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Naming Rights? Analysing Child Surname Disputes in Australian Courts Through a Gendered Lens

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Abstract

Despite major advances in gender equality, patrilineal naming—children being granted their father’s surname—persists as a largely unquestioned norm in those Western countries with predominantly Anglo traditions, even in families where mothers retain their birth names. In Australia, when parents cannot agree on the child’s surname, the issue will go to a court or tribunal, to be decided by a judicial decision-maker. Apart from Jonathan Herring’s (2009) work in the UK, such cases have been little examined by scholars. This paper explores the question of whether child surnames chosen by Australian courts—a supposedly neutral and objective third party—uphold patriarchal logic or provide more equitable outcomes. Using a feminist critical discourse framework, we examine five recent court judgments about child surname disputes, and six news articles about these types of cases. While these cases are not a representative sample, we find that, despite the existence of specific legal principles relating to children’s surnames, decision-makers’ judgments were inconsistent and subjective. Furthermore, mothers’ names tended to be granted to children when fathers were deemed to be ‘bad dads.’

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Notes

  1. Pave & Hannegan [2018] FCCA 3488 (30 November 2018), accessed at https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2018/3488.html; Schafer & Pederson [2018] FCCA 3086 (2 November 2018), accessed at https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2018/3086.html; Nasland & Schuster [2019] FCCA 2 (18 January 2019), accessed at https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2019/2.html; Naparus & Frankham (No.3) [2019] FCCA 434 (28 February 2019), accessed at https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2019/434.html; Lac & Yau [2018] FCCA 3851 (21 December 2018), accessed at https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2018/3851.html.

  2. Chapman & Palmer [1978] FamCA 86; (1978) FLC 90–510; 34 FLR 405; 4 FamLR 462 (27 November 1978).

  3. Naparus & Frankham, supra n 4.

  4. Family Law Act 1975 (Cth) (subdivision BA, s 60CA).

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Correspondence to Zoë Goodall.

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Goodall, Z., Spark, C. Naming Rights? Analysing Child Surname Disputes in Australian Courts Through a Gendered Lens. Fem Leg Stud 28, 237–255 (2020). https://doi.org/10.1007/s10691-020-09443-1

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  1. Latest

    Naming Rights? Analysing Child Surname Disputes in Australian Courts Through a Gendered Lens
    • Zoë Goodall
    • Ceridwen Spark
    Published:
    01 November 2020
    Accepted:
    21 October 2020

    DOI: https://doi.org/10.1007/s10691-020-09443-1

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