ZALSMAN & BLENDALL
[2020] FamCA 292
•29 April 2020
FAMILY COURT OF AUSTRALIA
| ZALSMAN & BLENDALL | [2020] FamCA 292 |
| FAMILY LAW – CHILDREN – Application made by mother to change children’s surnames – further service upon the father dispensed with – matter proceeded undefended – best interests of the children – consideration of views of children where the children are of a mature age – change of name ordered. |
| Family Law Act 1975 (Cth) ss 33, 60CC, 62B, 65D(1) 65DA, 67Z Births, Deaths and Marriages Registration Act 2003 (Qld) Births, Deaths and Marriages Registration Act 1995 (NSW) s 28 |
| Teke & Cefai [2019] FamCA 114 |
| APPLICANT: | Ms Zalsman |
| RESPONDENT: | Mr Blendall |
| FILE NUMBER: | MLC | 14714 | of | 2019 |
| DATE DELIVERED: | 29 April 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Hartnett J |
| HEARING DATE: | 8 April 2020 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | No Appearance |
Orders made 8 April 2020
Further service upon the Respondent father of the initiating application filed 23 December 2019 and the amended initiating application filed 5 March 2020 together with supporting affidavits of evidence filed 10 February 2020, 5 March 2020 and 26 March 2020, is dispensed with.
The children previously known as W Blendall born in 2003, Z Blendall born in 2004, Y Blendall born in 2006 and X Blendall born in 2006, now be known as W Zalsman, Z Zalsman, Y Zalsman and X Zalsman.
The Applicant mother apply to the Queensland Registry of Births, Deaths and Marriages to register the change of the children’s names, in accordance with order 2 herein, and do all such acts and things and sign all such documents as may be required to give effect to that registration AND IT IS REQUESTED THAT the Queensland Registrar of Births, Deaths and Marriages alter the names of W Blendall and Z Blendall pursuant to the Births, Deaths and Marriages Registration Act2003 (Qld) on the basis that the Court approves the change of names.
The Applicant mother apply to the New South Wales Registry of Births, Deaths and Marriages to register the change of the children’s names, in accordance with order 2 herein, and do all such acts and things and sign all such documents as may be required to give effect to that registration AND IT IS REQUESTED THAT the New South Wales Registrar of Births, Deaths and Marriages alter the names of Y Blendall and X Blendall pursuant to s 28 of the Births, Deaths and Marriages Registration Act 1995 (NSW) on the basis that the Court approves the change of names.
The Applicant mother has liberty to apply to the Court in respect of the operation of these orders.
Otherwise all extant applications are dismissed and the matter removed from list.
AND THE COURT NOTES THAT:
A.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
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 Zalsman & Blendall 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 14714 of 2019
| Ms Zalsman |
Applicant
And
| Mr Blendall |
Respondent
REASONS FOR JUDGMENT
These proceedings commenced upon the filing of an Initiating Application by the Applicant mother (‘the Applicant’) on 24 December 2019. In that application, the Applicant sought a change of surname for the four children of the parties such that they would adopt her own surname and not that of their biological father Mr Blendall (‘the Respondent’). Additionally, the Applicant sought in respect of the parties’ eldest son, who is now 17 years of age, an order to allow him to change his middle name from that of the first name of the Respondent.
The Initiating Application, was filed together with a Notice of Child Abuse, Family Violence or Risk of Family Violence (‘Notice of Risk’) pursuant to s 67Z of the Family Law Act 1975 (Cth) (‘the Act’). An affidavit affirmed by the Applicant on 23 December 2019 supported her application. The Applicant had also filed affidavits affirmed by the children, W Blendall, Z Blendall, X Blendall and Y Blendall. Each of those affidavits were filed on 23 December 2019. The Applicant did not seek leave to file nor rely upon those affidavits, and the Court did not consider that evidence in its deliberations.
When the matter came before the Court on the first return date of the application, being 12 February 2020, the Court adjourned the proceeding and required the Applicant to file an Amended Initiating Application seeking either a dispensation with service and/or an order for substituted service upon the Respondent. The Applicant had sought to proceed on an ex parte basis on 12 February 2020. The Court also ordered, on 12 February 2020, that the Applicant file any necessary further affidavit in support of her Amended Initiating Application, and more particularly, in support of her seeking interim orders for either dispensation with service and/or an order for substituted service.
