of guidance with respect to this application. They deal with the child’s rights and the role parents play with respect to those rights.
The only right that is of any relevance is that which is stated in s.60B(2)(c) being that parents share duties and responsibilities. To that end I am satisfied that this young man’s father has not fulfilled his obligations by reference both to that object or principle and by reference to the substantive provision of the legislation contained in s.60CC(4). This young man’s father has not involved himself either in the child’s financial support or in decision-making for some little time.
As I have indicated, s.60CA provides that the child’s interests are the paramount consideration in all which the Court does.
The Court is then required to turn to and consider s.61DA and whether the presumption of equal shared parental responsibility should apply. I am satisfied that it cannot and should not. It is not in this child’s best interests – again, that term being somewhat patronising as regards to this young adult – for any order to be made which would invest either of his parents with decision-making power for him. His parents should guide him and assist him in decision making. He is a young man of nearly 17 who is making his own way in the world and is in employment.
I am not satisfied that an order for equal shared parental responsibility would be in his best interests. That decision is made by reference to not only the general obligations created by and recognised in the International Convention of the Rights of the Child but by reference to s.60CC and s.65DAA.
An order made by the Court – and no order is sought with respect to parental responsibility – which obliged this young man to have both of his parents consult and attempt to agree with respect of issues would be both impracticable and contrary to his best interests.
I am satisfied that such an order would be contrary to his fundamental human rights as a person of sufficient age, cognisance and maturity to make decisions for himself by reference both to the International Convention on the Rights of the Child and the Universal Declaration on Human Rights.
In any event and by reference to the balance of s.60CC and s.65DAA, and as no consideration of time arrangements is required by these orders, I am satisfied that the relief sought is entirely appropriate.
By reference to s.60CC (and I propose to consider s.65DAA as part of that exercise) and specifically pursuant to s.60CC(3)(l), I note as follows.
The primary considerations of the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical and psychological harm would, on their face, appear irrelevant. However, they cannot be so as the Court’s exercise of discretion commences with their consideration.
In relation to this young man’s meaningful relationship, I am satisfied that this is furthered and embodied by this young man’s adaptation of his mother’s surname and the rejection or discarding of his father’s. It is clear from the material annexed to Ms Rae’s material – being her Medicare card, a tax file number advice for this young man who has obtained a tax file number for himself to assist in his employment, the young person’s bank account, the young person’s school records and awards, records of the Department of Education and Communities, records of Centrelink and this young man’s own Facebook account – that quite clearly he has adopted, for all intents and purposes, the name by which he has been known since 2006 or thereabouts being the surname Rae. That to my mind evidences and evinces this young man’s deep, profound and meaningful relationship with his mother and his identification with her.
In relation to the additional considerations:
Views
This young man has clearly expressed, evinced and acted upon his desire and intent to be known by the surname of Rae. He is known by that name for all purposes and the only document which is relevant to his life that would appear to remain in a name other than Rae is his birth certificate. I am satisfied also in that regard that the Court has already made orders some six years ago which required that Mr Waller do everything necessary to enable this young man to change his name. Accordingly, I can be satisfied that this young man has held such a view for not less than six years, if not longer.
The nature of the child’s relationship with each parent and other persons.
As I have indicated this young man has a clear, deep, profound and meaningful relationship with his mother and would appear to be estranged from, if not completely then substantially, his father.
Willingness and ability of the parents to facilitate and encourage a relationship.
The facilitation and encouragement of this young man’s relationship with his father at this point in time is no longer the responsibility of either the Court or the mother. It is a matter for this young man and his father as to how their relationship, in his adulthood, will continue. Clearly, the relationship is troubled at the moment. That may remain, but as regards willingness and ability, I am satisfied that the only willingness and ability that I should have regard to is the desire of this young person to pursue that relationship at this point which is clearly a desire that is less than substantial.
Likely effect of change, including separation from the parent.
