Whinney & Kelleher

[2013] FCCA 1939

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHINNEY & KELLEHER [2013] FCCA 1939

Catchwords:
FAMILY LAW – Children – Parenting Orders – change of name – best interests of child – where respondent did not attend court – where applicant seeks to change the surname of the child of the marriage.

Legislation:

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

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

Federal Circuit Court Rules 2001 rr.13.03C, 16.05

Beach & Stemmler (1979) 5 Fam LR Note 13; FLC 90-692
Chapman & Palmer (1978) 4Fam LR 462; FLC 90-510

Applicant: MS WHINNEY

Respondent: MR KELLEHER

File Number: SYC 4922 of 2013

Judgment of: Judge Scarlett

Hearing date: 18 November 2013

Date of Last Submission: 18 November 2013

Delivered at: Sydney

Delivered on: 18 November 2013

REPRESENTATION

Solicitors for the Applicant: In person

Solicitors for the Respondent: No Appearance

ORDERS

1. The Applicant is granted leave to proceed ex parte.

2. The Applicant mother is to have sole parental responsibility for the child of the marriage X born (omitted) 2008.

3. The name of the child X born (omitted) 2008 is changed to X.

4. As provided by s.28 of the Births, Deaths and Marriages Registration Act 1995 (NSW) the Applicant mother is given leave to apply to the Registrar of Births, Deaths and Marriages in and for the State of New South Wales to register the name of the child formerly known as X as X.

5. 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 as X.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4922 of 2013

MS WHINNEY

Applicant

And

MR KELLEHER

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the mother of a little boy called X to change his surname from Kelleher to her current married surname of Whinney.

2. The father has been made aware of the Application and has consulted a solicitor, but he has not filed any documents or attended court. 

Background

1. The mother relies on her affidavit of 24 October 2013. She also gave oral evidence.

2. The mother and father were married on (omitted) 2005. The parties separated in October 2009 and were divorced on 17 October 2010. The mother has since remarried.

3. There is one child of the marriage, X, who was born on (omitted) 2008.

4. It is the mother’s evidence that the relationship between her husband and herself was marked by violence and emotional abuse. On 3 October 2009 the mother took the child to Sydney and on 5 October she and the child checked into the (omitted) facility for mothers and babies in (omitted). She deposed that early the following morning she received a telephone call from a woman who worked with the husband telling her that the woman and her husband were having an affair. The mother did not return to live with the husband.

5. The mother deposed that she made efforts on various occasions, the first being on 28 November 2009, to meet with the father so that he could spend some time with the child. On three occasions she travelled with the child to (omitted) to meet the father but on each occasion he telephoned her saying “I think I will give it a miss”.[1]The mother deposed that the father has not telephoned the child or made any attempt to see him.

   [1] Affidavit of Ms Whinney 24 October 2013 at paragraph [6]

6. The mother stated at paragraph [7] of her affidavit that the child has being diagnosed with an Auditory Processing Disorder, which causes the auditory system not to mature as quickly as it should, “which in turn makes it extremely hard for X to understand simple instruction, learn day to day tasks or even how to say and write his name.”[2]

   [2] Ibid at [7]

7. The mother also deposed that she has remarried and she and her present husband have a daughter who was born on (omitted) 2011. The mother, her husband and the little girl all use the surname “Whinney” and the mother wishes her son to have that name as well. The child starts school at the beginning of Term 1 in February 2014 and the mother wishes to enrol him at school in the surname of Whinney to avoid confusion. 

The law to be applied

1. When a court is considering whether to make a parenting order in respect of a child, it is required by s.60CA of the Family Law Act 1975 (Cth) to regard the best interests of the child as the paramount consideration.

2. The Court is also required by s.61DA of the Act when making a parenting order to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, this presumption does not apply in cases of abuse or family violence and may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.

3. 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[3] and Beach & Stemmler[4]to consider a number of factors, such as:

   a)the best interests of the child;

   b)any embarrassment likely to be experienced by the child if the child’s name 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.

   [3] (1978) 4 Fam LR 462; FLC 90-510

   [4] (1979) 5 Fam LR Note 13; FLC 90-692

4. The applicable legislation in New South Wales to deal with a change of name is the Births, Deaths and Marriages Registration Act 1995 (NSW).

5. 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.

6. 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.

7. 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 name for a child, the court may order the Registrar to register the child’s name in a form specified in the order.

8. 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. 

Conclusions

1. This is a case where the father has been placed on notice of the mother’s application and has consulted a solicitor. However, he has not filed a Response and he has not attended court. In my view, this matter should proceed to hearing under the provisions of Rule 13.03C. If the father wishes to vary or set aside any of the Orders he will need to apply under the provisions of Rule 16.05 and explain why he did not attend Court.

2. It appears clear that the presumption that it is in the child’s best interests for his parents to have equal shared parental responsibility for him does not apply, noting the allegations of family violence in paragraphs [3], [4], [5], and [8][5]. I am also of the view that the mother’s evidence of the father’s lack of contact with the child since 2009, which is for most of the child’s life, is sufficient to satisfy the Court that it would not be in this child’s best interests for the parents to have equal shared parental responsibility for him. In effect, the father would now be a stranger to the child.

   [5] There are two paragraphs numbered 8

3. It is in the child’s best interests for his mother, the Applicant, to have sole parental responsibility for him.

4. It is also in this child’s best interests to allow the mother’s application to change the child’s surname to “Whinney”, so that he will have the same surname as his mother, his stepfather and his half-sister. The time is appropriate, as this little boy will start school in the New Year, and it would be to his benefit for him to start school with the new surname.

5. Accordingly, orders will be made providing that:

   a)The mother is to have sole parental responsibility;

   b)The child’s surname will be changed to Whinney;

   c)The mother will be given leave to apply to the Registrar of Births, Deaths and Marriages to register the child’s new name; and

   d)The Registrar of Births, Deaths and Marriages will be ordered to register the child’s name as X.   

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date: 25 November 2013