VWA v OMH [2024] SACAT 2

• The applicant's concerns in relation to the interview of the child are unfounded.
• Dr Riggs' evidence was primarily directed at the benefits of a child being affirmed in the child's choice of name. Whilst not rejecting his evidence, it was appropriate for the Tribunal in the original proceedings to accord more weight to the evidence of a professional who had met the child over multiple occasions.
• No proper basis has been provided for altering the child's middle name or changing the surname from the father's surname to the mother's surname. The child's view that the surnames are gendered suggests a misunderstanding of the nature of surnames, and is consistent with the view that the child's understanding of names and their purpose and effect is yet to develop fully.
• The Tribunal is not satisfied that it is in the child's best interests to have a legal change of name at this point in time.

Internal Review - Births, deaths and marriages - Application to change a 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 Registration Act 1996, ss 16, 21, 24, 26, 27, 29

South Australian Civil and Administrative Tribunal Act 2013 ss 34, 35, 36, 37, 38, 70

Avery v Registrar of Births, Deaths and Marriages; Avery v State of New South Wales (Attorney General's Department) [2010] NSWCA 72

Registrar of Births, Deaths & Marriages v Andary [2004] SASC 68

Ms C Clemow, Crown Solicitor's Office, appeared for the Registrar of Births, Deaths and Marriages, in person

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 South Australian Civil and Administrative Tribunal Act 2013 s 70(6)(a)

1. On 10 July 2023, the Tribunal heard an application for a change of a child's name. The child is seven years old and the application was made by the child's mother, VWA. The child's father, OMH, opposed the application. The Tribunal's decision dated 1 August 2023 ("the original decision") was to decline to direct the Registrar of Births, Deaths and Marriages to change the name of the child from GIH (male first and second names and father's surname) to ZVA (female first and second names and mother's surname).
2. VWA has filed an application for internal review of the original decision. This is the decision made on the internal review.
3. An internal review requires the Tribunal to examine the material that the original decision was made upon, the decision itself, any fresh evidence that the parties have permission to file, and the parties' submissions. The Tribunal must then reach a decision as to whether the original decision was the correct or preferable decision, or whether it should be set aside or varied.[1]

1. The original decision concerned the name of a child who was born in South Australia in August 2016 and was aged six years at the time of the decision (and has since turned seven).
2. The name on the child's birth certificate is GIH.
3. The parents separated when the child was six months old. There is a parenting order in place dated 14 December 2017 by which the parents have equal shared parental responsibility for Z. Z lives with each parent for seven days. This arrangement has been in place since the parties separated.
4. The child prefers to be called Z and it is appropriate to use that name to identify the child in this decision. The child has not indicated a preference for a particular pronoun and the father adopts the gender-neutral "they" and the mother uses the child's name instead of pronouns. No application for a change of Z's gender, marked as male on the register, has been made.

1. VWA's application to change her child's name was made under the Births, Deaths and Marriages Registration Act 1996 ("the Act"). The Act is part of a national legislative scheme. Its purpose was to provide for a consistent approach to the administration of registering births, deaths and marriages and an accurate and accessible record of information.[2] In his second reading speech, the Minister described the register as an "indispensable social record and the source of data which is essential to a wide range of community services and activities."[3] In Registrar of Births, Deaths & Marriages v Andary,[4] Mullighan J described the birth register as a "permanent and necessary historical record" and stated that there is a public interest in the register being accurate and complete.[5]
2. The birth of a child must be registered with the Registrar within a period after the child's birth.[6] The registration entails the provision of specified information regarding the child including the child's name.
3. Section 21 provides:

21 - Name of child > > (1) Subject to this section, the birth registration statement must state the name of the child. > > (2) The name is a matter of choice for the person or persons lodging the statement1, but the Registrar may assign a name to a child if -

(a) the name stated in the birth registration statement is a prohibited name; or

(b) the birth registration statement is lodged by both parents of the child and they satisfy the Registrar that they are unable to agree on the child's name.

(3) A birth registration statement relating to a still-born child need not state the name of the child.

Note - 1 For example, there is no requirement that the name be made up of both a surname and a given name or given names.

