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[2021] SACAT 88
General information, not legal advice.
SA Civil and Administrative Tribunal
2021-11-08
Original judgment source is linked above.
DDB v APP [2021] SACAT 88
The child's mother made an application to the Tribunal to resolve a dispute concerning a child's name. The child's mother sought to have the child's name registered as L-J B (mother's surname). The child's father indicated that he wanted the child's name to be registered as L J B-P ('mother's surname'-'father's surname').
Births, deaths and marriages - Dispute between parents ab9out a child's name - Tribunal resolution - Order Registrar to change name in form specified in an order
United Nations Convention on the Rights of the Child articles 6, 7, 8
TPP v Registrar of Births, Deaths and Marriages [2016] VCAT 392
EJG v Registrar of Births, Deaths and Marriages (Review and Regulation) [2019] VCAT 370
ZXN and TZW [2018] SACAT 52
Chapman v Palmer [1978] FamCA 86; (1978) 4 Fam LR 462
This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. The parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.
Resolve a dispute between parents about a child's name
Made under the Births, Deaths and Marriages Registration Act 1996 s 22
1. This is an application made to the Tribunal by DDB (the mother) pursuant to s 22 of the Births, Deaths and Marriages Registration Act 1996 (the Act) to resolve a dispute concerning a child's name. The child was born in Adelaide, South Australia on 3 January 2021. The father of the child is APP.
2. Pursuant to directions made by the Tribunal on 24 August 2021 and 1 October 2021 the parents of the child have provided written submissions concerning the name of the child.
3. The child's name has not yet been registered pursuant to the Act.
4. The mother has indicated she wants the child's name to be registered as L-J B (mother's surname). The father has indicated he wants the child's name to be registered as L J B-P ('mother's surname'-'father's surname').
5. It was apparent there is an acrimonious relationship between the parents. The mother initially told the Tribunal there was an intervention order in place concerning the father's contact with her and/or her children, but at this hearing she conceded no such intervention order has been made or applied for. Nevertheless the Tribunal determined it was best to conduct this hearing by telephone as the parties did not want to come into contact with each other and are not represented in the Tribunal. Accordingly, as advised to the parties in advance, I spoke to the parents separately by telephone. I spoke to the mother first and then I repeated to the father the matters raised by the mother and sought his responses, and then sought a response from the mother concerning matters raised by and submissions from the father. Both parents had copies of the written submissions and material provided by the other.
6. I note further there are presently proceedings between the parents concerning care of and access to the child in the Federal Circuit and Family Court of Australia. The Court adjourned the consideration of the matter on 12 October 2021 to 10 November 2021.
7. The mother told me she and the father had been in a relationship for 4-5 years, and during that time he had lived in her home, paying no rent, and she had supported him.
8. The father disagreed with this. He said they had been in a relationship for only about a year, in 2017, during which he had stayed at her home frequently but had still maintained his own home and operated his business. He said in 2018 their relationship was "on and off", and the mother had other boyfriends in that time. In 2019 they had no relationship at all, but in 2020 they had some brief contact, during which DDB had become pregnant, and they had a "civil" relationship at least during the later stages of her pregnancy. When this account was put to her, the mother did not contradict it. They have not reconciled, and both said they did not want to resume the relationship, although each said they thought the other party did want to resume the relationship.
9. The father was present for the birth of the child, and he stated that he had seen the child daily throughout January 2021, and very frequently in February and March. However, their contacts essentially ceased acrimoniously in April and he has not seen the child since then.
10. The mother did not disagree with this but said the father's contacts with her during her pregnancy and after the birth of the child were part of his manipulative and abusive conduct toward her and his attempts to re-establish the relationship. The father denied this and said he did not wish to re-establish the relationship and believed he had made this clear to the mother.
11. In considering this application I have had reference to an earlier decision of the Tribunal concerning the exercise of s 22 of the Act in naming a child, in the matter 2021/SA0011602. In that matter Senior Member Rainford considered the first application to the Tribunal concerning the exercise of s 22 of the Act, and had the benefit of a submission on behalf of the Registrar of Births, Deaths and Marriages concerning the general principles to take into account when considering the exercise of s 22 of the Act. Although I am not bound by an earlier decision of the Tribunal I take this decision and Senior Member Rainford's considerations into account in considering the general approach in these matters.
12. The mother told the Tribunal she wanted the child to be called "L-J B". She said she had agreed with the father that he could choose the child's first name, and he chose "L" as having importance in his family. She had chosen "J" as the second name, as this name has importance in her family. She wanted the child's surname to be her surname, because the child lives with her and has no contact with the father.
13. The mother said that to include the father's name as part of the child's surname would provide "a constant, daily reminder of the severe physical, psychological, financial, emotional, sexual, mental and system abuse" inflicted on her and her other children by APP for the past five years. She suggested that including the father's surname in the child's name might marginalise the child from her other children who do not share this name.
