Held, ordering the Registrar to register the child's name as "J A mother's surname-father's surname":

• That the applicant mother has chosen "A" for the child is a strong argument connecting to the child's best interests but not sufficiently powerful to displace the child's best interests in maintaining the sense of identity already established by the use of the name "J" for the past 12 months.
• As the child now responds to "J" and understands this is his name, it is in the child's best interests that his first name is recognised as "J".

Births, Deaths and Marriages - Dispute between parents about a child's name - Tribunal Resolution - Order Registrar to change name in form specified in order

Births, Deaths and Marriages - Dispute between parents about a child's name - Best interests of child

Births, Deaths and Marriages Registration Act 1996 s 21, 22, 25

South Australian Civil and Administrative Tribunal Act 2013 s 70

DDB v APP [2021] SACAT 88

QAX v LUB [2022] SACAT 21

ZXN v TZW [2018] SACAT 52

Chapman v Palmer [1978] FamCA 86; (1978) 4 Fam LR 462

Beach and Stemmler [1979] FCWA 1; (1979) FLC 90-692

The first respondent appeared by telephone with a support person

Mr A Santostefano, Crown Solicitor's Office, appeared in person for the second respondent

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.

Resolve a dispute between parents about a child's name

Made under the Births, Deaths and Marriages Registration Act 1996 s 22

1. This is the determination of an application made to the Tribunal on 31 March 2023 by YIR, the mother of a child born in South Australia in 2022.
2. The application was made to the Tribunal pursuant to s 22 of the Births, Deaths and Marriages Registration Act 1996 (the BDM Act), to resolve a dispute between the parents concerning the name of the child.
3. The father of the child is VYW.
4. I have received written submissions on behalf of the Registrar of Births, Deaths and Marriages (the Registrar), as well as written and oral submissions on behalf of the Chief Executive of the Department for Child Protection (the Chief Executive). I take these into account.
5. In earlier directions hearings the father had been represented by his mother, the child's paternal grandmother. The paternal grandmother did not attend or participate in this hearing, but the father attended by telephone, as he was not able to attend in person.
6. The present carer for the child has also made a written submission in this matter and I take that into account.
7. The parents have not been able to agree on any name, given name or surname, for the child, so no name has been registered. Both parents have suggested names for the child. The carer calls the child "J".

(1) If there is a dispute between parents about a child's name, either parent may apply to the Tribunal for a resolution of the dispute.

(2) On an application under subsection (1), the Tribunal may -

(a) resolve the dispute about the child's name as the Tribunal considers appropriate; and

(b) order the Registrar to register the child's name in a form specified in the order.

1. The BDM Act does not provide any guidance as to how the Tribunal should resolve such a dispute, but the Tribunal has taken the view (in DDB v APP [2021] SACAT 88; and QAX v LUB [2022] SACAT 21), that it must look to the stated purpose of the legislation and its objects, which are concerned with ensuring that births (and other events) in the State are registered in considering how to resolve such a dispute, and in particular that the best interests of the child should be the dominant concern.
2. The concept of the best interests of the child is regularly applied by the Tribunal when determining applications approving a change of the name of a child under s 25(2) of the BDM Act, which specifically requires the best interests of the child to be the governing consideration. The meaning of the phrase was considered at length by the President of this Tribunal in ZXN v TZW [2018] SACAT 52.
3. The relevant considerations identified by President Hughes draw upon Family Court of Australia decisions in Chapman v Palmer [1978] FamCA 86; (1978) 4 Fam LR 462 and Beach and Stemmler [1979] FCWA 1; (1979) FLC 90-692, and include the following matters:
   • 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 nature of the relationship the child has with each parent;
   • any embarrassment that may be caused to the child if they bear a surname different from that of the parent with whom they generally reside;
   • the surname the child has been using in "day-to-day" life and by which most people recognise the child;
   • whether the relationship the child has with their mother or father will be affected by the change of name;
   • the significance of maintaining a connection to their father or mother by using his or her name;
   • if the child has any siblings, whether there will be any impact on the child's connection with those siblings as a result of the proposed change to the child's name;
   • if the child resides in a family unit that does not bear the same name as the child, whether the child would feel excluded from the family unit based on the fact that he or she has a different surname, and
   • whether the use of a hyphenated or combined name is appropriate.
4. It is these principles which have been adopted as relevant in earlier decisions of the Tribunal concerning applications pursuant to s 22 of the BDM Act, and I am satisfied that these principles should govern my considerations in this matter.