1. There are separate provisions for adults and children in relation to changing a name on the register.
2. An adult person born in South Australia or, if born overseas and not having a name registered interstate and resident for 12 months in South Australia, may have their name or part of their name changed by applying and paying a fee. A change of name must not be for a fraudulent purpose.[7] There are some names that are prohibited.[8]
3. Section 27 provides:

27 - Registration of change of name > > (1) Before registering a change of name under this Part, the Registrar may require the applicant to provide evidence to establish to the Registrar's satisfaction - > > (a) the identity and age of the person whose name is to be changed; and > > (b) that the change of name is not sought for a fraudulent or other improper purpose; and > > (c) if the person whose name is to be changed is a child - that the child consents to the change of name or is unable to understand the meaning and implications of the change of name. > > (2) If the Registrar is satisfied that the name of a person whose birth is registered in the State has been changed under another law or by order of a court or tribunal, the change of name may be registered under this Act. > > (3) The Registrar may refuse to register a change of name if, as a result of the change, the name would become a prohibited name.

4. The parents of a child may apply jointly to the Registrar for a change of their child's registered name. If both parents are alive, one parent may apply for a change of name without the other parent, but the application must be made to the Tribunal.[9]
5. Section 26 of the Act provides that a change of a child's name must not be registered (whether made by one or both parents) unless:

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

1. A person may only change their name once in a 12-month period and three times in their life.[10]

1. The application was heard by a panel of two Tribunal Members on 10 July 2023. The Panel was constituted by a legally qualified Senior Member (Mr Rainford) and an ordinary Member (Ms Clark). Both Members have significant professional experience in interviewing children and the consideration of proceedings involving the interests of children.
2. Member Clark interviewed the child in the absence of the parties at the start of the hearing. Z declined to have a support person present in that interview. The interview was audio-recorded.
3. In addition to the interview, the Tribunal had regard to:
   • Oral and written evidence and submissions of VWA;
   • Oral and written evidence and submissions of OMH;
   • Oral submissions of MVK (VWA's partner);
   • Written submissions of the Registrar of Births, Deaths and Marriages;
   • Reports of Dr Ruth Jarman, a clinical psychologist (three reports filed);
   • Report by Ms Sowel Coward, a clinical psychotherapist and a senior mental health social worker (one report filed);
   • Report by Dr Damien Riggs, a psychotherapist (one report filed).
4. Dr Ruth Jarman prepared her three reports at the joint request of the parents. She had 11 one-on-one sessions with Z in the formulation of her view. Dr Jarman did not consider the child met the DSM-5-TR criteria for gender dysphoria. However, Dr Jarman acknowledged the limits of the criteria, that is, that they are based on the assumption that gender is binary, and do not accommodate cross-gender preferences. Dr Jarman recommended that the parents should allow and support the child's exploration of gender.
5. Dr Jarman provided an addendum report dated 22 February 2023, in which she reported that she and Z often discussed what name the child would prefer and the answer was consistently "Z". The child reported that the name G makes Z sad and is "not who I am" and that the name Z makes Z happy. Dr Jarman reported that Z could not articulate why or explain any further.
6. Dr Jarman reported that the child showed some distress at being called G. Therefore, Dr Jarman recommended the child be called by the child's preferred name but did not recommend a legal name change of the child's first name or first and middle names at that point in time.
7. In relation to the child's surname, Dr Jarman's view was that Z reported wanting to change Z's surname from H (the father's surname) to A (the mother's surname) but could not explain why. Dr Jarman did not consider the desire for a change of surname to be related to the child's gender identity. Dr Jarman recommended that the parents consider a hyphenated surname.
8. She expressed the opinion that the legal name change was not currently in the child's best interests.
9. Ms Coward is a clinical psychotherapist and senior mental health social worker who specialises in the mental health wellbeing of transgender people. She prepared and filed a report dated 12 May 2023 at the applicant's request. Ms Coward had Z complete the World Health Organisation Quality of Life questionnaire which is designed to measure a person's perception of their quality of life in the context of the culture and value systems in which they live and in relation to their goals, expectations, standards and concerns. Ms Coward reported that the child's responses indicated an overall good quality of life when answered from the perspective of being a girl, and particularly that Z's psychological wellbeing was very high when treated as female. Ms Coward also administered to Z the Gender Identity/Gender Dysphoria Questionnaire for Adults and Adolescents which measures the degree to which an individual struggles with their gender identity. The child's results confirmed gender incongruence. Thirdly, Ms Coward assessed Z on the Utrecht Gender Dysphoria Scale which focusses on the bodily aspects, gender identity and gender role dynamics of gender dysphoria. Z's results confirmed gender incongruence. Ms Coward reported that she discussed the change in surname with the child and it became clear that the child considered H as being a name for a male. Ms Coward observed that providing consistency in at least a child's first and second name, and a change in gender marker on their birth certificate, have been shown to significantly promote a transgender wellbeing.
10. Following that assessment, Ms Coward's opinion was that a change of name is consistent with Z's best interests.
11. Dr Riggs is a psychotherapist who specialises in the mental wellbeing of transexual children and adolescents aged 12 years and under. He prepared a report at the applicant's request. He had not assessed Z and provided a report based on information provided by the applicant.
12. His report provides a summary on best practice care for transgender children. Dr Riggs provided his opinion that gender affirming care is respectful, aware, and supportive of the identities and life experiences of transgender people. He observed that there is evidence on the harmful effects of children not being referred to by the names that they elect to use. It is Dr Riggs' opinion that approving Z's legal name change will only benefit Z's wellbeing.
13. The Registrar of Births, Deaths and Marriages assisted the Tribunal with the provision of written submissions that set out the legal principles, but did not express a position on the application and communicated to the Tribunal that the Registrar would abide the event.

