AQU v ZXG [2023] SACAT 88

9.a. The desires of the parents are of secondary importance when put alongside the welfare and, where applicable, the wishes of the child or children involved. The welfare of the child is the paramount consideration and must be determined on the facts of the particular case;

9.b. The short and long term effects of any change to the child's surname;

9.c. Any embarrassment likely to be experienced by the child if their name is different from that of the parent with custody or care and control;

9.d. Any confusion of identity which may arise for the child if their name is changed or is not changed;

9.e. The effect which any change of surname may have on the relationship between the child and the parent whose name the child bore during the marriage/relationship;

9.f. The effect of frequent or random changes of name;

9.g. The advantages both in the short term and in the long term which will accrue to the child if their name remains as it is now;

9.h. The contact that the other parent has had and is likely to have in the future with the child; and

9.i. The degree of identification that the child will now have with each parent.

1. The applicant gave evidence that she and the respondent were married in 2011 and divorced in 2016.
2. She is in a relationship with AVT, with whom she has a five-year-old son. She and AVT plan to marry, when she will change her surname to his surname.
3. An intervention order was made on 21 October 2015 naming the respondent as the defendant and the applicant as the protected person.
4. Orders were made on 6 April 2018 under the Family Law Act 1975 granting equal shared parental responsibility for the children to the parents with the children to live with their mother and with stipulated contact visits with the father.
5. MWP, the oldest child, had intermittent contact with his father from about 2018. However, he decided in 2021 that he did not wish to have contact with his father due to his father's conduct. He has not seen his father since then and does not wish to speak with him. He has refused to speak to his father for about three years.
6. A note dated 19 May 2021 from a psychologist, Mr Tony Ponnen, was provided. MWP has been in Mr Ponnen's care since 2021. Mr Ponnen expressed the opinion, at least in May 2021, that was supportive of MWP not having contact with his father due to MWP's experience while with his father. I mention this evidence as it is corroborative of other information given to the Tribunal that MWP's concerns about contact with his father stem from 2021.
7. The applicant said that MWP first raised in 2019 the issue of changing his surname to her partner's surname and that he would start telling people that was his surname. She said that it is important to MWP to change his surname before he moves to a new high school next year and because he does not want to be known by the respondent's surname in his State basketball activities. The applicant said the youngest child, LPJ, has mentioned changing her surname over the past year but has not been so pushy.
8. The applicant gave evidence that LPJ has not had any contact with her father since July 2023. Prior to that she had intermittent contact with her father when his FIFO work schedule permitted. LPJ refuses now to have contact with her father as a result of his conduct towards her. She refuses to speak with him.
9. She said that the children commenced to call their father by his first name on their own initiative and denies that she required them to. She said that the children started calling her partner "Dad" on their own initiative at the time she was pregnant with her younger son.
10. She said that she did not agree with the respondent's request in 2021 (see below) that they undertake mediation regarding MWP on advice from MWP's psychologist.

1. AVT's evidence indicated that he has a close association and attachment to the children, whom he regards as if they were his own biological children. He said he has been in their lives for about seven years.
2. He said that he has asked the children on occasion if they wish to have contact with the respondent, or invite him to important events. MWP has refused and now gets angry when asked.
3. AVT said that he left it to the children whether they call him Dad, telling them that they could call him whatever they want.

1. The respondent said that he has requested on multiple occasions to discuss the name changes with the children but this has been refused.
2. He said that the applicant requires the children to call him by his first name at home and to call the applicant's partner "Dad" since she became pregnant with her younger son, and that she speaks about him in a negative manner to or in front of the children in a way that has influenced their choices or opinions. In particular, he said that the children are being coerced into saying that they want to change their surname.
3. His request to have mediation with the applicant in 2021 regarding MWP was not responded to by her.
4. The applicant refuses to allow him to see or speak with MWP and he has only been allowed to speak to LPJ on one occasion since July. He indicated that he plans to go back to the Family Court sometime in the next two or three months about his parental rights.
5. He said that the children have three half-siblings all with his surname.
6. The respondent told the Tribunal that it was in the children's best interests to keep his surname as it is their birth name and they are still growing up and developing. He submitted that they should keep this surname until they are at least 18 years of age when they can consider the matter a little better.
7. He said that he wants to maintain his connection with the children.

