RAJ v BMA [2021] SACAT 4

• To the extent that the original decision gave any weight to the parties not seeking to resolve the issue of the child's surname in Federal Circuit Court proceedings, an error is demonstrated in the original decision;
• a degree of confusion of identity is likely to arise when the child realises that her surname is different from that of those people with whom she lives; and
• as the child has contact with both parents and developed a relationship with her half-siblings, the proposed surname will develop a degree of identification with each parent and promote a connection with the half siblings.

Internal review - Births, deaths and marriages - Application to change a child's name - Best interest of the child - Child is unable to understand the meaning and implications of the change of name

South Australian Civil and Administrative Tribunal Act 2013 (SA) s 70

XLR v GFP [2020] SACAT 4

ZXN v TZW [2018] SACAT 52

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 people the subject of these proceedings have been de-identified and allocated a randomly selected pseudonym for privacy reasons. Other facts and details that may lead to the identification of these people may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

Made under the South Australian Civil and Administrative Tribunal Act 2013 (SA) s 70(6)(c)(i)

1. The issue for the Tribunal to decide on this internal review is whether the decision dated 14 September 2020 in matter number 2020/SA001575 was the correct and preferable decision.
2. The original decision was to dismiss the application by RAJ, the mother of three-year-old NKW, for approval of a proposed change of the child's surname to mother's surname-father's surname. The Tribunal was not satisfied that it was in the best interests of the child for her surname to be changed. The Tribunal pointed out that there is no preclusion on bringing another application in the future if circumstances change.
3. The first-instance application in matter number 2020/SA001575 was opposed by the respondent, the child's father. He now opposes any change of decision on this internal review.
4. In XLR v GFP [2020] SACAT 4, an internal review of an application by one parent for approval of a change of a child's name, the President of the Tribunal stated that 'an internal review occurs when a person who has an interest in a decision of the Tribunal seeks to challenge that decision. The review is conducted by a different Tribunal member. An internal review requires the Tribunal to consider the original decision and the evidence on which it was made. The Tribunal may hear or receive further submissions and evidence before deciding what is the correct or preferable decision', at [6].
5. In ZXN v TZW [2018] SACAT 52, another internal review of an application by one parent for approval of a change of a child's name,[1] the President of the Tribunal stated that 'the starting point in applications for change of name does not entail any assumption as to what an appropriate name is for a child' and further that 'the application is to be approached from the starting point that a child has been assigned a name by one or both parents, and the Tribunal must consider whether it is in the child's best interests to change that name', at [20]. There is no presumption against changing the name assigned at birth. The question is whether it is in the child's best interests to change that name. In XLR v GFP the President of the Tribunal stated 'the legal framework for registration of names, the significance that names take in society and the way that the legal test for changing a child's name is framed all indicate that continuity of name is to be preserved except where an adult person chooses to change their name or, where the person is a child, it is in the child's best interests to make the change', at [23]. In my view this makes it clear that there is no presumption against changing the name assigned at birth, and that the question for the Tribunal in each application is whether it is in the child's best interests to make the change.
6. This question must be determined after a consideration of the relevant facts in each application. It is highly unlikely that two applications will be identical, in the same way that it is highly unlikely that two families would be identical. The outcome of one application does not bind the Tribunal in respect of other applications where the facts differ.
7. At the time the application in matter number 2020/SA001575 was lodged, the parties were involved in Federal Circuit Court proceedings that had been commenced in 2019. Consent orders in those proceedings were agreed between the parties on 14 August 2020 and were sealed by that Court on 20 August 2020. I note that 14 August 2020 was also the date of a directions hearing in the Tribunal in matter number 2020/SA001575, which was held by phone and in which the applicant and a solicitor for the respondent participated. I am therefore satisfied that at the time the consent orders were agreed, both parties were aware that an application had been lodged in this Tribunal. Either party could have sought an order in the Federal Circuit Court in respect of the name by which the child should be known. The respondent could have sought an order restraining the applicant from pursuing her application in the Tribunal. No such orders appear to have been sought by either party. I put no weight on that. To the extent that the Tribunal Member at first instance appears to have put weight on a submission by the respondent that the applicant 'had every opportunity to raise the issue' in the Federal Circuit Court, I reject it as irrelevant to a determination of whether approval of a change of name was in the child's best interests (which the Tribunal Member correctly recognised as being the test to be applied).
8. By virtue of the consent orders of the Federal Circuit Court, both parties have equal shared parental responsibility for the child. The child lives with the applicant and is to spend time with the respondent on a gradually increasing basis. There is to be a review of the parenting arrangements on or after 1 February 2022.
9. The evidence and submissions before the Tribunal at first instance and on internal review are to the effect that the child lives with the applicant and a maternal half-brother, both of whom have the mother's surname. The maternal half-brother is some 11 years older than the child. I infer that due to that age difference he and the child will not be contemporaneous students at the same school, will not play on the same sports teams and nor are they likely to have mutual friends in common other than perhaps friends of the mother's wider family. Nevertheless, a sibling relationship is very significant as sibling relationships are the most likely type of relationship to be life-long. I reject the contention of the respondent that the name of this sibling is 'not relevant' and 'has no bearing on the outcome'.
10. Both at first instance and on review, the applicant said that the child has already demonstrated an assumption of having the same surname as the applicant and the maternal half-brother. Whilst I agree with the Tribunal Member at first instance that it is 'not an abnormal or unusual situation' for a child to have a different surname from the primary parent, that does not mean that it is a situation incapable of causing a child a degree of confusion of identity or embarrassment. I bear in mind that this child is currently aged three. It appears she is not currently suffering any embarrassment from having a different surname from the applicant, but it also appears that she currently does not understand that her surname is indeed different from the applicant's. The Tribunal is entitled to take into account any embarrassment likely to be experienced by the child if her name is different from the applicant's, as well as any confusion of identity which may arise, even if neither embarrassment nor confusion has yet arisen. In XLR v GFP the President of the Tribunal stated, 'in considering the child's best interests, the Tribunal must take into account, as best as possible, the future', at [23]. In my view, the evidence that the child has already demonstrated an assumption of having the same surname as the applicant and the maternal half-brother is significant, and is suggestive that she is likely to suffer embarrassment and/or confusion about that in the future as she gets older.
11. The child has contact with her maternal grandmother, who has the same surname as the mother. The applicant submitted on internal review that the child has queried the surname of her maternal grandmother. I am not persuaded to put any significant weight on the child having a different surname from her maternal grandmother, although I note the applicant's submission about it.
12. On the respondent's side of the child's family, in addition to the respondent father there is a paternal half-brother with a hyphenated surname that includes the father's surname. At the first instance hearing, I note that it was submitted on behalf of the respondent that the paternal half-brother was at that time aged 10, which I note is some seven years older than the child. Again, this is a significant sibling relationship, and due to the age difference I infer it has the same likely features as with the maternal half-brother, namely that the paternal half-brother and the child will not be contemporaneous students at the same school, will not play on the same sports teams and nor are they likely to have mutual friends in common. I further note there is a paternal step-grandmother in South Africa with the same surname as the father, to whom the child has spoken by telephone.
13. The application is not to have the child's surname changed to the applicant's. It is to have the child's name changed to a hyphenated surname containing the surname of each parent. The Tribunal is entitled to take into account the contact that each parent has with the child and is likely to have in the future with the child, and the degree of identification that the child will have with each parent.
14. The Tribunal Member at first instance was not satisfied that it was in the child's best interests to have her name changed. In my view, the original decision is not the correct or preferable decision for the following reasons:

