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REYNOLDS [2016] – To hyphenate a child’s surname, or not?

REYNOLDS & SHERMAN [2016] FamCAFC 240

The Case

The case concerned a mother who appealed a Court Order which hyphenated the child’s surname to include both parents’ surnames. The mother wished for their son to only bear her surname, while the father wanted the child to have both. In terms of background, the parties were in a relationship for only 1 month. The father was notified of the child’s birth for the first time when the Child Support Agency contacted him requesting child support. The mother launched various criticisms of the Court’s decision, which will be explored below. Ultimately, the mother’s appeal was unsuccessful and the child’s surname was to remain hyphenated.

The appellant mother’s criticisms

The main criticisms launched by the mother were that the Judge: –

  1. Did not consider evidence of the father rejecting paternity.
  2. Failed to consider that the father, on her view, only wanted the hyphenated surname to further antagonise her, and for proprietorial reasons.
  3. Made inconsistent findings regarding family violence.
  4. Should have found that a hyphenated name would be confusing to the child.
  5. Gave insufficient weight to “keepsakes” and the social footprint of the child’s currently used surname, namely of the mother’s.

These represent a sample of the main critiques launched by the mother. There were other appeal grounds which related to procedural issues, such as an allegation that a 40 minute Court delay caused the Judge to forget evidence and cause his decision to miscarry. This, in addition to the other grounds of appeal, ultimately failed.

Critique 1 – the father rejecting paternity

The mother alleged that the father rejected paternity for the child, and that this evidenced his willingness to disassociated with the child. In short, if he’s done so before he will do it again. The evidence revealed that the father initially denied paternity as he was waiting for a “birth certificate with my name on it”. Moreover, the father had shown a willingness to be a part of the child’s life, evident through his commitment to spend time with the child via Court orders.

Accordingly, despite the father’s initial denial of paternity, the Judge was not satisfied that the father would abandon the child in the future.

Critique 2 – allegation that the father sought to antagonise the mother and establish proprietary over the child

The mother alleged that hyphenating the child’s name would be a “constant reminder of the child’s illegitimacy and the relationship breakdown”. The competing view was that having both parent’s surnames would be in the child’s best interests as it would provide him with a constant reminder of both his parental heritage and enhance his identity with respect to both extended families. This latter perspective was preferred by the Judge.

The mother also alleged that the father was attempting to establish proprietary of the child by his comment that “a hyphenated surname would show the child’s school teachers, coaches… the clear connection between the child and both his parents”. The Judge denied this suggestion as the evidence showed that father was unconditionally willing to be a father to the child and support his best interests. The evidence did not show, for example, that the father would only perform his paternal role if his son carried his name in some form.

Critique 3 – Inconsistent findings regarding family violence

The mother raised the issue of family violence despite the Judge giving her a caution that it may not help her case. Reference was made to a Domestic Violence Order which had been made against the father for 2 years and extended for an identical period. The issue of family violence was broadly dismissed as irrelevant to the question of the child’s surname. It had no bearing on this issue and so this criticism of the mother bore no weight.

Critique 4 – Whether a hyphenated name would be confusing for the child

The mother raised 2 points: one being that she lived with the child and so it would be confusing for him to have a separate surname, and the second being that it would be embarrassing for the child to have to explain his hyphenated surname to people at school.

The trial Judge found there would be no confusion for the child in circumstances where he had a father that was strongly committed to having a relationship with him. The Judge found that these concerns may have stemmed from the mother‘s own anxieties created from her own background of a “broken/mixed family”.

Critique 5 – Insufficient weight on the keepsakes and social footprint of the child’s surname

The mother had created various keepsakes containing the child’s surname, despite the father’s expressed disapproval of the child bearing only her name. Moreover, the child has also been enrolled in daycare and swimming lessons under the mother’s sole name. Therefore, there was a certain “social footprint” being established which contained only the mother’s surname. The mother alleged that given these factors it would be improper now for the surname to be hyphenated.

The Judge found against the Mother mainly be virtue of the child’s age, being 30 months at the time the issue was heard. The child’s social footprint was not yet established – he had not even started school – and accordingly the Judge found that “(when the child does commence school and other such activities) that he would have no concern that the child would not otherwise be proud to state his hyphenated surname”

Significance of the case

This case showed that the short length of a relationship (in this case 1 month) bears no relevance on whether the child should have a hyphenated surname that identifies with both parents. Rather, what was more important was the father’s commitment to being an active father and presence in the child’s life. It was ultimately held to be in the child’s best interests to have a hyphenated surname so he could closely identify with both his parents, their extended families and heritage. This was held to be a part of the child’s sense of identity.

It is also important to note that the Mother was self-represented in her appeal. As a result, she did not have the benefit of legal representation to present sound legal arguments as to why her appeal should succeed. Appeals cannot be commenced simply because one does not like the decision. An appellant has to show a legal error was committed by the primary judge. Had the mother obtained legal advice, she may have never initiated an appeal and saved herself the liability of paying the father’s legal costs, assessed at $8,000.

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