Can I Change My Child’s Surname?

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:

1.   The welfare of the child as the paramount consideration;

2.   The short and long term effects of any change in the child’s surname;

3.   Any embarrassment likely to be experienced by the child if the child had a different surname to the parent with whom the child lives;

4.   Any confusion of identity if a child’s name were to be changed, or not changed;

5.   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

6.   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

What’s in a name? Changing a child’s surname after separation

While it may sound unusual, situations can arise when parents may wish to change their child’s name. A child may have always informally been known by one name, but legally has a different name and now wants to make that change formal. A child may no longer have a relationship with the parent whose surname they bear and wish to have the surname of the parent who cares for them full time. Parents may have separated, and one parent may decide that they would like to add their own surname to the child’s surname, or substitute it for their existing surname. In very rare cases, a parent may need to change their child’s name as a safety measure to try to conceal them from the other parent who is a significant risk to that child.

If both parents agree, changing a child’s surname is a relatively straightforward process. But if there is no agreement, a parent seeking the change will need to apply to the Court for Orders which will permit them to change their child’s name without the consent of the other parent. That application can form part of a broader application for Orders about parenting arrangements, or can be a ‘single issue’ application brought by one parent without seeking any other Orders.

When considering an application to change a child’s name, the Court will treat the child’s best interests as the paramount consideration. To determine whether or not the particular change is actually in a child’s best interests, the Court will look at a number of factors including the long and short term effects of the change, any embarrassment to the child, whether the change will cause the child confusion in their identity, the contact each parent has with the child, and the degree to which the child identifies with each parent.

Ultimately whether or not it is appropriate to change a child’s name after they are born will turn on the particular facts of each case. If you are considering applying to change your child’s name, you should seek specialist family law advice.

If you would like to make an appointment to discuss your circumstances with a member of our team, please contact us on (02) 6225 7040, via email on info@rmfamilylaw.com.au or get started online here.