: Child changes name without parental consent

Child changes name without parental consent

Kate Duffy and Qwayne Guevara
New South Wales

Case Note: ‘A’ bhnf Kim Marie Wilson; Case No - 2013/85381

The Supreme Courts in all states and territories of Australia have an inherent jurisdiction to make orders to protect children in circumstances where a child has no parent or guardian. This is known as the parens patriae jurisdiction.

On 20 May 2013, the Supreme Court of NSW held that the exercise of its parens patriae jurisdiction allows it, where a child has a genuine fear of harm, to grant a child’s application for a change of name without parental consent.

Facts

The teenage applicant had lived with family and was a victim of physical and verbal abuse. On numerous occasions, the young person sustained physical injuries and was admitted into hospital. After family members threatened to kill the young person, the young person relocated to New South Wales and established a new life away from the family. The young person sought assistance, was allocated to a social worker and sought legal advice about how to register a change of name.

The NSW Registrar of Births Deaths and Marriages declined to register the young person’s new name because it required parental or guardian consent.

The law

The Births Deaths and Marriages Registration Act 1995 (NSW) (‘the Act’) outlines the requirements needed to register the name change of a child. If any Court approves a proposed name for a child, the court may order the Registrar to register the child’s name: s 28(5).

However, the Act only refers to applications to the court made by the parents or a person to whom a court within Australia has allocated parental responsibility: ss 28(1)-28(3).

Counsel advised that the young person, with a tutor, could file in the Protective List of the Supreme Court of NSW for approval of the name change under its parens patriae jurisdiction, before obtaining an order under s 28(5).

Decision

After establishing that no guardian had been appointed, the court examined whether or not the court could and should allow the young person to change their name. After hearing the evidence, his Honour accepted that the ‘extraordinary circumstances’ surrounding the applicant justified the making of an order to change the young person’s name. The applicant had a genuine fear of certain family members.

His Honour, Windeyer AJ, relied on the Supreme Court’s parens patriae jurisdiction to approve the proposed name without parental consent. His Honour then made an order under s 28(5) of the Act directing the Registrar to register the change of name.

Commentary

Despite statutory restrictions, Windeyer AJ affirmed that the use of the court’s parens patriae jurisdiction is appropriate in extraordinary circumstances to allow a young person to change their name without parental consent.

The Court’s power to make such orders highlights the importance of the separation of powers in our legal system and the effectiveness of the judiciary in ensuring the protection of children.

KATE DUFFY is the Youth Solicitor at Marrickville Legal Centre. QWAYNE GUEVARA is a Practical Legal Training student at Marrickville Legal Centre.

(2013) 38(3) AltLJ 194
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