Is it possible to change your child’s surname following a relationship breakdown or divorce? It is not uncommon for parents to change their name post-separation, whether by reverting to their maiden name or re-marrying. What does the Court consider if one parent wishes to change a child’s name post-separation and what are the options if the other parent opposes any change?
A change to a child’s name is considered a major long term issue under the Family Law Act 1975 (Cth). This means that parents must consult with each other before making a decision to change the child’s name, including by hyphenating it.
Reagan & Orton  FamCA 330
This recent Family Court decision considered whether a mother could hyphenate the child’s surname to include her own. The parents separated when the child was only eight months old. The mother was given sole parental responsibility and full time care of the child. The mother subsequently sought to have the child’s surname hyphenated to include both her surname, as well as the father’s surname.
The mother, in this case, had sole parental responsibility for the child and was therefore not required under her existing orders to consult with the father in relation to the change of the child’s name pursuant to the Family Law Act 1975 (Cth). However, the New South Wales’ Births, Deaths and Marriages Registration Act 1995 requires both parents to make the application to change the child’s name, unless:
- The applicant is the sole parent;
- There is no other surviving parent; or
- A Court approves the proposed changed name.
This requirement is mirrored in the equivalent Queensland legislation, the Births, Deaths and Marriages Registration Act 2003 (Qld).
When considering whether to change the child’s surname, the Court had regard to what was in the best interests of the particular child. The Court identified a number of factors which may be relevant to determining whether to change a child’s name, 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.
Rules for changing your child’s names
The Queensland Government provides the following information about how to change your child’s surname:
- not have changed your child’s family name in the past 12 months
- have consent from both parents on your child’s birth certificate
- have your child consent to changing their name (if aged 12 to 17)
- choose a new name that is not a prohibited name
- give a detailed reason for your child’s name change.
If both parents are shown on a child’s birth certificate, both parents’ consent is required to change a child’s surname.
If you are a single parent, you can apply to change your child’s name if one of the following applies:
- you are the child’s mother and there are no details for your child’s father on the birth certificate
- you have Queensland Magistrates Court order
- one parent is deceased—a death certificate will be required.
If you can’t get agreement from the other parent of the child, you may have to go to court.