Rennick & Yardman

[2014] FCCA 556

FEDERAL CIRCUIT COURT OF AUSTRALIA

RENNICK & YARDMAN [2014] FCCA 556

Catchwords:
FAMILY LAW – Children – change of name – where applicant seeks to change the surname of the child – where respondent has left Australia – best interests of the child.

Legislation:

Family Law Act 1975 (Cth), s.60CA

Births, Deaths and Marriages Registration Act 1995 (NSW), ss.22, 28

Cases cited:
Beach & Stemmler (1979) 5 Fam LR Note 13; FLC 90-692
Chapman & Palmer (1978) 4 Fam LR 462; FLC 90-510
Whinney & Kelleher [2013] FCCA 1939

Applicant: MS RENNICK

Respondent: MR YARDMAN

File Number: SYC 7570 of 2013

Judgment of: Judge Scarlett

Hearing date: 17 March 2014

Date of Last Submission: 17 March 2014

Delivered at: Sydney

Delivered on: 17 March 2014

REPRESENTATION

The Applicant: In person

The Respondent: No appearance

ORDERS

1. Leave to proceed ex parte.

2. The name of the child X born (omitted) 2007 is changed to (omitted).

3. As provided by section 28 of the Births, Deaths and Marriages Registration Act 1995 (NSW) the Applicant Mother is authorised to apply to the Registrar of Births, Deaths and Marriages in and for the State of New South Wales to give effect to this Order by doing all acts and things necessary to register the change of name of X born (omitted) 2007 to (omitted), notwithstanding the fact that the consent of the Respondent has not been obtained.

4. The Registrar of Births, Deaths and Marriages in and for the State of New South Wales is ordered to register the name of the child formerly known as X as (omitted).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7570 of 2013

MS RENNICK

Applicant

And

MR YARDMAN

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Mother of a girl called X for an order permitting her to apply to the Registrar of Births Deaths and Marriages in New South Wales to change X’s surname from Yardman to (omitted). The child was born on (omitted) 2007, so she is nearly seven years old.

2. The Father has left Australia and has had no contact with the child since he left in 2010.

Background

1. The Mother and father were married in Sydney on (omitted) 2007.

2. There is one child of the marriage, X, who was born on (omitted) 2007.

3. The parties separated under the one roof in September 2007 and the Mother moved out of the former matrimonial home in April 2008.

4. The parties were divorced on 8^th June 2009.

5. On 14^th October 2009 the parties entered into Consent Orders providing that:

   a)They should have joint parental responsibility for X;

   b)The child should live with the Mother and spend time with the Father on a regular basis;

   c)There would be a departure order from an assessment of child support but that the agreed amount would be paid through the Child Support Agency.

6. It was the Mother’s evidence that the Father did not spend any time with X after they entered into the Consent Orders. She received only two payments of child support.

7. The Mother travelled to (country omitted) with the child in February 2010. She returned to Australia in March of that year but left X in the care of her mother in (country omitted) until about May of that year, when her mother brought the child back to Australia with her. Her mother told her that the Father had visited her home in (country omitted) to see the child on one occasion in April of that year.

8. On 7^th May 2012 the mother applied to this Court to vary the earlier Consent Orders. On 22^nd August 2012 Federal Magistrate Altobelli[1] made ex parte Orders discharging the earlier Orders and providing that:

   a)the Mother would have sole parental responsibility for the child;

   b)the child would live with the Mother; and

   c)the Mother was permitted to apply for renewal of the child’s passport without the necessity for the consent of the Father to be obtained.

   [1] As his Honour then was

9. The Mother re-married on (omitted) 2012. She and her current husband have a daughter, Y, who was born on (omitted) 2012. That child has her father’s surname of (omitted).

10. The Mother commenced these proceedings by filing her Application on 19^th December 2013.   

Evidence

1. The Mother relies on her affidavit of 11^th December 2013. She also gave oral evidence. She annexed to her affidavit a letter from the Child Support Agency dated 26^th April 2011 stating:

   Mr Yardman ceased to be a resident of Australia and/or a reciprocating country for child support purposes on 30/06/2010.