1. In short, VWA told the Tribunal that she considers that Z has, for a reasonable period of time, expressed a desire to have the name ZVA and that VWA, as Z's mother and as Z's "voice", sought to have that wish acted upon. VWA considers that whilst the child retains the name assigned at birth, the child is experiencing sadness and anxiety.
2. OMH considers that it is too early to tell whether the child's expressed wish is an enduring one. He considers that the question of a change of name should be revisited, if it is still the child's wish, at some stage in the future (including possibly before Z turns 18). In the meantime, informal arrangements whereby the child is called Z by family and at school, are appropriate. He does not support the proposed change of surname from H to A.

The Tribunal's reasoning in the original proceedings

1. Member Clark interviewed Z, and the parents each made submissions (not in Z's presence). The Tribunal formed the view that Z was unable to understand the meaning and implications of a change of name.
2. The Tribunal considered the reports provided by the parties, and the Tribunal issued a written decision with reasons in which it declined to grant the application.
3. The Tribunal found that informal arrangements for Z to be called by Z's preferred name are in place. Both parents use the name Z (it appears OMH only more recently has embraced this practice) and Z's school uses Z's preferred name.
4. In determining whether a change of name would be in Z's best interests, the Tribunal placed significantly more weight on the opinion and reports of Dr Jarman.
5. The Tribunal said:

25. Some examples of when it might be in a child's best interests to approve a name change are where the parents are estranged and/or where the parent whose last name the child bears no longer has any contact or involvement in the child's life (and is unlikely to have any contact in the future). Other examples may include situations where there have been allegations of domestic violence towards a parent and a child as evidenced by criminal proceedings or an intervention order. None of those examples apply here. The respondent has a close and continuing relationship with the child as does the applicant and even though they have their differences, by and large it appears that both can appropriately discharge their parental responsibilities in respect of [Z]. > > 26. The Tribunal considers that this application is premature. [Z] is at an age when it is natural to explore gender. [Z] has chosen a name that is reflective of [Z]'s identity at this time. This decision is being accommodated by both parents and the education system, both of which are integral to [Z]'s wellbeing. There is in our view no reason why it cannot be respected that [Z] be known as [Z] by others such as [Z's] General Medical Practitioner. In the future [Z] may affirm that [Z] wishes the name change to be legalised, or [Z] may not. The Tribunal is of the opinion that [Z] is simply too young to have the decision made to alter [Z's] birth certificate at the present time. > > 27.The Tribunal is not satisfied on balance that the proposed change of names is in the child's best interests and accordingly, approval for the changes sought will be not granted.

