Ordinarily it will require the agreement of both parents to change a child’s name. Whilst the decision to change a child’s name is an exercise of a parental responsibility by a parent, the Births, Deaths and Marriages Act 1995 specifically requires that the parents of a child may apply for a change to child’s name.
These means that provided both parents are listed on a child’s birth certificate, neither parent will be able to unilaterally change a child’s name on separation.
What happens if I have an order for sole decision making?
Often courts are asked to make orders allocating parental responsibility and decision making between parties. What order is made will impact on how major long-term issues relating to children are made.
The Family Law Act 1975 defines major long-term issues in relation to a child, as issues about the care, welfare and development of the child of a long – term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
As can be seen this can include a decision about a child’s name.
Where a parent has sole decision making, they are not required to consult with the other parent about making major long-term decisions.
Despite a child’s name being listed as a major long-term issue, the previous wording of the Births, Deaths and Marriages Act 1995 meant that a parent with sole parental responsibility previously encountered difficulty when trying to change a child’s name and required a specific order of the court.
However recent amendments to Section 28 of Births, Deaths and Marriages Act 1995 have removed this obstacle. Section 28 now provides that one parent may apply to register a change of name if:
the parent has sole parental responsibility, under a final parenting order made under the Family Law Act 1975 of the Commonwealth, to make decisions about—
(i) major long-term issues for the child within the meaning of that Act, or
(ii) the child’s name.
Therefore, depending on the type of parental responsibility and decision-making orders made, a party may not need to seek any specific order to achieve a change of name.
What if we can’t agree about a name change?
The Federal Circuit and Family Court of Australia can hear and determine a dispute about a child’s name. This might include an application for an outright change, or an application to add one parent’s surname to the child’s existing surname.
In deciding whether the grant a name change the court must consider whether the proposed change of name is in the best interests of the child.
What is in the best interests of the child will be particular to their individual circumstances, though the court has provided guidance as types of matters to be considered. In Chapman and Palmer (1978) 4 Fam LR 462, the court set out the following factors, which continue to be applied:
a) the welfare of the child is the paramount consideration;
b) the short and long-term effects of any change in the child’s surname;
c) any embarrassment likely to be suffered by the child if (the child’s) name is different from that of the parent with custody or care and control[2];
d) any confusion of identity which may arise for the child if his or her name is changed or not changed;
e) the effect which any change of surname may have on the relationship between the child and the parent whose name the child bore during the marriage (or during the period of cohabitation); and
f) The effect of frequent or random changes of name.
Change of name can be a complex area of law, however Gillard Family Lawyers are here to help. Contact us today for compassionate, expert advice to support your family’s journey.
Written by
Luke Shearston
Senior Associate
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