The Family Law Act 1975 requires that parents endeavor to reach agreement about any major long term issue associated with a child. Major long term issues include matters such as which school to enroll a child, decisions relating to the child’s health, or the child’s religious or cultural upbringing. Another major long term issue specified within the Family Law Act is the surname used by a child.
If parents can’t agree about changing a child’s surname, an Application needs to be made to the Federal Circuit and Family Court of Australia to seek orders for the child’s change of name. The Court also has the power to make orders restraining a parent from allowing or permitting the child to be known by a name other than their surname. Except in cases of urgency, parties to Court proceedings need to participate in mediation before commencing Court proceedings.
In the case of Chapman and Palmer, the Full Court of the Family Court of Australia said that when considering an application for a change of name (or considering whether to restrain the use of a name other than the child’s surname), the Court should have regard to:
The welfare of the child as the paramount consideration;
The short and long term effects of any change in the child’s surname;
Any embarrassment likely to be experienced by the child if the child had a different surname to the parent with whom the child lives;
Any confusion of identity if a child’s name were to be changed, or not changed;
The effect that any change in surname may have on the relationship between the child and the parent that the child has previously shared their surname with; and
The effect of frequent or random changes of name.
Although these factors have often been referred to in subsequent case law, these factors are by no means an exhaustive list of the considerations which the Court can take into account when considering an application for a change of name. Other factors have been considered by the Court, such as the parent’s desire for the child to be known by their original name, the degree of identification that a child has with their parent with whom they share their original surname and the degree of identification with a step-parent or partner of their other parent.
It is prudent to obtain advice tailored to your particular circumstances from a family lawyer. Contact Robinson + McGuinness to make an appointment on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.
Author: Margot McCabe