Strider and Marteo

[2007] FamCA 859

FAMILY COURT OF AUSTRALIA

STRIDER & MARTEO [2007] FamCA 859

FAMILY LAW – children – proposed name change - principles

Family Law Act, 1975
Births Deaths and Marriages Registration Act 1996 (Victoria), s  26

APPLICANT: MS STRIDER

RESPONDENT: MR MARTEO

FILE NUMBER: MLC 6137 of 2007

DATE DELIVERED: 6 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 6 August, 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Margot Foster

Orders

That UPON THE UNDERTAKING  of the solicitor for the applicant that within seven days hereof she will swear and file an affidavit to which is annexed the email sent to her by the respondent within the last seven days containing the respondent’s consent to the orders made this day.

IT IS ORDERED

1. That further service of the application filed 30 May, 2007 on the respondent be dispensed with.

1. That for the purposes of s.26 of the Births Deaths and Marriages Registration Act 1996 (Victoria) the Court approves the proposed change of name of the child now known as M … STRIDER MARTEO born … September, 1999 to M … MARTEO STRIDER, the Court being satisfied that the change of name to M … MARTEO STRIDER is in the child’s best interests. 

IT IS REQUESTED

1. That the registrar of Births Deaths and Marriages in Victoria gives force and effect to this order upon request by the applicant.

1. That the form 1 application filed 30 May, 2007 and form 2 application filed 25 June, 2007 be otherwise dismissed.

1. That the solicitor for the applicant serve a sealed copy of this order on the respondent by sending it to his last known address in India and send an email to the email address from which the email referred to in the undertaking of the applicant’s solicitor was sent, advising the respondent of the terms of the order made this day.

1. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of a solicitor appearing as counsel.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Brown J delivered this day will for all publication and reporting purposes be referred to as Strider & Marteo.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6137  of 2007

MS STRIDER

Applicant

And

MR MARTEO

Respondent

REASONS FOR JUDGMENT

1. The court is asked to determine whether the surname of the parties’ daughter, M (“the child”), who is almost 8, can be changed.

1. In an application filed on 30 May 2007, the child’s mother seeks that the child’s name be changed from M Strider Marteo to M Marteo Strider.

1. The mother initially sought that the order be made ex parte and that the requirement for service on the husband be dispensed with.  The matter came before Cronin J on 5 July, and brief reasons given by his Honour are on the court file.  I cannot say why his Honour did not make a Commonwealth information order directed to the Child Support Agency but he did make an order giving the mother leave to send a letter to the Agency, asking it, if aware of the father's address, to send the court documents to the father and advise the mother in writing that that was done.

1. I note there is also a pending application for divorce, filed in the Federal Magistrates Court.  Clearly, the issue of service will be relevant to that, too.

1. The evidence is that the documents relating to the name-change application were forwarded to the father and he has signed an acknowledgment of service.  It is not dated and does not specify with particularity what he received.  His signature has been identified by the mother.  Importantly, I am told that he has recently sent an email to the mother’s address for service, confirming service and his consent to the orders sought.  In those circumstances I am content to find sufficient service and dispense with the need for any further service of this application.

1. The orders sought is that the child’s name “be changed”.  The court cannot make an order to that effect.  The Births, Deaths and Marriages Registration Act 1996 (Vic.) sets out the process to change the name of a child whose birth is registered in Victoria.  Section 26 provides that an application for registration of a child's name can be made, in certain circumstances, by one parent.  One of those circumstances is if the court approves the proposed change of name.  The court can approve a proposed change of name, if it is satisfied that that change is in the child's best interests.  Armed with that order, the applicant can then go to the registrar of Births, Deaths and Marriages and request that the name be changed in the relevant records.

1. The Full Court has made it clear over decades that each case for a change of a child’s name must be handled on its merits but with the object of promoting the welfare of the child.  That is the paramount consideration, not the convenience or wishes of a resident parent.  In assessing where a child’s best interest lie, the court may take into account the short and long term effects of the proposed change;  any embarrassment likely to be experienced by the child if his or her name is different from the parent in whose care the child is;  potential confusion of identity if the child's name is changed or not changed;  effects it could have on any relationship between the people whose name the child bears and the child;  long and short term advantages which might accrue;  the contact the other parent is likely to have in the future;  the degree of identification the child now has with the other parent;  and any desire of the other parent to retain or restore an original name.

1. The evidence in this case is that the child’s father left the marriage and, soon after, Australia, before she was two.  She will be eight in September.  For over six years the mother has had no contact with the child's father;  nor has the child.  She has had no contact with any members of the father's extended family.  As noted, there has been some recent email contact between the father and the solicitor for the mother and the solicitor has given an undertaking, that within seven days, she will file an affidavit recording that evidence.  It is manifestly clear the father could communicate with the child or her mother, as he has with the mother’s solicitor.  He has elected not to do so.

1. The evidence establishes that the father has had no contact with the child, sadly, for more than six years.  If the past is a guide to the future, it is unlikely that that is going to change.  The child has little identification with her father, although her mother has said there is a photograph of him on the fridge.  The email sent to the mother's solicitors confirms that the father does not object to the proposed change of name.  The child is known at school by the last name “[Strider]”.  In more formal environments the name “[Marteo]” is used, as that is her name at government agencies such as Medicare and the Child Support Agency. 

1. Having regard to all the evidence I am satisfied it is in the best interests of the child that the court approve the change of name.  The new name will not remove reference to her father's name; she will be known as M … Marteo Strider, rather than M Strider Marteo.

I certify  that the preceding
9 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2007.

…………………………………………
Associate.