ZXN v TZW [2018] SACAT 52

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

Lonsdale & Trevor [2018] FamCA 127

Mahoney & McKenzie [1993] FamCA 78

Flanagan & Handcock [2000] Fam CA 150

Vine & Wands [2013] FCCA 2284

Gerald & Kenwood [2013] FCCA 2038

Rennick & Yardman [2014] FCCA 556

Whinney & Kelleher [2013] FCCA 1939

Chapman v Palmer [1978] FamCA 86

This version of the Tribunal's statement of reasons has been edited to anonymise a person under the age of 18 in accordance with the Tribunal's 'Anonymization of Decisions' Policy. The child has been de-identified and allocated a randomly selected pseudonym for privacy reasons. Other details that may lead to the identification of the child may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

1. This case concerns two very young twin children, KDW and YWG. Their mother, ZXN, has asked the Tribunal to approve her request that the Registrar of Births Deaths and Marriages change their surname on the Register.[1]
2. Before considering the reasons for and against the children's names being changed, it is important to set out the nature of this application.
3. ZXN has made an application for internal review of an earlier decision made by this Tribunal on 11 October 2018 under s 25(3) of the Births, Deaths and Marriages Registration Act 1996 (the BDM Act). That decision concerned the change of surname of two infant twin children, KDW and YWG, from the father's surname to the mother's surname. Section 25(3) of the BDM Act authorises the Tribunal to approve an application for registration of a child's name by one parent where the Tribunal is satisfied that the change is in the child's best interests. The Tribunal at first instance heard the applications for each child together. The Tribunal declined to make an order in favour of the applications for the change of name. The Tribunal considered it could not be satisfied, considering the young age of the twins, that a change of name would be in the children's best interests.
4. ZXN's current application is made under s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act). Section 70 provides that:
   1. On an internal review, the Tribunal must examine the original decision of the Tribunal on the basis of the evidence or material before the Tribunal at that time but the Tribunal may allow further evidence or material to be presented to it;
   2. The Tribunal must make the correct or preferable decision having regard to the original decision;

c) When dealing with an application for internal review the Tribunal may:

i. Affirm the decision under review;

ii. Vary the decision under review;

iii. Set aside the decision under review and:

- Substitute a new decision; or

- Refer the matter back to the Tribunal as originally constituted in accordance with directions or recommendations;

iv. Make interim, ancillary or consequential orders.

1. ZXN asks for the original decision to be set aside and for the Tribunal to substitute it with one that approves the application for the changes of name. For that to occur, I would need to be satisfied that the decision made by this Tribunal on 11 October 2018 was not the correct or preferable decision. As set out above, in making my determination, I must have regard to the original decision as well as the evidence or material before the Tribunal at the time of making that decision. I may also have regard to further evidence or material presented.
2. TZW participated in the original hearing and opposed the orders sought by ZXN. He was notified of the hearing for the application for review. He requested an adjournment and the hearing was delayed by two and a half weeks to accommodate his request. On the day before the re-scheduled hearing, TZW contacted the Registry and requested a further adjournment, citing work commitments. The adjournment was refused as it was considered TZW had had sufficient notice of the hearing to be able to make appropriate arrangements. He stated that he was unable to participate by telephone. As such, the hearing proceeded in his absence. He will be informed of the outcome.

1. The following findings are drawn from a combination of the evidence at first instance and the evidence given by ZXN on internal review. As she was not represented, it would have been difficult for ZXN to confine herself to submissions as distinct from evidence. In any event, I asked ZXN to inform me of certain things that I considered to be relevant to the decision. To that extent, I permitted fresh evidence to be adduced. Overall, however, there was no material difference to the manner in which the hearing was run at first instance and on review. There were no witnesses in either hearing.
2. ZXN and TZW began their relationship in August 2016, however knew each other for two or so years prior to becoming a couple. TZW was separated from his wife. He did not divorce his wife at that stage but ZXN believed that she and TZW would eventually be married. They became engaged. ZXN stated that she and TZW paid for and underwent IVF therapy with the hope of having a child. ZXN became pregnant in mid-2017. ZXN discovered that TZW was maintaining a relationship with his wife. The twins were born in March 2018. ZXN submitted that the twins were given TZW's surname on her understanding that she and TZW were to be married and that she would be taking TZW's surname. It was her wish to have a family unit in which all members shared a common surname. ZXN and TZW then separated in May 2018, before any marriage had taken place. They do not now have a friendly relationship.
3. At the first hearing, the twins were seven months old. They are now nine months old. ZXN submits that she is now the primary carer of the twins. She submits that even for the brief period that she and TZW were living together after the twins were born, TZW showed little interest in the children. It is ZXN's evidence that TZW has not seen the twins in three months and has not formed a meaningful relationship with them.[2] The Tribunal at first instance found as a matter of fact that TZW had no contact with the twins, however he had sought assistance from Centacare to try to mediate with ZXN about access arrangements. ZXN appears to be adamant that TZW is not going to have anything to do with the twins, however this seems based more on her own assessment of his attitude than of a decision on her part to deny access.
4. ZXN stated that the children would have been given her surname if she knew that she and TZW were not going to be married. She stated that they were given his name because, at the time they were born, she thought that they would be married in the future. However, the relationship broke down.[3]
5. ZXN made submissions in relation to child support. It is her evidence that TZW does not pay child support.[4] Further, she asserts that he is taking steps to avoid that responsibility and has the means to pay child support.[5] Child support documents were tendered to evidence this.

