Changing a child’s name
A parent that has parental responsibility for a child can make major long-term decisions for that child. This includes decisions about the child’s name.
Where parents have joint parental responsibility, both parents must agree on any changes to the child’s name. Situations arise where one parent wants to change a child’s name, and the other parent does not consent. If an agreement cannot be reached, the parent wanting the name change would need to make an application to the Federal Circuit and Family Court of Australia to change the child’s name.
If one parent has an order for sole parental responsibility, they should carefully check whether they can change the child’s name. The Court regularly makes orders for sole parental responsibility that excludes the ability to change a child’s name.
In New South Wales, parents who have sole parental responsibility may also encounter issues with Births, Deaths, and Marriages when attempting to change a child’s surname without an explicit order from the Court.
In this week’s article we look at how the Court deals with change of name applications.
Children’s names and best interest considerations
As is the case for all parenting matters, the best interest of the child is the paramount consideration when determining whether a child’s name should be changed. This was noted in the 1978 decision of Chapman & Palmer where the Court stated:
“The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.” at 44
Chapman & Palmer concerned an appeal against Orders made in the Family Court. The trial judge had restrained the mother from using a particular surname for the children, aged 12 and 6, and restrained the mother from discouraging the children using the father’s surname.
The Court in Chapman & Palmer outlined the factors that a Court may consider when deciding a change of name application. in their judgement the Court provided a summary of those considerations to include: -
the welfare of the child is the paramount consideration,
(a) The short and long term effects of any change in the child's surname,
(b) Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.
(c) Any confusion of identity which may arise for the child if his or her name is changed or is not changed.
(d) 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 marriage.
(e)The effect of frequent or random changes of name.
In the 1979 case of Beach & Semmler the Court set out the further considerations for a Court when considering a change of name application. These included: -
the advantages, both short and long term, in a change;
contact the child has with the Father;
the degree of identification with the father and mother;
the degree of identification with any new child; and
the Father’s wishes.
The Court in Beach & Semmler also noted in the decision of Pylarinos v Reklitis (1979) FLC 90-609 the Court had considered the wishes of the child, who was 13 years of age. The Court commented that this was an appropriate consideration.
If you are considering changing your child’s surname you should seek legal advice.
Please note: the information in this article is general in nature and is not legal advice. For legal advice about your circumstances, contact us to make an appointment with one of our solicitors.