Keywords: Children; best interests of the child; child’s surname; hyphenated surname of child

In the recent highly publicised case of Reynolds & Sherman [2016] FamCAFC 240 (29 November 2016), one mother’s fight to keep her child’s surname has failed.

The parties, going by the court-ordered pseudonyms Ms Reynolds and Mr Sherman, shared a brief relationship. Shortly after the mother fell pregnant, the pair split.

The mother did not disclose her pregnancy to Mr Sherman and accordingly, he only became aware of the child when the Child Support Agency contacted him. While it was an acrimonious separation, the father was seeing the boy several times a week with the mother looking after the child predominantly.

This case is not new to court, having run the gamut of appeals at the Federal Circuit Court and Family Court. The issue has sparked discussion in the mass media, bringing issues of family and identity to the fore. Are we to see the increase of hyphenated names reflecting the surnames of each of the father and mother who have separated?

At issue was whether the father’s name was to be added to the child’s surname, creating a double-barreled name. At first instance, in October 2014, Ms Reynolds argued the following:

  1. Such name would be a nuisance;
  2. The name would need to be spelt out on the phone;
  3. Hyphens could be problematic for computer programs;
  4. The surname would need to be shortened to fit forms and computer systems;
  5. When contacting companies, it would be time consuming to find the file with that name;
  6. It would be difficult to write this name on homework or lunch boxes;
  7. The child may wish to drop one of his surnames on becoming a teenager. This may create a problem with which name to drop; and
  8. There would be a problem if the child were to marry someone who also had a hyphenated name.

The mother further argued that the child was already known by the surname Reynolds and was accustomed to that surname. This “social footprint” argument was central to her case.

At first instance the hearing was listed for an hour, only running for 30 minutes. Thereafter, the judge ordered that the boy be known from now by the surname Sherman-Reynolds.

The mother appealed to the Family Court soon after and the decision was overturned.

Remitting the case back to the Federal Circuit Court, the appeal judges accepted that the original decision had been made swiftly. Although the bench accepted that there was a need for pragmatism in bringing matters to a quick resolution, they also believed that a name is an important decision and one which will have lifelong consequences.

Judge Michael Baumann, at the second trial found that the boy should indeed be known by the name Reynolds-Sherman because it would be in the child’s best interests to have “a surname which accurately reflects his heritage.”

The mother appealed the second decision, and appeared as a self-represented litigant before the Family Court.

Her argument was that Baumann J had not considered the fact that Mr Sherman was using this as a way of aggravating Ms Reynolds and further, that he had initially denied being the father.

In a recently delivered decision, however, the appeal was rejected. The judges found that no error was made in ordering the new name. They dismissed her concerns, noting that it is now common for children to have a different surname from at least one of their parents even where the relationship stands.

The court ordered that the mother pay the father’s legal fees of $8000, which they called a “modest amount”.

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