I. USE OF NAMES
A. Origin of Names
2.1 The art of naming and the desire for being named are of antiquity far greater than the law.1 In the Anglo-Celtic tradition, a personal or Christian name given to a child by the parents was the only name a person bore. By the twelfth century in England, a by name (additional description) was in use to identify a person for official purposes.2 Surnames as inherited family names were well established by the mid- fourteenth century. They were not used by everyone, nor were all hereditary.3 The use of surnames appears to have been more a response to the needs of state and church administration (the exchequer, legal transactions, tenants' rolls) than for purposes of self-identification.4
2.2 The origin of the custom of paternal naming in Anglo-Celtic society is not clear, although the practice is typical of a patriarchal society. Whether for administrative convenience or the dictates of inheritance, hereditary paternal surnames were established as customary. They were not used exclusively as there is evidence of matronymics in English family names.5 In Australia the tradition of patronymics has been maintained.
2.3 Naming systems In other cultures, including those of migrants to Australia, show a diversity of practices.6 While It is true to say the majority follow the hereditary paternal surname custom as was transferred from the British Isles, there are some significant differences, especially in Asian and Slavic communities.7 Other systems identified by the Commission do not use either parent's surname In the child's name.8 Names in Aboriginal languages use traditional forms, including skin names, but even within Aboriginal society, practices are not uniform? As it has been impossible to obtain definitive statements of naming practices In ethnic communities represented In Australia, the Commission has not sought to formulate statutory provisions to regulate the naming of children in New South Wales.
B. Right to a Name
2.4 The naming of a child is so fundamental a concern that it has been recognised by the United Nations in the Declaration of the Rights of the Child which states:
Principle 3 - The child shall be entitled from his birth to a name and nationality.
The International Covenant on Civil and Political Rights (ratified by Australia in 1966) is in similar terms:
Article 24:2 - Every child shall be registered immediately after birth and shall have a name.
2.5 The latter provision was included as Article 14(b) of the proposed Australian Bill of Rights.10 Whether these documents refer to forename or surname, or both, is not defined.11 The common law of names in New South Wales would suggest that emphasis be placed on the forename, given or Christian name.12
II. COMMON LAW OF NAMES
2.6 There are very few established common law principles relating to the acquisition of names and legislation in Australia and England generally preserves the common law. This is in contrast to the complex legal and administrative rules in many European countries.13
2.7 The common law permits parents to choose freely a forename for their child, and expects them so to do. In the words of Lord Denman CJ, "We must presume that every person has a Christian name".14 The given or forename of a person is not necessarily a Christian name in the strict sense of a baptismal name. A person may become known generally by a name assumed in addition to or in place of the baptismal name, and that name is valid for purposes of legal Identification. 15
2.8 The use of a surname Is a convention rather than a legal necessity,16 and the surname is never formally bestowed on a person but acquired by reputation. In the most recent Australian statement of the common law principle, the full court of the Family Court of Australia stated in Chapman v Palmer:
At common law an adult may assume any surname by using such name and becoming known by It. A surname is not a matter of law but a matter of repute. 17
2.9 This decision acknowledges the earlier House of Lords statement. In Earl Cowley v Countess Cowley which refers to the only restriction on the surname by which a person may be known:
Speaking generally, the law of this country allows any person to assume and use any name, provided its use Is not calculated to deceive and to inflict pecuniary loss.18
2.10 It is the normal convention that a married woman acquires by usage and repute her husband's surname (and may retain it upon divorce), but the common law regards this practice as no more than a convention.19
2.11 The surname by which a child is known, although not forming part of the true legal name,20 is apparently a matter of great emotional significance21 and has been the basis of considerable litigation. In practice, the child will generally be known by the name given by the parents at birth and established by reputation and usage. It will depend both on the parents' acts and the assumptions of others. Generally it will be assumed the child carries the name of the parent/s with whom the child lives.22 Conventionally the surname is the father's unless he is not known or does not acknowledge paternity.
