Mother Seeks Discharge of Consent Orders due to Fathers Failure to comply :Teke & Cefai [2019] CHILDREN – Parenting
Teke & Cefai [2019] FamCA 114 (26 February 2019)
The mother is seeking to discharge 2012 consent orders, the father has not complied with at all; he has effectively not been in the child’s life for eight years and has provided no financial support. The mother now seeks orders for the child to live with her, to have sole parental responsibility for all major decisions and the daily responsibility for the child’s care. The crux of the orders is to change the child’s surname.
The child is almost 9 years of age and expresses to be known by the surname of her mother. The fathers surname allegedly causes her distress when called at school, she does not understand why she has to have that surname, for she does not know where her father is or, who he is.
The father did not turn up to any of the proceedings and the mother was granted sole parental responsibility, however the question of the matter arose with the Family Courts jurisdiction to approve a change of child’s surname application, for Section 4 of Births, Deaths and Marriages Registration Act (Vic) 1996 requires the County Court Victoria to approve the applications.
FACTS SUMMARY:
- The mother is seeking to discharge 2012 consent orders.
- The mother now seeks orders for sole parental responsibility and for the child to reside with her.
- Changing the child’ surname centre of the case.
- Father of child absent virtually all child’s life.
- Father has not appeared for any of the proceedings.
ISSUE:
- Is it in the best interest of the child to grant sole parental responsibility to the mother and change the child’s surname?
- If the court grants the change of surname, how can the Registrar of Births, Deaths, and Marriages use that approval, having regard to the wording of s 26 of the relevant State Act?
HELD:
The mother was granted a discharge of the 2012 consent orders and was awarded sole parental responsibility for the child. It was ordered for the Registrar of Births, Deaths of Marriages to the change the name of the child under s 26(3), of the relevant State legislation on the basis that the Court approves the change of name, as an occurrence of the parental responsibility.
The court considers a parenting order under Section 60CA which states the best interests of the child are the paramount consideration. The father has shown no interest and has not attended the proceedings; furthermore, s 60CC one of the primary considerations for the best interest of the child is the benefit to the child of having a meaningful relationship with both parents. There was no evidence of anything preventing the father being in the child’s life. The father has willingly not participated in the child’s life, provided gifts or recognition of the child’s birthday or other special occasions, there was no communication, in other words, he lacked complete interest in the child. The court awarded the mother sole parental responsibility for the best interests of the child, for she cannot benefit from a relationship that is non-existent.
Furthermore, under s 4 of the Act as a consequence of making an order for sole parental responsibility, the definition of major long-term decisions, would include the child’s name. The court determined that with the circumstances and the child’s expressed views of the name change to be like her mothers it was appropriate and in her best interest the name change to occur by the mother’s request.
Moreover, the judge resolved the question surrounding Section 4 of the Births, Deaths and Marriages Registration Act (Vic) 1996, which explains the meaning of ‘Court’ to be the ‘County Court of Victoria’ where ‘a parent can lodge an application to change a child’s surname on a birth certificate if the Court accepts the suggested name’ s 26. It was determined The Family Court has jurisdiction, under Part VII of the Family Law Act, to use the powers in the State law simply by virtue of it being an extension of its jurisdiction.