XLR v GFP [2020] SACAT 4

Births, Deaths and Marriages Registration Act 1996 s 25

ZXN v TZW [2018] SACAT 52

Palmer v Chapman [1978] FamCA 86; (1978) 34 FLR 405

This is an edited version of the Tribunal's decision. The person the subject of these proceedings has been de-identified and allocated a randomly selected pseudonym for privacy reasons. Other details that may lead to the identification of the protected 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. This is an application about a boy who is just under 15 months old, and whether his name should be changed.
2. The boy's parents registered his name in January 2019 when he was about three weeks old.
3. In October 2019, XLR, the child's mother, applied to the Tribunal to have the child's name changed to a hyphenated surname; mother's surname-father's surname.
4. The Tribunal dismissed the mother's application in a decision dated 25 October 2019 (matter number 2019/SA002971).
5. The mother applied for an internal review of that order.

1. An internal review occurs when a person who has an interest in a decision of the Tribunal seeks to challenge that decision. The review is conducted by a different Tribunal member. An internal review requires the Tribunal to consider the original decision and the evidence on which it was made. The Tribunal may hear or receive further submissions and evidence before deciding what is the correct or preferable decision.[1]

1. The original decision was made after the mother applied to the Tribunal for an order changing the child's name. The parents have separated since the child's name was registered. The change that she sought was to have her surname incorporated into the child's surname so that he would have a hyphenated surname made up of her surname and his father's surname. The Tribunal held a hearing at which the mother put forward her position as to why the name should be changed. GFP, the child's father, put forward his position. He opposed the change of name.
2. The Registrar of Births, Deaths and Marriages assisted the Tribunal in the original hearing with a written submission touching on the legal principles to be applied.
3. The Tribunal issued a written decision. The decision set out the legal authority of the Tribunal to make a change of name. That authority comes from s 25(3) of the Births, Deaths and Marriages Registration Act 1996. It says that the Tribunal may approve a proposed change of name for a child on the application of a parent of the child if the Tribunal is satisfied that the change is in the child's best interests. The Tribunal also referred to s 26 which provides that a change of name must not be registered without the child's consent unless the child is unable to understand the meaning and implications of the change of name. Clearly, in this case, the child is too young to understand the meaning and implications of his name being changed.
4. In the original decision, the Tribunal summarised the evidence and submissions that were made by the parents. The Tribunal then described how the idea of a "child's best interests" had been considered in case law and set out the principles and criteria that the Tribunal concluded it must apply to reach a decision. The Tribunal then applied those principles and criteria to the evidence and submissions that the mother and father had advanced, and said:

It appears to me that it is too soon to make an assessment of the child's best interests in terms of his name. He is not yet 12 months of age. The resolution of the current Family Court proceedings may enable the father to establish a more stable relationship with the child, and the next two years or so will demonstrate the nature of that contact and relationship, both of which are relevant matters for the Tribunal to consider in assessing the best interests of the child. There has been little opportunity to enable the development of a relationship, given both the age of the child and the relative briefness of the separation and the ongoing tension between the parties. In addition more time will provide an opportunity to give consideration to the order of the surnames in a hyphenated name if [the mother] wishes to make a further application to the Tribunal.

1. The reference to the order of the surnames related to the fact that during the original hearing, the father indicated that he was less opposed to the changing of the name if the name was to be father's surname-mother's surname than if it were mother's surname-father's surname.
2. The Tribunal concluded that it was not satisfied that it was in the child's best interests to approve the proposed name change at that point in time but noted that:

this is not to suggest that a further application cannot be made and may be successful, as the best interests of the child may be better able to be assessed in the future when circumstances have consolidated more.

1. The mother now seeks to challenge that decision, maintaining that it is the best interests of her son to have his name changed, as she originally requested, from the father's surname to the mother's surname-father's surname. She submitted a document which acted both as grounds of challenge and her written submission. In that document she maintained that the original decision was wrong because:
   • (a) It contained factual errors which arose because aspects of the father's evidence were false;
   • (b) The original decision accorded greater weight to the father's interests than to the mother's, contrary to the principles that the Tribunal acknowledged it must apply;
   • (c) The Tribunal drew wrong conclusions about the effects of the change of name on the child, namely it diminished the benefit of a very early change of name, before he identified with a name;
   • (d) The Tribunal wrongly found that there were Family Court proceedings on foot and therefore mistakenly assumed that the access arrangements were not settled;
   • (e) The Tribunal wrongly concluded that it was too early in the child's life for it to be in his best interests to change his name.
2. The mother's submission goes on to say that she considers that the child will be isolated in his household as he is the only one with that surname. She considers the hyphenated name that she proposes to reflect the shared care of the child that his parents have.