2.12 The suggestion that this convention is a rule of law, made by Vautier J in H v J.23 was rejected strongly by McLelland J in the NSW Supreme Court in C v S:
There is, in my view, no rule of law that a child should have or must be given the same surname as his father. If the statement by Vautier J in HvJ that, by the common law of England "the surname of the child has, for centuries past, been recognised as being that of the father ... when the father and the mother were married ..." is intended to propound such a rule, then 1 respectfully disagree with it. The better view, in my opinion, is that the surname of a child is that by which he is known, and that there is a rebuttable presumption (whether of fact or law it is unnecessary for present purposes to determine) that a child is known by the surname of his father, at least where his father and mother are married, and the mother has herself taken the surname of the father.24
III. CHANGE OF NAME
2.13 The common law recognises an adult’s right to change his or her name. Provided there is no intent to defraud or deceive and inflict pecuniary loss on another, a person may assume any new or additional name including one which is used by another.25 It is generally accepted that both forenames and surnames can be changed at will.26 For adults in New South Wales there are now no statutory restrictions on the ability to change names,27 the limitation on changes by aliens having been removed with the repeal in 1984 of the Aliens Act 1947 (Cth).28
2.14 Different restrictions apply in changing a child's name, frequently an issue in litigation over guardianship. The Family Court in Chapman v Palmer noted that in England "an infant is not competent to change his or her name without parental consent",29 and went on to explain that under Australian law:
(The child's custodians) have the same capacity to change the child's surname as to change their own. A child need not be given and need not retain the name of his parent or custodian, but whatever name is chosen by his custodians must be established by reputation and usage.
A minor may have the ability within limits, to bring about a situation in which he is known by a surname of his own choosing.
This is more likely to be possible where the minor is approaching majority and where he lives apart from his custodian or where the custodian agrees or does not object to the chosen name, the younger child has little scope for independent action.30
2.15 The principles on which a court will decide whether there should be any change in the surname of a child have been identified.31 The principle that the welfare of the child is the paramount consideration will prevail over the wishes or proprietary interests of the parents. The wishes of the child must be taken into account, as in all matters relating to welfare, custody, and guardianship.32 A court will not intervene if the parent with custody of the child has the consent of the other parent and it is in the child's interest to change the surname. A declaration of the Family Court is sufficient to permit a parent to change the name. The formal record of the change made under s34 of the Registration Act provides evidence that the change has occurred.33
2.16 Whilst the acquisition of a new name by use and reputation is the only way in which a person's name may be changed and formal evidence of such change is unnecessary, there are various ways in which evidence of the change may be substantiated. The most public method is to lodge a deed poll with the Deeds Lodgment Section in the Land Titles Office. This puts the intention to change a name on the public record, but unless the intention is acted upon by the person, no change occurs. The Registration Act34 allows the Principal Registrar to note on the birth register an additional name or lawful change to a name (other than a change consequent upon or effected after marriage). Notation of the change on the register of births serves only as evidence of the change, and does not operate to make the change.
2.17 An adoption order changes the child's name.35 Unless previously generally known by a particular surname, the child is given the adoptive parents' surname, together with the forenames chosen by them. The surname of a child over 12 will be changed only with the child's consent, or for special reasons in the child's interests. The adopted child's name is established by use and reputation, and as with any person's name, it may be changed by use and reputation.
IV. OTHER RELEVANT LEGISLATION
A. Children (Equality of Status) Act 1976
2.18 The Children (Equality of Status) Act was intended to remove the legal disabilities of ex-nuptial children, to facilitate the establishment of paternity and maternity of children, and to assist them to the greatest extent legislatively possible to establish the existence of the parent- child relationships on which their rights depend.36 Similar legislation has been introduced in most Australian jurisdictions. Such legislation reflects contemporary attitudes and recognises the fact that a sizeable class of people has been discriminated against on unjustifiable grounds.
2.19 Section 6, the key section of the Act, provides that:
whenever the relationship of a child with his father and mother, or with either of them, falls to be determined by or under the law of New South Wales, ... that relationship shall be determined irrespective of whether the father and mother of the child are or have ever been married to each other ....
The effect of this Act is to abolish the doctrine that a child born out of wedlock is filius nullius, replacing it with the doctrine that in law the child is the child of its natural parents.37
2.20 The Act also contains procedures by which a man may formally acknowledge paternity of an ex-nuptial child, and have his name recorded on the register of births. Where a formal acknowledgment of paternity made by the father of an ex-nuptial child is either countersigned by the mother of the child, or recorded in a register of births (which usually occurs only with the mother's consent) or in the register of parentage information kept under the Registration Act, a rebuttable presumption of paternity arises".38 Similarly, a presumption of paternity will arise on the making of orders under Part 11 of the Maintenance Act 1964,39 or under Part XII of the Child Welfare Act 1939,40 under comparable legislation outside New South Wales,41 and following the making of custody orders42 which name a man as father of an ex-nuptial child. Section 13 provides for the Supreme Court to make a judicial declaration of paternity on the application of the mother, father, Principal Registrar or other interested persons. Sections 13 and 14 of the Children (Equality of Status) Act contain similar provisions for recognition of maternity. In each case copies of the orders are transmitted to the Principal Registrar. The Registration Act contains extensive procedures for the recording of such declarations in a register of parentage information or on the register of births.43
B. Anti-Discrimination Act 1977
2.21 The Anti-Discrimination Act 1977 makes it unlawful to discriminate on the grounds of race, sex, marital status, physical or intellectual impairment, or homosexuality. Discrimination is prohibited in areas such as employment, accommodation and the provision of goods and services.