1. When a child is born, the parents are jointly responsible for registering the child's birth with the Registrar of Births, Deaths and Marriages.[6] Apart from circumstances not relevant to this case, the birth registration statement must contain the name of the child. The BDM Act provides that the name given to the child is "a matter of choice for the person or persons lodging the statement". A note to s 21 of the BDM Act guides interpretation by stating that "[f]or example, there is no requirement that the name be made up of both a surname and a given name or given names".
2. Once a name has been registered, that name becomes the child's lawful name, but the use of an alias is not unlawful unless it is for the purpose of some other unlawful act.
3. In making a decision whether or not to approve the change of a child's name on application by one parent, the Tribunal must be satisfied that the change of name would be in the child's best interests.[7] It is clear that the Tribunal at first instance directed itself to the correct test.
4. ZXN submitted that it is in the twins' best interests to have their name changed to match her surname because:
   • She is their primary carer
   • They do not and will not have a relationship with their father
   • They are unlikely to have a relationship with their father
   • In ZXN's view it is not appropriate that she has a different name from her children
   • The twins are using ZXN's surname informally and it would be less confusing for them in the future if their legal name corresponded with this
5. The Tribunal at first instance declined to approve the change of name due to the very young age of the twins. The Tribunal said:[8]

Overall, the factors I consider most significant at this stage are the children's age, the relatively short time that has elapsed since their parents broke up, and the current uncertainty about access arrangements.

When considering those things, the application is, in my view, premature.

The issue will need to be resolved at some stage, there is no doubt. However, it is very early to be trying to make positive findings about how the children's best interests may be affected by their surname, one way or the other.

1. ZXN submitted that it is in the best interests of the children that their name is changed now rather than later as:
   • The accumulation of official records in their current legal name, such as GP and hospital records, Centrelink, child support and family mediation documents, means it will become more difficult and cumbersome to change the legal name
   • It is preferable that the change of name occurs now so that the children are less aware of the history of conflict. ZXN submits it is preferable that the children have no knowledge of the fact that they ever had their father's name, which is likely only if the change of name happens while they are still very young
   • In her submissions, ZXN expressed a desire to have a cohesive family unit. She stated she hoped to meet another man and that she and the twins along with some future partner could be a family
2. The concern with the second point made by ZXN is that the children will necessarily be aware of the change of name when filling out any formal documentation. It is not possible to change the name so that TZW's surname never existed on the birth certificate. The fact that the two parents decided to give the children TZW's surname reflects an event that occurred, even though ZXN now regrets it.
3. As to the third point regarding meeting a new partner, ZXN made this as an argument in favour of the change of surname. However, it could also be used to argue against a change of the children's names at this time. For example, if the twins' surname was changed to ZXN's surname and ZXN were then to meet a future partner and take his surname, the twins would have a different surname to their mother again. If ZXN was then to have another child with that partner who also shared that surname, the twins would be left with a surname different to their family unit.
4. The starting point in applications for change of name does not entail any assumption as to what an appropriate name is for a child. It is more common today for couples with children not to marry, for married couples not to share a common surname, and for children of couples to bear a name that is different from one or other of their parents. The application is to be approached from the starting point that a child has been assigned a name by one or both parents, and the Tribunal must consider whether it is in the child's best interests to change that name.

