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[2022] SACAT 21
General information, not legal advice.
SA Civil and Administrative Tribunal
2022-03-12
Original judgment source is linked above.
QAX v LUB [2022] SACAT 21
The applicant, the child's father, applied to the Tribunal to resolve a dispute between himself and the child's mother regarding their child's surname. The child's father sought to have the child's name registered with his surname. The child's mother sought the child be registered with her surname. The parents did not dispute the child's first and middle names. At the time of the decision the child was under a guardianship order.
Held, naming the child with the mother's surname and father's surname hyphenated in that order:
Births, Deaths and Marriages - Dispute between parents about a child's name - Best interests of child
Births, Deaths and Marriages - Dispute between parents about a child's name - Tribunal Resolution - Order Registrar to change name in form specified in order
DDB v APP [2021] SACAT 88
LTW v LJW [2021] SACAT 73
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
1. This is an application to the Tribunal under s 22 of the Births, Deaths and Marriages Registration Act 1996 (the Act).
2. Under s 22, 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. The Tribunal may resolve the dispute about the child's name as the Tribunal considers appropriate and order the Registrar of Births, Deaths and Marriages to register the child's name in a form specified in the order.
3. This application to the Tribunal is made by the child's father, QAX. The child is a girl who was born on 22 April 2021. The child's mother is LUB.
4. Both of the parents agree what the child's first and middle names should be. However, they disagree as to what the child's surname should be. Therefore, that is the only issue in dispute for the Tribunal to resolve. QAX prefers the child to have his surname. LUB prefers her surname for the child.
5. In making this decision, I have taken into account the documents filed by QAX and LUB in the Tribunal and also the evidence that they gave at the full hearing. The Crown Solicitor's Office provided written submissions as amicus curiae (friend of the Court) with a view to assisting the Tribunal to determine the application.
6. As there is an Intervention Order in place against QAX in which LUB is the protected person, the hearing proceeded by telephone with the Tribunal calling QAX first and taking his evidence, then calling LUB separately to take her evidence and summarise to her QAX's evidence for her response, and then calling QAX back to summarise to him LUB's evidence for his response.
7. I explain in these reasons why I have decided that it is in the child's best interests that her birth be registered with the agreed first and middle names and with a hyphenated surname in the order of mother's surname first and then father's surname.
8. The Act does not provide any express guidance to the Tribunal about how the Tribunal should resolve these types of disputes.
9. However, the Tribunal has recently decided two other matters under s 22 of the Act. These are LTW v LJW [2021] SACAT 73, which is a decision of Senior Member Rainford, and DDB v APP [2021] SACAT 88, which is a decision of Senior Member McEvoy.
10. The Tribunal approached these two recent decisions using similar principles and I respectfully adopt those principles in making my decision in this matter. Of course, each case under s 22 is different and must be decided on its individual facts.
11. The paramount consideration for the Tribunal is what is in the best interests of the child. Other relevant considerations that were identified in the Tribunal's two previous decisions include:
12. Also, what the parents separately or even jointly want will not be determinative if it is not in the child's best interests.[1]
13. As noted earlier, the child was born on 22 April 2021. At birth, the child was removed from LUB's care and placed under the Guardianship of the Chief Executive of the Department for Child Protection (DCP).
14. LUB made an application to the Registrar in early July 2021 to register the child's birth in the agreed first and middle names and the mother's surname. She indicated that the child was born at the "FMC" at 38 weeks gestation. Later in the same month, QAX made an application to the Registrar to register the child's birth in the agreed first and middle names and the father's surname, also indicating that she was born at the FMC.
15. On 3 August 2021, DCP wrote to the Registrar to inform her that the child had been removed from the care of her mother on the day she was born; that a care and protection order was made in respect of the child on 30 April 2021; and that an order was made on 11 May 2021 placing the child in the guardianship of the Chief Executive of DCP for three months. A copy of the latter order was provided to the Registrar. It also required LUB to undergo a mental health assessment by a psychiatrist nominated by the Chief Executive.
