After separation, it is common for parents to change their surname, whether it be by reverting to their maiden name or when they remarry. Some parents never share the same surname. When separation occurs, some parents feel that it is confusing for a child to have a different surname to them, particularly if the child is spending very little time with the other parent. So, when can you change your children’s surname?
Read on to find out what the Court considers if one parent wishes to change a child’s surname post separation and what the options are if the other parent opposes the change.
What Does the Law Say?
When making a parenting order in relation to a child, the court no longer presumes that it is in the best interests of the child for the child’s parents to h parental responsibility for the child.
Since May 2024, the Court is simply required to determine whether it is in the best interests of the child for the parents to have shared parental responsibility or whether it is in the child’s best interests for one parent to have sole parental responsibility and decision-making authority for long term decisions affecting the child’s health and wellbeing.
If a parenting order provides for shared decision making by the parents in relation to long term issues, the parents are required to consult each other in relation to each decision and to make a genuine effort to come to a joint decision.
A change to a child’s surname is considered to be a major long-term issue under the Family Law Act 1975 (Cth) Consequently, parents must consult with each other before making a decision to change their child’s surname, where there is an order for shared parental responsibility.
If it is safe to do so, even where there are no court orders, the parents of children are encouraged to consult one another about major long-term issues in relation to the child and in doing so have regard to the best interests of the child as the paramount consideration.
Where Parents Agree and There is Shared Parental Responsibility
Where both parents agree to the change of name, a Change of Name Application form signed by both parents can be submitted to the Registry of Births, Deaths & Marriages.
Where Parents Do Not Agree and There is Shared Parental Responsibility
Can you change your childrens surname when one parent does not agree to the change of name and there is a shared parental responsibility order? In this situation, the parent wishing to change the child’s name must seek an order from the court to enable the child’s surname to be changed.
The Court will make the decision whether to make an order for the change of a child’s surname based on whether it is in the best interests of the child to do so.
This requires the Court to take into account a range of factors, including, but not limited to:
- The relationship between the children and the parent.
- How the change of name will affect the child.
- The reasons the change of name is being sought.
Where there are no current proceedings before the Family Law Courts, a parent may apply to the Magistrates Court instead for an order approving a change of name. The Magistrates Court will apply a similar range of factors to that of the Family Courts.
Where Parents Do Not Agree and There is Sole Parental Responsibility
Where a parent has sole parental responsibility for major long term decisions concerning their child they are not required under those court orders to consult with the other parent in relation to a change to their child’s surname.
However, that parent will still need to obtain the other parent’s consent and signature on the Change of Name Application form for the Registry of Births Deaths & Marriages in Queensland to accept the change: Births, Deaths and Marriages Registration Act 2003 (Qld).
The only exception to this is where:
- The applicant is the sole parent;
- There is no other surviving parent; or
- A Court approves the proposed changed name.
If a parent has an order that they have sole parental responsibility for their child but they are unable to obtain the other parent’s consent to the change of their child’s surname, the Registry requires a court order before it will make the change of name.
In this case, an Application can be made to the Magistrates Court, for an order to approve a change of name.
Reagan & Orton [2016] FamCA 330
When considering whether to change the child’s surname, the Court identified a number of factors which may be relevant to determining whether a change to a child’s surname is in the child’s best interests, including:
- Any embarrassment likely to be experienced by the child if their name is different to the parent which they live with;
- Any confusion of identity which may arise for the child if his or her name is changed or remains the same;
- The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
- The effect of frequent or random changes in name;
- The contact that the non-custodial parent has had and is likely to have in the future with the child;
- The degree of identification that the child or children have with their non-custodial parent; and
- The degree of identification that the child or children have with the parent they already live with.
The Court, in this case, ordered that it was in the child’s best interests that the mother be permitted to adopt a hyphenated surname for the child. The Court took into account a wide range of matters including:
- The child had spent irregular and limited time with the father since 2014;
- The father did not file any evidence in relation to his objection to the change of name;
- The child, at the time, was nearly five years old;
- The father had a lack of engagement in the child’s life and the Court inferred that the child had a strong attachment to his mother as his primary carer;
- The mother’s family continued to use their surname when referring to the child, despite the child’s birth certificate bearing the father’s surname;
- The mother observed that the child has no association with the father’s surname; and
- The child will commence kindergarten in 2017 and the mother sought to change the child’s surname before the commencement of kindergarten.
Summary
The court’s approach in Reagan & Orton is an example of the court’s approach to determining whether a change of a child’s surname is in the child’s best interests. However, the outcome in your matter will depend on the individual circumstances of your case.
The process where the other party does not agree can be complicated and daunting. Can you change your childrens surname will depend on many factors.
Contact an experienced custody lawyer at Barton Family Lawyers today! Book a reduced rate initial consultation with our family law practice by calling 3465 9332 for help regarding this process.
Updated 31/05/2024