2. The Mother stated that she wants her daughter to have the same surname as her other daughter. She proposes to change her own surname to her married name of (omitted) so that all the family members will have the one surname.

3. The Mother’s previous application to the Registry of Births Deaths & Marriages to change the child’s name was unsuccessful. The earlier Court Order was not regarded as sufficient to comply with the requirements of the Births, Deaths and Marriages Registration Act 1995 (NSW) and she received a requisition asking her to:

   Submit new court order requesting or directing the Registrar to change the child’s name…[2]

   [2] Affidavit of Ms Rennick 11.12.2013 Annexure “F”

Changing the Child’s Surname

1. The Mother is seeking an order permitting her to apply to the Registrar of Births, Deaths and Marriages to alter X’s surname without the consent of the Father. She has given satisfactory reasons for doing so.

2. In the recent decision of Whinney & Kelleher[3] I considered the legislation and the authorities relating to an ex parte application to change a child’s surname:

   [3] [2013] FCCA 1939

   12.When the court is considering whether or not to change the surname of a child, the court is guided by a number of authorities, such as Chapman & Palmer [4]and Beach & Stemmler[5] to consider a number of factors, such as:

   [4] (1978) 4 Fam LR 462; FLC 90-510

   [5] (1979) 5 Fam LR Note 13; FLC 90-692

   (a)     the best interests of the child;

   (b)any embarrassment likely to be experienced by the child if the child’s surname is different from that of the parent with whom the child normally lives;

   (c)any confusion of identity that may arise for the child if the child’s name is or is not changed;

   (d)the amount of contact that the other parent has had with the child; and

   (e)the degree of identification the child has with each parent.

   13.The applicable legislation in New South Wales to deal with a change of name is the Births, Deaths and MarriagesRegistration Act 1995.

   14.    Section 22 of that Act provides:

   (1)If there is a dispute between parents about a child’s name, either parent may apply to the District Court for a resolution of the dispute.

   (2)On an application under subsection (1), the District Court may:

   (a)    resolve the dispute about the child’s name as the Court considers appropriate; and

   (b)    order the Registrar to register the child’s name in a form specified in the order.

   (3)If any court (including any court of another State or the Commonwealth) resolves a dispute about a child’s name, the court may order the Registrar to register the child’s name in a form specified in the order.

   15.Thus, it can be seen that this Court, being a court of the Commonwealth, may, under, s.22(3) of the Act, order the Registrar of Births, Deaths and Marriages in New South Wales to register the child’s name.

   16.Section 28 of the Births, Deaths and Marriages Act also provides for registration of a change of a child’s name in similar terms to s.22(3). The section says, relevantly:

   (3)An application for registration of a change of a child’s name may be made by one parent if:

   …

   (c)     a court approves the proposed change of name.

   …

   (5)If any court (including any court of another State or the Commonwealth) approves a proposed change of name for a child, the court may order the Registrar to register the child’s name in a form specified in the order.

   17.Where a court makes an order changing the surname of a child, it is not necessary to order the other parent to sign any documents. It is neither necessary nor appropriate to empower a Registrar of the court to sign any documents on the other parent’s behalf. The court itself is given the power to order the Registrar of Births, Deaths and Marriages to register the child’s name.[6]

   [6] Whinney & Kelleher [2013] FCCA 1939 at [12]-[17]

3. I am satisfied that it is in this child’s best interests to change her surname so that she will have the same surname as her mother and half-sister, as well as her step-father. I am satisfied that she has not spent any time with her father since 2010 and that he has left Australia.  The best interests of the child are always the paramount consideration (Family Law Act 1975 (Cth), s.60CA).

4. I propose to order that the name of the child X be changed to (omitted) and to direct that the Registrar of Births, Deaths and Marriages register that change of name.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  21 March 2014