16. DCP also informed the Registrar that QAX was confirmed as the child's father by paternity testing and that, aside from an Intervention Order in place under which LUB is the protected person, bail agreements prohibit QAX from having any contact with LUB.
17. A copy of the interim Intervention Order made on 17 October 2020 was also provided to the Registrar. The allegations made by police in support of the Intervention Order were that QAX assaulted LUB while pregnant by throwing her from a chair and head-butting her.
18. On 27 October 2021, the Registrar wrote to QAX to inform him of LUB's application to register the child's birth with the mother's surname. She indicated that it would be preferable if he and LUB could reach a compromise on the name of their child. The letter explained the Registrar's powers to assign a name to a child if parents are unable to agree to a child's name and a parent's ability to bring an application to the Tribunal under s 22 of the Act to resolve a dispute about a child's name.
19. QAX emailed the Registrar on 11 November 2021 and said that due to the Intervention Order he cannot discuss the matter with LUB and that, as a very traditional parent, he believes that the child should have her father's last name. He said also that as LUB ("my ex") had picked the first and middle names, he thought it was only fair.
20. The Registrar subsequently wrote to QAX on 25 November 2021 and advised him that, as she had not received confirmation from him that an agreement had been reached with LUB or that he had applied to the Tribunal to resolve the dispute about the child's name, the Registrar proposed to register the child's birth on 10 December 2021 in the agreed first and middle names and with a hyphenated surname (mother's surname-father's surname) in accordance with the Registrar's usual policy in such cases.
21. On 2 December 2021, QAX made the present application to the Tribunal.
22. In his oral evidence and submissions at the full hearing, QAX repeated that his preference was that the child have his surname as it was traditional that a child have her or his father's surname. He said that while he and LUB were dating they spoke about the child having his surname. He said that if the child's name is not his surname, he would be sad but he would still love her.
23. In answer to a question from the Tribunal about alternative names he would find acceptable, QAX said that hyphenating the child's surname with his last name at the end is the only other option but not what he really wants, being a traditional parent. He said this would be a last resort.
24. QAX said that LUB has an older son and that, due to LUB's neglect and alcohol abuse, from the age of three months the son has been in the guardianship of the Chief Executive of DCP, with the current arrangement in place until he is 18 years of age.
25. He said that his relationship with LUB started in January 2020 and that she was living with him at his parents' home when she was kicked out for drinking. He said that they bounced around from motel to motel until they found accommodation. He said that LUB continued abusing alcohol. He said that he was about to leave the relationship when she got pregnant in about July 2020 and he felt obligated to stay as he wanted to protect the baby after what she had done to her son.
26. He said that he and LUB separated in October 2020. He said that he had a head injury and cannot remember what happened but that the police were called over a domestic dispute and an Intervention Order was put in place. He said that he believes he picked up a chair with LUB on it and threw it across a porch. He said he was charged with aggravated assault of LUB and that he continued having contact with her for a couple of months in breach of his bail agreement until they stopped all contact. He said that he would receive messages from LUB but would not respond. He said that he pleaded guilty to the charge to get it out of the way and was placed on a good behaviour bond for 12 months.
27. He said that he and LUB agreed on the child's first name and that if it was a boy he would be named Braxton. He said that a few months later, after the Intervention Order was in place, LUB decided that the child's middle name would be her grandmother's name and out of spite "cancelled him out" and erased him. He said that he wants to have a say as well.
28. He said that constant alcohol and medication abuse by LUB during her pregnancy resulted in the child suffering speech deficits and retinal dystrophy caused by brain damage. He said her eyesight is bad and she can lose it altogether. He said that the child will go through problems in life due to these issues during the pregnancy and that she should not have any more trouble in her life because her name at school is not her father's name as it would be for other children there. He said that could be a problem for her and that he is trying to eliminate all problems from her life.
29. He said that LUB was admitted to hospital a couple of weeks early due to intoxication and was put under a watch until she gave birth. He said that the child then had a feeding tube put in and was taken away into care.
30. QAX said that he was not notified of the child's birth for about two weeks. He said he was away at the time and friends sent him a message with photographs congratulating him. He said that due to the Intervention Order he was restricted in who he could ask about the birth but did not make any arrangements to be told about it when it happened.