2.22 The Act established the Anti-Discrimination Board and the Equal Opportunity Tribunal. The Board's functions include community education, research and policy advice, and hearing exemption applications. The Board investigates and conciliates complaints of discrimination; in the event that the Board is unsuccessful, the matter goes to a hearing before the Tribunal. The legislation implements the principle that all people have a right to expect equal treatment. However, it is not an easy matter to eliminate some forms of discrimination; in some cases greater inequalities may be perpetuated, or the public interest may not be served.
2.23 In a report identifying discrimination in New South Wales legislation, the Board considered that s14 of the Registration Act constituted discrimination on the ground of marital status.44 The reason given for the Board's view was that whereas s14 gives the father of an ex-nuptial child the right to choose to furnish particulars for inclusion on the child's birth, it is mandatory for his particulars to be included if the child is born within marriage. However, the Board was unable to suggest an alternative procedure which would remove the discrimination and made no recommendations for change.
2.24 Discrimination can occur in other situations under the Registration Act as well. The decision which prompted the making of this reference is a case in point. In L v Registrar of Births, Deaths and Marriage 45 the Equal Opportunity Tribunal found Registry practice discriminated against Ms L on the grounds of sex and marital status. The facts of the case are set out in paragraph 1.5 above. They concerned a situation in which a married couple were competing to register different surnames for their child. The Principal Registrar preferred the husband's surname, but was advised by the Tribunal that he should have accepted the name first offered. Registry practice now conforms with the Tribunal's decision. In the event of a dispute, the Form of Information first lodged will be registered.
2.25 For the first time, this legislation gives the Family Court jurisdiction over all matters concerning the guardianship, custody or welfare of a child, whether the child was born within a marriage or is ex-nuptial.46 It also extends to ex-nuptial children the principle that, unless the Court orders otherwise, each of the parents is a guardian of the child.47 A guardian is a person with responsibility for the long-term welfare of the child, while custody confers day- to-day care and control.48
2.26 It has long been accepted that a court can make orders with respect to the surname and even the forename of a child.49 Proceedings about a child's name are proceedings with respect to guardianship.50 The usual situation in which the court will be asked to make orders as to the name (most frequently it is the surname) occurs when the parent with custody seeks to change the child's name.
2.27 A court has no power to alter a child's name, that can only occur as a consequence of usage and reputation.51 The most it can do is make an order prohibiting the use of one name and requiring a parent to take action to ensure that the child is generally known by another name.52 When making an order with regard to a child's name, the court is required by the Family Law Act to regard the welfare of the child as the paramount consideration.53 The Family court has explained the principles it will apply to determine what is in the best interests of the child in Chapman v Palmer54 and Beach v Stemmler.55
2.28 The Family Law Act also contains presumptions as to parentage. Section 60B establishes certain presumptions of parentage in the case of children born as a result of artificial conception procedures. These presumptions appear be conclusive. Rebuttable presumptions56 of paternity and maternity appropriate arise:
- when a child is born to a woman during or within 10 months of the termination of a marriage:57
- from the cohabitation of a man with the child's mother for a specified period;58
- with the entry of a person's name on a register of births or parentage information;59
- from a judicial finding either expressly or by inference naming a person as a parent; and60
- by the execution of an instrument acknowledging paternity.61
FOOTNOTES
1. A Linell. The Law of Names (Butterworth, London, 1938) at 1.
2. P H Reaney and R M Wilson, Dictionary of British Surnames (Routledge and Kegan Paul, London, 1976) at xii.
3. Id at xIv.
4. See Id at xli and B Cottle, The Penguin Dictionary of Surnames (Penguin. Harmondsworth. 2nd ed. 1978) at 12-14.
5. Including Thomas Littleton, Judge and author of Littleton's Tenures; see Re s22 of the Registration of Births, Deaths and Marriages Acts 1962 to 1967 [1973] Qd R 441 at 444.