1. It was not in dispute that:
   • (a) The parents had separated when the child was about 8 weeks old, in early 2019;
   • (b) The parents are now aged: 26 (mother) and 34 (father);
   • (c) The parents now live at suburb A and suburb B respectively;
   • (d) The mother has primary care of the child and the parents continue to negotiate the father's access to him.

1. The father submitted a response to the mother's submission. His submission stated that he is striving for greater involvement in the child's life but that this is being thwarted by the mother. He considers the proposed change of name to damage the bond that exists between himself and the child through their shared surname.
2. The father's submission also stated that:
   • (a) He wants the child to have his name and he hopes it will be passed on to the child's children;
   • (b) If the mother were to re-marry, she may seek to change the child's name again;
   • (c) The change of name could be re-visited if it were causing emotional problems for the child in the future;
   • (d) The change is currently unnecessary as the child has no understanding of his name.

1. The Tribunal must determine whether the original decision was the correct or preferable decision.
2. Neither party submitted that the Tribunal had misstated the legal principles to be applied. However, it is important that those principles be reiterated. The Tribunal's task is not to name a child. The child already has a name. The Tribunal's task is to decide whether that name should be changed. It may only be changed if it is in the child's best interests for it to be changed. The factors to be taken into account are:

• (a) The welfare of the child is the paramount consideration and must be determined on the facts of the particular case;
  • (b) The short and long term effects of any change of the child's name;
  • (c) Any embarrassment likely to be experienced by the child if his or her name is different from that of the parent with custody of care and control;
  • (d) Any confusion of identity which may arise for the child if his or her name is changed or not changed;
  • (e) The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship between the parents;
  • (f) The effect of frequent or random changes of name;
  • (g) The advantages in both the short and long term which will accrue to the child if his or her name remains as it is now;
  • (h) The contact that the other parent has had and is likely to have in the future with the child; and

1. The degree of identification that the child will now have with each parent.[2]
2. The fact is that the child was given a name by his parents. The mother's evidence was that she wanted the hyphenated name that she now seeks, but that the father's strong preference for his surname alone prevailed. The father's evidence was that the application for registration was made by the mother and that they were in agreement at the time of the birth of their child, how their child would be named. The framing of the legal test such as to require a parent to demonstrate that it would be in the child's best interests to change the name demonstrates the significance that attaches to the choice of name when the child's name is first registered. It is not the Tribunal's task to decide what it thinks is the best name for the child but whether it is in the child's best interests for the name to now be changed.
3. In the original decision, the Tribunal concluded that it was not in the child's best interests for his name to be changed. It concluded that the arrangements and relationship between his parents was still changing such that it could not be safely concluded that a change in the name was necessary to meet the child's needs.
4. The Tribunal confirms that factual finding on review. It is quite clear that the relationship between the child's parents, and their arrangements for his care, is evolving. It was evident in the hearing room that the break-up is raw. The Tribunal considers that there is force in the mother's argument that the proposed hyphenated name now best represents the circumstances of the child's parents' relationship. It also accepts the force of her submission that it might be simpler to change his name now, before he becomes registered in various systems such as the education system, and before he is aware of his name, than to wait for him to become old enough for it to have an effect.
5. However, in considering the child's best interests, the Tribunal must take into account, as best as possible, the future. The legal framework for registration of names, the significance that names take in society and the way that the legal test for changing a child's name is framed all indicate that continuity of name is to be preserved except where an adult person chooses to change their name or, where the person is a child, it is in the child's best interests to make the change. In the child's case, it has not been shown that the case for changing his name is in his best interests.
6. The Tribunal reinforces that the secondary effects upon the parents must give way to the child's best interests. It was difficult for the parents to separate these strands of argument. Those issues that are secondary to the child's best interests are that the father would like his son to pass on his surname and that the mother may feel some embarrassment that her son bears the name of a person with whom she is not currently in a relationship. The fact that the outcome in this case may coincide with the interests of one parent over the other does not indicate that one parent's personal interests have been afforded greater weight than the other's.
7. I consider the order made on Friday 25 October 2019 was the correct and preferable decision and that is should be affirmed. I further endorse the original Tribunal decision insofar as the Tribunal Member observed that as the child grows up, the case for changing his name may become stronger.

1. The Tribunal affirms the decision under review.

[1] See s 70 of the South Australian Civil and Administrative Tribunal Act 2013.

1. [2] ZXN v TZW [2018] SACAT 52; Palmer v Chapman [1978] FamCA 86; (1978) 34 FLR 405; Beach v Semmler [1979] FLC 90-692.