14. The mother said the father has had no contact with the child since April 2021, and had made no financial provision for him, and did not make any child support payments. She said that in her view the father's desire to include his name in the child's name was a matter of ongoing manipulation and perpetuation of the abuse he inflicted while they were together.
15. The mother said she has four other children: they are aged almost 14, 13, 11 and 8. Three of the children have their father's surname (not APP), and the other has the mother's surname. She said the children with their father's surname intend changing their surname to hers once this matter has been concluded so all the family will have the same surname and so they are not reminded of the abusive behaviour of their father.
16. The mother said that she had never denied the father access to the child, other than that she had said she would not permit him to come to her home or be near her or her older children. She said she had told him he could see the child through a contact, but he had refused the arrangements she had proposed. She said she did not believe he would maintain access to or contact with the child into the future, and believed this was a matter of power for him, so he could impose his will on her and the child.
17. The father told the Tribunal he wanted to co-parent the child with the mother. He said the mother had agreed the child would have both surnames and that this was appropriate. He said that in the later stages of her pregnancy they had discussed this and the child's name, and he said he had understood these discussions to be civil and that they had agreed. They had agreed at that time he would choose the child's first name, the mother would choose the middle name, and the surname would be hyphenated mother's surname-father's surname. He said he had been as supportive as possible to the mother during her pregnancy, and that he had offered to make child support payments but she had refused them. He said he had been present at the child's birth, and had made payments for medical expenses and for other items such as a car seat, as she had requested. However, he did not want to re-establish a relationship with her.
18. The father said that after the child was born his birth was posted on the mother's Facebook account with the name of L J B-P, as they had both agreed. A "welcome flyer" was also sent out to friends and family announcing the arrival of L J B-P. Later the child's middle name was changed by the mother to another middle name. He had agreed with this. The mother and father undertook DNA testing and the child's name provided for the test was L J B-P. The Family Court proceedings refer to the child as L J B-P. It is also the name (first name, middle initial, mother's surname, father's surname) the mother used for the child in registering and including the child on her Medicare card. The father provided copies of these posts and documents showing the name of the child as L J B-P. The mother did not deny these posts had been made and sent out, but said she had agreed at the time because the father had been manipulative and abusive, and maintained that to retain those names for the child would be a perpetuation of that behaviour.
19. The father also provided the Tribunal with a number of texts from April 2021 which he said showed he and the mother agreeing the child's name would be L J B-P. The mother said the texts did not reflect her agreement, and she believed the father had an app on his phone which enabled him to change texts. She could not indicate which of the texts had been altered but said they were taken out of context.
20. The mother told the Tribunal she had agreed with the father in relation to these statements of the child's name, but that was because she had been manipulated and frightened into such agreement and now they no longer had any relationship she did not want that fear and manipulation to continue.
21. The father told the Tribunal he believed it was in the child's best interests to have the name of L J B-P. He said this name maintained a connection with both the child's parents and their families, and this will enable the child to feel he has real ties with both parents. He believed it was in the child's best interests to have a name that demonstrated those ties, and he did not seek to exclude the mother from this. He emphasised this was the agreed name at the time of the child's birth, and was the name used for the first few months of the child's life.
22. The father said the proposals the mother had made for him to have contact with the child had been inappropriate and dangerous, such as meeting alone in a public park after dark, and he had declined these contacts. He expected that he would obtain a right to have contact with the child in the future, and intended to develop a relationship with the child. He said he would be disappointed if he only obtained a right to supervised access to the child but said he would persist with his counselling and any access permitted by the court, and hoped to translate this into an ongoing meaningful contact with the child.
23. The father said he appreciated that if the child did not have his surname as part of his name this would not in itself weaken his connection with the child, but he said it would be easier to develop and maintain a connection, as well as make it easier him to make provisions for the child as he intended, for example in terms of child support, and in his Will, if they shared a name. He said he was unable to do any of this to date as the child had no name at all.
24. The father said he opposed the hyphenation of the first names (L-J) as he thought this would be too much with a hyphenated surname (B-P). The mother did not explain why she wanted the given names to be hyphenated. Otherwise the father did not oppose the proposed given names.
25. Section 22 of the Act provides as follows:
(1) If there is a dispute between parents about a child's name, either parent may apply to the Tribunal for a resolution of the dispute.
(2) On an application under subsection (1), the Tribunal may -
(a) resolve the dispute about the child's name as the Tribunal considers appropriate; and
(b) order the Registrar to register the child's name in a form specified in the order.
26. The Act does not provide any guidance as to how the Tribunal should resolve the dispute and there are no other legal authorities in South Australia concerning the operation of s 22 of the Act, other than in the Tribunal's decision referred to above in matter 2021/SA001602, decided on 20 September 2021.
