In the sad but unfortunately common situation of a family break-up, one parent may wish to change the surname of a child or children from the relationship.
There can be a variety of motivations behind this action. Where the child lives primarily with one parent, that parent may wish to signal a clean break with the past by changing the child’s surname to their own. In situations of family and domestic violence there may be other, more urgent reasons for trying to change a child’s name.
Formally changing a person’s name, including a child, is a legal process.
If both parents are named on the birth certificate, you will need the consent of the other parent to change your child’s last name.
If the presumption of equal shared parental responsibility between the parents under the Family Law Act 1975 (“the Act”) applies, you will need the consent of both parents.
This requirement of ‘consent’ obviously poses significant challenges where one parent withholds it, where one parent cannot be located, or where there is family and domestic violence present.
This article looks at how this impasse is resolved and also, when children are legally able to apply to change their name, independent of their parents.
How is a dispute about changing a child’s name resolved?
Disputes about a child’s name change often arise when one parent starts using a name for the child without the consent of the other parent.
If the sole issue for determination is the child’s name change, a parent may apply to the Magistrates Court of Queensland to approve a change of name. The Registrar can approve such an application so long as they are satisfied that the name is not a prohibited name, and the change is in the child’s best interest
Alternatively, a party may apply to the Federal Circuit and Family Court of Australia (FCFCOA) for a decision on whether the child’s name should change.
Before a party can apply to the FCFCOA, they are required to comply with pre-action procedure and attempt family dispute resolution mediation with the other parent to try and resolve the issue before applying to the Court to intervene.
The Act requires both parents make a ‘genuine effort’ to reach agreement in relation to making decisions on issues concerning a child or children from the relationship.
If the mediation and conciliation fail and the Court is forced to make a determination, its decision will be based on the paramount principle of the child’s ‘best interests’.
In S & H  FMCAfam 97, the Court listed factors it considers in relation to deciding on a child’s change of name, including:
- both short and long-term effects of any change in the child’s surname;
- any embarrassment likely to be experienced by the child if its name is different from that of the parent with residence or day-to-day care of the child;
- any confusion of identity which may arise for the child if his or her name is changed or is not changed;
- the effect which any change in surname may have on the relationship between the child and the parent who opposes the change;
In the case of Chapman v Palmer (1978) FLC, the Court also considered the effect of frequent or random changes of name on the child.
Other factors considered by the Court have included; how much contact the other parent has had and is likely to have in the future with the child; and the degree of identification that the child now has with each parent.
What are the child’s rights in regards to a name change?
If the child is 12 years or older, their wishes about whether they want to change their surname must be considered.
To change their name, a person must be 18 years of age and their birth must be registered in the state in which they make the name change application. If born overseas, there is a period in each state for which the person must have resided before making the application.
How expert legal advice can help
Changing a child’s name is one of many complex issues to work out after separation or divorce. Under the family law legislation, both parents must agree to the proposed name change before it can be formally registered, except where one parent is deceased, can’t be located or, in some cases, there is family violence present.
Availing yourself of the advice and guidance of legal professionals with years of experience in helping clients through difficult family law matters is a smart choice when it comes to a dispute about changing a child’s name. Contact our expert team at Delaney & Delaney today for specialist advice on any of the issues raised in this article.