When couples have children there is often no discussion about after whom the child will be named. This may leave one parent dissatisfied with the choice. Following a separation where there are children involved it is not uncommon for mothers, who are more-often-than-not their children's primary caregiver, to ask whether it is possible to alter the child's name to match their last name. If both parents are willing to register a change in name it is a fairly simple process and requires only the completion of a form with the Registry of Births, Deaths and Marriages.
Unfortunately life is not always so simple, and in the case of separation there are often high levels of tension and animosity between parents and it is likely that the parent after whom the child is presently named will forcefully oppose any change to the child's name. In this situation you will need to apply to the Courts to seek a change of the child's name.
If there are parenting proceedings afoot in the Federal Circuit Court or the Family Court you may seek a declaration from the court regarding how the child is to be known henceforth. If such a declaration is made you are then able to apply to the Registrar of Births Deaths and Marriages to legally change the child's name by virtue of the Court's declaration.
If there are no parenting proceedings before the Federal Circuit Court or the Family Court and the only issue which you are seeking court orders relating to the child is in respect of a change to the child's name then the state Magistrates Court is the appropriate venue.
An affidavit indicating the grounds on which the application is sought, with an attached copy of the child's birth certificate.
If you seek an order without the father's knowledge, then the affidavit must indicate the reasons why the father should not be informed.
You will have the opportunity to inform the Magistrate (or Judge) why you seek a change in your child's name. The non-consenting parent will also be given the opportunity to put their position regarding why they do not agree to the child's change of name. In the Magistrates Court consent must also be sought from the child as to the proposed change. However where the child is unable to comprehend the situation or the consequences of the alteration of their name (e.g. because of age or disability) the child's consent is not required.
In making a decision regarding changing a child's name without the consent of both parents the Court will take into consideration whether the name change is in the child's best interest. In determining what is in a child's best interests the Court will consider (in no particular order):
The welfare of the child;
Any genuine views or preference expressed by the child;
The extent to which the child identifies with their current name ie with other siblings, family members, or in the community;
The nature of the relationship between the child and their parents, relatives and other persons;
Whether a change of surname would result in any confusion of identify for the child;
The age of the child, particularly where they are young;
The long and short term effects of a change of name ie:
Whether the name preserves a bond between the child and another family member;
The extent to which the child's parents have contributed in making decisions in regards to the child and their involvement in the child's life.
The above is not an exhaustive list, but is an example of the types of matters the Court will consider in their decision making.
If the Court is satisfied that in the circumstances the change is name in the child's best interest the Court will approve the change and order the Registrar of Birth, Deaths and Marriages to register the proposed alteration in the form indicated by court order.
The above article is based on both Federal and South Australian State legislation. The State process in the Magistrates Court or other competent court may differ in the different jurisdictions. If you need advice on Family Law matters including changing a child's name you may consider seeking legal advice from a qualified family lawyer.
The matters contained in this article are the opinion of the writer and are not legal advice. You should seek legal advice in relation to your personal circumstances before acting on any of the matters raised in this article.
Poppy Matters is a Lawyer for Camatta Lempens of Adelaide. She has a Bachelor of Laws and Legal Practice (Honours) and a Bachelor of International Studies. Poppy practices in family law and de facto law and Wills and Estates.
You can read Poppy Matter's full profile here
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