Wei and Ju

[2013] FamCA 162

FAMILY COURT OF AUSTRALIA

WEI & JU [2013] FamCA 162

FAMILY LAW – CHILDREN – Undefended parenting order

APPLICANT: Ms Wei

RESPONDENT: Mr Ju

FILE NUMBER: SYC 2778 of 2007

DATE DELIVERED: 11 March 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 11 March 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Luminous Legal

SOLICITOR FOR THE RESPONDENT: No appearance for or on behalf of the respondent

Orders

1. That the applicant, Ms Wei, have sole parental responsibility for the child B Ju, (“the child”) born … February 2006.

2. That the child live with the applicant mother.

3. That the applicant mother has permission to do all things necessary to change the child’s name on her birth certificate from B Ju to C Deng.

4. That the Registrar of Births, Deaths and Marriages forthwith register the change of surname for the child from Ju to Deng and to change the name of the child from B Ju to C Deng.

5. 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. All outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 2778 of 2007

Ms Wei

Applicant

And

Mr Ju

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. This is an application by Ms Wei (“the applicant”) for parenting orders in relation to her daughter, B Ju, born in 2006.  Mr Ju (“the respondent”) is the child’s father.  The parties separated on 1 April 2006, at which time the child was only about six weeks old.  They have not resumed cohabitation and were divorced in July 2007.

3. The respondent has returned to live in China from where the applicant and respondent both originate.  In anticipation of her application, the applicant wrote to the respondent in August and October 2012, informing him of her desire to have full custody of their child and inviting him to contact her.  The correspondence was sent to the respondent’s parents’ address in E City in F Province.  That course was adopted because the applicant does not have the respondent’s address or a contact number for him.

4. The correspondence did not result in contact from the respondent.  Further correspondence has been forwarded by the applicant’s solicitor to that same address, in which copies of the documents filed in these proceedings were provided.  Again, no response has been received from the respondent.

5. It is appropriate to observe that the respondent has not had contact with the child since December 2007.  He has not paid child support for her and as a consequence of him ceasing to be resident in Australia, on 10 March 2011, the Child Support Agency terminated the child support case that had been brought against him.

6. It seems to me that the respondent has indicated, as clearly as one could, that he does not wish to be involved in these proceedings or maintain a relationship with the child.  Adjourning the application so that further attempts at service could be undertaken would do no more than increase the cost to the applicant, the point being they are unlikely to provoke the respondent’s participation in these proceedings.

7. Turning, then, to the merits of the application.  In short, the child has been reared by the applicant with relatively little input by the respondent and none from December 2007.  The applicant has remarried and her husband, Mr Deng, is the male figure in the child’s life who, in all but biology and formality, is her father.  He and the applicant jointly parent the child and the evidence is that the child has a lovely relationship not only with her mother but also with her mother’s husband.

8. The mother’s husband supports the applicant and the child.  The family functions with Mr Deng being the wage earner and the applicant running their home and caring for the child.  They plan to start a family and it is the applicant’s contention that the strength of the child’s attachment to her husband, the child’s lack of relationship with her own father, her own father’s lack of responsibility to the child, all leads towards it being in the child’s best interests to have her name the same as that which the applicant and her husband carry and any child they have will carry.  The point being that it reflects the reality of the child’s life and will enhance her sense of identity within her family.

9. It would seem that in addition to addressing surname issues, there is a desire to change the child’s Christian name so that the name she now uses, C, is mirrored on a birth certificate and obviously, a passport.  I am inclined to agree with the applicant that there are practical and identity issues that arise when a birth certificate is different to the name, in fact, used by a child.  In circumstances where the father does not have any apparent interest in the child’s welfare, there are no concerns that somehow by changing the child’s name, her relationship with her father might be compromised.

10. In circumstances where the father has not exercised parental responsibility in relation to the child for a very long time, it is appropriate that the person who does make those decisions has sole parental responsibility and I will order accordingly.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 11 March 2013.

Associate:     

Date:              19 March 2013