The orders that are proposed do not affect a separation. The separation has already occurred through practical action and this young man’s desire, and correspondingly, this father’s lack of desire to pursue the relationship as vigorously as he might of. Accordingly, I am satisfied that the change which is proposed by the orders sought is, in fact, beneficial to this young man. It will enable him to continue in his life in the fashion which he has for some years wherein he has gone about his business and by using the surname Rae.
Practical difficulty and expense
This is not relevant.
Capacity of each parent to provide for the child’s needs.
Again, the capacity by either parent is largely irrelevant. The capacity for this young person’s ongoing nurture and support is his own. That is not to suggest that Ms Rae is anything other than a wonderful mother who has met this young man’s needs and, in fact, has put herself to the great inconvenience, expense and emotional turmoil of having to bring an application before this Court the need for which would appear to arisen, if nothing else, from the lack of compliance by Mr Waller with orders made some six years ago and compounded by a defect in the drafting of the orders then made which has not enabled Ms Rae to take advantage of what otherwise would have been administrative remedies.
Maturity, sex, lifestyle and background of the child.
I am satisfied that this young man is entirely mature, has formed his own views, wishes them acted upon and wishes to avoid the ongoing inconvenience and embarrassment of having to explain to all and sundry why his name on his birth certificate is different to the name that he presents himself as. That circumstance must and will end now and should, in fact, have ended in 2006.
It is not suggested this young man is from an Aboriginal or Torres Strait Islander background, and in any event, there would be little relevance or at least no evidence which would make that factor relevant. That is not to suggest that patriarchal and matriarchal connections within Aboriginal and Torres Strait Islander families are not matters of great significance, importance and relevance both to the judicial determination of matters and to the fundamental formation of personality and kinship relationships. However, it does not have any particular application to the decision to be made today or at least no evidence to suggest it is so.
The attitude to the child and responsibilities of parenthood demonstrated by each of the parents.
Clearly, this young man’s father no longer provides for him emotionally or financially and that has been left, for some little time, to this young man and his mother and to extended family. Accordingly, there is nothing in that factor which would obviate against the orders sought.
Family violence is not relevant. Nor is the Court advised of any family violence order.
Whether it is preferable to make the order that will least likely lead to future proceedings.
Clearly, these proceedings have arisen from a failure by Mr Waller to do that which he was ordered to do, whether by consent or otherwise, in 2006 and through the inability to enforce through less litigious mechanisms compliance therewith.
I am satisfied that making orders today and indeed dispensing with service to enable that to occur is the course that can and should be taken by me.
As regards to other considerations, I have regard to s.65DAA(5) and the matters that I must consider in relation to reasonable practicality. The majority of those considerations would not appear to be particularly relevant to the determination.
The parents live in separate states. The parents have little current or future capacity to implement time arrangements but nor are they relevant because this young man has since 2006 determined his own arrangements through the acquiescence and lack of concern by his father.
The ability to communicate and resolve difficulties is manifest. There has been ongoing communication since 2006 and substantial communication since early this year aimed at addressing the issue and avoiding these very proceedings. Mr Waller’s failure to participate in that process or to do that which was required of him to comply with an existing order has given rise to the proceedings and satisfies me that there is no sufficient communication to enable the matter to be resolved or for any other order to be made than that which delegates to Ms Rae the sole responsibility for making this decision.
The most significant issue in the whole case arises from s.65DAA(5)(d), the impact of an arrangement on the child. This young man has a right to determine his own issues in his life. That is what he has done with the entirely appropriate and active support and encouragement of his mother for some little time and in accordance with international obligations and the simple reality is that this young man, at nearly 17 and in paid employment, is self-supporting and should be able, as an emancipated human being, to determine his own fate.
That is not to suggest that 17 year olds are necessarily always in the best position to make the best decisions. Young people of this age often consider themselves, in the vernacular, “bulletproof”. Young people (and indeed people of any age) may well make decisions which are not necessarily (and with the wisdom of age, experience or hindsight) in their best interest. However, I am entirely satisfied that this young man has already made the decision calmly and rationally and based on his own needs and desires, has made it and lived it for some years and it must and should be given effect by orders made by the Court today which will now occur.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 31 May 2012
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