What’s in a name?
Quite a lot of separated parents will have a dispute about their child’s surname. Situations often occur when this becomes an issue. For example, if a child lives mainly with one parent (and perhaps has a limited relationship with the other parent), that parent may want their child to have their surname. Or, a child may have either his or her mother or father’s surname and one parent wants their child to have a hyphenated surname (perhaps because they feel that this will ensure their child has a connection with both parents). Sometimes, if a parent changes their surname or remarries, they may want to change their child’s surname as well.
From a legal perspective therefore, the main issues that arise are when one parent wants to:
- Use a different surname to what is on their child’s birth certificate; or
- Change a child’s birth certificate to state a new surname; or
- Stop the other parent from using a different surname for their child.
Post separation, parents usually share responsibility for their children and should consult each other and jointly decide about significant matters relating to their children, including the often emotionally charged issue of a child’s surname. In Australia, the various States and Territories have a Births Deaths and Marriages Act which deals with the issue of registering and changing a child’s name. If parents can agree about a change to their child’s surname, it is a good idea to formalise this legally to avoid future problems. If they cannot agree, the parent wanting to make the change (or stop a change) may need to make a Court application to request an Order to change the child’s surname (or an Order to stop the other parent from using another surname for their child)
Parents can apply to either the Family Court or the Federal Magistrates Court not only for Orders allowing the use of a different surname for their child but also for an Order permitting to change their child’s name on the child’s birth certificate. This can be in addition to seeking other parenting Orders relating to their child (for example, Orders concerning their child’s living arrangements). If the only issue in dispute is the name of the child, parents also have the option of making an application to the ACT Supreme Court. We can advise you about the best course of action.
However the Court will not make a name change Order simply to accommodate a parent. Under the Family Law Act, when dealing with any parenting matter, including one which relates to a child’s surname, the Court has the power to make any order that it considers appropriate for the welfare (or “best interests”) of the child and this is the overriding consideration when making a parenting Order. The Court will take into account many factors when deciding whether to grant an application to change a child’s surname (or to stop one parent from using a different surname for their child). Some of the factors taken into account by the Court when deciding whether a child’s surname should be changed or not, include:
- How old is the child and are any wishes expressed by them relevant or appropriate?
- How does the change affect the child in the short and long term and what are the advantages, both short and long term to the child if their name remains as it is?;
- The relationship between the child and each parent and the child’s siblings and their likely future relationship(s)?
- Will the child experience any embarrassment if they have a different name or keep the same name?
- Will the child be confused about their identity if his or her name is changed or is not changed?
- What effect will any change in surname have on the relationship between the child and the other parent or the child and his or her siblings?
A child’s surname is of great emotional importance to parents and the law surrounding this is complex. If you are in this situation and would like legal advice, contact Farrar Gesini Dunn (02) 6257 6477