The matter next came before the Court on 8 April 2020. The Applicant had complied with the earlier orders of the Court. She had filed an Amended Initiating Application on 5 March 2020, seeking that the Court make orders providing for substituted service and/or a dispensation with service upon the Respondent and in support of that application, she relied upon two affidavits affirmed by her on 4 March 2020 and 26 March 2020. The Court is satisfied with the evidence contained in those affidavits such that an order to dispense with further service upon the Respondent should be made.
The evidence contained in the affidavit affirmed by the Applicant on 4 March 2020, details the extent of the efforts taken by the Applicant to locate the Respondent and, in particular, the emails sent by the Applicant to the Respondent on 25 February 2020 to the last email address known by the Applicant. This communication produced a response from the Respondent who provided the Applicant with an address being H Street, Suburb B in the State of Queensland, postcode number … (‘the Suburb B address’) as being descriptive of his current residential address in answer to the query made by the Applicant.[1]
[1] Affidavit of Ms Zalsman affirmed 4 March 2020, [13].
The evidence contained in the Affidavit affirmed by the Applicant on 26 March 2020, sets out the efforts then made by the Applicant to serve the Respondent at the address provided by the Respondent. The Applicant on 6 March 2020 posted by express post to the Respondent, with signature on delivery, article number …, containing:-
a)all Court documents filed as at that date, together with a communication cover sheet;
b)stamped self-addressed envelope;
c)an ‘Acknowledgement of Service’ form in the usual form as prescribed by the Rules; and
d)a ‘Marriage, families and separation (prescribed brochure)’ from the Family Court of Australia.
Additionally, on 6 March 2020, the Applicant emailed to the Respondent all Court documents filed together with the electronic communication coversheet; an acknowledgement of service form; and a Marriage, Families and Separation brochure to the same email address that the Respondent had replied to her from on 25 February 2020.[2]
[2] Affidavit of Ms Zalsman affirmed 26 March 2020, [5].
On 9 March 2020, in relation to the express post article number …, the Applicant received a message from Australia Post of “attempted delivery – no one in attendance” and “awaiting collection at Suburb C LPO.”[3]
[3] Affidavit of Ms Zalsman affirmed 26 March 2020, [6].
On 11 March 2020, the Applicant received a message from Australia Post that the article was “delivered”.[4]
[4] Affidavit of Ms Zalsman affirmed 26 March 2020, [7].
On 18 March 2020, the Applicant received an email from the Respondent saying:-
Hello Ms Zalsman, I’m assuming that since I haven’t heard anything from you that the children are all ok? Please let me know. And please let me speak to them. Regards Mr Blendall. Sent from my iPhone.[5]
[5] Affidavit of Ms Zalsman affirmed 26 March 2020, [8].
On 23 March 2020 the Applicant attended upon the Suburb J local post office (‘LPO’) in City D. She enquired of the LPO manager as to whether he was able to tell her the name of the person who signed as collecting the express post article number … . She was advised by the LPO manager that the name of the person who signed for the collection was Ms F whom the Applicant knows to be the Respondent’s eldest daughter from his first marriage, and whom the Applicant believes to reside at the Suburb B address. The Court is satisfied that the Respondent is aware of these proceedings and has not sought to participate in them.[6]
[6] Affidavit of Ms Zalsman affirmed 26 March 2020, [9].
Consideration
The Applicant’s evidence is unchallenged. The Court accepts that evidence.
The parties to this proceeding separated on 20 September 2017, a period of approximately two and a half years ago. The Respondent’s surname is Blendall and he was born in 1957. The parties are the parents of four children, W Blendall born in 2003, who is now aged 17 years; Z Blendall born on 26 November 2004, who is now aged 15 years; Y Blendall, born in 2006, who is now aged 14 years, and X Blendall born in 2006, who is now aged 14 years (‘the children’).
