After Separation, parents of children are regularly concerned about stopping any changes being made to the surname of their child and/or bring into effect changes to their surname, including in some cases, hyphenating the surname.
There have been numerous Family Court decisions on the issue, and the most recent being the Full Court decision in the case of Reynolds –v- Sherman in November 2016.
In this case, the mother appealed against a decision in the Lower Court where the Judge imposed a hyphenated surname upon the parties’ child who was only three years of age at the time of the Appeal. The parties had not lived together and after the child’s birth, the child had remained in the mother’s primary care and there were Parenting Orders in place leading up to overnight contact between the child and the father. The mother sought to continue to use her surname (which was on the child’s birth certificate), whilst the father had sought to hyphenate the surname, to enable the child to have the identity of both parents.
The Full Court upheld the decision of the Lower Court and dismissed the Appeal and affirmed the Judges’ decision to hyphenate the surname of the child.
Important considerations in cases such as these, involving changes of surname include the following:-
- A child’s surname is an aspect of parental responsibility and is therefore, a Parenting Order;
- As it is a Parenting Order, than the Court must regard the best interests of the child as the paramount consideration, when considering a Change of Surname Application;
- The phrase “major long term issues” includes issues about the nature of the child’s name and again is an aspect of parental responsibility;
- Each case will depend upon its own facts and circumstances, but in this case, the following facts were important in the exercise of discretion:-
- The fact the mother and father had not lived together and the child was born into the care of one of the parents, and not into an intact family;
- The fact the child is very young and did not have any significant “identity footprints” in relation to the child’s life in place;
- The fact the child was still of a young age at the time of the Appeal.
- In the circumstances of this recent case, it was found that a hyphenated surname was in the child’s best interest, because it would enhance his sense of identity with both his father, his mother and the extended families. It was not accepted by the Court that the child would be confused by having a hyphenated surname, containing the surnames of both his biological father and biological mother;
- The Court did not accept the evidence establishing data reporting issues for people with hyphenated surnames or travel issues with Passports;
- The age of a child in these Applications is a significant factor to be taken into account, in determining the weight to be given to the keepsakes and to any social footprint (i.e the younger the child, the less weight that is attached);
- In this particular case, the young boy, was yet to embark upon any substantial schooling or involvement in team sports or community activities. The Trial Judge commented that when he begins to do so, with a greater awareness of his surname, that the Judge had no concern that he would be able to proudly state his surname in a hyphenated form;
- Such cases are not a competition about which family has the longer or more distinguished pedigree, but rather, a child who like most children, have the opportunity to feel connected and proud of his or her heritage on both of his or her paternal and maternal sides. A hyphenated name will slightly enhance that connection for this child.
In conclusion, the Court stated that it was satisfied that it was in the best interests for the child to have a surname which accurately reflects his heritage. To do so, it will enhance his sense of identity with both his father and mother, and their extended families.
In my view, there is nothing too unusual about this case. It highlights the importance of the age of the child when the issue concerning a surname is agitated. Obviously, the older the child and the more connection the child has with his or her name, through what is described as “social footprints” then the less likely it will be for the Court to change that name.
I am not sure about the statements that people with hyphenated surnames do not have more difficulty with respect to overseas travel and Passport identify issues, especially where the hyphenated name is different to the birth certificate.
Also, whilst it makes sense that a hyphenated surname means a child can connect with the heritage of both mother and father, it would be equally true that a child with a surname of just one of its parents, can still quite strongly identify with the mother and father’s heritage.
I suggest, that the existence of a surname does not dictate the child’s attachment to heritage and it is obviously important (even in intact families) for a child’s upbringing to include exposure to both the mother and father’s heritage, regardless of any name choice.