WOTTON & TONER

[2014] FCCA 2563

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOTTON & TONER [2014] FCCA 2563

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – parental responsibility – sole parental responsibility – passports – change of name – where applicant seeks to change the name of a child of the marriage – where child now aged 16 years – where child has not seen father since he was 8 days old – where applicant unsure of respondent’s address – best interests of the child – Australian passport – issue of Australian passport – travel – international travel – permission for child to travel internationally.

PRACTICE AND PROCEDURE – Service – substituted service – dispensation with service by hand on the respondent – where applicant does not know the respondent’s address – where applicant has had no contact with the respondent for approximately 15 years.

Legislation:

Australian Passports Act 2005 Cth), s.11

Family Law Act 1975 (Cth), ss.60B, 60CA,60CC, 61DA, 65DAA, 65Y

Births, Deaths and Marriages Registration Act 1995 (NSW), ss.22, 28
Federal Circuit Court Rules 2001, rr.6.14, 6.15, 16.05

Cases cited:
Beach & Stemmler (1979) 5 Fam LR Note 13; FLC 90-692
Chapman & Palmer (1978) 4 Fam LR 462; FLC 90-510
Gerald & Kenwood [2013] FCCA 2038
Whinney & Kelleher [2013] FCCA 1939

Applicant: MS WOTTON

Respondent: MR TONER

File Number: SYC 4944 of 2014

Judgment of: Judge Scarlett

Hearing date: 3 November 2014

Date of Last Submission: 3 November 2014

Delivered at: Sydney

Delivered on: 3 November 2014

REPRESENTATION

Applicant: In person

Respondent: No appearance

ORDERS

UNTIL FURTHER ORDER

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

2. The requirement for service by hand upon the Respondent is dispensed with on condition that within seven (7) days the Applicant forwards sealed copies of the Application and affidavit in support and a copy of these Orders to the Child Support Registrar with a request that the Child Support Registrar should forward those documents to the Respondent at the last known address on the Child Support Registrar’s file.

3. The child X born (omitted) 1998 is to live with the Applicant mother.

4. The Applicant mother is to have sole parental responsibility for the said child X.

5. The name of the child X born (omitted) 1998 is changed to X.

6. As provided by section 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.

7. 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 formerly known as X as X.

8. The Applicant mother is permitted to take or send the child X born (omitted) 1998 out of Australia to a place outside Australia in accordance with s.65Y(2)(b) of the Family Law Act 1975.

9. The child X born (omitted) 1998 is permitted to travel internationally as provided by s.11(1)(b) of the Australian Passports Act 2005 and for this purpose the Applicant mother is permitted to apply for the issue of an Australian passport to the said child X under the provisions of s.11(4)(b)(i) of the Australian Passports Act 2005.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4944 of 2014

MS WOTTON

Applicant

And

MR TONER

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the mother of a boy named X for orders changing his surname and that he live with her. X is now 16 years old. He was born on (omitted) 1998 and he has lived with his mother all his life. On the evidence before the Court, X has not had any contact with his father since he was eight days old.

2. The mother now wishes to change his surname from his birth surname of Toner to her surname of Wotton. X’s elder sister and his half-brother also go by the surname of Wotton. As the mother deposed in her affidavit, X is the only one in a household of five people who has a different surname.

3. The reason why there is some urgency in this application is that the child wishes to travel out of Australia with his school and he would like to travel under the surname of Wotton, rather than the name of Toner which he does not use and has not used since he was in Year 2 at school.

4. The mother previously obtained Orders from the Family Court on 23 October 2003 permitting her to apply for passports for X and his elder sister, who is now an adult, for the purpose of travelling to (country omitted). Those passports were obtained in the surname of Toner.

5. The child’s father did not attend the Family Court on 23 October 1993 when the Orders were made by Judicial Registrar Loughnan as His Honour then was. The mother deposes that she does not know where the father lives now and knows of no way of informing him except by having documents forwarded to him by the Child Support Registrar.

Background

1. The parties were married on (omitted) 1990. There are two children of the marriage. The older child, a daughter, is now an adult. The subject child, X, was born on (omitted) 1998. The parties separated on 24 July 1998 and were divorced in January 2000.

2. The child X has lived with his mother all his life. It is the mother’s evidence that the father has not seen the child or had any contact with him since the child was eight days old.

3. The mother has remarried and has a son by her present husband. All the members of the household have the surname of Wotton except for X. However, he uses that surname regularly and does not wish to have documents such as a passport in the surname of Toner, which he never uses.

The Relevant Law

1. When a Court is considering making a parenting order in relation to a child, it must consider the following sections of the Family Law Act 1975 (Cth) that are found in Part VII of the Act:

   a)Section 60B, which sets out the objects of Part VII and the principles underlying those objects;

   b)Section 60CA, which prescribes that the Court must regard the best interests of the child as the paramount consideration;

   c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

   d)Section 61DA, which deals with the presumption of equal shared parental responsibility; and

   e)Section 65DAA, which applies when the Court makes an order that a child’s parents should have equal shared parental responsibility for the child, and requires the Court to consider equal time or substantial and significant time with each parent.

2. All of those matters have been considered, insofar as they are relevant.

3. When an application is made to change a child’s surname, the Court is required to consider a number of matters, including:

   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 he or she 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.

4. These matters, and others, have been considered in Chapman & Palmer[1]and Beach & Stemmler[2] and followed by this Court in a number of cases, including Whinney & Kelleher[3] and Gerald & Kenwood[4]. 

   [1] (1978) 4 Fam LR 462; FLC 90-510

   [2] (1979) 5 Fam LR Note 13; FLC 90-692

   [3] [2013] FCCA 1939

   [4] [2013] FCCA 2038

5. If the Court is satisfied that the child’s best interests warrant changing the child’s surname, the Court has the power to make orders under sections 22 and 28 of the Births, Deaths and Marriages Registration Act 1995 (NSW), approving a proposed change of name and directing the Registrar of Births, Deaths and Marriages to register the change to the child’s name.

6. The Court has the power under s.11 of the Australian Passports Act 2005 (Cth) to order that a passport may be issued to a child without the consent of one of the child’s parents.

7. The Court also has power to make an order permitting a child to be taken or sent outside Australia under s.65Y of the Family Law Act 1975.

Conclusions

1. The child’s father has had no contact with the child since he was a little baby. They are strangers to each other. It is in the best interests of the child for him to have the same name as his mother, his sister, his half-brother and his step-father. The child has the opportunity to travel overseas with his school, which will be a most educational and rewarding experience for him. It would clearly be in his interests to travel under the name by which he is known at school.

2. I propose to make interim orders that:

   a)X should live with his mother

   b)The mother should have sole parental responsibility for him;

   c)X’s surname is to change from Toner to Wotton;

   d)The change of name is to be registered by the Registrar of Births, Deaths and Marriages;

   e)X will be permitted to travel overseas; and

   f)X will be able to obtain a passport in his new name.

3. The Application will come back to Court on 15 December for final orders to be considered.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  7 November 2014