6. The Tribunal noted that the application to change Z's name was not accompanied by and did not foreshadow an application to change the gender marker on the Register, and that Z is not undergoing any treatment to alter biologically-male physical characteristics. The Tribunal said,

[Z] dresses in a "feminine" fashion, prefers to have long hair, and sometimes purports to prefer she/her pronouns (although at the full hearing requested no pronouns be used). However, [Z] takes no issue with [Z's] "boy bits".

7. The application was not approved in any of its components and Z's legal name remains as it appears on the birth certificate.

1. A person who is dissatisfied with a decision of the Tribunal (not being a decision made by a Presidential member), is entitled to an internal review of the decision. An internal review is conducted pursuant to s 70 of the South Australian Civil and Administrative Tribunal Act 2013 ("SACAT Act"). The task of the Tribunal on review is to consider the original decision and the material on which it was based, and further evidence and submissions that the parties may seek to make. The Tribunal then determines whether to affirm, vary or set aside the original decision.
2. The parties submitted further written submissions and VWA arranged for Dr Riggs to attend and give evidence. The parties each attended the hearing and made oral submissions. Each brought with them another person and those other persons gave evidence, discussed further below.
3. VWA sought to have the decision set aside and substituted with a decision directing the Registrar of Births, Deaths and Marriages to change her child's name in the register to "ZVA". OMH opposed the internal review and sought to have the original decision affirmed.

Observations about the law regarding the registration of names

1. Before considering each of VWA's arguments regarding the original decision, it is useful to make some general observations about names.
2. A registered name is a means by which Government institutions can identify individuals for the purposes of providing services (including health services), entitlements (such as the right to vote in an election, and to drive a vehicle),[11] benefits, and enforcing obligations (such as paying taxes and laying criminal charges). Registered names also assist members of a society to enforce obligations against one another (such as contractual obligations and to assert rights such as ownership of property). The need to identify a person will sometimes attach to events that occur over a period of time, and changes of name can make it difficult to connect individuals with events. Controlling the circumstances in which names may be changed, and documenting changes on a register, are ways to connect these events to an individual over their lifetime. In other words, registered names (as opposed to what we might like ourselves to be known by amongst friends) are an important feature of participating in a community of interacting people.
3. Names also have enduring social and cultural implications by designating connections between individuals (biological, marital and familial), signalling ethnicity, and religious affinity. For an individual, a name may, or may not, be a strong reminder of connection to certain others. Naming conventions and laws vary across the world.
4. It is not unlawful, unless associated with an unlawful purpose, for a person to use a name that is different from the name assigned to them at birth. A change of name by custom or repute is expressly recognised in the Act.[12]
5. Often, however, a person or body who seeks to identify a person with certainty (because, for example, the person or body has a duty to know who they are dealing with) will only deal with a person using their registered name, or only after satisfying themselves that the person is the person with the registered name.
6. The custom by which a female person changes their surname upon marriage to unite it with their husband's has such a strong cultural history in this country that it forms an exception to the law that otherwise requires a change of name to be registered for it to have legal effect.
7. The distinction between a name as a cultural and social convention, and as a legal identifier, was discussed by the New South Wales Court of Appeal in Avery v Registrar of Births, Deaths and Marriages; Avery v State of New South Wales (Attorney General's Department)[13] in the context of an appeal against a refusal to change an adult's name under the equivalent legislation in New South Wales. The Court said:[14]

