If you’ve been through a relationship breakdown and you have children together, you may be thinking about the child’s surname. What if you get remarried and you want them to have a different surname? Changing your child’s surname is a legal issue, and may not be as easy as you think.
Can You Change Your Child’s Surname?
The Family Law Act 1975 creates a presumption that both parents have shared responsibility for decisions about the welfare and care of the child, which includes the child’s surname.
This applies to most situations unless the Court has made an Order which specifically names one parent as having sole parental responsibility for the child.
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.
One parent cannot legally change a child’s surname unless:
- The other parent consents to the change of name and agrees to sign the relevant application form to be submitted to the Registry of Births, Deaths and Marriages or;
- The parents obtains an Order of the court enabling them to change a child’s surname; or
- A court has previously made an Order that one parent have sole parental responsibility.
Darley v Darley  FAMCAFC 10
If you’d like to change your child’s surname, and your ex won’t agree, your next step is to obtain a court order. The court will look carefully at how changing your child’s surname will affect the child.
A recent Full Court decision in Queensland dismissed a mother’s appeal from a decision at first instance restraining her from changing her children’s surname. In refusing to allow the mother to change 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.
In the recent case of Reynolds & Sherman (2015) FAM CAFC 128, it was recognised what a substantial issue the change of a child’s surname is. The Full Court observed that the dispute over a child’s surname is a matter of “real importance” and adequate court time should be allocated in order for the court to consider such an important issue.
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.