Re HQM & EEM [2022] SACAT 5 (25 January 2022)

• The Tribunal is not satisfied that changing the children's middle names and surname is in their best interests.
• The applicant's reasons for changing the children's names are unconvincing, superficial and reflect the applicant's personal wishes and desires rather than a true consideration of the children's best interests.
• It is a common modern phenomenon that a child may have a surname that is different from their primary carer's surname.
• It would not be in the children's best interests to eliminate from their names aspects which reflect their Cantonese heritage.
• It is premature for the children's names to be changed at this time.

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

Births, Deaths and Marriages Registration Act 1996 ss 25, 26

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.

Dismissal of an application to register a change of child's name

Made under the Births, Deaths and Marriages Registration Act 1996 s 25(3)

1. This application to change middle names and surname is made by the applicant mother of the children, HQM and EEM, who are twin boys born on 20 November 2017. The children's present middle names and surname are Cantonese. Their father is Cantonese Chinese.

2. The mother seeks the Tribunal's approval under s 25(3) of the Births, Deaths and Marriages Registration Act 1996 (the Act) to change the children's name to IQZ and ECZ. The mother's preferred middle names and surname are Mandarin. The mother is Mandarin Chinese.

3. The application is made under s 25(2)(c) of the Act which provides that an application for registration of a change of a child's name may be made by one parent if the Tribunal approves the change of name.

4. The other parent (father) named on the birth certificate, has been served with the application and supporting documents and opposes the proposed name change so the matter proceeded to a hearing. Due to the father's expressed opposition to the application, I considered that it was appropriate that the father have an opportunity to participate in the hearing. The hearing was conducted by telephone due to the current COVID pandemic and each parent had an interpreter - the mother in the Mandarin dialect and the father in the Cantonese dialect. The hearing proceeded by taking evidence from the parents separately. The Tribunal took evidence from the mother first and then called the father to take evidence from him. The Tribunal then summarised to the mother the gist of the father's opposition to the change of name. I make the observation that although interpreters in Mandarin and Cantonese were made available to the mother and father, they both had reasonable proficiency in English, and the interpreters were often not called upon.

5. Section 25(3) of the Act provides as follows:

The Tribunal may, on application by a child's parent, approve a proposed change of name for the child if satisfied that the change is in the child's best interests.

6. Section 26 of the Act also provides that a change of a child's name must not be registered unless:

6.b. The child is unable to understand the meaning and implications of the change of name.

7. The application in this case is with respect to children currently aged four. The Tribunal considered that the children were too young to be interviewed about this application.

8. As noted above, both parents gave evidence at the hearing. The Tribunal also had regard to all documents filed by them.

9. The evidence of the applicant mother was that she and the father were not married and separated when the children were about 1 ½ years of age. The children currently live with the mother and her parents. She said that in formal situations, such as enrolments, the children are referred to by the names on their birth certificates. At home, they are referred to as the "twins" rather than by any particular name.

10. She said that the children last had contact with their father in October 2021 when she stopped the children seeing him. She said that her lawyer is currently working on a parenting agreement between her and the father and that the matter may go to the Family Court later this year. She said that the father pays child support for the children.

11. She said that she fears for her safety from the children's father due to some damage he did to her car when they split up, although there is no Intervention Order in place, nor has the father been involved in any offending involving violence or weapons. She said that he knows where she lives but she does not know where he lives. She said that it is not good for the children to see their father as he has a drinking problem and has been charged with drink driving.

12. She said that when the father was still having contact with the children before October it would be for 1-1½ days per week and when they were returned to her they would be sick with allergic reactions to cats and dogs and food poisoning. She said also that the father was not having the children use their asthma puffers. She said that every time the children had been with their father, they would have medical issues and low immunity and that is why she has taken more responsibility for taking care of them.

13. The mother said that she wants to change the children's names because they do not know their father and they ask her why their names are different from hers. She said that the children have delayed language development because they speak Mandarin with her and their father speaks Cantonese to them. She said that this creates a level of confusion for the children. She said that the Cantonese spelling of the children's birth names is hard for her, her family and the children. She said her observation is that the children are confused by their names. She indicated that although the children's father has taught them how to pronounce their names, it is difficult for her. She said at interviews for school, etc, it will be hard for her to pronounce the children's names fluently and this will cause difficulties for her and the children. She said that parent/teacher interviews would be an issue if her surname is different from theirs.

14. The mother said that keeping the children's current names would not be beneficial for the children especially when they start school, which will cause problems with their class mates.

15. She said that she is the full-time carer of the children and has put a lot of effort in apart from that and has been involved in all aspects of their lives. She said that the children's father is not responsible in their daily care.

16. She said also that her current husband's surname is different and this will raise a lot of questions for the children.

17. The evidence of the father was that the children were 2½ to 3 years old when he separated from their mother. Although this differs from the mother's evidence, this is not a matter of significance.