(a) The child has already demonstrated the assumption that she has the same surname as the applicant and the maternal half-brother with whom she lives. I am satisfied that as she grows older, a degree of confusion of identity is likely to arise when the child realises that her surname is different from that of those people with whom she lives. This factor supports it being the correct and preferable decision in the child's best interests for her surname to be hyphenated to include the applicant's surname;

(b) The child has contact with both parents and thus has or will develop a degree of identification with each parent, which in my view ought, in the child's best interests, to be reflected in her surname;

(c) The child has half-brothers on both the maternal and paternal sides. While contact and the degree of identification with siblings was not specifically included in the criteria set out in the Tribunal's decision of ZXN v TZW, I am satisfied that in this application they are relevant factors which ought to be taken into account and that in this case the child's best interests lie in having a hyphenated surname which gives her a connection by name to both of her half-brothers.

1. I am satisfied that the decision subject to review should be set aside and that a different decision should be made approving the change of registered birth surname from the father's surname to mother's surname-father's surname. I will order accordingly.

1. The Tribunal made the following orders:
   1. The decision subject to review is set aside. In its place, the Tribunal makes the orders set out below.
   2. The Tribunal approves the change of registered birth surname from the father's surname to the mother's surname-father's surname.
   3. These orders are to have effect from the commencement of business hours in South Australia on Tuesday 9 March 2021.

[1] That application was in respect of twins' names rather than one child.