Teke and Cefai

[2019] FamCA 114

FAMILY COURT OF AUSTRALIA

TEKE & CEFAI [2019] FamCA 114

FAMILY LAW – CHILDREN – Parenting – change of child’s name – power of the court to make an order and to whom – father of child absent virtually all child’s life – best interests considered.

Births, Deaths and Marriages Registration Act (Vic) 1996
Family Law Act 1975 (Cth)

APPLICANT: Ms Teke

RESPONDENT: Mr Cefai

FILE NUMBER: MLC 4927 of 2012

DATE DELIVERED: 26 February 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 26 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Foy

SOLICITOR FOR THE APPLICANT: Resolution Legal Melbourne

THE RESPONDENT: No appearance

Orders

1. That all parenting orders made on 4 June 2012 are discharged.

2. The applicant mother have sole parental responsibility for the parties’ child X TEKE-CEFAI born … 2010.

3. As an incident of sole parental responsibility, the court approves the use by the mother of the child’s name henceforth as X TEKE.

4. That the child live with the mother.

5. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

6. That a copy of this order and the reasons for judgment this day may be provided by the mother to the Registrar of Birth, Deaths and Marriages (Victoria).

7. That the reasons this day be transcribed.

8. That service of all further documents arising from these proceedings upon the respondent father is waived.

9. That all outstanding applications are otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Teke & Cefai has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4297 of 2012

Ms Teke

Applicant

And

Mr Cefai

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an amended initiating application brought by Ms Teke.  She is the applicant.  The respondent is Mr Cefai.  He is the father of the child, who was born in 2010.  She is about to turn nine years of age.  The application came before the Court in November 2018 and was then adjourned by Registrar Field to 31 January 2019.  The registrar directed that all parties attended or be represented at that hearing.  It was also ordered that further service be dispensed with on condition that the applicant serve by email to an email address copies of the order and the relevant Court documents.

2. When the matter came back on before the registrar on 31 January, there was no appearance by or on behalf of the respondent.  The registrar further adjourned the proceedings to today before me.  She repeated the order about all parties attending and/or being represented.  She also directed the mother to file any further affidavit that she relied upon by no later than 8 February.  That seems to have been done on time.  She also then directed that the mother serve upon the father a sealed copy of the order that had been made that day, again to the same email address, and then file an affidavit as to service confirming compliance with her orders.

3. There is an affidavit on the Court file by Mr B, who is a solicitor who indicated that he electronically posted the relevant documents to the email address shown in the order.  What he does not say is whether or not those documents “bounced back”.  I am assured by counsel today that they have not.  So in other words, the Court can be satisfied that service has been effected.

4. More importantly, having regard to the evidence of the applicant mother that the father has effectively not been in the child’s life for the best part of eight years – and of course, eight years ago, the child was only about one or two years of age.  That absence must be seen in the context of orders that were made in 2012 by consent of the parties, none of those orders have been carried out by the father.  I therefore conclude that as the documents had been served and there has been no appearance today, the father has no interest or responsibility for the child, notwithstanding the orders of 2012.

5. The application of the mother, therefore, should proceed without further notification to the father.  In my view, he has had ample opportunity to participate in the proceedings and, on the basis of the evidence of service, I am satisfied that his interests need no longer be taken into account. 

6. The application of 19 December 2018 seeks a discharge of the 2012 orders.  There is no reason why that order should not be made for matters to which I shall turn in a moment.  The mother then seeks orders that the child live with her and that she have sole parental responsibility relating to all decisions of a major, long-term nature.  Both of those orders should be made here on the basis of what I have just said about the father’s interest and involvement in the child’s life. 

7. The nub of what the present application is otherwise really about is that the mother desires to approach the Victorian Registrar of Births, Deaths and Marriages to change the child’s surname. 

8. Section 26 of the Births, Deaths and Marriages Registration Act (Vic) 1996 has a provision that permits a parent to make an application to change a child’s surname on a birth certificate if, inter alia, the Court approves the proposed change of name. Section 4 of that same Act defines the Court to mean the County Court of Victoria. However, it seems to me that this Court can use its extensive powers, particularly in parenting matters, to resolve that jurisdictional dilemma.

9. Before turning to that issue, I turn to the evidence of the mother.  In an affidavit that she filed on 8 February 2019, she said that, over the past six months or so, the child has been asking why she could not change her name and that her request had been made approximately once per week.  She and the child have discussed the matters and the child has said words to the effect that she did not like her father’s surname as part of her name and it causes her distress.  She said she does not understand why she has to have that surname, having regard to the fact that she does not know where her father is or, indeed who he is.

