In a recent Full Court decision, the Family Court affirmed its powers to require a child to be known by a certain surname and in this case, by a hyphenated surname of the parent’s maiden names.
The decision is not unusual, as there have been many decisions before, but in this decision, the Court affirmed its power to make such an Order as part of its Parenting Order powers under the Family Law Act.
Issues concerning the name of the child, were held to be long term decisions, affecting the welfare of the child, and thus are a part of the parental responsibility issues for a child.
This decision once again highlights a problem for parents who are unable to agree on what surname they should use for their child, after separation. It highlights the fact that a hyphenated surname is a real possibility in situations where parents cannot agree on their child’s surname.
Each case is different and depends upon its facts and in this case, there can be little doubt that emphasis was placed on the fact that the child was very young (under three years) and that the parties never lived together and that the child was born after their relationship ceased.
The mother sought that the child continue to have her surname that was on the birth certificate, but the father sought the surname be hyphenated between his name and the mother’s name. In deciding that the child’s surname should be hyphenated, the Court relied upon the following factors:-
- The Full Court confirmed the previous Full Court decision in Reynolds & Sherman, that a child’s surname is an aspect of parental responsibility and is in fact, a Parenting Order.
- If an Order is a Parenting Order, then the Court must regard the best interests of the child as the paramount consideration. In determining those best interests, the Court will have regard to considerations set out in s60CC of the Act.
- The Full Court held that the phrase “major long term issues” is defined in Section 4(1) of the Act. The phrase means “issues about the care, welfare and development of the child of a long term nature” and includes issues of that nature about the child’s name. The Full Court said that, in their opinion the name of a child is an aspect at least of the parental responsibility for a child. Therefore, the approach to the Hearing, as to the child’s name, is on the basis that the Orders under consideration were parenting Orders, to which considerations as set out in Section 60CC apply;
- It seems in this case that the Appeal Court placed importance on the following aspects of this case, in affirming the discretion of the Trial Judge to hyphenate the surname. These factors, were mainly the following:-
- The fact that the mother and father had not lived together and that the child was born into the care of one of the parents and not into an intact family;
- The fact that the child was very young (one – two years of age) and did not have any significant “identity footprints” in relation to the child’s life in place;
- The fact that the child was still of a young age.
- It was found in the circumstances of this case that a hyphenated name was in the child’s best interests because it would enhance his sense of identity, with both his father, his mother and their extended families.
- It was found that the father was not attempting to assert a proprietorial interest in the child.
- It was not accepted by the Court that the child will be “confused” having a hyphenated surname, containing the surnames of both his biological father and his biological mother.
- The Court did not accept the evidence establishes data reporting issues for people with hyphenated surnames or travel issues with Passports etc. The Full Court commented that the experiences of this Court demonstrate that it is now common for children to have a different surname from at least one of their parents, even in intact relationships.
- The age of the child is a significant factor to be taken into account, in determining the weight to be given to the keep sakes and to any social footprint (i.e. the younger the child, the less weight that is attached).
- In this case, the young boy (2-3 years of age) 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, the Judge had no real concern that he would not be able to proudly state his surname in a hyphenated form.
- It is not a competition about which family has the longer or more distinguished pedigree, rather, a child will, like most children, have the opportunity to feel connected and proud of his heritage, on both his 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 of this child, that he have a surname which accurately reflects his heritage. To do so, it will enhance his sense of identify with both of his father and mother, and their extended families.