The Tribunal considered the agreement between the parents at the time of the children's birth regarding their surname, the children's wishes, the children's relationships with their parents and extended family, and practical considerations associated with changing the children's names again.

Held, granting leave and affirming the decision under review:

• On balance, the Tribunal affirms the original orders (which means that the Registrar's decisions are also affirmed) as the Tribunal has decided that is the correct and preferable order now, as it is in the children's best interests.

Internal review - Births, deaths and marriages - Application to change a child's name - Best interests of child

Administrative review - Births, Deaths and Marriages Registration Act 1996 - Review of a decision of the Registrar made under the Act

Births, Deaths and Marriages Registration Act 1996 ss 25, 50

South Australian Civil and Administrative Tribunal Act 2013 ss 8, 34, 70.

ZXN v TZW [2018] SACAT 52

DDB v APP [2021] SACAT 88

QAX v LUB [2022] SACAT 21

C Harrison and C Clemow appeared in person for the Registrar of Births, Deaths and Marriages

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.

1. This is an application for the review of an order made by the Tribunal on 3 June 2022 in matters numbered 2022/SA001266 and 2022/SA001265 (the original Orders). It is also an application for the review of a decision made by the Registrar of Births, Deaths and Marriages, to register the name changes approved by the Tribunal in the original Orders.
2. In the original Orders, the Tribunal found that the applications to change the surname of the children from D V W-K and M B W-K respectively, (W-K being the 'mother's surname'-'father's surname') to D V W and M B W respectively (ie so that each child's surname would be the mother's surname only) (together, the Children and independently, D and B) were in the Children's best interests, and so the Tribunal made orders approving the change of names pursuant to s 25(3) of the Births, Deaths and Marriages Registration Act 1996 (the BDM Act). The applications had been made by the Children's mother, OVW.
3. The applicant, XCK (the father of the Children), was not served with notice of the proceedings which resulted in the original Orders and so he did not participate in those proceedings. XCK disagrees with the original Orders, and he has sought a review. XCK is entitled to seek a review of the original Orders under s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act).
4. On 12 August 2022 the Registrar of Births, Deaths and Marriages (the Registrar) gave effect to the original Orders by changing the surnames of the Children, from W-K to W, on the certificates of birth for each of the Children. These changes were made pursuant to applications made under s 25(2)(c) of the BDM Act (the Registrar's decisions).
5. XCK disagrees with the Registrar's decisions to register the change in the Children's surnames, and he has sought a review of those decisions.[1] XCK is entitled to seek a review of the Registrar's decisions under s 34 of the SACAT Act and s 50 of the BDM Act.
6. As the internal review application for the original Orders[2] and the application for administrative review[3] involve common issues, directions were made for the applications to be dealt with simultaneously.

