Changing your child’s surname after separation

A change to a child’s name is considered a major long-term issue under the Family Law Act 1975 (Cth) meaning parents must consult with each other before making a decision to change a child’s name, including any hyphenation.

In New South Wales, if it is agreed by the parents, to implement a change of name, they each must complete and register an “Application for a Change of Name” with the Registry of Births Deaths and Marriages.

The difficulty is when parents do not agree on the use of a specific name for a child, more commonly the child’s surname.

If required, the Court can make orders to stop a parent from using a specific surname for a child and require a parent to ensure that the child is known only by a specific surname.

Before you can apply to the Court for such an order, the parents are required to attend upon a registered Family Dispute Resolution Practitioner in an attempt to try and resolve the dispute. If agreement is not reached, a certificate pursuant to Section 60I of the Family Law Act 1975 will be provided and an application can then be made to the Court. There are exceptions to the requirement that the parties attend upon a Family Dispute Resolution Practitioner which include cases involving family violence, child abuse or urgency. These exceptions are set out in full at Section 60I(9) of the Family Law Act 1975.

All change of name Applications are decided on a case by case basis. However, if an Application to change a child’s name comes before the Court, the primary consideration for the Court is whether the proposed change of name will be in the child’s best interests.*1

In any application to the Court for a change of name, the factors considered by the Court would include:*2

a) The welfare of the child as the paramount consideration;

b) The short and long term effect of any change in the child’s name;

c) Any embarrassment likely to be experienced by the child if his or her name is different from that of the parent with whom the child lives with/ has care or control;

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 in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;

f) The effect of frequent random changes of name;

g) Advantages both short and long term in a change;

h) Time the child spends with the other parent (i.e. with whom the child does not live);

i) The degree of identification with the parents;

j) The degree of identification with any new child; and

k) The child’s age and an any opinion of the child as to the name change, if age appropriate;

The outcome will depend upon the particular circumstances of each family.

If you have questions about changing a child’s name, call Watts McCray to speak to one of our experienced family law lawyers.

1. Section 60CC of the Family Law Act 1975.
2. Chapman v Palmer (1978) FLC 90-510; Beach & Stemmler (1979) FLC 90-692.

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