It is quite common for one parent, usually the mother who has reverted to her maiden name, to want to change their child's name to match their own.

There is a presumption under the Family Law Act of ‘Shared Parental Responsibility’ which means that both parents have a right to be involved in decisions that would have a long-term impact on the child, such as a change of name.

Generally, you will not be able to change your child’s surname without the permission of the other parent if:

• the other parent is listed on the Child’s Birth Certificate, and

• the other parent has ‘Shared Parental Responsibility’ for the child,

unless:

• the other parent has passed away, or
• you have a Court Order which says you have ‘Sole Parental Responsibility’ for the child with specific mention that you may change their name.

If the other parent is not listed on the child’s Birth Certificate, they may not be legally recognised as the parent and may therefore not have parental responsibility. That said, there have been cases where a father not listed on the birth certificate but is legally recognised as having some parental responsibility.

 

When both parents agree on the change

If both parents agree to the name change, the process is quite simple, requiring the completion and application of a Name Change Form with the Registry of Births, Deaths and Marriages in the state in which the child was born.

If the child was not born in Australia, the application should be made to the Registry of Births, Deaths and Marriages in the state in which they reside. The child must have been ordinarily resident in that state for 12 months prior to lodging the application.

 

Using an ‘informal name’

It is not illegal to start using a surname not registered on the child’s birth certificate. This is referred to as an ‘informal’ name or ‘assumed’ name.

When one parent does not agree with the use of an assumed name, they may apply to the Family Court or the Federal Circuit Court for orders to declare the child be known only by the name on his or her birth certificate. This is done by filing an Initiating Application and mediation is a mandatory pre-requisite.

 

What if parents do not agree on the name change?

When parents can’t agree, they will have to approach the court to make a declaration on the matter.

If you and the other parent currently have parenting proceedings in Court you may seek an additional order to declare how the child is to be known going forward. With such an order made, you may then apply to the Registrar of Births Deaths and Marriages to legally change the child's name on the basis of the Court Order.

If there are no parenting proceedings before the Federal Circuit Court or the Family Court and the only matter in dispute is the issue of the change of name, then you will need to a Form 1 - Initiating Application (Parenting) to the Court to order a name change.

In some states, (Qld, Tas, Vic, SA)  if this is the only parenting matter in dispute, you can apply to the Magistrates Court by completing a 'Name Dispute Application'.

Before an application will be accepted, both parents must attend mediation to satisfy the pre-action procedures. This means that the applicant must provide relevant information to the other party and make a genuine attempt to settle the matter out of court. Where family violence is a consideration, an exemption may be sought.

If mediation is not successful, they must also obtain a Section 60I Certificate from the accredited mediator to prove participation and that the matter could not be resolved through mediation.

More information: 

Family Law Section 60i Certificate: What is it and who needs one?

At what age can a child decide who they live with?

 

The initiating application must be accompanied by:

• an affidavit indicating the grounds on which the application is sought

• an attached copy of the child's birth certificate.

 

In your affidavit you should detail:

• the reasons you want your child's name changed

• if the child has any contact with their other parent

• if you have any contact with the child’s other parent.

• if the child is already using the proposed name, include any examples of paperwork that show it (for example, school reports or sports club certificates).

• if you seek an order without the father's knowledge, then the affidavit must indicate the reasons why the father should not be informed.

 

You will also need to pay a filing fee.

The non-consenting parent will be given the opportunity to respond and to put forward their position as to why they do not agree to the child's change of name.

 

Is the name change in the best interests of the child?

If the child is 12 years or older, they must consent to change their name.

However, where the court deems that the child is unable to comprehend the situation or the consequences of the alteration of their name (e.g. because of age or disability) the child's consent is not required.

The Court will make a decision regarding changing a child's name without the consent of both parents by considering whether or not the change of name is in the best interests of the child.

Read more:

Changing a child's surname: What does the court consider?

 

 

Useful Links:

NSW Registry of Births Deaths and Marriages

VIC Registry of Births Deaths and Marriages

QLD Registry of Births Deaths and Marriages

TAS Registry of Births Deaths and Marriages

WA Registry of Births Deaths and Marriages

SA Registry of Births Deaths and Marriages

NT Registry of Births Deaths and Marriages

ACT Registry of Births Deaths and Marriages

 

Family Court of WA – Initiating Application (Parenting)
Family Court of Australia – Initiating Application (Parenting)
Federal Circuit Court – Initiating Application (Parenting)

Published by, Christine Weston
Founding Director and Creator of Divorce Resource

This article contains general information only. For advice regarding your own personal circumstances, always seek individual advice from a qualified professional. Read the full Divorce Resource.com.au Disclaimer here