Renaming A Child – Can I Change My Child’s Name After Separation?

Ross Dunlop
Consultant
Barrister and Solicitor

Posted on 28/02/2018

Family Lawyers are often asked by parents (usually, the primary caregiver for a child) about their ability to change their child’s surname, after separation or divorce.  That parent might have reverted to using their maiden name, or might ultimately be re-marrying a new partner with an entirely different surname. Occasionally, there may be several children in one household all with a different surname. So when a parent comes to us and raises the issue of changing their child’s surname what barriers, if any, stand in the way of them doing so?

As with matters relating to the child’s education, religious upbringing and health, a child’s surname (and any change made to it) is considered a significant issue affecting the child’s long-term care, welfare and development.  Effectively, therefore, one parent cannot determine for themselves that the surname should be changed without discussing the issue with the other party and obtaining his or her consent. Naturally, perhaps, the other party (usually but not always the father) may strongly oppose any change, severing as it does the nominal lineage between the father and child.

Case Study

But what about cases where one party has been granted sole parental responsibility for the major long-term issues arising with respect to the child’s upbringing? What if one party has been granted 100% of the decision-making rights with respect to the child, to the complete exclusion of the other party?  Can the name simply be changed?

This was the case in the matter of Reagan v Orton [2016] Fam CA330 where the Family Court was asked to determine whether a mother – who had already been granted sole parental responsibility – could hyphenate the child’s surname to include her own.
The separation had occurred when the child was merely 8 months old. The mother had been granted full-time care of the child and the father had no parental rights whatsoever.  The mother was accordingly not required under the existing Orders or any aspect of the Family Law Act itself to consult with the father or seek his agreement in relation to the proposed change of name.  

However, the NSW Births, Deaths and Marriages Registration Act 1995 requires both parents to jointly apply to change the child’s surname unless:

  1. The Applicant is the only living parent; or
  2. The Applicant is the only parent named on the child’s birth certificate;
  3. A Court has approved the proposed change in surname.

Although the father provided no Affidavit material to support his opposition to the mother’s proposal and even failed to attend Court, the matters considered by the Court were the same as if the Application had been defended.

The Family Court has developed a line of reasoning over numerous similar cases and, as always, it must have regard to what is in the best interests of the child in question.

The Court in the matter of Reagan set out a number of criteria to be taken into account in determining a change of name application, including:

  • The long and short-term implications of the proposed change of the child’s surname.
  • Any embarrassment the child may experience if their name is different from that of the parent with whom they routinely live.
  • Any confusion of identity for the child in the future if his or her name is changed (or not changed).
  • The effect any change in surname might have on the relationship between the child and the parent whose name the child bore during the relationship.
  • The degree of identification that the child has with both the resident and non-resident parent.
  • The extent of time and/or communication the child is likely to have in future with the other parent.

After due consideration of all relevant factors, it was determined to be in the child’s best interests that the mother be permitted to adopt a hyphenated surname for the child (“Orton-Reagan”). The Court considered the following factors in reaching its decision:

  1. The father had not filed any evidence in support of his objection to the change of name;
  2. The child had spent limited time with her father since 2014, and the father had shown a lack of involvement in the child’s life. Accordingly, the mother was the child’s primary attachment figure;
  3. the child had no strong association with the father’s surname;
  4. the child had no association with the father’s surname; and
  5. The child was about to start pre-school and it was it in the child’s best interests that any change of name should occur before that event.

Comment

In summary, Applications for change of name are usually contested and very often the decision of the Court is “line-ball”. This makes it difficult to give clients concrete advice about whether the Application is likely to succeed or fail.  Much will depend upon the type and weight of evidence which can be led in support of the Application, addressing each of the factors referred to above. The outcome will, as always, depend upon the particular circumstances of each case as well as the views of the Judge, which will inevitably vary from one Judicial officer to another.

If you are seeking advice regarding changing a child’s surname following separation or, indeed, any other issue relating to family law, DS Family Law is able to advise you of your rights and obligations. Call us on 9486 1766 to book your initial appointment.

For further advice regarding this or any other parenting issue call DS Family Law on 08 9486 1766 or visit our Parenting Arrangements information page.

The above information is general in nature and is not specific advice for your situation. If you have questions about how the information contained this article may apply to your situation, you must seek independent legal advice.