1. Section 70(2) of the SACAT Act requires that any application for internal review must be made within 1 month of the decision under review, unless the Tribunal considers it is just and reasonable in the circumstances to dispense with that requirement.
2. XCK submits that it is just and reasonable to accept the late application for the following reasons:
   • He was unaware of the SACAT proceedings and the original Orders until November 2022 when he learnt of them through having access to documents lodged in the Family Court[4] and it took him some time after he became aware of the original Orders to obtain copies of them, and to inform himself as to his rights of review;
   • He wishes to be heard in relation to the original Orders and the Registrar's decisions as he has a different position from that of OVW;
   • OVW's evidence to the Tribunal in the original hearing process that she did not know of any current way in which XCK could be contacted and informed about the applications was incorrect because:
     • OVW had his current email address and that email address has remained unchanged;
     • OVW knew where his parents lived, they had both been in stable accommodation for a number of years and he is in touch with them on a regular basis - notice of the hearing could have been served by post to either of those residences;
   • The information provided to the Tribunal (at the original hearing) by OVW to the effect that he had taken no interest in the Children and had made no effort to contact her or them since December 2020 is incorrect, as evidenced by:-
     • the email messages sent by him to OVW in May 2021, August 2021, September 2021 and December 2021;
     • the presents he left for D for his birthday in September 2021;
     • the fact that he had a Snapchat conversation with M in mid 2021;
   • In addition, shortly after the time of the original hearing, he initiated further email contact with OVW about contact with the Children (as evidenced by the emails he sent to the Tribunal) and she did not tell him about the SACAT proceedings or the original Orders;
   • However, XCK acknowledged that he had blocked OVW's ability to contact him on his phone at one point.
3. OVW acknowledged that she and XCK had exchanged emails during 2020 and 2021 and she also acknowledged that he had contacted her on a number of occasions during 2021 seeking to have access to the Children. OVW said that she must have got the dates wrong. She did not dispute XCK's evidence of emails that he had sent to her shortly after the original Orders were made. OVW did not dispute XCK's evidence that she did not inform him of the Tribunal proceedings.
4. Ms Harrison submitted that it would be appropriate to take into account the following factors when considering whether or not to dispense with the requirement under s 70(2) of the SACAT Act:
   • the length of the delay,
   • the reasons for the delay,
   • the prospects of success of the application and
   • the extent of the prejudice to OVW in dispensing with the requirement of s 70(2).
5. Section 8(1) of the SACAT Act states the main objectives of the Tribunal. Those objectives include a statement that in the exercise of its jurisdiction, SACAT should be promoting the best principles of public administration which include natural justice and procedural fairness.
6. In broad terms, the principles of procedural fairness require that a person with a proper interest in a matter should be given an opportunity to be heard. This requires that the person should be given reasonable notice of proceedings, and a fair opportunity to state their case to the Tribunal.
7. Senior Member McEvoy's decision not to serve XCK with notice of the proceedings was based upon the information provided by OVW, as outlined above.
8. I accept XCK's submissions that the information provided by OVW to the effect that she did not have current contact details for XCK and that he had made no attempt to see the Children since December 2020, was incorrect. I also accept his submission that he initiated further contact with OVW by email shortly after the original Orders, but OVW did not mention the orders or the process to him.
9. I accept that XCK has a view that he wishes to express to the Tribunal which is contrary to the views expressed by OVW.
10. XCK should have been provided with an opportunity to present his arguments to the Tribunal. He was not afforded this opportunity due to the inaccurate information provided by OVW. Accordingly, I will dispense with the requirement for the application for internal review to have been lodged within one month of the original Orders.

1. There is currently an Intervention order in place between XCK and OVW. OVW participated in the hearing by phone and XCK attended in person. OVW requested for the Tribunal to conduct the hearing in parts so that she would not be participating in any part of the hearing in which XCK was participating. XCK did not oppose this proposal and so I conducted the hearing accordingly.
2. In addition, I considered whether or not I should interview the Children. D was born in September 2014. He is currently eight years old. M was born in February 2016. He is currently seven years old. Senior Member McEvoy decided not to interview the Children as she considered that they were too young. I agree with that approach. I discussed the issue with XCK and OVW. Neither of them considered it was appropriate to interview the Children. Ms Harrison did not oppose my proposed approach.

1. Section 70 of the SACAT Act requires that on review, the Tribunal must reach the correct or preferable decision taking into account the evidence available to the Tribunal at the original hearing, giving appropriate weight to the original Orders and taking into account any other evidence the Tribunal considers is reasonable and appropriate to take into account in the review process. An application for internal review necessarily involves an application for leave.
2. Section 34(3) of the SACAT Act requires the Tribunal to conduct the review of a decision made by another decision-maker, by way of re-hearing. As with an application for review under s 70 of the SACAT Act, the Tribunal must reach the correct or preferable decision giving appropriate weight to the decision of the original decision-maker. The Tribunal must also have regard to the information available to the original decision-maker, and has a discretion to admit evidence as part of the review if the Tribunal considers that evidence is relevant and appropriate to take into account.
3. Section 25(3) of the BDM Act states that 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. Section 25(2)(c) of the BDM Act states that one parent may apply to the Registrar to change the registration of a child's name if the Tribunal has approved the change of name.