1. The child was born in 2022. The child's parents are YIR (applicant mother) and VYW (first respondent father).
2. The relationship between the parents ended in about October 2022.
3. The child was removed from the mother on 19 September 2022 because of concerns about the child's safety in her care, and is presently under the interim guardianship of the Chief Executive. The child remains in the care of a carer. Child protection concerns have also been identified in respect of the father and he is not able to have contact with the child.
4. The matter of the child's care and guardianship has been considered by the Youth Court in its Reunification Court, and the Chief Executive has indicated her intention to pursue long term guardianship with respect to the child. The Youth Court has adjourned consideration of the matter until 9 October 2023.
5. On or around 31 October 2022 the parents attempted to complete an online application to register the child's birth but this was not successful. There was then some contact from the Registrar's office in October and November 2022, but no response from the parents.
6. After some further communication attempts, the child's father advised in February 2023 that he wished the child to be named "L J father's surname", and later in February 2023 the child's mother advised she wanted the child named "A J mother's surname". The relevant forms were not, in either case, signed by both parties and so no name was registered.
7. On 16 March 2023 the Registrar's office wrote to both parents advising that it appeared the parents had been unable to agree on a name for the child, and that in those circumstances, s 21(2) of the BDM Act gives the Registrar the power to assign a name to the child; or, alternatively, either parent could apply to the Tribunal to resolve the dispute.
8. The child's mother made this present application to the Tribunal on 31 March 2023.

1. The child's mother told the Tribunal she and the child's father had never settled on a name for the child, but that they had discussed a name and had both liked "A". She said that when she had filled in the form for the registration she had called the baby "A J mother's surname".
2. Prior to the hearing the applicant said she was happy for the child to be named "L A J mother's surname", incorporating names both she and the child's father had chosen, but she particularly wanted the name "A" included. At this hearing she said she was now happy for the child to have the surname "mother's surname-father's surname".
3. The applicant said she sees the baby each week, and she calls him "A", as do other members of her family.
4. The applicant said she was aiming for reunification with the baby, and said she presently spent an hour a week with him. She said she had previously seen him three times a week, but she had then been admitted to hospital and her access time had been reduced, but she is now out of hospital and her condition is stable.
5. The applicant said she would now like the child to have "A" as his first name, and she argued that it was in the child's best interests to know that he had a name his mother had chosen for him, rather than a name chosen by a foster carer. She told the Tribunal she had the primary relationship with the child, as the father did not see the child at all as there was an intervention order in place prevention him from having contact with the child as a result of domestic violence, and the father had not sought reunification with the child.

1. The child's father told the Tribunal he had never agreed for the child to be called "A", as he did not like the name and it was a girl's name. He told the Tribunal he believed if the child was called "A" he would be bullied at school, and he knew this was the case as he had been bullied at school himself. He said it had been agreed with the applicant prior to the child's birth that the child's middle name would be "J".
2. The child's father agreed he had not seen the child "in a while", and that there was an intervention order in place preventing him from doing so, but he would like to spend some time with the child.
3. The child's father agreed with the surname of "mother's surname-father's surname", and wanted the child's given names to be "J L", and he did not want the name "A" included as part of the child's name at all.
4. In an earlier written submission the child's father states that the name "A" is completely unacceptable to him as "it goes against my faith and religion". He did not expand on this at the hearing.

1. The submissions made on behalf of the Registrar draw the Tribunal's attention to the background of this application, a summary of the parents' positions, and submissions concerning the application of s 22 of the BDM Act, and in particular the significance of the best interests of the child.
2. Further, it draws attention to the Naming Dispute Policy within the Office of Births Deaths and Marriages (BDM). This Policy directs that consideration should be given as to whether both parents are showing an ongoing interest in the naming of the child, and if so, the child's name should be finalised to include all given names as proposed by both parents.
3. The submission of the Chief Executive endorses the Registrar's submissions with respect to the relevant factual background and applicable law, and provides some further information concerning the child's circumstances.
4. This submission also refers the Tribunal to the views of the child's present carer. The child has been with this carer since he was a few days old. The carer has called the child "J" since he came into her care on 19 September 2022, as this was the middle name both parents had agreed upon. The carer advises that the child now responds to the name "J". The carer has indicated that she is willing to provide ongoing care to the child in the event that a long-term guardianship order is made.
5. The Chief Executive indicates that she does not wish to express a view about the child's name other than submitting that it is considered that the name "J" should be included as part of the child's legal name, as in the child's best interests, given that the child now responds to the name "J" and understands this is his name. In addition, since it is possible the carer will continue to care for the child on a long-term basis and that she will continue to call the child "J", it would be appropriate for the name to be included as part of the child's legal name.
6. The child's carer also made a brief written submission (dated 17 June 2023).
7. The child's carer states that when the child first came into her care, he was often assumed to be a girl because of the name "A", and she became frustrated in having to correct this assumption, so she decided to refer to the child as "J" as a mutual name the parents had agreed upon. The child's carer states she uses the name "J" wherever she needs to give the child's name, and she says the child now responds to this as his name, and is known as "J" by everyone in his life.
8. The child's carer states that not having a registered name has impacted negatively on the child as he has no Medicare card, and she is unable to deal with Centrelink in relation to him.