56. In some circumstances, an entity has a name only because the law gives it that name. A company provides one example. It comes into existence by the administrative act of registration. Section 119 Corporations Act 2001 (Cth) provides: "[t]he company's name is the name specified in the Certificate of Registration." Before registration, that name is merely a "proposed name" (section 117(2)(b) Corporations Act). Section 148 Corporations Act restricts the names that a company may have. Section 157 Corporations Act prescribes a particular method that a company must use to change its name. In this legislative scheme, a company has a particular name only because the law provides for it to have that name. > > 57. By contrast, natural people frequently (though not always) have a name independently of that name being conferred on them by some legal action. Frequently, that X i[s] the name of some particular person is simply a fact about language use that does not depend upon there being any legal authority to confer or recognise the name. > > 58. That the name of a person is often a question of fact and not dependent on any legal authority has been recognised in this Court in Director General, Department of Community Services v Adoptive Parents [2005] NSWCA 385; (2005) 64 NSWLR 268. That case involved the construction of section 101(5) Adoption Act 2000. That subsection provided that, on the making of an adoption order, the court: > > "... must not approve a change in the given name or names of a child ... unless there are special reasons, related to the best interests of the child, to do so." > > 59. In construction of that statute, Giles JA held, at [25]: > > "... that the given name or names of a child for the purposes of s 101(5) are the name or names conferred on the child other than the surname, not necessarily either officially conferred or recognised by the child as referring to him or her." (emphasis added) > > 60. At [33], Giles JA said: > > "Australia is now a significantly multicultural society. Inter-country adoptions are subject to the Act, and many adopted children will be adopted from countries and cultures remote from the Anglo-Celtic tradition and the common law. I do not think it can be accepted that the legislature intended that strict concepts of surname and given name according to the Anglo-Celtic tradition, still less all the intricacies of the common law, should be taken up in s 101 of the Act ... In my opinion s 101 took as its model the customary but by no means universal naming tradition of a surname and a personal name or names given to the child, not in the sense of given at baptism or confirmation but in the sense of conferred on the child. What name or names have been conferred on the child is a question of fact ..." (emphasis added) > > 61. Before enactment of the BDMR Act, there were various different legal contexts in which the law recognised that it was possible for a person to come to have a name that was different to the name with which they started life, where that new name is acquired by repute or usage. However, for the law to recognise that a person has a name that has been acquired by repute or usage is not the same as saying that the name has been changed pursuant to the law. > > 62. However, the precise shade of meaning that a court attributes to the word "name" can depend on the litigious context in which the court is deciding what is a person's "name". Deciding that shade of meaning is a question of law, but whether a person has a name, in that shade of meaning, is then a question of fact...

8. A number of propositions may be taken from the Court of Appeal's judgment that are applicable (because of the national nature of the births, deaths and marriages registration legislative scheme) to the South Australian Act:
   • A person may go by a name that is different from the name in the register;
   • The registered name provides a basis for continuity of identity that is important for many of the structures in society but may not coincide with the name by which a person is known;
   • The Act recognises that names exist independently of registered names, and a person may have two names;[15]
   • A change of name is an event that may be registered but need not be. There is no obligation to register a change of name.[16]
9. I have set some of these matters out at length to demonstrate that there is an important distinction between a person's name, and their registered name. For most people it is that the two are the same or one is a derivation of the other. But there is nothing illegal or improper about the use of a name that is different to a registered name, unless and until the name is used for an illegal or improper purpose. On an application for a change of name, the Tribunal is not concerned with what a person seeks to be called, but only in whether a name, or change of name, should become their official name through registration.

1. At the review hearing, each of VWA and OMH made submissions. Each of VWA's individual contentions will be addressed below but it is appropriate to summarise the parties' evidence and submissions in general terms first.
2. VWA emphasised that she considers that it is important to give a voice to Z and to take steps to stop the harm that is being caused to Z as a result of continuing to have, and be called by, a name with which Z does not identify.
3. VWA was accompanied by her partner, MVK, who gave evidence. He met Z three years ago and lives with VWA and Z. He corroborated VWA's evidence that Z is distressed by having to sign in on a laptop under the name "GIP" at school, and says Z has become a bit depressed by it. He does not think that using "preferred names" will be sufficient. He did not believe that VWA was 'coaching' Z but was merely facilitating Z's wishes.
4. OMH's position was that the original decision was correct and that Z should go by the name of Z at school and home but that it was too early to decide whether to formalise the changes in the Register.
5. OMH made several other points. He expressed concern that VWA has overstated the extent of the distress experienced by Z concerning Z's name. It is his observation that the distress is absent when he is with Z. He is also less certain than VWA that Z is expressing an abiding identification as female. He considers it too early to tell. OMH considers that VWA has demonstrated an unwillingness to accept the views of others if they do not coincide with her own, and pointed to the fact that she was supportive of obtaining a report from Dr Jarman until it did not support her position. He expressed concern that VWA is persisting with a view that Z is autistic (as is VWA) when a diagnosis has not supported that conclusion. These matters are by and large beyond the scope of the review.
6. He invited the Tribunal to hear from HTW. She gave evidence that she has known Z since Z was a few months old and shared a house with OMH for a period of years during which they "effectively co-parented" Z and her own daughter, when Z was staying with OMH. She said that she had not observed any distress when she or OMH inadvertently referred to Z as G. It was her view that Z was articulate but had not articulated any anxiety or distress about Z's name.
7. Ms Clemow, for the Registrar of Births, Deaths and Marriages, made brief submissions in which she confirmed that the proposed names are not prohibited. She advised the Tribunal of the Registrar's policy to limit the name of changes of name to three in a lifetime, and that any application must be at least 12 months following any previous application.

