The application in this case is with respect to a child currently aged 12. The Tribunal finds that the child consents to the proposed change of name.
Both parents gave evidence at the hearing. The Tribunal also had regard to all documents filed by them.
The applicant gave the following evidence on affirmation in support of the application:
She and the father of the child began a committed relationship in 2008. The relationship ended and they separated when the child was aged 2.
There are orders which the Federal Court of Australia made by consent on 24 November 2014 under the Family Law Act 1975 granting shared parental responsibility of the child to both parents, directing that the child live with her and providing that the father have regular contact with him on alternate weekends, half of school holidays and on special days including Birthdays, Christmas and Father's Day.
The child has always and continues to live with her.
The father has not initiated any contact with the child since about May 2021 following him being charged with serious criminal offences involving alleged acts of terrorism, involving neo-Nazi ideology. These offences have attracted substantial media interest.
The primary reason she has made an application for the child's last name to be changed from the father's surname to her surname is to avoid or minimise any embarrassment or distress to the child (particularly at school) on account of the media publications concerning the child's father.
She married XBW eight years ago. They have two children, a daughter aged 7 and a son aged 2. Both children have XBW's last name.
Her husband supports the application. He has a very good relationship with XAF. All siblings are extremely close and collectively, they are a tight family unit.
The child has had some contact with his paternal grandfather, but he maintains more regular contact with her and her husband's extended families.
XAF is aware of the application and is able to express his views in response to it.
SWP provided the Tribunal with a written submission prior to the hearing on 3 August 2022. He confirmed the contents of that document and gave the following evidence on affirmation in opposing the application:
He has been denied access to the child by the applicant since April 2021. It is this separation between him and the child that has led the child wanting to change his last name, as far as he can tell.
The application is no more than an attempt by the mother of the child to interfere with his and the child's relationship. This is consistent with her actions towards him since their relationship ended and they separated.
He has concerns about how a name change will impact on the child's relationship with half-siblings in his care. These siblings are a brother aged 16 and two sisters aged 14 and 9, all of whom have SWP's last name.
If the child's last name is changed, that will lead to a further deterioration in their relationship.
A last name is 'not just a name, it's a birthright. It is a big part of my faith - passing the name down the line...[it's] a heritage thing.'
Although he has not had any contact with the child since April 2021, he has attempted communication with the applicant to arrange contact with the child, but she refuses to answer his messages and has taken steps to block him from the child's telephone numbers and accounts on messaging Apps.
He has not yet taken out any Court proceedings to enforce the Federal Circuit Court Order because he cannot presently afford to do so. He will not be in a position to take any action until the current criminal proceedings are finalised, but he does intend to do so.
The child was interviewed by me (in the absence of the applicant) at the earlier hearing on 7 June 2022. He informed the Tribunal of the following:
He lives with his mother, stepfather, and half-siblings with whom he has a close relationship. They all have XBW's last name and in that regard, he is presently the only family member who does not have that name.
He has not had any contact with his biological father, SWP, for over a year. He does not want to have contact as he is concerned about his father's behaviour. He is aware that his father is facing criminal charges and is worried about what people may think because they have the same last name.
He wants his last name changed to XBW's last name. That would make him feel even more a part of the family household.
He does not consider that changing his last name will affect any future relationship with his father should that occur.
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 the case of ZXN v TZW[1] in which Justice Hughes, the Tribunal President, considered the principles set out in two decisions of the Family Court of Australia, namely Chapman v Palmer[2] and Beach v Stemmler.[3] 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.
The relevant principles and criteria that I must consider are:
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.
The short- and long-term effects of any change to the child's surname.
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.
Any confusion of identity which may arise for the child if his name is changed or is not changed.
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.
The effect of frequent or random changes of name.
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.
The contact that the other parent has had and is likely to have in the future with the child; and
The degree of identification that the child will now have with each parent.
The relevant issues that arose from the evidence and about which I will make findings are as follows:
The starting point in applications for change of name does not entail any assumption as to what an appropriate name is for a child...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 interest to change that name.