31. He said that he initially had some doubts that he was the child's father and that DCP asked him to take a DNA test. He agreed and the results took six to seven weeks to come back.
32. He said that he was waiting for the paternity test to come back before seeing the child for the first time. He said that she is his first child and that when he first saw her, he broke down emotionally. He said that he first saw her at Gawler DCP when she was two months old and has seen her twice a week for nine months since then for an hour at a time at the Playford Civic Library.
33. QAX said that it depresses him and makes him angry to think what the child has to go through and he wants to give her everything, take time off when she is sick and put her through the best schools. He said that he will support her with everything she needs, including toys, clothes and food and has offered to provide money and utensils to her foster carers but they declined it. He said that he will work his butt off to make sure she has everything; that she is going to feel down about her eyesight and that it is his job to take her mind off that. He said that he tries to be alert to her difficulties but is having trouble reading her cues and getting her off to sleep. He said he feels he has come a long way.
34. QAX said that he is going through the Reunification Court to try to get the child back and that she is still in the care of foster parents. He said that the current care order extends until about September. He said that DCP is looking to return the child back into the primary care of LUB. He said that if that happens, he will seek that DCP take full responsibility for any further neglect of the child by LUB.
35. He said that he plans to be married to his current partner of eight months and that she and the children they are planning to have together will have his surname. He said that he does not want the child to feel left out by not having his name also. He said that he is looking forward to parenthood. He said that he has told the Reunification Court that he wants the child to live with him and his partner and that they are buying a home and building another. He said that he has tried to have his partner introduced to the child but DCP have told him to wait until "after COVID". He said that he has been asked to have sessions with a psychologist and is undertaking other courses.
36. He said that the child understands her first name but does not understand her other names.
37. QAX indicated that the Tribunal should not give weight to the fact that the child has the mother's surname in her official records because that was the name she was assigned due to her birth not yet being registered.
38. QAX said that there are no Family Law proceedings underway in relation to the child and that he does not pay child support, which he believes is because she is not in the care of her mother.
39. QAX said that his whole family is in South Australia and that they are supportive of him. He said that his mother has contact with the child once a month and has met her five times so far. He said that both his parent's surnames are the same as his as well as five of his siblings and several of his nieces and nephews. He said that he has tried to get his other family members involved with the child but DCP said that her schedule is too busy at the moment.
40. LUB told the Tribunal that she prefers the child to have her surname because it is the same surname as the child's four year old half-brother. She said that she would not accept an alternative and rules out a hyphenated name as it may be confusing for the child and her brother as she gets older. LUB said that the child may ask why she has two names when her brother only has one. When the Tribunal suggested that the answer could simply be because she would have her father's name as part of her own surname, LUB agreed that if the child's father was still involved in her life it may not be a problem. She said that if the child's surname is hyphenated it should be mother's surname-father's surname.
41. LUB said that if the child's surname were not the mother's, she would still be the child's mother and love and care for her.
42. LUB said that her relationship with QAX started in March 2020 and that they lived together at his mother's home for a few months before moving into private accommodation. She said that they broke up in about September 2020 very shortly after she found out she was pregnant. She said that they split up because of his physical abuse and domestic violence, and that she was not going to stick around when she was pregnant. She said that when he hurt her in October 2020, he also threatened to kill the child inside her. She said that he kicked her in the stomach, threw her head against a brick wall and threw her on the ground outside their home. She said that he took her phone so that she could not call the police but that she went to a neighbour's house and called from there. She said that she saw him the next day briefly, and after that only at the Reunification Court and in passing at contact visits with the child. She said that he was charged and convicted of this assault and received a suspended sentence with strict conditions.
43. LUB said that when she and QAX were still together, they agreed on the child's first name. She said that she did not discuss a middle name or a surname with him. She said that the middle name is her own mother's name. She said that QAX was not at the child's birth due to the Intervention Order and his not being interested in being a part of that. She said that she let his niece know of the child's birth and then DCP contacted him and did a paternity test, which is when he started becoming involved.
