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[2021] SACAT 73
General information, not legal advice.
SA Civil and Administrative Tribunal
2021-09-20
Original judgment source is linked above.
LTW v LJW [2021] SACAT 73
The child's mother applied to the Tribunal to resolve a dispute between herself and the child's father regarding the naming of a child whose name was yet to be legally registered. At the full hearing, the mother and father reached an agreed position as to the child's first and middle names. The only part of the child's name that was in dispute was his surname.
Held, ordering the Registrar to register the child's name as specified in the order:
Births, deaths and marriages - Dispute between the parents about a child's name - Tribunal Resolution - Consideration of what is in the best interests of the child on the facts of the case - Order registrar to change name in form specified in the order
South Australian Civil and Administration Tribunal Act 2013 s 70
ZXN v TZW [2018] SACAT 52
TPP v Registrar of Births, Deaths and Marriages [2016] VCAT 392
EJG v Registrar of Births, Deaths and Marriages [2019] VCAT 370
Ms E Ferguson, Crown Solicitor's Office, appeared on behalf of the Registrar for Births, Deaths and Marriages (in person)
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 pursuant to s 22 of the Births, Death and Marriages Registration Act 1996 (the Act) to resolve a dispute between LTW and LJW regarding the naming of a child who was born in Gawler, South Australia on 16 October 2020.
2. This is the first application that the Tribunal has received since inheriting the Births, Deaths and Marriages jurisdiction on 1 July 2018.
3. On 22 October 2020, LTW lodged a Birth Registration Statement with the Registrar seeking that the child be named 'KWW'.[1] She is his biological mother.
5. The mother and father commenced a relationship in or about August 2018. The relationship ended abruptly in or about May 2020, prior to the birth of the child. The circumstances in which the relationship ended were acrimonious and the mother and father are still unable to effectively communicate.
6. On 6 November 2020, the father by correspondence advised the Registrar that he did not agree with the name chosen by the mother, but that he would be open to discussion as to the chosen name for his son.
7. The mother confirmed in response, her desire that the child be named 'KWW', following which in further correspondence to the Registrar, the father nominated the name, 'LTW'.[2]
8. The Registrar encouraged the parents to agree on a name but as a compromise could not be reached, on 21 May 2021 the Registrar informed the parties that she intended to name the child KLWW[3]. She advised however, that an application could be made to SACAT to resolve the dispute under s 22 of the Act. The mother lodged an application on 27 May 2021.
9. The application came before me for full hearing on 10 August 2021. At an earlier directions hearing, because of the animosity between the parents, I determined that it would be appropriate to conduct the full hearing in a 'truncated' fashion by way of telephone hearing, whereby the Tribunal would take evidence firstly from the applicant, then call the father of the child and summarise the applicant's evidence and provide him with an opportunity to respond before finally telephoning the applicant again to provide final submissions in response to the father's evidence.
10. Prior to the full hearing, the Tribunal was provided with both parents' written submissions as well as a comprehensive written outline from Ms Ferguson of the Crown Solicitor's Office, who also appeared at the hearing on behalf of the Registrar of Births, Deaths and Marriages as amicus curiae to assist the Tribunal with its inquiry.
22 - Dispute about child's name
(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.
12. The Act does not provide any guidance as to how the Tribunal should resolve the dispute, and there are no legal authorities in South Australia which directly deal with s 22 of the Act. Accordingly, the Tribunal must look to the stated purpose of the legislation and its objects which are concerned with ensuring that births (and other events) in the State are registered.
13. Ms Ferguson has very helpfully referred me to some Victorian Authorities (which I will address later in these reasons) which in turn draw upon Family Law cases which support a view that where a decision involves the interests of a child (such as the naming of a child), the best interests of the child should be the paramount consideration.