[4]
In this case, the application relates to a 12-year-old child whom the Tribunal had the benefit of hearing from directly. XAF struck me as a very impressive mature young person who has a good understanding of the importance and significance of a last name or surname. He was able to articulate well the reasons why he wishes to be known by XBW's last name. I have no hesitation in finding that he consents to that change.
In my view, the Tribunal must place very considerable weight on the child's wishes. Whilst the wishes of both parents are relevant to the Tribunal's determination, they are of secondary importance as to what is in the child's best interests, according to his wishes and the factors in play.
In having regard to the various factors that I must consider as referred to in ZXN v TZW[5] I pay particular attention to the following:
The child is the only member of his household who does not have XBW's last name. I have no doubt that this may affect - even in a subtle way - his sense of belonging and on occasions, probably cause him to feel a sense of isolation or embarrassment. For example, I imagine this may occur at times during family interactions with others or during family travel or formal occasions where names are required to be stated.
The child has not had any contact with his father now for over a year, even accepting if what SWP says about attempting contact is true.
Understandably, at the present time, the child does not want any contact with his father. He is old enough to understand that SWP is currently facing serious criminal charges even if he is unaware of the details of the allegations. He is also mature enough to understand that the matter is attracting media publicity and because of the nature of the charges is likely to do so for some time. I have no doubt that XAF feels extremely anxious about the ramifications which any publicity may cause whilst he has the same last name as his father. A change of last name in this case is very likely to alleviate that anxiety and any embarrassment the child may feel. It cannot be overlooked that the child is at a sensitive age as a young person who is about to enter his teens (including commencing secondary school). He is likely to be very self-conscious and sensitive to any negative attention or even bullying by his peers - whether actual or perceived. The nature and characterisation of the alleged offending is such that any public stigma arising is likely to be longstanding and to attract public condemnation.
The views expressed by the father of the child regarding the passing on of a last or surname as a 'birthright' in today's modern (and generally, more receptive and accepting) society is quite anachronistic and is not in keeping with best interest considerations. Today, it cannot be considered the norm to assign a child the father's last name, particularly where the parents were not legally married. More and more, we are seeing cases of hyphenated last names (of both parents) and in cases such as this, where the parent who has the day-to-day care and responsibility of the child has remarried and had other children, then best interest considerations may gravitate towards a change of last name to the name of that parent.
I am acutely aware that the Federal Circuit Court has ordered that both PEU and SWP have the shared parental responsibility for XAF with SWP having the right to regular contact. The fact remains, however, that he has not had any contact at all for well over a year, and further, that the child does not wish for contact to occur as he informed the Tribunal. For a substantial period, the only regular contact that the child has had is with members of his immediate family and his mother's and stepfather's extended families, with some contact only with his paternal grandfather. It is important to note that when XAF spoke with me, he made no mention at all about the half-siblings in his father's care. I did not gain the impression of any undue influence by the mother on his stated wishes at that time.
Whilst I consider that a name change will enhance the child's sense of belonging within his family unit, I do not consider that having XBW's last name should adversely affect any future relationship which may develop between him and his father and/or stepsiblings from his perspective if that should occur. If it does have an effect from their perspective, that is a matter for them. One can only hope that in time, they would see past a name if genuinely motivated to re-establish and nurture a meaningful relationship with the child if that is their mutual desire.
[5]
I am well satisfied from all the evidence before me both oral and documentary and accordingly find, that it is in the child's best interests that his name be changed as proposed by the applicant.
Accordingly, approval for the change will be granted.
[6]
The Tribunal makes the following orders:
Pursuant to s 25(3) of the Act, the Tribunal approves the proposed change of last name of the child XAF from SWP's last name to XBW's last name.
An application for registration of the proposed change of name may be made by the applicant to the Registrar of Births, Deaths and Marriages one month after the date of this order.
The Tribunal makes an order on its own motion under s 60 of the South Australian Civil and Administrative Tribunal Act 2013 prohibiting the publication of the child's and his parent's names being satisfied it is in the interests of justice and because of the confidential nature of the subject matter. This however does not extend to the publication of this decision on Austlii where the names of the parties are appropriately de-identified.