1. XCK made the following submissions in the review hearing:

a) When the Children were born, he and OVW agreed that the Children would have a surname which was a hyphenated surname containing the surname of each parent. > > b) He and OVW separated in July 2019. After that, he had some contact with the Children until December 2020 when there was an incident between his parents and OVW and after that, he had not seen them until the Family Court process. > > c) However, he had made a number of attempts to have contact with the Children in 2021. He left birthday presents. He had spoken to M. He re-invigorated those attempts in June 2022 only one week after the original Orders were made. However, despite a number of email exchanges between them over the next two weeks, OVW did not inform him of the SACAT proceedings. She did not inform him of the original Orders. The email and text messages which he had provided to the Tribunal establish that the information provided to the Tribunal by OVW in the original process, was incorrect. > > d) He felt that OVW was making her own choice not to allow him access to the Children, and he did not accept her position that the Children did not want to see him. Therefore, in 2022, he made an application in the Family Court seeking regular access to the Children. > > e) In the course of doing so, he had found M in particular, to be warm and receptive to him at their first meeting at the Court. He was hoping that he could have regular access to the Children. > > f) There were a number of reasons why XCK had not sought access through the Family Court sooner - he did not want to put the Children through a process which could involve conflict and tension; he had undergone two episodes of surgery and had been on Workcover for an extended period; and he had hoped that the issue could be resolved outside the court system. > > g) OVW had contacted him to ask whether or not he would agree to the Children changing their surnames to "W" only. He had said that he would not agree, and his position was (and remains) that if the Children wanted to modify their surname to "W" only, they could do so on an informal basis, and then when they were old enough to do so, they could apply to change their surnames formally. > > h) OVW's application to change the Children's surname was motivated by spite, and not on the basis of the best interests of the Children, because he had re-partnered, and he had refused OVW's requests for them to continue a sexual relationship after their separation in 2019.

1. The independent evidence provided by OVW in support of her application was limited and insufficient to support the decision to change the Children's surnames. He was unable to provide the Tribunal with reports which had been obtained in the Family Court process because they were only to be used in that process, however, those reports were favourable to XCK and would support his position in this application.
2. XCK submitted that the correct or preferable order would be to set aside the original Orders and the Registrar's decisions and for the surname of the Children to return to "W-K" until they were old enough to make up their own minds about it.
3. OVW submitted that the original Orders and the Registrar's decisions were correct and preferable because:

a) The Children want to change their surname to "W" only; prior to the change in their surname, they had been distressed about it and after the change, they had been relieved and happier. > > b) D has expressed his preference to change his name in a number of ways - for example, he has requested for his name to be "W" only, at school and in sporting clubs. He has expressed negative feelings about his father. M's position is essentially that he wants to have the same surname as D. > > c) There was an altercation between OVW and XCK's parents on Christmas Day in 2020 which was observed by the Children and which was traumatising for them. That incident has been a significant contributing factor in them wanting to change their surnames. > > d) The Children have a close relationship with her family, and that is another reason why they want to change their surname (i.e. to be consistent with her family). > > e) The independent evidence supports her position that the Children prefer to use the surname "W" only, they do not wish to have a hyphenated surname including "K", they have found the hyphenated surname to be upsetting, and they have been happier since their surname has been changed, that evidence being: > > * the letters from the Principal of the Children's school; [5] and > * the letters from psychologists at EarlyStart.[6] > > f) XCK's applications are not motivated by the best interests of the Children, but in an attempt to control them.

