Rush and Stevens

[2008] FamCA 149

FAMILY COURT OF AUSTRALIA

RUSH & STEVENS [2008] FamCA 149

FAMILY LAW – PASSPORT – Issue of passport – Dispense with further service – Change of name

Family Law Act 1975 (Cth)

APPLICANT: Ms RUSH

RESPONDENT: Mr STEVENS

FILE NUMBER: MLC 13237 of 2007

DATE DELIVERED: 5 MARCH 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 5 MARCH 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. THAT there be dispensation of any further service or attempted service of the wife’s application and affidavit upon the husband.

2. THAT the Registrar of Births, Deaths and Marriages in the State of South Australia be requested to change and record upon the application of the wife, the name of the child now known as J STEVENS born … January 1998 to the name of S RUSH and I direct that the child thereafter and for all purposes be known by this new name.

3. THAT the wife on behalf of S RUSH be permitted to apply for and forthwith obtain an Australian Passport to enable her to travel in and out of the Commonwealth of Australia.

4. THAT the consent of the father to the issuing of such Australian Passport for S RUSH be forthwith dispensed with and the wife be entitled to obtain such a Passport without the signature or other written consent of the husband.

IT IS REQUESTED

1. THAT the Federal Department of Foreign Affairs and Trade forthwith issue an Australian Passport in the name of the child S RUSH born … January 1998 and the issuing of such Passport be expedited.

2. THAT the child S RUSH be thereafter entitled to travel in and out of the Commonwealth of Australia.

3. THAT the Form 1 and Form 2 applications of the wife filed 6 December 2007 be otherwise dismissed.

4. THAT the wife at all times keep the court advised of her current residential address, such address to be retained within a sealed envelope on the Court file.

5. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available, if required, to the Registrar of Births, Deaths and Marriages in the State of South Australia pursuant to paragraph 2 hereof or otherwise to the Federal Department of Foreign Affairs and Trade upon the issue of the Australian Passport for the child.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13237 of 2007

MS RUSH

Applicant

And

MR STEVENS

Respondent

REASONS FOR JUDGMENT

1. The matter of Stevens & Rush is before me in the judicial duty list.  The wife, Ms Rush, appears in person.  There is no appearance by or on behalf of her husband.  The application before the court seeks orders to dispense with service upon the husband of all court documents now filed by the wife and otherwise seeks orders:

   a)To change both the given name and surname of the child of the marriage born in January 1998 and,

   b)To authorise and permit the wife to apply for a passport in the child's substituted name.

2. By way of background the wife does not want her residential address disclosed.  Her address for service is care of the Community Legal Service.  The wife has provided that organisation with her residential address and pursuant to an earlier directive of mine has supplied the court, in a sealed envelope, with that current residential address and the obligation upon the wife will at all times be to ensure that this court is kept advised of any change in that address.

3. The background is that the husband and wife married in September 1990 and separated on 7 November 2002 after a marriage of some 12 years.  There were three children of the marriage.  The two eldest children are …, born in April 1991, and … born in June 1994.  The wife does not know the whereabouts of those children, has not seen them for many years and has no contact with them or with their extended family including her own family.

4. At separation the wife left with the youngest child born in January 1998, and this child is now 10 years of age.  There were allegations of extreme violence alleged by the wife and these are contained within her affidavit.  I accept that the wife made, over the years after separation, significant efforts to recommence contact with her other children or her family.  All of those efforts were unsuccessful and I observe that the dissolution of marriage was obtained on the basis of service upon the husband having been dispensed with. 

5. The wife is and has since separation been the sole provider for the daughter.  The daughter has at all times been known under a different given name and surname.  That name to which she answers is S Rush and it is that name which the wife seeks permission of the court to substitute for the name of J Stevens.  I accept that the child is known in school, within the neighbourhood and by friends under her new post-separation name.  On what I have read and what I have heard I accept that it is in best interests of the child to be known under that new name.  In particular there is no current relationship between the child and her father or her brothers.  There is no known opposition to a name change, but there has been no involvement in the child's life of such other persons who may bring an influence to bear upon the child or may have an effect upon her future and upbringing. 

6. The matter was before me on 14 January and on that occasion I made significant inquiries of the wife as to service of the court documents which she has filed upon any other person in the hope that they would bring them to the attention of the husband and/or the other children and/or extended family.  The wife has complied with paragraph 3 of those orders, and the registered post documents that have been returned to her have now been delivered to the court.  I will have my court officer ensure that documents and a customer receipt notice are stapled together and are retained on the court file.  Likewise a sealed envelope with the wife's current address will be retained on the court file subject to the wife's obligation to always update that address.

7. The first matter that I conclude is that there should be no further attempt at service and I will dispense with any required service upon the husband.  I conclude that to be proper in the particular circumstances of this case.  The second issue is the change of name of the daughter, and in her best interests and having regard to the material before me and what the mother has addressed to me in the courtroom, and generally having regard to the welfare and upbringing of the 10-year-old daughter I conclude that she should be known by her adopted name, that is, the name to which she is known in her life and has as I understand at all times since moving to Victoria been so known.

8. As to her passport, it is proper and I will accordingly request of the appropriate Government Department, to authorise and issue, upon application of the wife, a passport in the name of the child now to be known as S Rush born in January 1998.  For those reasons I will thereafter make appropriate orders to facilitate that outcome which I conclude is in the best interests of the child.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:          
Date: 12 March 2008