10. It appears that the distress of the child arises when her name is called out at school assembly and children around her ask why she has two surnames when she does not have a father.  In other words, the child recognises the fact that children normally have a father and she does not understand why that is not the situation for her.  The evidence is there are a number of problems that the child is having about the use of her name and how much distress it causes her.

11. The father has shown little interest since 2012, if not before.  The mother indicated that 2013 was the last time she had any contact until November 2017 when he sent her an email.  The email is quoted in the affidavit and it is enlightening to indicate how he shows a complete lack of responsibility for the child.  In my view, therefore, the Court should look to Part VII of the Family Law Act 1975 (Cth) (“the Act”) to exercise the sorts of powers that apply in respect of parenting matters.

12. Section 60CA says that, when contemplating a parenting order, the best interests of the child are the paramount consideration. “Paramount” obviously means that there is some other possibility but, in this case, the father has shown little or no interest and has certainly not attended here today. Section 65D of the Act provides that, in proceedings for a parenting order, the Court, subject to certain provisions which are not relevant here, make such parenting order as it thinks proper.

13. The power of the court is extremely wide but the Parliament went further and set out in s 64B the orders that could be made and what they have to deal with.  The change of a child’s name is not mentioned but other issues such as how a child is cared for and with whom the child should live are mentioned in s 64B.  When I contemplate the nature of the orders sought by the mother, it is quite clear that she relies upon s 64B and, absent any opposition from any person, there is no logical reason why the Court should not accept her evidence as unchallenged.

14. In working out, however, what is in the best interests of a child, the Court has to look at s 60CC.  That is effectively a checklist.  One of the primary considerations is the benefit to the child of having a meaningful relationship with both parents.  Nothing in the evidence indicates that there is any impediment to the father having some role in the child’s life but he just does not seem interested.  The child cannot benefit from a relationship that does not exist.

15. The other considerations that are relevant in this case are the views expressed by the child.  One of the difficulties with that is that the Court can give such weight as it considers it should to a child’s views, having regard to the child’s maturity and level of understanding.  The child is entering that period of time where identity is an issue for her.  Her surname that is currently being used is causing her at least embarrassment, if not distress, particularly in relation to her peers.  On that basis, I can infer that her level of understanding is that the issue about her name is something that is of concern to her, notwithstanding the fact that she has a right to have her father in her life.  She has no relationship with her father but she has a very strong relationship with her mother.

16. One of the significant features of determining best interest is considering the extent to which each of the parents have taken or failed to take the opportunity to participate not only in decision-making about major long-term issues in relation to a child.  Here, it is quite evident that, since 2013 at least, the mother has been the sole person responsible for not only decisions, but also the care of the child and the father has failed to participate in any way at all.

17. I understand there are no financial supports provided by him.  He has no regular form of communication, electronically or otherwise.  He provides no gifts or recognition of the child’s birthday or other special days and therefore he can be seen to have shown little interest in the responsibilities of parenthood. 

18. In my view, on the basis of that evidence, the Court should discharge the 2012 orders, giving the mother effectively the sole parental responsibility for decisions of a major long-term nature about the child and also the daily responsibility for her care.

19. That ultimately leads then to the question of the change of name.  The child wants to be known by the surname that her mother uses and, in all the circumstances, particularly having regard to what I have just said about the father’s role, I think it is appropriate and in her best interest that that occur. 

20. The Court therefore can, as part of the incident of making an order for sole parental responsibility, approve the use by the mother of the child’s name. That conclusion can be drawn from the definition of major long-term decisions, which includes the child’s name, that could be found in s 4 of the Act and, as Parliament obviously considered a child’s name to be a matter of that significance, the Court should approve the use by the mother of the child’s surname as she requests.

21. The real issue then becomes the question of how the Registrar of Births, Deaths and Marriages can use that approval, having regard to the wording of s 26 of the relevant State Act.

22. Section 33 of the Family Law Act provides that, to the extent the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within the jurisdiction expressed by the Act or any law to be conferred on the Court that are associated with matters in which the jurisdiction of the Court is invoked or that arise in proceedings before the Court.

23. This gives rise to the question of the accrued jurisdiction of the Court. There have been a number of authorities over the years – and I do not intend to repeat them – but clearly, where the Court has jurisdiction, as it has under Part VII of the Family Law Act, the Court can use the powers in the State law simply by virtue of it being an extension of its jurisdiction.

24. In my view, the Registrar of Births, Deaths of Marriages should change the name of this child under s 26(3), of the relevant State legislation on the basis that the Court approves the change of name. I propose therefore to make an order that, as an incident of that parental responsibility, the Registrar of Births, Deaths and Marriages may be given a copy of these reasons, if so desired, and a copy of the relevant order.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 26 February 2019.

Associate:

Date:  4 March 2019