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An increasingly common dispute between parents is the surname of a child. As the tradition of a woman taking on the husband’s surname also decreases, children in in-tact families are also increasingly more likely to not have the same surname as at least one of their parents. Some children do not have the same surname as either parent as the parents choose to ‘create’ a new name for their offspring. This may be a combination of both names in a hyphenated form for the children only, as the parents maintain their existing names.
So is a child’s name, and in particular the child’s surname, a matter for the Court to determine? Just like which school the child is to attend, it is difficult for a Court to weigh up the various options available when making such a discretionary significant decision in a child’s life. Whilst the issue of which school the child should attend may easily be resolved by competing financial considerations and a comparison of extracurricular activities available, the surname issue is much more vexxed.
A child’s name is a matter which affects the child’s ‘long term care, welfare and development.’ Section 4 of the Family Law Act outlines that issues as to a child’s name is a major long term issue. In making a decision under this issue the Court is also to apply the best interest factors under section 60CC of the Act.
In the recent Full Court decision of Reynolds & Sherman  FamCAFC 240 (29 November 2016) the Full Court held that the judge at first instance was not in error when he made an order for the child to be known by the surname ‘Reynolds-Sherman’ (pseudonyms from the judgment have been applied). The mother’s position was that, amongst many other points, that the child should have her surname as the child lives with her and she is the child’s primary carer.
In this case, the parents had a very brief relationship of one month. The mother fell pregnant and the father was only aware of the birth when he was notified by the Child Support Agency. The father commenced proceedings about three months after the child was born and sought to spend time with the child, along with a change of the child’s surname to a hyphenated ‘Reynolds-Sherman’. A determination of this issue was made in about October 2014 in which it was ordered that the child’s surname be ‘Sherman-Reynolds’. The mother appealed the decision and was successful (Reynolds & Sherman  FamCAFC 128). The matter was then remitted for rehearing on the issue. That determination was made on 29 January 2016 by Judge Baumann. His Honour found that the child’s surname should be ‘Reynolds-Sherman’. The mother appealed to the Full Court.
The difficulty for the mother in this appeal was that in order to be successful, she did not need to show that the Court could have made a different decision, but she must have proved that the Court was in error in making the decision. In such a discretionary issue, it is an incredibly high bar to which the mother was required to jump over in order to be successful. The Full Court found that the mother did not make out any of her grounds of appeal and they did not find any error in the trial judge’s decision.
Whilst the mother made good points including issues surrounding the child’s identity and her view that the father only made this application to antagonise her, the Court was left with making such a ‘black and white’ decision that would affect the little boy’s life and his parents forever. The Court was ultimately of the view that it would be in the child’s best interests for his surname to be a hyphenated combination of both of his parents surnames.
There are many issues to be considered when making an Application or defending one for a hyphenated surname, or a change of surname to a single surname to be the same as one parent. At the end of the day, the Court needs to make Orders that are in a child’s best interests which is through a consideration of the factors listed under s60CC. In this case, the child was still relatively young and had not commenced any formal schooling, in those circumstances the Court found that hyphenating the child’s surname was in in his best interests.
If you are considering making an Application to change your child’s surname, or wish to obtain advice on the prospects of success, or are defending such an Application, contact us at Armstrong Legal for tailored family law advice.
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