Since the parties’ separation the Applicant has obtained a five-year intervention order against the Respondent, that order being made on 27 February 2018 in the City D Magistrates' Court, wherein the aggrieved family members are the Applicant and the children.[7]
[7] Notice of Child Abuse or Family Violence of Ms Zalsman affirmed 23 December 2019, Part E, [11].
On 26 September 2018 the parties entered into consent orders wherein the Applicant has sole parental responsibility in respect of the children.[8]
[8] Notice of Child Abuse or Family Violence of Ms Zalsman affirmed 23 December 2019, Part E, [10].
Shortly after the parties’ separation, the Respondent and children ceased to be in contact. That situation continues. The Respondent has not provided any financial support toward the expenses of the children and does not communicate with the children. There is no contact with the children from any of the paternal family members. The Applicant and children reside in City D and the Respondent has now relocated to Queensland.
During the period of the parties’ cohabitation there was significant family violence with such violence being witnessed by the children. On occasion that family violence was directed toward the children. The impact of this has resulted in each of the four children requiring varying levels of therapy and support. Prior to the parties’ separation, the impact of domestic violence resulted in regular episodes of self-harm by the child Z. That child has difficulty with seeing and writing the surname of Blendall which, on her mother’s evidence, the child sees as reminding her of her abusive past.
The child Z has attended upon a child psychologist, Ms G, who has recommended to the Applicant that Z’s surname be changed to that of her mother’s maiden name, being the name by which the Applicant goes, of Zalsman. The parties’ three sons have also requested of their mother that they be permitted to change their surnames from that of their father to that of their mother. They wish to do so because they:-
…desire an association with a surname that is not associated with their abusive past, but also to preserve the strongest sense of unity and solidarity as a whole family for their sister.[9]
[9] Notice of Child Abuse or Family Violence of Ms Zalsman affirmed 23 December 2019, Part E, [16].
The Court must make orders that are in the best interests of the children. The Applicant already has a sole parental responsibility order in relation to the children and makes all decisions of a major long-term nature in respect of them. She also makes all necessary day to day decisions in respect of the children as all of the children’s necessary financial, physical and emotional support needs are met by their mother solely.
The Applicant has been able, albeit informally, to change the surname of Z in her school environment and Z is happy with that change. That change occurred in 2019.[10] The Applicant desires, as do the children, on the Applicant’s evidence, a change of their surname and they have very strongly held wishes in that regard. The children are all of an age where their wishes should be given significant weight. The children have a close and loving relationship with the Applicant and with the extended maternal family. They have no current meaningful relationship with their father.
[10] Notice of Child Abuse or Family Violence of Ms Zalsman affirmed 23 December 2019, Part E, [15]
The Court is required, pursuant to s 65D(1) of the Family Law Act 1975 (Cth) (‘the Act’), to make such parenting order as it thinks proper. In determining what is in the best interests of a child, the Court looks to s 60CC of the Act. There is a final intervention order in place against the father for the protection of the children. It is in operation until 2023. The children have a dependant and close relationship with their mother, and they are mature children, on their mother’s evidence, who wish to be known by the surname that their mother uses. The children’s views are important, the children being of an age where identity is a significant issue for each of them. In particular, the eldest child is close to being an adult, whereupon he can make any decision as to his name that he wishes. It is their mother, since separation, who has been solely responsible for all decisions relating to their care and support and for the advancement of their emotional wellbeing, in particular with respect to the child, Z. The children are closely bonded with her and wish to identify more closely with her. The Court is satisfied that it is in the best interests of the children to allow that to occur.
The parties’ eldest two children were born in the State of Queensland. The youngest two children were born in the State of New South Wales. In Queensland and New South Wales there is provision in the State legislation for a Court, being a State Court, to change a child’s surname if a court approves the new name for the child. The Court has an accrued jurisdiction in this regard.
The Court can also make an order, as an incident of sole parental responsibility, and notwithstanding the consent of the Respondent is not forthcoming, that permits the children’s surname to be changed.
The Applicant seeks orders in the form that the Court shall make.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 29 April 2020.
Associate:
Date: 29 April 2020
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