27. In the earlier decision of the Tribunal concerning the application of s 22 of the Act by the Tribunal, Senior Member Rainford considered two decisions of the Victorian Civil and Administrative Tribunal addressing the resolution of disputes between parents regarding the naming of a child. Both cases involved the review of the Registrar's decision to impose a name in the first instance. The Victorian legislation is very similar to the terms of s 22 of the Act.
28. In the matter of TPP v Registrar of Births, Deaths and Marriages [2016] VCAT 392, the parents of a 1-year-old child were unable to agree on a surname. Each parent wanted the child to have their surname alone. The Tribunal Member held that where there is an open discretion to be applied by either the Registrar or the Tribunal (as is the case under the relevant Victorian law, and in s 22 of the Act in this matter), the principle to be applied is the best interests of the child as defined by the Family Law Act as identified in the authorities. The Tribunal Member considered that the most relevant factor in that case was that the child was currently living exclusively with his mother and that it was likely that would continue over the next few years. The Tribunal Member went on to state (at [54] to [56]):
Although he has only just turned one, and his sense of identity may not be well-established, LJB's identity to date has been as [first name and mother's surname]. That is the name by which other people in his life know him and he knows himself.
Although it is too early to assess the degree of identification he has with each parent, I take into account that his mother is the person who cares for him '24/7' as she put it, and provides the stability and security in his day to day life.
There is, in my view, some possibility of embarrassment to LJB if his surname is different from the parent with whom he normally lives. Further, if I affirm the decision of the registrar, LJB will have a name not shared with either his mother or his half-brother with whom he lives. Having a different name to his mother might also attract questions and require explanation from time to time-although I note that hyphenated surnames are becoming more common in Australia and generally signal a composition of family names.
In that matter the Tribunal recognised that the father of the child continued to have contact (albeit intermittent) and that notwithstanding any acrimony between the parents, their love for their son was unquestionable. Accordingly, it was determined that it was in the best interests of the child to have his mother's surname and that his father's surname should be part of his full name, as one of his middle names.
29. The second Victorian case to which Senior Member Rainford referred is EJG v Registrar of Births, Deaths and Marriages (Review and Regulation) [2019] VCAT 370. That case also concerned a review of the Victorian Registrar's decision to assign a name to a child whose parents were in dispute concerning the child's surname. The child was nearly three and a half years old when a name was assigned. The father of the child, while content to have the mother's surname included as a second given name, wanted the child to have his surname alone. The mother wanted the child to have both parents' surname hyphenated, with her surname first and the father's surname second. In determining the matter, the Tribunal Senior Member in that case referred to the Charter of Human Rights and Responsibilities Act 2006 (Vic) and Articles 6, 7 and 8 in the United Nations Convention on the Rights of the Child. The latter deals with the rights of a child to have their birth registered, and their nationality, name, family relations and identity recognised and protected. The Senior Member accepted that the UN Convention could be used to inform the Tribunal through the application of the Victorian Charter of Human Rights and Responsibilities Act, and concluded that the principle of the best interests of the child is the appropriate test to be applied when determining a dispute regarding the naming of a child.
30. The Senior Member concluded that a hyphenated surname was in the best interests of the child for the following reasons (at [44] and [45]):
...I consider it is in the best interests of the child to have both surnames in their name. That will mean the child's surname recognises the two parents. Importantly, it will also recognise the child's connection to all of their siblings and their overall familial connections.
In circumstances where at present both parents have limited contact with the child, having one name as a second name and the other as a surname would seem to preference one parent over the child without any proper basis to do so.
31. These Victorian authorities are of course not binding in South Australia, and South Australian law does not include an equivalent to the Victorian Charter of Human Rights and Responsibilities Act, but they are persuasive as the legislative provisions are similar and operate in similar circumstances. The factors taken into account in both cases have relevance to the matter presently before the Tribunal, in particular with respect to the consideration of a child's best interests.
32. I am satisfied that, while the Act is silent on what factors should be taken into account in resolving a naming dispute (as is the Victorian legislation), SACAT ought also apply the principle of the best interests of the child. Where the Act refers to decisions to be made by the Tribunal which will immediately and directly impact on children (for example in s 25, concerning the change of a child's name, and s 29J, concerning a change of a child's sex or gender identity), the Tribunal is required to be satisfied as to the best interests of the child and make a decision consistent with those interests. In the circumstances, in my view where the Act is silent as to what factors are to be taken into account in making a decision, as in relation to s 22 of the Act, but where the decision will directly impact on a child, those same considerations should apply.
