Can I change my child's surname after separation?
Written on the 26 November 2014 by Matthew Carney
The naming your child is a fundamental right that has been recognised by the United Nations. The Declaration of the Rights of the Child states a 'child shall be entitled from birth to a name and nationality'.
It was stated by the Family Court in the case of Chapman v Palmer that an adult may use any name by using of such name and becoming known by it. For an adult the surname that you choose is not a matter of law but a matter of repute.
If you and your former partner agree to change your child's name the Family Court has confirmed that you have the same right to change your child's surname as you have to change your own. Your child does not need to be given your surname or the surname of your former partner, but whatever name is chosen it must be established by reputation and use. Any change of name should always be registered however as it will likely cause significant difficulties for your child later on in life if it is not.
In NSW if you and your former partner agree to change your child's name, to implement the change of name both parents must complete and register an "Application for a Change of Name" with a Registry of Births Deaths and Marriages.
What happens if you and your former partner do not agree on what surname your child should use?
Since the enactment of the Family Law Act there has been significant litigation by parents about what surname their child should use. This often happens following separation or upon a parent choosing to use the surname of a new partner.
A Court can make Orders to restrain and prohibit you or your former partner from using a specific surname and may also make Orders requiring you or your former partner to ensure that your child is known only by a specific surname.
Before you apply to the Court for a parenting order, including those seeking changes to an existing parenting order, you need to attend Family Dispute Resolution (FDR) and obtain a certificate from a registered FDR provider. There are some exceptions to this requirement, such as cases involving family violence, child abuse, or urgency. See the Family Law Courts website for further information on this.
For more information about FDR and how to locate a registered FDR provider you may wish to:
Note: If you are required to provide a certificate and you fail to do so, the Court cannot accept your application.
If an agreement still cannot be reached Court proceedings will be required. If your family law matter comes before the Court for an application to change your child's name the factors that a Court will take into consideration are:
All change of name applications are decided on a case by case basis. The best interests of your child will always be the primary consideration and will override the wishes of both parents. While the wishes of your child must be taken into account, the best interests of your child in consideration of the above factors will determine whether an application is successful.
Should you wish to obtain any preliminary legal advice we recommend our First Step Package.
Author: Matthew Carney