What’s in a name? Can I change my child’s name?

By 13 December 2016Family Law
Divorce Lawyers Wodonga

It is not uncommon for parents to ask if they can change their child’s surname after they have separated from the other parent.  Whilst it is relatively easy for adults to change their surname following the breakdown of a relationship, such as reverting back to a person’s maiden name, the process is not as simple for parents wishing to change their child’s name.

Mostly, parents wishing to change their child’s surname will want their child to bear the same surname as them.   It may be that the parent with whom the child does not live, has not seen the child for a long time or has had limited involvement in the child’s life.   Alternatively, it may be that the parent with whom the child lives has other children from a subsequent relationship and the parent wishes the children to all have the same surname.

Changing a child’s name is a major decision in relation to a child’s welfare.    Accordingly, that decision can only be made by both parents unless the Court makes an order allowing a change to the child’s name.  If both parents consent, a joint application can be made to the relevant Registry of Births, Deaths and Marriages.  In these cases, no court order is necessary.  In the absence of both parties’ consent however, a court order permitting the name change will be required in most cases.

It is important to note that a court order giving one parent sole parental responsibility may not extend to allowing that parent to unilaterally change the child’s name.  In New South Wales, the Births, Deaths and Marriages Registration Act 1995 requires both parents to consent to a change in the child’s name unless the applicant is the sole parent, there is no surviving parent or the Court has approved the proposed change of name.  Similarly, in Victoria,   the Births, Deaths and Marriages Registration Act 1996, provides that an application for registration of a change of a child‘s name may be made by one parent if the applicant is the sole parent named in the registration of the child‘s birth or there is no other surviving parent of the child or the Court approves the proposed change of name.

An application to change a child’s name can be made to any Court having jurisdiction under the Family Law Act 1975.  As with any application for parenting orders, there is a requirement to attempt mediation before commencing proceedings except in certain circumstances such as urgency or where there is family violence.

In any application to change a child’s name, the best interests of the child is the paramount consideration.  The matters that assist the Court in determining what is in a child’s best interests are found in s.60CC of the Family Law Act 1975.  In addition,  the other relevant factors that the Court will consider when determining an application to change a child’s name are set out in the cases of Chapman & Palmer [1978] FLC 90-510 and Beach & Stemmler [1979] FLC 90-692.  Those factors can be summarised as follows:

  • Any embarrassment likely to be experienced by the child if their name is different to the name of the parent with whom they live;
  • Any confusion of identity which may arise for the child if his or her name is changed or if it remains the same;
  • The effect that any change in surname may have on the relationship between the child and the parent who had shared the same surname as the child since birth;
  • The effect of frequent or random name changes;
  • The contact the parent with whom the child does not live with has with the child or is likely to have with the child in the future;
  • The degree of identification that the child has with the parent with whom they do not live;
  • The degree of identification that the child has with the parent with whom they live.

To discuss a change of name application, please contact our family law department to make an appointment.