Changing A Child's Name After Separation

Separation can bring with it a range of emotions. The dispute between separating parents can be far reaching, including whether the child's surname should be retained or changed.

A dispute in relation to a child's name can range from hyphenating the child's name. For example; if the mother no longer wishes to be associated with her married surname, particularly in circumstances involving domestic violence.

It may be requested by a father, who isn't named on the birth certificate, and wishes for the child to adopt his surname.

It's also a common request for a parent where the other parent isn't a prevalent caregiver in the child's life.

It may be a request in circumstances where half siblings have different surnames and there's a wish to homogenise to a surname used by the other household members.

It's important to remember that it could also be a view expressed by the child. Some weight is placed on these views, especially in the case of older children.

So, can you change a child's surname as you wish?

If you are the sole parent named on the child's birth certificate

Yes, you can.

However, the other parent, whilst not named on the birth certificate, can make an application to the Federal Circuit and Family Court of Australia seeking orders in relation to the child's name, provided the Court is satisfied it's in the best interest of the child.

If you are not named on the child's birth certificate

No, you cannot.

You will need to seek an order, along with other parenting orders, for the child's birth certificate to be amended. The orders that can be sought include:

• Naming you as a parent; and
• Changing a child's surname.

If you are not the sole parent named on the child's birth certificate

No, you cannot.

You can't change the name without the consent of the other parent named on the birth certificate or a court order confirming that the parent wishing to change the name has either:

• Sole parental responsibility under a final parent order to make decisions about major long-term issues for the child within the meaning of the Act; or
• An order specifically allowing them to change the child's name.

"Parental responsibility," in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children (section 28(6) Births Deaths & Marriages Registration Act 1995 (NSW)).

"Parental responsibility" isn't defined in the Family Law Act however, "major long-term issues" is defined in section 4 to include:

• Issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
  • the child's education (both current and future); and
  • the child's religious and cultural upbringing; and
  • the child's health; and
  • the child's name; and
  • changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

If proceedings have commenced, the Court is required to make orders that are in the best interest of the child. Specific details about the effect of a name change, or a continuation of the birth name, on the child will need to be detailed in your affidavit.

Note: parents may apply to change a child's name in NSW if:

• the child's birth is registered in NSW; or
• the child was born outside Australia, the child's birth is not registered in Australia and the child has been resident in NSW for at least three consecutive years immediately preceding the date of the application.

Find out more

If you're considering a name change for your child, it's important to understand the legal process and your rights. Speak with our Family Law team today to explore your options and get tailored advice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.