Pursuant to Section 4 of the Family Law Act, the name a child uses is a “major long-term issue” and, for that reason, any change to a child’s name requires a joint decision made by both of the child’s parents.
If separating parents are unable to agree regarding the name for their child to use, an Application can be made to the Federal Circuit and Family Court of Australia (“the Court”). These Applications are called “Applications to change a child’s name”.
Applications to change a child’s name are rare but may occur when:
1. One parent is the primary carer for the child (and the other parent is estranged or has passed away) and has re-partnered or re-married.
2. The primary parent has re-partnered/married and they have had another child with their new partner.
The Court has the power to change a child’s name if it is in the child’s best interest. They can also order an amendment be made to the child’s Birth Certificate.
The approach applied by the Court is as follows:
1. The Court will generally not intervene to prevent a parent from changing the surname of a child in their primary care.
2. The Court will intervene if it is satisfied that the name change was made without the consent of the other parent, and if it does not promote the welfare of the child.
3. The same principle applies when the Court is asked to direct that a surname be restored where a change has already occurred.
4. In deciding the issue in each case, there is no onus of proof. It is for the Court to balance in its discretion the factors for and against the change.
5. The guiding principle is that the welfare of the child is the paramount consideration. This principle stands above the wishes of the parents.
(Note: the above list taken from the case of Chapman v Palmer [1978] FamCA 86)
In the case of Chapman v Palmer, the Court summarised the factors which they need to have regard to when determining if there should be a change in the surname of a child. These include the following:
a. The welfare of the child is the paramount consideration.
b. The short, and long-term effects of any changes in the child’s Surname.
c. Any embarrassment likely to be experienced by the child if their name is different from that of the parent with custody, care or control.
d. Any confusion of identity which may arise for the child if their name is changed or is not changed.
e. The effect which any change in surname may have on the relationship between the child and the parent whose name they initially used.
f. The effect of frequent or random changes in name.
In the case of Beach v Semmler [1979] the Court expanded on this list of factors to consider, and added the following considerations:
1. The contact that the other parent has had and is likely to have with the child in the future (the other parent being the parent opposing the name change).
2. The degree of identification that the child has with the other parent (the other parent being the parent opposing the name change).
3. The degree of identification the child now has with the biological parents and/or a step parent.
4. The degree of identification that the child will have with a new child that is about to be born to a parent, and any likely confusion in the future if his or her surname was different to their stepsibling.
In our Family Law Practice, we have had the need to make Applications to the Court for change of children’s names. While such an Order is not a rubber stamp, if it is in the best interest of the child, then the Court is likely to make such an Order.
Often, in these cases the Courts form the view that it might be in the child’s best interest to have their surname hyphenated, this can incorporate the biological parent’s surname together with any new stepparent’s surname.