1. In the original hearing, the Tribunal relied for its understanding of the meaning of the phrase "the child's best interests" in the 1978 case Chapman & Palmer.[9] That case determined that the relevant guiding principles for a Court to have regard to in determining whether there should be any change in the surname of a child included:[10]
   • The welfare of the child as 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 its name is different from that of the parent with custody or care and control;
   • Any confusion of identity which may arise for the child if his or her 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 the marriage; and
   • The effect of frequent or random changes of name.
2. A year later this list was added to in Beach & Stemmler to include considerations of:[11]
   • 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 husband has had and is likely to have in the future with the children;
   • The degree of identification that the children now have with their father; and
   • The degree of identification that the children now have with their mother and their stepfather.
3. Neither of these cases was for a change of name under the BDM Act. The principles do not override the 'best interests' test as it is to be understood in the context of the BDM Act. However, having regard to s 25 and the broader context of the BDM Act, I consider that the Tribunal was correct to consider the guidance provide by these authorities to assist the Tribunal in its task. Although both these cases are now 40 years old, the guiding principles they developed remain authority in this area.[12]
4. However, the issues of whether 'embarrassment' is likely to be experienced by the child, and the extent of 'confusion' caused by a child having a name different from the primary carer, are affected by current demographics and social mores and the arrangements in place within institutions to respond to family units in which members have different names. These factors have changed considerably in 40 years. In 1980, 12.4% of children were born out of wedlock.[13] However, today, the practice is much more usual, with 34% of children born outside of marriage in 2016.[14] I am not satisfied that there is any basis for the proposition that the majority of children or young adults are embarrassed by not sharing the name of their primary care-giver. However, what is of significance in determining a particular case is whether the child is in fact embarrassed by the name he or she bears. In this case, the twins are simply too young to experience any such embarrassment. They may indeed not be embarrassed in the future. As the Tribunal said at first instance,

The children are, of course, too young to have any awareness of the issue, or to have any discernible feelings about it - including to personally feel any embarrassment or confusion about it, at least at this stage.[15]

1. In recent cases where a change of name application made by one parent has been approved, it has been a factor that the parent has remarried and wishes the child now to have the same surname as their half-siblings and step-parent.[16] However, that does not assist ZXN in her application. Her evidence indicated that she contemplates the possibility of creating a family unit with another partner in the future.[17] She may wish all of the members of that new family unit to have the same name and for that to be the name of her new partner. If so, the children would require a further change of name. With each new change of name, the case becomes harder to establish.[18]
2. Many of the cases entail weighing of considerations that demonstrate the prematurity of this application. In Mahoney & McKenzie, the Court stated:

The real questions are as to the degree of identification of the child with the registered surname, and as to any difficulties or embarrassment for the child, if using a surname other than that by which he or she is registered.[19]

1. The question of embarrassment requires that the child has and wishes to avoid some consequences associated with their name. It was recognised in Vine & Wands that the issues of embarrassment would arise later in the child's life along with other problems.[20] It was considered that it would be better for the child if a change of surname took place before school commenced. However, at the time the application was brought the court stated:

It is unlikely that this child currently suffers any embarrassment at present from having a different surname from his mother. He is only four years of age, and it is unlikely that he even gives the matter a moment's thought.[21]

The Court in that matter determined that a hyphenated name would address the particular factors at play.

1. ZXN was questioned about matters that might arise relevant to the application in the next few years. She has no current plans to apply for their passports. She hopes to care for them at home rather than in a child-care centre. In any event, I do not consider that there is any assumption that can be made that bearing their father's name will cause any embarrassment or difficulty for the children. It is a matter about which there is simply no evidence because of the age of the children.
2. ZXN alluded to TZW's lack of involvement with the children and to less-than-ideal parenting when he was with them.[22] In Gerald v Kenwood the Court said:

I am satisfied that it is in the children's best interests to change their surnames to the mother's surname of Gerald. This will permit them to identify with their mother, who is their primary caregiver. The evidence shows that the children have had very little contact with the father in recent years and there are concerns about his drinking and use of violence, to which I have referred above.[23]

However, in that case the children were much older. It is too early to say with any certainty what sort of relationship, if any, TZW is going to have with the twins and how that might affect their interests in bearing his name. It is not necessary for me to make findings as to whether TZW is avoiding child support. There is no legal basis upon which the Tribunal could change the children's name in response to his behaviour unless that behaviour has the consequence that it would adversely affect the children to bear that name. Where a parent has behaved in a manner of which the community disapproves such that it might damage the children's relationship with that community, is one example. That has not been shown to have occurred here.

