It is not uncommon for parents to change their name post-separation, whether by reverting to their maiden name or re-marrying. The parents of a child may never have shared the same surname. Those changes are recorded easily and readily. However, 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?
In this alert, Partner Alison Ross, Associate Kathleen Coggins and Law Graduate Christina Hooper consider the various factors that a Court may consider when determining whether a child's surname should be changed after a relationship breaks down.
The starting position is that 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 [2016] 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. Orders were entered into in late 2015 which included orders that the mother have sole parental responsibility and full time care of the child. The mother subsequently sought to press her application 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).
This particular case is unusual in that, while the father opposed the mother's application, he provided no material to support his position and did not appear in Court. As such, the matter proceeded undefended in the father's absence. However, the factors that the Court considered were the same as if the proceedings were defended by the father.
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.
Darley v Darley [2016] FAMCAFC 10
Reagan & Orton can be contrasted to a recent Full Court decision in Queensland that dismissed a mother's appeal from a decision at first instance restraining her from changing her children's surname. In restraining the mother from changing the children's name the Court considered the following:
- The fact that the children's current surname was the only name by which they had been known;
- The Court's view that a change in the children's surname was likely to lead to the children perceiving that the father resents their change in name which would lead to increased animosity between the parties;
- There was no evidence to suggest that the children would suffer any embarrassment or discrimination in the event their surname was different to their mother's surname;
- The fact that the mother, since the date of her marriage, had also been known by the same surname as the children.
The cases of Reagan & Orton and Darley & Darley are recent examples of the Court's approach when considering whether or not a child's surname should be changed. The outcome will depend upon the particular circumstances of each family.
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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.
