Often one parent wants to legally change the surname of their child without the permission of the other parent.

There are certain circumstances in which this would be allowed but generally, this is not the case.

Where parents can't agree, or can't be located to be consulted, the only avenue forward is to ask the court to make a ruling and issue an order. 

Even when a court has made orders granting one parent sole parental responsibility of a child, this is still not sufficient for that parent to apply to the Registry to change the name of the child unless the Orders specifically allow for a name change in addition to the Order for parental responsibility.

Read more: Can one parent legally change a child's surname? 

The court will only consider an Initiating Application for orders on this matter after the parents can prove that they have tried to settle the matter out of court by attending mediation. Where family violence is a consideration, an exemption may be sought.

If the matter gets to court, both parent will have the opportunity to put forward their position on the name change for the child and the court will then make a decision.

 

Best interests of the child

The primary consideration of the Court, as in all matters about children is whether the name change is in the child's best interest. Read more: What does "best interests of the child" mean?

The Magistrate will consider such issues as:

• the welfare of the child;

• the immediate and long-term effects of a change of name, i.e.,

  • any advantages;

  • any embarrassment;

• the age of the child;

• the nature of the existing relationship between the child and their parents, relatives and other involved persons;

• whether retaining the name preserves a bond between the child and another family member;

• whether or not a change of surname would result in any confusion of identity for the child;

• the extent the child identifies with their current name in relation to their siblings, family members, or it's existing use in the community;

• the views of the child (particularly if the child is aged 12 years or older;

• the extent to which each of the child's parents has previously contributed to making decisions regarding the child, and their previous involvement in the child's life.

The above is an example of the types of matters the Court will consider in their decision making, but it is not an exhaustive list.

 

Court orders

If the Court is satisfied that the name change is in the child's best interest the Court will make a Court Order to that effect.

The Court Order can then be presented to the Registry of Birth, Deaths and Marriages in the state in which the child was born to register the proposed name change.

If you need advice on changing a child's name you should consider seeking legal advice from a qualified lawyer.

 

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

You may also enjoy reading:

How to avoid divorce legal fees now

Should coercive control and parental alienation in family matters be a criminal offence?

Checklist: practical steps to take on separation or divorce

Do Family Lawyers deserve their fees?

“Help! My ex won’t let me see my children. What can I do?”

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

7 Ways parents can help children cope with separation and divorce

 

 

Click here to order your copy