33. The meaning of the phrase "the child's best interests" in the context of s 25 of the Act was considered at length by the President of SACAT in ZXN and TZW [2018] SACAT 52, and the relevant considerations identified draw on the Family Court decisions of Chapman v Palmer [1978] FamCA 86; (1978) (4 Fam LR 462), and Beach v Stemmler (1979) FLC 90-692, and include the following:
34. Not all of these considerations have the same relevance where the issue, as in this matter, is not in changing the child's name, but giving the child a name from the outset. The child in this case does not have a registered name.
35. In reaching a view as to the best interests of the child in this matter, on the basis of the evidence before me I make the following findings:
36. The dispute concerning the child's name relates to both the given name and the surname.
37. There is no dispute as to the given names for the child. Both parents agreed the given names will be L J. However, the mother wants these given names to present as a single name, hyphenated. She did not explain why she wanted the name hyphenated, and said the child is usually called L. The father explained he did not want the name hyphenated because this would seem "too much" with (as he wanted) a hyphenated surname.
38. The surname was also a matter of dispute. The mother wants the child to have her surname only, as the child lives with her; she does not want a reminder in her household or to the child of what she characterised as a manipulative and abusive relationship with the father which she argued would persist with the inclusion of his name; and she wanted to ensure a close connection between the child and her other children, with whom he would not share the father's surname.
39. The father wanted the child to have the hyphenated surname of B-P. He said this had been agreed between the parents both before and after the child's birth, and this was how the child's birth had been announced and the name in which the child had been registered with Medicare. The father denied he had engaged in any manipulative or abusive relationship, and said he believed it was in the child's best interests to have a name that connected him to both his parents, and sharing a name with his father would assist in developing and enhancing a future relationship with the father. He rejected the mother's argument that naming the child with her surname alone would enable a closer relationship with her other children, as he said only one of the mother's other children has her surname, with the other children having the name of their father, the mother's former partner.
40. I am satisfied that the parents did initially agree (both before and after the child's birth) that the child would be called L J (later a different middle name) B-P. I note this was the name by which they chose to formally present their newborn baby to their family and friends, and in a public Facebook post. I note further that this was the name used by the mother to register the child with Medicare and it appears on her Medicare card. It may be the case that in retrospect the mother feels she was manipulated into agreeing to this name, but at the same time I note the hyphenated surname is a fairly conventional way in which to name a child whose parents have different surnames, and her name was not excluded; and both agreed they had decided that the father could choose the first name and the mother the second given name (and that in line with this being her choice, she has since decided on a different second given name).
41. That this was their agreement does not necessarily determine this matter. What the parents jointly, or separately, want, will not be determinative if it is not in the child's best interests. In my view, in this matter, the child's best interests will primarily be promoted by settling on and registering a name, as it is clearly not in any interests of the child for the present situation to continue. That name should be one which provides the child with a sense of connection to all parts of his family, including both parents and siblings, and which enables and supports those connections; that enables the child and others to recognise and identify the child and his family; and that will not cause inappropriate embarrassment.
42. It is my view that the child's best interests are in fact best promoted and protected by having the name chosen and used by both his parents at the time of his birth and shortly thereafter. I note this name was agreed by the parents at a time when, although their domestic relationship was over, they were able nevertheless to reach an amicable agreement reflecting their interests and hopes for the child and their ongoing future connection to the child. It is the name by which family and friends identified the child at that time. I am satisfied the name L J B-P reflects a connection to both parents and their families, including a shared name with the mother, with whom the child lives, and with the father, who wishes to establish a relationship with his son. I am satisfied that to hyphenate the given names, L-J, might be a cause of some embarrassment or awkwardness to the child especially when young, as it is unusual and would appear particularly so in conjunction with a hyphenated surname. A hyphenated surname is not, on the other hand, unusual, and is relatively common where parents (whether living with the child or not) have different names. I note three of the mother's other children do not presently share her surname at all, so this is not a factor which will impact on the connection between the child and his siblings. Having the father's surname as a part of his name may enable a connection with other children the father may have in the future who will also be siblings of the child. I also accept that the mother may not want an ongoing reminder of her relationship with the father and the circumstances she associates with it, but the interests of the child outweigh her concerns, and I am satisfied it is in the child's best interests to have his father's name as well as his mother's name reflected in his surname.
43. I am satisfied that it is appropriate to assign the name L J (change to middle name) B-P to the child, and will order that the Registrar of Births, Deaths and Marriages register that name for the child accordingly. The Registrar should not however proceed to register the name until after the expiry of the period during which each parent can seek an internal review of my decision under s 70(2) of the South Australian Civil and Administrative Tribunal Act 2013.
44. Pursuant to s 22(2)(b) of the Births, Deaths and Marriages Registration Act 1996, I order the Registrars of Births, Deaths and Marriages to register the child's name as L J (change to middle name) B-P, after the expiration of one month from the date of this order.
DDB
APP [2021] SACAT 88
(1978) 4 Fam LR 462