14. The concept of best interests is regularly applied by the Tribunal when determining applications approving a change of the name of a child under s 25(2) of the Act. The meaning of the phrase was considered at length by the President of this Tribunal in ZXN v TZW.[4]
The relevant considerations draw upon the Family Court decisions of Chapman v Palmer and Beach v Stemmler (citations provided therein) and include:
16. At the hearing, the mother affirmed in evidence that there is now a Federal Circuit Court (FCC) Order in place (made on 2 August 2021) which allows the father to spend time with the child for one hour each Saturday in the applicant's presence at a coffee shop in rural South Australia. The matter will return to Court in early December to review that contact and to accommodate a Family Dispute Resolution Conference regarding the Family Law Act proceedings commenced by the father. He stated in evidence that he is hopeful that the amount of contact will increase over time and extend eventually to unsupervised contact and contact between the child and his extended family members.
17. Initially, the mother maintained that she proposes that her son be named KWW. She explained that the significance of the first name 'K' is that is the name of her estranged brother who had to remove himself from their family due to a problematic relationship with a stepfather. She advised that the middle name 'W' has a deep cultural significance with members of her extended family. The name 'W' is of course her family surname.
18. When the Tribunal invited the applicant to respond to the father's proposed name 'LTW', the mother stated that she is opposed to the first name 'L' as the child is already responding to the first name 'K', and further, that is the name by which he is formally recognised by agencies such as hospitals and Medicare. It is also the name by which her family and friends know the child. The mother went on to state however, that she would not object to the use of the names 'W' and 'T' as the child's middle names in recognition of both parents' family.
The father had previously stated in his written submissions that the name 'T' is significant in his family's history.
19. When the Tribunal enquired about the proposed surname and in particular, whether it would be appropriate to include the family name of the child's father, the mother conceded that now that contact is occurring (through the FCC Order), she would not be opposed to the child having the last or surname 'W-W'.[7] She stated that a hyphenated surname would appropriately identify the families of both parents and the child's siblings (including half-siblings) on both sides - she has four other children, one of whom has her surname, while the other three are known by that name informally. The father has two daughters both with his surname.
20. At the end of her evidence during the first part of the hearing on 10 August 2021, the mother proposed that the child be named 'KWTW-W',[8] in that order.
21. Initially in his evidence at the second stage of the full hearing, after the Tribunal had summarised the applicant's evidence, the father emphatically stated that he has no interest in a hyphenated surname. When asked about the applicant's proposal that the child's first and middle names be registered as 'KWT', the father stated that he would be fine with that. However, he insisted that the child's surname be his surname on account of the fact that he is the child's father (inferring that it is common for a child to take the father's surname) and because there is now regular contact between them and that in time, he hopes that will increase and include contact with the child's paternal siblings and the father's extended family as previously stated.
22. Ms Fergusson has referred the Tribunal to two decisions of the Victorian Civil and Administrative Tribunal, which deal with 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 South Australian Act.
23. In the matter of TPP v Registrar of Births, Deaths and Marriages,[9] 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. Member E Wentworth held that where there is an open discretion to be applied by either the Registrar or the Tribunal, the principle to be applied is the best interests of the child as defined by the Family Law Act and cases previously discussed. Member E Wentworth 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 Member went on to state:[10]
54. 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.
55. 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.
56. 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.
The Tribunal recognised that the father of the child continues 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.
24. The second case to which the Tribunal was referred, is EJG v Registrar of Births, Deaths and Marriages (Review and Regulation).[11] It also concerned a review of the Victorian Registrar's decision to assign a name to a child whose parents were in dispute about a 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 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, Senior Member O'Dea 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. Whilst the UN Convention is not law in Victoria (or South Australia for that matter), the Senior Member accepted that it could be used to inform the Tribunal and together with the Victorian UN Convention Act conclude that the principle of the best interests of the child is the test that should be applied when determining a dispute regarding the naming of a child.
The Senior Member concluded that a hyphenated surname was in the best interests of the child for the following reasons:[12]
44. ...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.
45. 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.
25. The Victorian authorities, whilst not binding in South Australia, are extremely persuasive and the factors taken into account in both cases have relevance to the matter before me. It is clear that while the Act is silent on what factors should be taken into account in resolving a naming dispute, SACAT must apply the best interests of the child principle, taking into account the objects of the Act.[13] That conveniently leads me back to the definition of the phrase 'best interests' in ZXN v TZW[14] which references the Family Law Act decisions previously discussed.