1. The Tribunal would have been perhaps assisted by a report from a child psychologist specifically addressing the issue of the children's change of surname, especially in respect of the younger child, LPJ, whose case for a change of name is weaker than that of the older child's, MWP.[1] However, I am satisfied on the balance of probabilities that it is in the children's best interests to approve the change to their surname. I explain my reasons below.
2. I found the applicant and her partner to be honest, credible and compelling witnesses. I accept and prefer their evidence. In particular, I accept their evidence that the children commenced calling the applicant's partner "Dad" themselves and commenced referring to the respondent by his first name themselves. I accept their evidence that the children themselves have chosen not to have any contact with the respondent. I mention this as this is indicative of their dissociation from their father and their stronger association and identification with the applicant and her partner.
3. The application in this case is with respect to children who will turn 13 years and 11 years of age respectively within the next few weeks. I agree that the children's relatively young age indicates a cautious approach should be taken.
4. The Tribunal finds that the children both consent to the proposed change of surname. I found MWP in particular to be a young person of greater maturity than his age might suggest. He is an intelligent, assertive, forthright and earnest young person. MWP expressed unequivocally that he does not wish to have any contact of any description with the respondent and wishes to change his surname to AVT's surname so that he can have the same surname as his mother and her partner (who, as noted, he refers to as Dad). MWP already uses AVT's surname on some of his social media. LPJ presented as confident and assertive, although somewhat less mature given understandably that she is a little younger. She said that she does not want to see or talk to the respondent due to his conduct towards her. She said that she does not like her surname because she gets called names, including by the respondent. She said she wants to have the same surname as her little brother.
5. I am satisfied that both children wish to change their surname because of the breakdown of their relationship with the respondent and because the family members with whom they live and have a greater association all have, or will shortly all have, AVT's surname.
6. I am satisfied that the children identify strongly with the applicant and her partner and have formed a strong family association with them and their respective broader family members.
7. MWP in particular expressed a close bond with AVT and talked about their shared sporting interests in basketball. Both children spoke confidently and in some detail about the applicant's and AVT's parents and siblings, who they refer to as their grandparents and aunts and uncles, and with whom they spend considerable time on a fairly frequent basis.
8. The children have no contact with the respondent's broader family members.
9. I am satisfied that both of the children understand the implications of changing their surname. MWP observed that a surname represents who and what you are and is carried on within a family. He said it would show that he is related to his sister and little brother. As noted above, LPJ also said that she wants the same surname as her little brother.
10. The children said that they would be "upset" (MWP) and "not as happy" (LPJ) if their surnames were not changed. I have formed the view from their presentation at the hearing that the children probably understated the likely effect on them if their surnames were not formally changed. In particular, I am satisfied that it is currently distressing for MWP to continue to be known by the respondent's surname.
11. I turn now to considering the principles set out in paragraph 9 above.
12. I am satisfied that I should give significant weight to MWP's expressed wishes to change his surname. To the extent that I am able to without a psychologist's report, I give some weight also to the emotional and perhaps psychological distress MWP is likely to suffer if his surname were not changed and that could perhaps be exacerbated if a change of surname were delayed until he is older.
13. I accept also that MWP is likely to face some social embarrassment and confusion of identity if his surname were different from the surname of his primary caregivers with whom he strongly identifies rather than with the respondent. This could be avoided by a change of surname to AVT's surname.
14. These factors suggest that approval should be given to change MWP's surname at this time rather than having the matter wait until he is older.
15. As I mentioned earlier, the case for changing LPJ's surname is somewhat weaker. Hers is a borderline case. This is due to her relative immaturity and the fact that her estrangement from the respondent is of quite recent origin. I do however give some weight to her expressed wishes to change her surname, although not as much weight as I have given to MWP's as he has more clearly developed a dissociation from the respondent and expressed his emphatic wishes to no longer be known by the respondent's surname.
16. If there were only an application made in respect of LPJ, the Tribunal may have found that a change of surname for her was premature at this time because of these factors. However, the same observations about embarrassment and confusion of identity apply to LPJ also, especially if MWP's surname is changed and she is the only person in the family home who still carries the respondent's surname. In my assessment, LPJ has no less strong association and identification with her mother and her partner than MWP.
17. I have taken into account that changing the children's surnames may have a negative impact on their relationship with the respondent, and more particularly the prospects of a successful reconciliation between them in the future. However, I am of the view having heard the parties and the children that a mutual desire to repair the relationship between them is not likely to be significantly affected by the children having a different surname from the respondent.
18. I have also taken into account that the respondent has three other children who are half-siblings to MWP and LPJ and who have the respondent's surname. I note that at this time LPJ appears to have a continued interest in keeping in touch with her half-siblings but MWP appears not to. I consider the same comments that I made in the preceding paragraph apply to the children's ongoing and future relationship with their half-siblings.
19. In conclusion, the Tribunal is satisfied that the proposed change of surname is in the children's best interests and approval for the changes should be granted.

1. Pursuant to s 25(3) of the Act, the Tribunal approves the proposed change of name of the child MWP from his current first name, current middle names, respondent's surname to his current first name, current middle names, AVT's surname.
2. Pursuant to section 25(3) of the Act, the Tribunal approves the proposed change of name of the child LPJ from her current first name, current middle names, respondent's surname to her current first name, current middle names, AVT's surname.
3. An application for registration of the proposed changes of name may be made by the applicant to the Registrar of Births, Deaths and Marriages one month after the date of this order, that being the period, which an application for the internal review of the Tribunal's decision is to be made pursuant to s 70(2) of the South Australian Civil and Administrative Tribunal Act 2013.

1. [1] This was explained at the hearing to the applicant who elected to have the Tribunal proceed to make its decision on the information then before the Tribunal.