1. The applicant advanced several contentions regarding the original decision which will be addressed in turn.

1. VWA contended that the Tribunal had misapplied s 26 of the Act to its consideration of the application. Section 26 of the Act provides that a change of a child's name must not be registered unless:

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

1. In the original proceedings, the Tribunal found that Z is articulate but it was not satisfied that the child had the maturity to be fully aware of and understand the implications of a name change.[17]
2. VWA submitted that because the Tribunal found that Z did not understand the meaning and implications of the name change, it could have made the order under s 26(b).
3. This criticism can be dealt with briefly. It is evident that the Tribunal did not consider that it lacked the power to make the order, as the criticism suggests. The Tribunal reasoned that because Z was unable to understand the meaning and implications of the change of name, it was required to consider whether the change was in Z's best interests. It was on that basis that the Tribunal made its decision. The Tribunal considered that it was not in Z's best interests to have a change of name at this point in time.

The Tribunal did not make the decision that was in the best interests of the child

1. VWA submitted that Z's reasons for a name change are because the first names and surname cause gender-related distress, confusion of identity, and severe embarrassment.
2. She submitted that the Tribunal in the original decision placed insufficient weight on the significance of confusion of identity, embarrassment, and the risk of mental distress and high risk of suicidality. She sought to rely upon Dr Riggs' evidence given on the review, in that regard.
3. Dr Riggs gave helpful evidence about his experience of interacting in a clinical setting with children and young people, experiences of their gender, and his research experiences.
4. It is evident from his evidence and research, some of which is relatively recent, that the impacts upon a young person of having the gender with which they identify contradicted by others, by institutions and by structures, can be profound.
5. The task for the Tribunal in the original proceedings, and in this internal review, is not to determine the potential for distress arising from a child experiencing a lack of affirmation for their identified gender, in an abstract sense. In any event, the practitioners appeared to be largely if not wholly agreed upon that. The task for the Tribunal was and is to decide whether it is in Z's best interests to have a registered change of name. The only evidence relevant to that task is how Z is currently affected and how Z is likely to be affected by Z's current, and proposed, names.
6. The contention that the Tribunal in the first proceedings failed to place sufficient weight on Z's views is not sustained. It is evident that the Tribunal placed significant weight, quite properly, on the evidence. It also took into account Z's inability, at this age, to undertake future-thinking in the same manner as Z will as Z matures.
7. The Tribunal placed significant weight on the views of Dr Jarman, a clinical psychologist who had conducted 10 sessions with Z between July and December 2022. Her report dated 6 December 2022 set out the basis of her assessment that Z is not gender dysphoric. She provided recommendations to Z's parents to the effect that Z's exploration of gender should be supported, by supporting Z's choices in relation to hair, clothing, name and pronouns.
8. This recommendation does not require a change of registered name, where the child does not understand its implications. It is a practical recommendation about what Z is called by parents, other relatives, and teachers. This recommendation is being implemented.
9. I reach the same conclusion as the Tribunal in the original proceedings did on that issue. It may only be two or so years before Z's thinking matures sufficiently to satisfy the Tribunal that the change of registered name is appropriate. Alternatively, the professional views may coalesce sooner or later into a unanimous view that a change of registered name is in Z's best interests. That point in time has not been reached.
10. Importantly, the evidence regarding the effect of a child not having their preferred name recognised does not lead to the conclusion that a child's legal name must be changed to avoid the adverse effect. The evidence concerns the way that the child feels about their identity and the support that they have from others with whom they interact about that identity. The evidence is consistent with benefits arising from an informal change of name as well as from a legal name. Indeed, if a name were to be legally changed but people important to the child failed to use that name and continued to use the former name, it is consistent with the evidence that the child would continue to experience confusion and sadness.