To conclude, it must be remarked that there appear to be situations where one parent or the other, and possibly both, appear to attach far too much importance to the question of the child's surname. It is seen by some parents almost as a proprietary interest. Attitudes of this kind are unlikely to find favour with the Court, and often seem calculated to destroy the relationship between the child and the parent in question. The Court should give no encouragement to parents who seek to change a child's name for reasons unconnected with the welfare of that child nor to parents who oppose a change only to bolster their proprietorial interest in the child. The fact that the parents are haggling over the surname can of itself engender insecurity and confusion in the child's mind.[24]

1. It was evident, and perhaps understandable, that ZXN found it particularly difficult to focus upon her children's best interests as opposed to what she perceived to be TZW's failings and her conclusion that the current situation represented the likely future of TZW's relationship with the children. It was also evident that she intertwined her own feelings towards TZW in her assessment of what was in their interests. I confirm that the Tribunal at first instance was correct to conclude that ZXN's wishes are only relevant insofar as they bear on her relationship with the children and any effect that her feelings have about their name has upon their best interests as she is their primary carer.[25]
2. In Flanagan & Handcock, the Court explained that the most significant matters to be considered in deciding whether or not to permit a change of name ultimately turn on the individual facts of a case.[26] In the case of YWG and KDW, the fact is that they are simply too young to have any conceptual understanding of what a surname is, let alone experience any embarrassment relating to it. ZXN speculated that it might be embarrassing for them in the future, but evidenced that with her own embarrassment.[27] This is not a case where the welfare or safety of the children is at risk, which may otherwise influence a change of name in an application such as this where the child is an infant.
3. I uphold the decision made on 9 October 2018. In so doing, I re-state the Tribunal's observation that:

This does not by any means prevent ZXN applying again later. As things like access arrangements (or not) are resolved and as the children get a little older, things are likely to become clearer in terms of what is in their best interests when it comes to their surname.[28]

1. In upholding the decision, the Tribunal does not imply that the children's best interests are to bear their father's name because it is their father's name. There is also no implication that the children must bare this name until it has been shown that it is contrary to their interests. Had the children been given the mother's surname at birth, and TZW had brought an application to have the children's names changed to his surname, it is likely that the Tribunal would have similarly rejected the application as not being in the children's best interests. The conclusion is simply that, having been given that name by both parents, it has not been demonstrated that it is in the children's interests to change the name at this point in time. The nature of a change of name application is that the Tribunal must, with a starting point that the child already bears a name, be satisfied that the name that has been given should be changed.
2. In the original hearing the Tribunal reminded ZXN that she could make another application in the future and granted her the right to do so without having to pay a fee for such application if it were made within two years of the decision of 11 October 2018. That aspect of the decision is also affirmed.

1. The Tribunal affirms the decision under review.

[1] The Register refers to the registers required to be kept by the Registrar of Births Deaths and Marriages in South Australia under the Births Deaths and Marriages Registration Act 1996 (SA).

[2] Audio Transcript in 2018/SIR000327 (13 November 2018) at 11.38.

[8] ZXN v TZW (Unreported, SACAT, Member Files, 11 October 2018) [39]-[41].

[9] [1978] FamCA 86.

[11] (1979) FLC 90-692, [78] (Connor J).

[12] Lonsdale & Trevor [2018] FamCA 127; Mahoney & McKenzie [1993] FamCA 78; Flanagan & Handcock [2000] Fam CA 150; Vine & Wands [2013] FCCA 2284; Gerald & Kenwood [2013] FCCA 2038; Rennick & Yardman [2014] FCCA 556; Whinney & Kelleher [2013] FCCA 1939.

[13] Australian Institute of Family Studies, Births in Australia source data (10 December 2018) Australian Institute of Family Studies .

[14] Australian Bureau of Statistics, Births, Australia, 2016 (13 December 2017) Australian Bureau of Statistics .

[15] ZXN v TZW (Unreported, SACAT, Member Files, 11 October 2018) [36].

[16] Rennick & Yardman [2014] FCCA 556; Whinney & Kelleher [2013] FCCA 1939.

[17] Audio Transcript in 2018/SIR000327 (13 November 2018) at 11.54.

[18] Chapman v Palmer [1978] FamCA 86.

[19] [1993] FamCA 78; (1993) 16 Fam LR 803, 806 (Warnick J).

[20] Vine & Wands [2013] FCCA 2284, [156].

[22] Audio Transcript in 2018/SIR000327 (13 November 2018) at 11.56.

[23] Gerald & Kenwood [2013] FCCA 2038, [44].

[24] Chapman & Palmer [1978] FamCA 86, [57].

[25] Tribunal decision 11 October 2018 para [35] and [37].

[26] [2000] Fam CA 150, [35] (Kay and Holden JJ).

[27] Audio Transcript in 2018/SIR000327 (13 November 2018) at 11.43.

[28] ZXN v TZW (Unreported, SACAT, Member Files, 11 October 2018) [46].