There are various reasons why a parent may wish to change their child’s surname, such as to symbolise the parent’s equal role in the child’s upbringing, strengthen the child’s relationship with both parents, or to allow an adopted child to take on their adoptive parents’ name.
If you’re looking to change your child’s surname, then read on to learn about the different steps you’ll need to take and the obstacles you may face along the way.
Origins
The right to receive a name is enshrined in Article 7 of the United Nation’s ‘Convention on the Rights of the Child’ (CROC):
“The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.”
Eligibility
A parent may change their child’s surname if they are under eighteen (18) years old, born in New South Wales, or, if born overseas, be a resident of New South Wales for at least three (3) years before an application is made.
A child may have their surname changed if:
- There is consent from both parents (that is, the parents named on the birth certificate); or
- A successful application has been made for an Order of the Court; or
- One parent is deceased.
This may occur once every twelve (12) months, however, only three (3) times in a lifetime.
If neither parent is applying
The Courts will also consider applications from individuals who have assumed parental responsibility over the child, other than the parent. This includes:
- The Minister of Family and Community Services; or
- Grandparent(s); or
- Aunts and uncles; or
- Other people with parental responsibility that are not within the criteria.
Restrictions
The Births, Deaths and Marriages Registration Act 1995 (NSW) states that there are certain individuals who may not have their surname changed without the permission of a supervising authority. These include:
- An inmate at a correctional centre; or
- A person on remand; or
- A parolee; or
- A periodic detainee; or
- A person subject to a supervision order; or
- A forensic patient; or
- A correctional patient
Both parents agree on the name change
The Births, Deaths and Marriages Registration Act requires a signed agreement for a name change to occur. The rationale behind this is contained in the Family Law Act 1975 (Cth), which stipulates that there is a presumption that both parents have ‘equal shared parental responsibility’ for major long-term decisions which, of course, extends to a child’s surname.
If both parents agree to change their child’s surname, such as through a hyphenation, the parents need only go through the Registry of Births, Deaths and Marriages in the state in which the child was born in. If the child was born overseas, the parents must apply through the Registry of Births, Deaths and Marriages in which the child currently lives in.
Each parent must complete and register an ‘Application for a Change of Name’.
However, the consent of one parent is only required where:
- The Applicant is the only living parent;
- The Applicant is the only named parent on the child’s birth certificate; or
- The Court has granted permission for the name change to occur.
Both parents do not agree on the name change
Most cases regarding name changes involve a dispute between the parents as to whether it should take place. This is particularly the case where a separation has occurred and there are high levels of tension and hostility between the parties. As such, a parent may apply for a parenting order to ensure that the surname change takes place.
Before the Court may hear the case, the Applicant must apply to the Family Court of Australia and attend upon a registered Family Dispute Resolution Practitioner to resolve the dispute.
If an agreement has not been reached upon this mediation, the Applicant may apply for a certificate from section 60I of the Family Law Act, which demonstrates that the parent has made a genuine attempt to resolve the dispute on their own before applying to the Court. However, this is not always the case. A section 60I need not be used in cases involving family violence, child abuse or urgency. All exceptions are laid out under sub-section (9) of the Family Law Act.
The application to be submitted to the Court must be accompanied with:
- An affidavit detailing why a name change is being sought; and
- An attached copy of the child’s birth certificate.
In the affidavit, the Applicant must detail:
- Reasons why the child’s surname should be changed;
- Whether they have any contact with their other parent;
- Whether the Applicant has any contact with the other parent;
- Whether the child is already using their other name unofficially, such as through an email address or a school library card; or
- Where an order is sought without the other parent’s consent, why they should not be informed.
The criteria used for determination by the Court is outlined in the family law case of Chapman and Palmer [1978] FamCA 86. In this case, the Full Court of the Family Court held that a court must be satisfied that the name change is in the child’s best interests and promotes the child’s welfare, hence trumping any interests of the parents. The specific factors that the Judge considered were:
- The welfare of the child is the paramount concern; and
- The short and long term effects of the name change; and
- Any embarrassment the child may face from having a different surname to the parent with whom they live with; and
- Any confusion of the child’s identity that may arise; and
- The impact of the name change on the relationship between the child and the parent whose name the child previously bore; and
- The effect of frequent or random name changes and if the child has had name changes in the past.
Each decision will be decided on a case-by-case basis.
Case study 1
In a recent family law case, Ms X (“the mother”) sought to change the surname of her two young children following her separation with Mr Y (“the father”). Her reasons were that:
- It would allow the children to maintain a connection with their late grandfather, whom they were close with before her passing; and
- It would acknowledge her side of the family and provide them with a greater sense of their Aboriginal heritage and identity; and
- They were still of young age, and so a surname change at this time would not impose significant social or legal ramifications.
Ultimately, an Order was given by the Court to provide for this name change. Specifically:
- The child’s surname would not be changed altogether, but hyphenated to recognise the identity of both parents; and
- The child had previously asserted that she wished to be able to identify with both parents, which the mother believed could be achieved through the addition of her surname; and
- The hyphenation of the child’s surname did not “oust” the identity of the party but sought to strengthen her relationship with both parents through the addition of the surname. This was particularly pertinent considering that the parents had gone through a difficult separation.
Ultimately, the hyphenated name was to be used within twenty-eight (28) days of the orders, enforced through the injunction.
Case study 2
In another recent family law case, Ms R (“the mother”) sought to change the surnames of her two young children, aged 14 and 12, after she separated from Mr L (“the father”). Mr L opposed these orders being made. On first instance, the Judge did not allow the surname change.
At trial, the Judge decided to allow the appeal, as:
- The children did not spend any time with the father or his paternal family; and
- The children have been using the mother’s surname unofficially for approximately five years, which was demonstrated through their library cards and email accounts; and
- A psychologist appointed for the children recommended the name change, as the children had told her that they wished to carry the mother’s surname and that it would be an important step to “recover from the diagnosis of complex post-traumatic stress disorder” arising from the father’s alleged abuse.
While he acknowledged the pain this would cause to the father, specifically as it would remove the last link he would have to his children, the Judge found that the name change was necessary to reflect the children’s best interests.
Let us help you with your family law matter
If you’re seeking help with changing your child’s surname or with any other family law matter, it’s time to find a reliable and experienced family lawyer.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-free pricing for family law, giving you a clear sense of the costs from the start and will be sure to help you out every step of the way.
With years of experience under our belt, we pride ourselves in making each client’s family law experience as positive as possible.
Contact JB Solicitors to get started on your family law matter, or for assistance with any other legal matter.