44. She said that QAX has committed multiple breaches of the Intervention Order by way of posts on social media about her drinking and sending her threatening text messages.
45. She said that the child has been known by her surname since she was born and that is the name on her medical records, DCP records and the records of the Reunification Court. She said that the child has recently been accepted in the mother's surname by the NDIS for her retinal dystrophy disability. She said that her identity has been established and that it is not in her best interests to change that 11 months later.
46. She said that QAX lacked interest in the child before and after she was born, denying he was her father, and only became interested when there was a hearing about their relationship. She said that DCP are concerned that QAX is not genuinely interested in the child and prioritises his work.
47. LUB said that the child was put into care due to her own drinking and mental health issues, which she has now addressed. LUB said that the child is currently in care until about August but that it looks like she will be returned into her care by the Reunification Court.
48. She said that she currently sees the child three times a week at the Elizabeth library for between one hour and one and a half hours at a time.
49. She said that her long-term plans are that the child live with her and her son. She said that her son came to live with her full-time four weeks ago but is still under a long-term guardianship order. She said a reunification process is underway in respect of her son.
50. LUB said that she and her son currently live with her maternal grandparents, her mother, an older sister and a younger sister and younger brother, and her two year old nephew. She said that apart from her maternal grandparents, all other persons have her surname.
51. LUB said that no members of her family currently have contact time with the child.
52. When responding to a summary of QAX's evidence, LUB:
54. The Tribunal was not provided with a birth certificate for the child as her birth is not yet registered. No evidence was provided from the hospital confirming the birth of the child. However, the evidence available to the Tribunal reasonably satisfies me that the child was born in South Australia at the Flinders Medical Centre.
55. It is clear that there remains a high degree of acrimony between QAX and LUB, much of which is about matters not relevant to the Tribunal's consideration, but which coloured their evidence to the Tribunal to some extent. I find that both QAX and LUB each attempted to present themselves to the Tribunal in the best light possible while disparaging the other's capacity and commitment to caring for the child. While I stop short of saying that they were untruthful, I find that at times I was not entirely persuaded by their evidence. In the main, however, these were on issues that have fundamentally little relevance to my decision and to which I gave little weight.
56. It will be evident from the reasons I give below that the personal animosity between QAX and LUB is not relevant to what surname would be in the child's best interests. Neither is it an issue of who is the better parent or the better human being. The only issue is the child's best interests.
57. I am satisfied that each parent loves the child in their own way and is concerned for her welfare. I am satisfied that each of the child's parents will be in her life and play at least some part in her life.
58. In particular, I am satisfied that, despite early doubts about whether he is the child's father, QAX now has a genuine commitment to a relationship with her as her father and has had since he was confirmed by a paternity test to be her father. He has plans to integrate her into his life with his partner and their future children and his broader family group. The Tribunal notes that he made an application to the Registrar to register her birth and this application to the Tribunal. While there is a significant degree of aspirational thinking in QAX's planning for the child's future care, that is not to say this will not happen, and he impressed the Tribunal that he had given some thought to these plans.
59. I accept as understandable that a person would not wish to take the emotional risk of forming an attachment to a child while the question of the child's parentage is in question. I am not satisfied that this demonstrates a lack of interest in the child nor that QAX's FIFO employment detracts from his genuine commitment to being a parent to her.
60. I find that it is too early to assess the child's degree of identification with either of her parents given the comparatively little time she spends with each of them and her young age. Also, at this point in time, it is not certain which parent, if either, will have ongoing long-term daily care for the child. However, I acknowledge that there is the possibility of some confusion and embarrassment, when the child gets older, if her name were different from the parent who would have her in their primary care, whether it is the mother or the father. She may find herself being asked questions about this from time to time from school friends and the like that may embarrass her. There may be similar issues if she has a name that is different from her half-brother and any half-siblings she may have in the future on her mother's side or her father's side. It is important that she identify with her current half-sibling and any future half-siblings. The effect of these issues is reduced if the child had a hyphenated surname that reflected each of her parents.