18. He said that he would see the children from 10.00 am to 8.30 pm on Saturdays and Sundays (the children did not sleep over) until the applicant and her parents stopped him seeing the children. He agreed that he last saw the children in October 2021. He said that he has not had telephone contact with the children because they do not have a phone. He said that he tried to see the children at their mother's home but they did not open the door to him. He said that he tried unsuccessfully to obtain mediation assistance. He said that he has been trying his best to get in touch with the children.

19. He was told that visits by the children would stop because the boys would be sick when he brought them home. He was also told that, to see the children again, he was not allowed to speak to them in Cantonese and that his sister would need to send her pets away. He said that his sister helps him look after the children when they are with him and that she has a cat.

20. The father said the children get on well with him and his sister and her boyfriend, who the children refer to as auntie and uncle. His sister's surname is the same as his. They have no other family members in Australia. When the children visit him they would spend an hour or so having a video chat with his parents who are in Hong Kong.

21. He said that he is 100% opposed to the plan to change the children's names because they are his children and changing their surname would mean in the Chinese culture that they are not related to him anymore. He said that it would break his connection with the children and would mean that he does not exist. He said that the children's surnames was the main problem for him.

22. The father said that the children's middle names were chosen after his parents consulted a master fortune teller who calculated, based on the time and dates of their birth, a list of possible names that would be good for the children's futures. He said that he gave that list of names to the mother's parents who were asked to select from the list.

23. In response to the objections of the father, the mother said that this is a new era and new practices are adopted by parents. She said that changing the children's names would not cut the connection with their father. She said it doesn't mean that when the children are grown up, they cannot get in touch with their father.

24. She said that the children's current middle names were based on the wrong date and time as it did not take into account the time difference between Hong Kong and Australia. She said that she and her family did not like the middle names chosen for the children but the father insisted. She denies that a choice of several names was given to her. She said that the proposed new names chosen for the children have been carefully selected.

25. In considering the principles to apply when determining whether the proposed change of name is in the child's best interests as required by s 25(3) of the Act, I have had regard to a previous decision of this Tribunal in which Justice Hughes considered the principles set out in two decisions of the Family Court of Australia, namely Chapman v Palmer [1978] FamCA 86; (1978) (4 Fam LR 462) and Beach v Stemmler (1979) FLC 90-692.

26. Justice Hughes expressed the view that the Tribunal should be guided by the approach taken in those cases when the Tribunal is considering the application of s 25(3) of the Act and the concept of the child's best interests as set out in the Act.

27. I will summarise the relevant principles and criteria that I must consider as I understand them to now apply:

27.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;

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

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

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

27.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;

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

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

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

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

28. I am not satisfied that changing the children's middle names and surname is in their best interests. The reasons provided by the applicant for changing the children's names are unconvincing and superficial and reflect her personal wishes and desires rather than a true consideration of the children's best interests. In many respects, the evidence given by the applicant was irrelevant to the question of what name(s) is in the children's best interests or was such that little weight and significance should be given to the matters that she has raised. This includes her allegations as to the medical issues that she said resulted from the children having contact with their father and her (implied) perception that she is the better and more deserving parent.

29. Given the children's young ages and that there is not yet any established history of the children using any particular name publicly, I am not satisfied that there is evidence that the children will face difficulties at school or in other aspects of their lives if their names are not changed. For the same reason, I am not satisfied on the evidence that the children will face any embarrassment if their names at school are different from their mother's name or their step-father's, and I am not satisfied that any confusion of identity would result if their names were not changed. I note that it is a common modern phenomenon, for reasons to do with blended families, remarriages and the like, that a child may have a surname that is different from their primary carer's surname.

30. I do not accept that it is relevant to the question of what is in the children's best interests that the applicant and her family members may find the present Cantonese spelling of the children's names difficult to spell or to pronounce. Also, I do not accept that it would be difficult for the children to spell those names or that the children would find it easier to spell the proposed names than their current names.

31. It is difficult for the Tribunal to avoid reaching the conclusion that the primary motivation for the mother wishing to change the children's middle names and surname is the current hostile relationship that she has with their father.

32. At the very least, I consider that it is premature for the children's names to be changed at this time. It may be that over time, as the children have greater experience of the world (school, friendships, new siblings, social and sporting and other extra-curricular activities, etc), it will become clearer whether the children can or cannot manage their current names and whether it is or is not in their best interests that the names be changed.

33. Until that time, I consider also that it would not be in the children's best interests to eliminate from their names that aspect that reflects their Cantonese heritage and their ethnic connection with their father and his broader family members, some of whom also share the father's surname.

34. I accept the evidence of the father that he wishes to have a continuing relationship with his children. I accept that it is likely that at some time in the future, the father will be able to re-establish contact visits with the children. In view of that likelihood, it is possible that there could be a detrimental effect on the relationship between the father and the children if at this time the children's names were changed as the applicant proposes.

35. As the Tribunal is not satisfied that the proposed change of name is in the children's best interests, approval for the change will be not granted.