The panel failed to place the opinion, wishes and wellbeing of the child before the parent's views which are of secondary importance

1. The Tribunal understands this criticism to refer to the fact that the decision reflected OMH's submissions and that the applicant considers that this demonstrates that the Tribunal afforded his views greater weight than Z's in reaching its decision.
2. Except that it will usually be a parent who makes an application for a change of name in respect of a child, the parent's views are not required to be considered if they do not coincide with what is in the best interests of the child. Upon reading the Tribunal's reasons, there is no basis for concluding that the Tribunal took into account OMH's wishes but rather reached the view that Z's best interests were achieved by declining the application. This objection is not upheld.

The evidence produced by Member Clark interviewing the child was inadequate

1. The Tribunal takes a flexible approach in relation to seeking the views of young people affected by a change of name application. Whether their views are sought, and how, is determined on a case-by-case basis by the Tribunal and the factors considered include the child's age, the child's attitude and any disability the child may experience. In this case, the Tribunal decided that it would be appropriate for one of the two Members only to conduct an interview with child, in the absence of the parents.
2. The interview was audio recorded, consistent with the approach taken to other aspects of the hearing.
3. The Tribunal Member later summarised the interview orally to the parents, and incorporated into the written reasons for decision an account of the relevant information conveyed by Z and the Member's observations about the manner in which it was conveyed.
4. The Tribunal summarised Z's statements in the interview as follows:

[G] was a boy's name, [H] was a boy's name, and being a boy makes [Z] feel "bad and sad" because [Z] feels like a girl.

[Z] also said that the name [Z] "felt like a girl name" and made [Z] feel happy, and "the name [A] made [Z] feel happy too".

6. Z's evidence about "H" being a boy's name raises the question of whether Z might be under the apprehension that surnames are gendered (H being Z's father's name).
7. VWA expressed a concern in relation to the statement in the written reasons that Z responded with a thumbs up or thumbs down to some questions. VWA contends that these signals are key items of evidence that have been overlooked and not reported on. Having listened to the recording, I do not consider that this criticism is made out. There is no question to which it is unclear what Z's answer was. Where there was a thumbs up or down, the Tribunal Member stated this by way of confirmation to Z of Z's view, and frequently repeated Z's answers.
8. In any event, the evidence of Z's views was not in dispute. The Tribunal was not in any doubt that Z expressed a wish to be known as ZA. The Tribunal however decided that Z's views were not determinative of the matter because of Z's inability to understand the implications of a change of name. The Tribunal acknowledged Z's intelligence and ability to speak in a clear, directed manner. Z spoke of driverless trains, explained a method for to how to count to 1000, and appropriately used words like "often" and "connected" and "rectangle" in full sentences during Z's discussions with the Tribunal Member.
9. VWA complained that "special paper" is a very ambiguous term to use when talking about a birth certificate. In addition, she said that the Tribunal misconstrued Z's response to being asked about a "special paper that is filled out when someone is born". I do not accept that account of what occurred. The Member used the word "special paper" in the same sentence as "birth certificate" to explain what it is. Nothing about Z's response suggests that Z was confused or misled about the topic.
10. I find that VWA's concerns about the interview are unfounded and that the Tribunal proceedings did not miscarry because of the manner in which Z was interviewed. Interviewing a young child about specific matters is a delicate exercise and their evidence, or the manner in which it is taken, cannot be scrutinised in the same manner as that of an adult witness. I am satisfied that the object of the interview was achieved and that the Tribunal gained an important insight into Z's maturity and Z's wishes with respect to Z's name. This ground of review is not sustained.