61. Even if the child is placed in the ongoing daily care of her mother, as both LUB and QAX appear to believe is DCP's current thinking, it is likely that over time QAX may have more than the limited contact he currently has with the child and that this may extend to greater contact by her with QAX's broader family. In that case, as was recognised by the Tribunal in the LTW case, as the child grows older, she is likely to develop a relationship and bond with both of her parents, half-siblings and her parents' broader families and it is in her interests that this potential be encouraged by identifying the child with both her parents.[2]
62. It seems clear that each parent has some issues that they need to address in their lives: alcohol abuse and mental health issues in LUB's case and perhaps a propensity to violence in QAX's case. I must bear in mind the possible risk that the child may not be placed in the ongoing daily care of either of her parents, despite their heartfelt wishes, and that she may remain for some time, or from time to time, in the care of others while having at least some contact with her parents. In that case, I regard it to be clearly in the child's interest that, when she is not in her parents' care, she grow up with a surname that recognises and associates her with, and reminds her of her connection with, each of her parents, and indeed her half-sibling or half-siblings on either side and her father and mother's broader family groups.
63. Despite the child's surname being the same as the mother's in various documents and records, I find that there is no indication that it would be prejudicial to the child's welfare for her to now have mother's surname-father's surname as her surname. As a matter of human experience, I find it unlikely that a child of 10 months would have substantially established a sense of self-identification or social identification such that a change of this nature would be confusing and disturbing for her or that she could not quickly adapt to it. I also am satisfied that, to the extent that her half-brother would find it confusing that his half-sister has a different surname from his own, that it would not be unduly confusing and that he would also quickly adapt.
64. I also do not agree that a name adopted by various agencies for administrative convenience or by a small group of family members, because the child did not yet have a legally registered name, is sufficient reason to override the considerations that favour her having a hyphenated name that reflects both her parents.
65. While there are arguments to the contrary, on balance, I am satisfied that it is in the child's interests that the order of her hyphenated surname be mother's name first then father's name rather than the other way around. The mother's surname-father's surname is closer to the child's half-brother's surname than the other way round and this would assist him and the child to form an identification with each other and an attachment and bond as brother and sister as they grow up. The Tribunal's decision might have been different if the child had half-siblings with the father's surname but currently the child's half-brother is her only half-sibling. Also, in the child's formal documents and records (and to the extent that she might already identify with the mother's surname, which I find unlikely), the mother's surname-father's surname is less of a change, to my mind, than the other way round would be and would help avoid confusion.
66. All of the considerations favouring a hyphenated surname for the child override the parent's individual wishes that she bear their surnames alone. In particular, I note that the Western cultural tradition that a child bear their father's surname, while still practised, is not universal and it is common for children to bear names other than their father's. As the child grows up in a progressive, multicultural society, it is very likely that she will find other children of her acquaintance to have surnames that are hyphenated or otherwise not their father's surnames.
67. As discussed in the Tribunal's decision in DDB,[3] the surname that the Tribunal will order for the child provides her with a sense of connection to all parts of her family, including both parents and current and future half-siblings, and enables and supports those connections, and enables the child and others to recognise and identify her and her family, and will not cause inappropriate embarrassment.
68. In making my decision about what the order of names should be in the child's hyphenated surname, I have not given substantial weight to her parents' indication that any hyphenated name should be the mother's surname-father's surname. However, I note that at least on this point, the child's parents agree, which is a positive thing, as it is in her interests that the current disputation between her parents about her surname be resolved.
69. Accordingly, I am satisfied that it is appropriate to assign the child's current first and middle names and mother's surname-father's surname to the child and to order that the Registrar of Births, Deaths and Marriages register her name in that form. This should not take place until after the expiry of the period during which either parent can seek an internal review of my decision under s 70(2) of the South Australian Civil and Administrative Tribunal Act 2013.
70. The Tribunal orders that the Registrar of Births, Deaths and Marriages register the child's name as the child's current first and middle names and mother's surname-father's surname after the expiration of one month from the date of this order.
[1] DDB v APP [2021] SACAT 88 at [41].
[2] LTW v LJW [2021] SACAT 73 at [27].
[3] DDB v APP [2021] SACAT 88 at [41].
QAX
LUB [2022] SACAT 21