1. In considering how to assess the child's best interests the Registrar and the Chief Executive both referred me to the matters considered by President Hughes in ZXN v TZW [2018] SACAT 52, and the relevant considerations she identified drawing upon the decisions of Chapman v Palmer [1978] FamCA 86; (1978) 4 Fam LR 462 and Beach and Stemmler [1979] FCWA 1; (1979) FLC 90-692. These are set out above in these reasons. I am satisfied it is appropriate for me to take these considerations into account in determining the application of s 22 of the BDM Act in this matter.
2. The child's parents are now agreed on the surname for their child, but not on the child's given names. The child's given names are accordingly the only matters for the Tribunal to address in determining this dispute concerning the child's name.
3. In determining an appropriate name or names, the Tribunal must consider what would serve the best interests of the child, taking into account the evidence and submissions before the Tribunal. I take into account the following:
   • The child will be 12 months old in the latter part of 2023.
   • The child presently lives with a carer who provides for his care on a full-time basis and has done so since he was less than two weeks old. There has been regular but limited contact between the child and his mother, but no contact with his father.
   • It is likely an application will be made for an order for long-term guardianship of the child, as reunification with the mother has not been successful. If this application is made and is granted, it is possible the child will continue in the care of his present carer.
   • The parents are agreed concerning the child's surname, being "mother's surname-father's surname".
   • The child's mother wants the child's first name to be "A". She has however, in earlier communications to the Tribunal, indicated she is prepared to accept some combination of the names "A", "J" and "L", but at this hearing she denied she had agreed to the name "J", and made it clear she wanted "A" as the child's first name.
   • The child's father wants the child called "J L". He previously wanted the child to be called "L J". He made it clear he was not prepared to accept that the child's name should include "A".
   • The child's present carer, who has had the care of the child nearly his whole life, calls the child "J", and has called the child "J" in her dealings with others in relation to him.
   • The child, now aged 12 months, recognises and responds to the name of "J", and if he remains in the care of his present carer, is likely to continue to be called "J".
4. It is the child's best interests which are paramount, not the desires of the parents. However, I am satisfied that the parents' views on an appropriate name for the child should be taken into account, and there is some commonality in that I am satisfied that both parents (despite the child's mother's denial at the hearing) initially agreed on "J" as a middle name.
5. However, I note that the child does not presently have a close relationship with either parent: he is in the full-time care of a carer and has been most of his life, with limited, although regular, contact with his mother, but no contact with his father. His carer calls him "J", and he is known as "J" by most people in his day-to-day life, although his mother calls him "A" when she sees him.
6. I accept that the child now recognises his name as "J" and responds to it as his name.
7. In my view, it would not be in the child's best interests to have a disruption in his sense of identity, which is just becoming established at the age of 12 months, by changing his name from "J" to another name. A sense of identity comes from not only a child understanding what his or her own name is, but the child understanding that other people also know him or her by that name: that is, it is a self-identity, and also a sense of the child's own place on the world.
8. It is my view the child's best interests are served by his first name reflecting these circumstances, that he responds to and recognises his own name as "J", and he perceives that those around him know him as "J".
9. However, I also accept the applicant mother's submission that it is in the child's best interests to know that his name has been carefully chosen by his mother, and not randomly chosen by a stranger. The applicant mother has chosen the name "A" for her child, and I am satisfied she has maintained contact with the child, and is keen to maintain and increase this contact. In my view that she has chosen a name for her child is a strong argument connecting to the child's best interests, although, in this matter, not sufficiently powerful to displace the child's best interests in maintaining the sense of identity already established by the use of the name "J" for the past 12 months.
10. I am satisfied for these reasons that the child's second given name should be "A".
11. For these reasons, and having taken into account the submissions of the parents, the carer, the Registrar and the Chief Executive, and considering the best interests of the child, I am satisfied that it is appropriate to assign the name "J A mother's surname-father's surname" to the child, and I will order that the Registrar of Births, Deaths and Marriages register the child's name accordingly. The Registrar should not however proceed to register the name until after the expiry of the period during which either parent can seek an internal review of my decision under s 70(2) of the South Australian Civil and Administrative Tribunal Act 2013.

The Registrar of Births Deaths and Marriages is to register the child's name as J A mother's surname-father's surname, following the expiration of one month from the date of this order.