Re WCH [2021] SACAT 68 (6 September 2021)

The Family Court made orders in 2020 that, amongst other things, gave the applicant permission to have the child known by 'the father's surname'-'the mother's surname'.

Held, approving the application for the child's name change:

• Based on the oral evidence given by the child, the Tribunal is satisfied that she consents to the proposed name change and knows her surname as 'the father's surname'-'the mother's surname'.
• It would likely cause confusion and distress to the child if the name change were not approved. Given what the child has already been through in the long history of disputes between her parents (as revealed in the Family Court decisions), such confusion and distress would best be avoided.
• The approval of the proposed name change is not based on simply who has care of the child. The overriding factor is the child believes her name is 'the father's surname'-'the mother's surname'.

Births, deaths and marriages - Application to change a child's name - Best interests of the child - Child consents to change of name

Births, Deaths and Marriages Registration Act 1996 s 25

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.

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

1. MMZ (the father) seeks the Tribunal's approval for his daughter's surname to be changed from C-Z (the mother's surname-father's surname) to Z-C (the father's surname-mother's surname).

2. The child, WCH, was born in South Australia on 25 February 2011 and had GOC's (the mother) surname.

3. This application is made under s 25 of the Births, Deaths and Marriages Registration Act 1996 (SA) (the Act).

4. As relevant to this application, s 25 of the Act provides that:

(a) one parent of a child may apply to the Registrar of Births, Deaths and Marriages to register a change of the child's name if the Tribunal first approves the proposed change; and

(b) the Tribunal may approve the proposed change if satisfied that it is in the child's best interests.

5. In considering whether the proposed change is in the child's best interest, the Tribunal has regard to the principle that the welfare of the child is the paramount consideration, taking priority over the wishes of either parent. The Tribunal specifically considers:

(a) the short and long term effects and advantages/disadvantages of any change to the child's name;

(b) any embarrassment likely to be experienced by the child if her name is different from that of the parent with custody or care and control;

(c) any confusion of identity which may arise for the child if her name is changed or is not changed;

(d) the effect which any change of name may have on the relationship between the child and the parent whose name the child currently bears;

(e) the effect of any frequent or random changes of name;

(f) the contact that the other parent has had and is likely to have in the future with the child; and

(g) the degree of identification that the child has/will have with each parent.

6. The child's surname has already been changed twice.

7. As indicated above, her surname at birth was registered as the mother's surname.

8. On 30 June 2017, the Family Court made parenting orders, including that the child live with her father, that he have sole parental responsibility for her, and that she spend time with her mother in accordance with the orders.

9. In January 2018, the father lodged a 'Name Dispute Application' in the Magistrates Court. A hyphenated surname for the child was proposed, to reflect both of her parents' surnames, although there was a dispute about the order of names.

10. The application resulted in the Magistrates Court, in March 2018, authorising the registration of a change of the child's surname. On the face of it, the authorised change was to the Z-C. However, that was an error in the court record; it was meant to be the C-Z.

11. The error was not corrected until February 2019. In the meantime, in July 2018, the change to Z-C had already been registered.

12. Also, the father had already told the child her surname was Z-C.

13. After the Court corrected the error in 2019, Births Deaths and Marriages was notified and they corrected the register, so the child's surname became registered as C-Z. That happened sometime in 2019.

14. The father did not tell the child about that. For various reasons, including an ongoing parental dispute and that the child had become used to her name being Z-C, he decided it best not to tell her at that stage.

15. In June 2020, the Family Court made new parenting orders, in many respects the same as before, including that the child live with her father and her father have sole parental responsibility for her and she spend supervised time with her mother in accordance with the orders.

16. There was an additional order about the child's surname. In the reasons for judgment, the Court said:

... both of the parents agree that the child's surname should be hyphenated and contain both the mother and father's surname but the order that the surnames should appear is in dispute. Considering that the father is the parent with sole parental responsibility and there are no other particular reasons why the order of the surname should be one way or another, I propose making the order that is sought by the father that he be permitted to change the child's surname ...

... is permitted to ... Do all things necessary to have the child known as and referred to as [WCH] and for this purpose, the father is permitted to provide a copy of this order to any Court or Tribunal exercising jurisdiction under the Births, Deaths and Marriages Registration Act 1996 (SA).

18. This permission given to the father does not constitute a binding requirement on the Tribunal to change the child's surname - the Tribunal must still exercise its own jurisdiction - but I give the Court's view on the matter appropriate weight.

19. The father submits that it is best for the child's surname to be registered as Z-C (rather than C-Z as currently registered) not just because of the Family Court's order but also because the child:

(a) believes her surname is Z-C;

(b) has used that surname - and it has been used at school and among her family and friends - since 2018 (since she was about seven);

(c) would be confused and distressed if she knew her surname was different to that.

20. I spoke to the child at the hearing on 2 September 2021, without explaining to her what this application is about. I am satisfied she knows her surname as Z-C. She knows it was changed from the surname she was born with, the mother's surname. She knows her surname contains her parent's surnames. I am satisfied she consents to having the surname Z-C.

21. As mentioned, one of the legal considerations for the Tribunal is the effect of frequent changes of name - note, the effect of (not merely the fact of) frequent changes.

22. In this case, the potential third change of the child's surname, from C-Z to Z-C, is unlikely to have any effect on her, because she already believes that her surname is Z-C.

23. In fact, the potential for an adverse effect would be in not having her name registered as Z-C. It would likely cause the child confusion and distress to realise, as she inevitably would at some time, that her surname was legally C-Z.

24. Given what the child has already been through in the long history of disputes between her parents (as revealed in the Family Court decisions), such confusion and distress would best be avoided.

25. Although there is some potential for further dispute between the parents if the child's name is again registered as Z-C:

(a) The mother must be aware of the Family Court order from June 2020 permitting that change of the child's surname, and she does not appear to have appealed against it; and

(b) The father says the mother would expect that the child's surname has already been changed back to Z-C, because she would be aware that is the child's surname as it appears on documents such as supervised contact records in relation to the mother's contact with the child.

26. I consider that it was and is appropriate for the child to share each of her parent's surnames, via a hyphenated surname.

27. Her parents and the courts have obviously taken different views about the order in which those surnames should appear.

28. A change to C-Z was authorised and registered. I would not approve a change to swap that order of names simply based on who has care of the child. I would not attach such significance to the order of names.

29. However, the overriding factor in this case, in my view, is that the child believes her surname is Z-C. I consider, given her family history, that not reflecting this in her legally registered name would be likely to cause her confusion and distress.

30. Because the child already believes that is her surname and it is the surname by which she is known, registering the change will not cause any confusion.

31. For the same reasons, and because the mother would already be aware of the order of the Family Court in June 2020 about the child's surname, I do not consider that registering the change will affect the child's relationship with her mother.

32. For the above reasons, I am satisfied the proposed change of surname is in the child's best interests. Approval will be given.

33. The child's mother has not been notified of this application because it would be contrary to the child's welfare, in my view, for her to become aware (through her mother) of the issue and/or for there to be further dispute or conflict between her parents about her name.

1. Pursuant to s 25(3) of the Act, the Tribunal approves the proposed change of name of the child from the current first and middle names C-Z to the current first and middle names Z-C.

2. The applicant may apply to the Registrar of Births, Deaths and Marriages for registration of the change of name as approved above, one month after the date of this order.