Surname change to hyphenation for young child

PORRITT & DUNFORD

Surname change – The law

  1. I now turn to the law.
  2. As noted by the Full Court in Lysons & Lysons (2019) FamCAFC 29 at 22 “it is entirely correct to say that orders as to a child’s name are parenting orders within the meaning of section 64B and therefore must be made in the child’s best interest, taking into account the conditions raised by section 60CC (Reynolds & Sherman(2016) FamCAFC 240 at [7] to [15])”.
  3. The Full Court in Chapman & Palmer (1978) FLC 905-10 sets out a number of criteria which the court must look at in determining whether there should be a change of name:
    1. The welfare of the child is a paramount consideration.
    2. The short and long-term effect of any change in the child’s name.
    1. Any confusion of identity which may arise for the child if the name is or is not changed.
    1. Any embarrassment likely to be experienced by the child of the name if the name is different from the parent who has the primary care.
    2. The effect, which any change in surname may have on the relationship between the child and the parent whose name the child bears.
    3. The effect of frequent or random changes of name.
  4. Connor J of the Family Court Western Australia in Beach & Semmler (1979) FCWA 1 referred to additional matters relevant to a change of a child’s name:
    1. The short and long-term advantages to the child of no change of name.
    2. Extent of contact with the father (past and future).
    1. Extent to which the child identifies with the father.
    1. Extent to which the child identifies with the mother.
  5. Foster J in Reagan & Orton (2016) FamCA 330 (a case supported in Lysons) at [34] said “the factors frequently considered in determining whether there should be any change to a child’s name include:
    1. Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control.
    2. Any confusion of identity which may arise for the child if his or her name is changed or not changed.
    1. The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship.
    1. The effect of frequent or random changes of name.
    2. The contact any non-custodial parent has had and is likely to have in the future with the child.
    3. The degree of identification that the child or children have with their non-custodial parent.
    4. The degree of identification the child or children have with the parent with whom they live
  6. In Fooks (1993) FamCA 117, Warnick J held that the children’s best interest stood above the parents’ wishes.
  7. In Mahony & McKenzie (1993) FamCA 78 a hyphenated name for the child has been approved as a compromise.
  8. In Giessruf & Giessruf (2004) FamCA 848 where during the marriage the children were known by the surname “Giessruf” and after separation, the wife applied to have their names changed to Jones-Giessruf to include her maiden name, Murray J said:-
    1. The wife is not choosing to change the name of the child to something alien either to her or to her husband. She seeks to have her maiden name hyphenated with that of her husband. The wife does not seek to diminish the husband’s importance in the life of the child” ([7]).
    2. I pointed out to the husband that it was very common procedure these days for some children to take the surname of both parents, perhaps as a symbol of equality between the genders, perhaps to give equal paramountcy to the role of each parent. I see no detriment to the children having that take place in these circumstances” ([8]).

Should there be a change to child’s surname?

  1. I find having considered the evidence and the submissions that it is in the child’s best interests for the child’s surname to be changed forthwith from “[X] Porritt” to “[X] Porritt-Dunford”.
  2. I make this finding based on the following:
    1. [X]’s birth was because of a planned pregnancy involving IVF, when the parties were in a committed, loving de facto relationship.
    2. The father’s surname “Porritt” was chosen and registered for [X] as her surname by the parties at a time when the parties remained in that committed relationship.
    1. Upon separation, the mother, when [X] was not yet 3 years of age, made the father aware of her want for the child to share both surnames, a suggestion which was not agreeable to the father.
    1. [X] has a diverse cultural heritage, Country E, on the father’s side; Country D on the stepmother’s side and Country B-Country D on the mother’s side. The inclusion of the mother’s surname as hyphenated in the child’s surname will reflect this extensive cultural diversity.
    2. Although [X]’s primary attachment is to the mother, [X] has a strong, loving relationship with the father and his extended paternal family, with time increasing to a shared care arrangement, whereby the father will shortly be spending six nights a fortnight with the child. A change of name will not in any way affect that relationship, nor will it take away from the relationship.
    3. [X], only having just commenced prep at school, is a very young child, whereby it is unlikely that her last name holds any overwhelming significance, either by way of identity or embarrassment for the child.
    4. With both parents and their different cultural heritage being actively involved in [X]’s life on a day-to-day basis, it would be beneficial for the child at this young age to have reference to both of her parents’ names in her own surname and for that change to occur now.
    5. This will provide [X] with a sense of identity to her father, in continuing to carry the surname of “Porritt” as the first part of the hyphenated name, and a sense of identity in now having the mother’s surname of “Dunford” as the second part of the hyphenated name.
    6. This will avoid any potential confusion of her stepmother, known as Ms F Porritt, being mistaken as her biological mother, especially as the child refers to both mothers as mummy, although steps are being taken to ensure that [X] calls Ms F “Mummy Ms F”.
    7. The father’s surname of “Porritt” as the first part of the hyphenated surname of Porritt-Dunford will make the transition to a hyphenated name easier for the child to grasp and will alleviate the fears held by the father that his surname may be dropped off if the child shortens the surname.
    8. Hyphenated last surnames are not unusual.
    1. With modern technology, the concerns raised by the father as to the use of such a hyphenated surname on the internet or in social media are not founded.
    1. Like any child learning their names, [X] will over time learn her surname, how to say it, how to spell it, where it will become second nature to be known as [X] Porritt-Dunford.
    2. The mother has not repartnered and the absence of any evidence before the court to support that the mother may in the future change her maiden name, this is not an issue that need be considered.
    3. Whilst a change of name will require the issue of a new birth certificate and a change to passports, medical records and schooling records, this is only of minor inconvenience and not a valid reason as to why a change of name should not occur.
    4. As [X] does not have any other siblings in either household, a change of surname will not cause her confusion in that regard.
  3. I therefore find that a change of surname in the short term, whilst posing some inconvenience to the parties, will not have a lasting negative impact on the child.
  4. I therefore find that a change of surname to include the mother’s surname will have a positive long-term impact on the child, as it will provide the child with links to her diversified heritage and identity with both her mother and father, without taking away the importance of the sole surname of “Porritt”, which the child has experienced for the first five years of her life.

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