4. In her submissions on behalf of the Registrar, Ms Harrison referred to the principles stated by her Honour Hughes P in ZXN v TZW,[7] and submitted that in particular, the Tribunal should consider the following:
   • not all factors should be given the same weight;
   • it is not what the parents want that should be determinative, but what is in the best interests of the child;
   • the Tribunal should not be distracted by any debate concerning who is the better parent;
   • the Tribunal may consider that it is important for a child to have a name which connects them to all parts of the family;
   • the Tribunal should give consideration to the name used by the parents at the child's birth and afterwards.
5. Ms Harrison also referred the Tribunal to the Naming Dispute Policy (used by Births Deaths and Marriages), and in particular, I note that policy refers to whether both parents are showing an ongoing interest in the child.

1. In summarising her reasons for deciding to change the Children's surnames, Senior Member McEvoy said as follows:
   1. I am satisfied the proposed change of name is in the children's best interests.
   2. I am satisfied there is no ongoing relationship between the children and their father, and this has been their father's choice, in that he has neglected to maintain and nurture that relationship. The children live with their mother and relate closely to her family, who all have the name to which the change is sought. The children both want to change their surname to be the same as their mother'. I am satisfied that the change of name may assist in addressing some of the distressing issues which the older child, in particular, associates with his father's name.
   3. Under these circumstances, the Tribunal is satisfied that the proposed change of name is in the children's best interests and approval for the change will be granted.
2. In ZXN v TZW, her Honour Hughes P referred to the following considerations when dealing with an application to change the name of a child:
   • The welfare of the child is the paramount consideration;
   • The short and long term effects of any change of the child's surname;
   • Any embarrassment likely to be experienced by the child if their 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 their name is changed or is not changed;
   • The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during a marriage or 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 children if their name remains as it is now;
   • The contact that the non-custodial parent has had and is likely to have in the future with the children;
   • The degree of identification that the children now have with each parent, and where relevant, with any step-parent.
3. I consider that the following factors are particularly relevant in this matter.

a) The agreement between the parents at the birth of the Children

XCK and OVW were not legally married. Their original agreement was for the Children to have hyphenated surnames to include both of their surnames.

In a previous matter in which the child had no registered name, the Tribunal found that the name which would be in the child's best interests would be a name which provided the child with a sense of connection to all parts of the family, including both parents, and which would not embarrass the child and in that matter, the appropriate name was the name chosen by the parents at the time of birth and shortly after.[8]

In another matter in which the child was in the guardianship of the Chief Executive of the relevant government department for three months, the Tribunal found that it would be in the child's best interests to have a surname which recognised and associated the child with and reminded the child of their connection with parents and broader family groups.[9]

My view (which I consider is consistent with those authorities), is that the starting point in this matter should be the agreement between XCK and OVW when the Children were born. That agreement allowed for the Children to have surnames which recognised and promoted their connection with both parents and the families of both parents.

In my view, any decision which would have the effect of disturbing that agreement should not be made lightly and only in circumstances where the evidence properly establishes that it would be in the Children's best interests for such a change to be made.

The only independent evidence I have about the Children's wishes are the reports from the Principal and the reports from the psychologists. Those reports suggest that both Children want to change their surname, although the evidence is stronger in relation to D. The reports are not particularly detailed but tend to establish that D has a clear preference to have the surname of "W" only, and it appears that M wants to have the same surname as D.

XCK was not able to provide any independent reports about the Children's wishes as the only reports to which he has access were produced in the Family Court proceedings, and are only able to be used in those proceedings.

In relation to this information, I observe that the Children are young, and in my view therefore, likely to be influenced by the parent with whom they are spending the majority of their time. This consideration goes to the weight to be given to the evidence about the wishes of the Children.

c) The Children's relationship with their parents

In her submissions, Ms Harrison has drawn my attention to BDM's Naming Dispute Policy which relevantly provides that if there is a dispute about a child's surname, consideration should be given to whether both parents are showing an ongoing interest in the child.

