Children’s names: It’s quite common for children to have to shuttle between two homes when their parents get separated or divorced. What’s uncommon is for a child to have to switch first names when moving between those homes. And yet that is the situation faced by a 5 year old boy whose parents have been litigating a complex parenting dispute. Let’s take a quick look at the case of Tome & Tome (court-appointed pseudonyms).
This parenting matter traversed a wide range of issues including family violence, and the parenting dispute was resolved with the children continuing to live with the mother and spending time with the father, under various conditions. But it’s the detail about the boy’s dual name that really stands out.
The mother had been forbidden from using an alternate name to the child’s birth name by earlier court orders, but she had wilfully and repeatedly disobeyed them. As such, the use of the boy’s alternate name by the maternal side of the family has now become “firmly entrenched”. This left the judge and the experts in the matter with the difficulty of working out what would be in the boy’s best interests regarding his name going forward.
In the end the name dispute was decided so that the dad can use the boy’s name X and the mother can use the boy’s name H when they each have custody. The orders further restrain each parent from “correcting, chastising or criticising…the children in relation to their use of either name, and both parents shall use their best endeavours to ensure that no third party corrects, chastises or criticises either of the children in relation to their use of either name”.
The father did seek to bring contravention proceedings that the mother had failed to comply with various orders and at interim stage the court found the mother had made contraventions without reasonable excuse on 15 occasions. The mother was apparently ordered to enter into a recognisance to comply with interim orders. And yet at final hearing it was clear she had continued to flout the court orders. However, this judgment does not deal with any contravention sanctions against the mother.
Instead, the court experts debated what the best outcome now ought to be, “notwithstanding the rights or wrongs of [the mother’s contraventions regarding the name]”.
Although the father was “strident in his opposition to the child’s name being changed”, the court said he showed great insight in accepting that the use of the mother’s alternate name was now so heavily entrenched. Not only was the boy called the mother’s alternate name at her home, but in their school community and beyond. The child had even begun calling himself by the mother’s alternate name while in the father’s home; the father had stopped correcting the boy.
Rather than again attempt to enforce the boy’s original birth name in all realms of his life, the experts told the court it was preferable if the boy was able to be known by two names, the father’s and the mother’s, while in each parent’s respective care. In the experts’ view, the child would accept having his parents call him by two different names, as long as there was no sense of criticism or chastisement regarding which name was used:
“Providing it’s done without any issues, he will be able to accept that that’s the name he has got, and if he ever asks about it, I mean, the response should – from the parents – should be, well, you know, “That’s Daddy’s name for you, and Mummy calls you H,” and, you know, “Aren’t you lucky you’ve got two names?” and, you know, “When you’re a big boy, you can decide which one you want to be called” – “ask other people to call you, but right now that’s the way” – you know, “We’re just using our favourite names for you.”
The mother was however not permitted to alter the boy’s legal name as listed on his birth certificate.
The issue of a child’s name can be a highly sensitive one when parents get divorced. However, it’s usually the child’s surname that is in dispute, not their forename. One would think that most co-parents would not unilaterally change a child’s forename when the child is in their home. Common sense dictates it would be a confusing thing for a child to process, especially if they are sensitive to the name being an emotional, highly charged subject between the parents.
If you yourself are in a situation where your co-parent has begun using a different name for your child than what is on the birth certificate, be mindful that time is really of the essence on an issue like this. As can be seen, once a name’s use is well entrenched, it may be too late to effect much change. It’s best to seek immediate legal advice, particularly if the matter involves repeated contraventions of a court order on a child’s name which, ideally, would have repercussions to prevent further contraventions.
You can read this judgment in full here.
For family law help, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