26. As the full hearing before me progressed, it became apparent that the mother and father were prepared to compromise on the first and middle names for the child to the point where they eventually agreed with the names 'KWT' in that order. They were not able to agree upon the surname. Accordingly, that is the only name for the Tribunal to determine in resolving the dispute.
27. In determining an appropriate surname, I must consider what name would serve the bests interests of the child having regard to the evidence and submissions of both parents. I note the following:
28. The following comments of Member E Wentworth in TPP[15] should be noted:
It is clear from the Family Law Act decisions concerning name changes and best interest considerations, that each case must be determined on the individual facts.
29. If I conclude at the end of the day that the father's and mother's surnames should be assigned to the child, then I must consider, firstly, should the surname be hyphenated or should one of the surnames form part of the child's middle names and secondly, if I determine that the surname should be hyphenated, in what order should the names be registered?
30. I am mindful that in determining an appropriate name for the child, that I am not tasked with deciding who is the better parent. I have no doubt that both the mother and father love the child equally in their own way, despite the acrimony and differences between them.
31. I am also mindful of the fact that whilst there is less history to consider than in a change of name application (given the child's age), that it is relevant that the child is already known as 'KW'[16] for the purposes of medical records (including Medicare) and that he is known to others by that name. Despite his very young age, he is also responding to that name.
32. In this case, in addition to that fact that the child has contact with both parents and is already known by a name for both formal and informal purposes, it is relevant that he has half siblings on both sides of his parents' families who either bear the surname or identify as the mother's or father's surname. It is important that the child at this early stage identify with his siblings. As he grows older, this is also likely to remove or reduce the possibility of confusion as to his identity or any potential embarrassment in social circumstances.
33. This matter is to be distinguished from the case of TPP[17] where the father of the child in that case had no history of commitment or stability but merely an intent to maintain some contact albeit irregular or intermittent.
34. I also note in the matter of EJG[18] that the VCAT found that "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 other without any proper basis to do so." I consider that the same applies here. Even though the applicant spends much more time with the child providing for his day-to-day care and protection than the father (and most likely will continue to do so for many years), both in the short and long terms, there is a real possibility that the father's contact will increase.
35. The child is very likely to quickly develop a sense of attachment and identity to both parents and their families if he bears both names as his last name, in my view.
36. I am satisfied and accordingly find that it is in the child's best interests that his surname should include the surname of both parents and that it should be hyphenated. It is an important consideration that in general in our society, people are referred to by their first and last names and rarely is a middle name(s) included except for legal or more formal purposes. For this reason, it is preferable here that the father's surname be assigned as part of the child's last name.
37. The father considers that the child should bear his last name alone. I do not agree. The fact that the child does spend much more time with the applicant who has the daily responsibility for him should be recognised not only by including her surname in his last name but also, by placing her surname as the second hyphenated name of the child's last name. Whilst it may have been common for a child to bear the surname of the father in the past, that social practice is less prevalent in present society where partners increasingly choose to maintain their family surnames even in marriage.
38. I am satisfied that it is appropriate to assign the name 'KWTW-W'[19] to the child and order that the Registrar of Births, Deaths and Marriages register his name 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 Australia Civil and Administrative Tribunal Act 2013.
The Registrar of Births, Deaths and Marriages is to register the child's name as KWTW-W after the expiration of one month from the date of this order.
[3] Mother's chosen first name, father's chosen first name, father's surname, mother's surname.
[5] Mother's preferred first and middle names, mother's surname.
[6] Father's preferred first and middle names, father's surname.
[8] Mother's preferred first and middle name, father's preferred middle name, father's surname-mother's surname.
[16] Mother's preferred first name, mother's surname.
[19] Mother's preferred first and second names, father's preferred second name, father's surname-mother's surname.
LTW
LJW [2021] SACAT 73