OVW has been the primary carer for the Children since she and XCK separated in mid-2019. I accept that XCK had some contact with the Children in the first six months of the separation, but after December 2020, he has had virtually no contact with the Children.

XCK has made a number of attempts to have access to the Children since December 2020, but the first direct contact XCK had with the Children was in the Family Court process. XCK's attempts to have access to the Children have been sporadic although I accept that OVW has not facilitated access and I consider it is likely that she has been obstructive on some occasions. Even though XCK has had some difficult personal circumstances, he could have initiated proceedings in the Family Court sooner, and he could have been more persistent with his attempts.

Although XCK has said that the interaction between him and M in particular in the Family Court process, was positive, the re-establishment of his relationship with the Children is in its very early stages.

d) The Children's relationship with their extended families

The Children have not seen XCK's parents since December 2020 apart from the meeting with XCK's mother (and XCK) in the Family Court process. OVW's submission is that the Children were adversely impacted by the incident that occurred in December 2020 in terms of their relationship with XCK's family. She says that the Children have a close relationship with OVW's family.

In the review hearing, XCK said that M in particular, responded positively towards his mother in their session as part of the Family Court proceedings.

I accept that because of the length of time since the Children have had any significant interaction with XCK and his family, it is likely that they identify more closely with OVW's family.

However, during the course of the review hearing, XCK said that he and his partner have recently had another child. That child is a half sibling to the Children. It is important that the Children should have the opportunity to have a relationship with that child.

The Children's surnames were changed in August 2022. The information provided by OVW suggests that the change to the surnames of the Children has been implemented and for some time, the Children have been using the surname of "W" only. In this situation, I consider that if I made an order now which set aside or varied the original Orders (and the Registrar's decision), this may cause the Children embarrassment and confusion.

1. It is understandable that XCK may be frustrated at the inaccurate information provided to the Tribunal by OVW in the course of the original hearing. However, the purpose of this review process is not punitive (i.e. to punish OVW). The purpose of this review process is to decide whether the decisions to change the surname of the Children (and the decisions to register the change) are the correct and preferable decisions now. The correct approach is to determine what is in the best interests of the children taking into account the factors mentioned above.
2. I have carefully considered all of the evidence. I have given particular weight to the reports of the School Principal and the Psychologists as the only independent evidence about the Children's state of mind in regard to the change. I also consider that an important consideration is the amount of contact between the Children and each of their respective parents and parents' families over the last two years.
3. I have considered whether the Children's relationship with their father and his side of the family would be improved if their surnames were returned to the original hyphenated surnames, but I am not satisfied that is the case, and in this matter I consider there is a real possibility that if their surnames did return to W-K, that may have a negative impact on the Children's relationship with their father (and his side of the family).
4. On balance, I have decided to affirm the original Orders (which means that I also affirm the Registrar's decisions). I have decided that is the correct and preferable order now, as it is in the Children's best interests.

1. The Tribunal dispenses with the requirement for the application for internal review to be lodged within one month of the decisions under review.
2. The Tribunal grants leave to apply for internal review.
3. The Tribunal affirms the decisions under review in matters numbered 2022/SA001266 and 2022/SA001265.
4. The Tribunal affirms the Registrar's decisions on 12 August 2022 to register the change of the surnames of the children.

[1] Even if XCK was successful with his application for the review of the original Orders under s 70 of the SACAT Act, it would not follow that the Children's names on their birth certificates would automatically be changed to reflect any order made by the Tribunal about the original Orders because the Registrar's decision is a decision made by the Registrar independently of the SACAT proceedings and the original Orders.

[4] In the course of proceedings which he has initiated in order to obtain access to the Children.

[6] Dated 18 April 2023, 4 May 2023 and 30 May 2022 but noting that those reports are only in relation to D.

[7] [2018] SACAT 52.

[8] DDB v APP [2021] SACAT 88.

[9] QAX v LUB [2022] SACAT 21.