By Gianna Huesch
A mother’s desire for her son to share her surname, rather than carry the hyphenated, double-barrelled surname of both parents, has seen her head to court four times—for two trials and two appeals—only to be ultimately unsuccessful and find herself awarded with court costs of $8,000.
The boy, aged 3, is the product of a short relationship and spends time with both parents. The only matter in dispute before the court was the issue of the boy’s surname.
At the initial trial, the court acknowledged that it was not a trivial issue, as it raises “issues about identity, family connections and the challenges of a double-barrelled name”. Similarly, the appeal judges later noted that “a dispute about the name by which a child will be known perhaps for his entire life is a matter of real importance.”
The challenges of a double-barrelled surname, according to the mother, included that a hyphenated name is a “nuisance”, that it is difficult to spell and use (for example on school forms), and that it could cause problems when the boy was grown up and perhaps married someone who also had a hyphenated name. The mother also argued the boy already had a “social footprint”, despite his young age. However, the judge disagreed, leading the mother to appeal.
At appeal, the mother was successful, as the appeal judges found the trial judge had determined the case in just an hour, which was considered inadequate given the lifelong consequences for the child.
At the second trial, the mother argued a hyphenated surname would be a “constant reminder of (the child’s) illegitimacy and his parents’ relationship breakdown”. But the judge disagreed and again ordered the child to have a hyphenated name, stating it was in the child’s best interests to have a surname “which accurately reflects his heritage”.
Once again, the mother appealed the ruling, arguing the second trial judge had not taken into account factors such as her view that her ex-partner was “pursuing a hyphenated surname to antagonise her” and the fact he had initially denied paternity. But the appeal judges found no error had been made by the trial judge and dismissed her appeal. They also noted a hyphenated name would not be confusing for the child, as it was the court’s experience that it is not unusual these days for a child to have a different surname from the parent they are living with.
If you have a child with your ex and have considered heading to court over the child’s name, it’s worth considering the outcome of this case, although it should be noted that in the case law, there are also matters where a mother has successfully argued that her child should bear only her surname.
Do you need assistance with a family law matter? Please contact Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400 to discuss your needs.