The Panel discounted expert evidence without raising their concerns with VWA

1. VWA contended that the Tribunal had discounted Dr Riggs' views because he had not seen Z. She considers that the Tribunal ought to have given her the opportunity to provide the Tribunal with further information that would have satisfied the Tribunal that Dr Riggs had access to all of the relevant information when he formed his views.
2. This ground of review has been superseded by the Tribunal on internal review agreeing to hear evidence directly from Dr Riggs. That evidence was useful. However, it remains that Dr Riggs was only able to make general statements about the manner in which young people with gender dysphoria, or who are otherwise exploring their gender, are supported, rather than being an assessment of Z's particular circumstances. These proceedings are not about the rights of children who wish to explore their gender, but about whether it is in Z's best interests to have the name Z wishes to be known by registered as Z's legal name.
3. Dr Riggs' evidence was primarily directed at the benefits of the child being supported in a change of name, without identifying why the change needed to be a legal change as opposed to a customary one. The Tribunal does not accept VWA's contention that the Tribunal in the original proceedings assessed the expert evidence incorrectly. It was assessed appropriately in light of the particular question that the Tribunal is required to answer.

1. Almost all the focus in the original proceedings was on Z's first name. I have reached the conclusion that the original decision was the correct one, namely that Z's name should not be legally changed. However, for completeness it is appropriate to refer to the fact that the application was also to change Z's middle name from a male middle name to the female equivalent and the surname from the father's surname to the mother's surname.
2. In the Tribunal's view, there was no case advanced in respect of the middle name that is independent of the case for the change of the first name. It makes sense that if the first name is to be changed to Z, then the second name would (unless there was a reason advanced to do otherwise) be changed in a way that achieves an alignment with the first name, in the sense of two names that are customarily associated with female-identifying persons. On the other hand, there was no reason given for changing the middle name if the first name was not changed.
3. Z's expressed view is that "H" is a boy's name and that is why Z wishes to have it changed to A. That suggests a misunderstanding of the nature of surnames, and is consistent with the view that Z's understanding of names and their purpose and effect is yet to develop fully.
4. The Tribunal considers that no proper basis has been provided for altering the child's middle name or changing the surname from the father's surname to the mother's surname.

1. On review, the Tribunal has done two things. It has reviewed the original decision and the basis on which it was made, to determine whether any of the criticisms of it are made out. The Tribunal finds that they are not. The Tribunal has also given a fresh consideration to the application and the new evidence that was adduced. Having done so, the Tribunal is not satisfied that it is in Z's best interests to have a legal change of name at this point in time. The original decision is affirmed.

1. The Tribunal affirms the decision under review.

[1] South Australian Civil and Administrative Tribunal Act 2013, ss 34-38.

[2] Registrar of Births, Deaths & Marriages v Andary [2004] SASC 68 per Gray J at [24].

1. [3] South Australia, Parliamentary Debates, House of Assembly, 7 February 1996, 912 (Stephen Baker, Deputy Premier).

[4] [2004] SASC 68.

[6] Births, Deaths and Registration Act 1996, ss 16, 21.

[7] Births, Deaths and Registration Act 1996, s 27(1).

[8] Births, Deaths and Registration Act 1996, ss 21(2)(a), 27(3).

[9] Births, Deaths and Marriages Registration Act 1996, s 24(2).

1. [10] Change of Name Policy approved 30 August 2019, filed on behalf of the Registrar of Births, Deaths and Marriages on 14 November 2023.

[11] Avery v Registrar of Births, Deaths and Marriages; Avery v State of New South Wales (Attorney General's Department) [2010] NSWCA 72 at [88] per Campbell JA, Tobias JA agreeing.

[12] Section 29.

[13] [2010] NSWCA 72.

1. [14] Per Campbell JA, Tobias JA agreeing.

[15] Avery v Registrar of Births, Deaths and Marriages; Avery v State of New South Wales (Attorney General's Department) [2010] NSWCA 72 per Campbell JA at [86].

[16] Avery v Registrar of Births, Deaths and Marriages; Avery v State of New South Wales (Attorney General's Department) [2010] NSWCA 72 per Campbell JA at [73].