6. See Naming Systems of Ethnic Groups (Dept of Social Security 1987).
7. Ibid.
8. Kenya - Australia Society, letter to the Commission, July 14 1986.
9. Ms P Ditton, letter in Aboriginal Law Bulletin No 6 December 1982 at 9.
10. Australian Bill of Rights Bill 1985 (Cth).
11. It is argued that. "it may be assumed that it refers to both the proper name (given name) and the surname (family name), but with emphasis on the latter". Vieno Voitto Saario. Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study of Discrimination Against Persons Born Out of Wedlock (UN, New York 1967) at 83.
12. See below paras 2.6-2. 12.
13. See for example the French Law of 11 Germinal Year XI, (1 April 1803) Art 1-3.
14. Gatty v Field: Levy v Webb (1846) 9 QB 431 at 442.
15. R v Billingshurst Inhabitants (1814) 3 M&S 25; 105 ER 603.
16. Wakefield v Wakefield [18071 Hagg Con 394 at 402; 161 ER 593 at 596.
17. (1978) FLC 90-510, 77.667; see also R v Smith (1866) 4 F & F 1099; 176 ER 923; In re T (Orse H) [1963] Ch 238 at 240; Earl Cowley v Countess Cowley [1901] AC 450 at 460.
18. 1190 11 AC 450 per Lord Lindley at 460; see also Du Bourlay v Du Bourlay [1869] LR 2 PC 430.
19. D v B (Orse D) [1979] 1 All ER 92.
20. Re T (Orse H) (an infant) [1962] 3 All ER 970.
21. D v B (Orse) [1979] 1 All ER 92.
22. Chapman v Plamer note 17 at 77, 671.
23. [1978] 2 NZLR 623 at 630.
24. [1979] 2 NSWLR 598 at 603.
25. Du Bourlay v Du Bourlay note 18; Earl Cowley v Countess Cowley note 17.
26. Despite heavily criticised and widely disregarded dicta of Vaisey J in In re Parrott, Cox v Parrott [1946] Ch 183 at 186 to the effect that a Christian (ie baptismal) name may not be changed except by Act of Parliament, at confirmation, or on adoption and never by-deed poll.
27. Cf Change of Names Regulation Act 1923 (WA) and amendments to the Births Deaths and Marriages Registration Act 1966 (SA) by the Statutes Amendment (Change of Name) Act 1980 (SA).
28. Aliens Act Repeal Act 1984 (Cth) s3.
29. Re T (Orse H) note 20.
30. Chapman v Palmer note 17 at 77, 671.
31. Chapman v Palmer note 17 at 77, 675-676 and Beach v Stemmler (1979) FLC 90-692, 78, 691.
32. Family Law Act 1975 s64(1) (b) and Pylarnos v Reklitis (1979) FLC 90-609, 78,125.
33. Arthur v Comben (1977) FLC 90-245, 76.319 at 76,322 per Demack SJ.
34. s34.
35. Adoption of Children Act 1965 s38.
36. See the Honourable F J Walker, "The Children (Equality of Status) Act (1976)", 15 (1) Law Society Journal, (February 1977) 45.
37. Per Hutley JA in Gorey v Griffin [1978] 1 NSWLR 739 at 744.
38. Children (Equality of Status) Act 1976 s 11 (1)(a).
39. s12(1)(a).
40. s12(2)(a).
41. s12(5)(a).
42. s12(6)(a).
43. ss42A and 42B.
44. Anti-Discrimination Board Discrimination in Legislation Vol 1 1978 at
45. (1985) EOC 92-142.
46. Commonwealth Powers (Family Law - Children) Act 1986 which commenced operation in October 1987.
47. Family Law Act 1975, s63F(1).
48. Id s63E(I).
49. See Putrino v Jackson (1978) 33 FLR 94.
50. Chapman v Palmer (1978) FLC 90-510, as affected by the change to definitions of custody and guardianship in s60A.
51. McLelland J in C v S [1979] 2 NSWLR 598 at 601, following Chapman v Palmer note 17 at 77.671.
52. See, for example, Putrino v Jackson (1978) 33 FLR 94; Kelley v Kelley (198 1) FLC 90-002, 76,071.
53. s60D.
54. (1978) FLC 90-510 77,667.
55. (1979) FLC 90-692, 78.694.
56. On the balance of probabilities, s66U(I).
57. s66P.
58. s66Q.
59. s66R.
60. s66S.
61. s66T.
