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 that 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.
For more information about FDR and how to locate a registered FDR provider you may wish to:
Call the Family Relationship Advice Line on 1800 050 321
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:
The welfare of your child this is the paramount consideration;
The advantages, both short term and long term, which accrue to your child if their name remains as it is;
The short and long term effects of any change to your child’s surname;
The time that your child has with both you and your former partner;
The degree of identification that your child has with each parent and also any other children of you and your partner;
Any embarrassment likely to be experienced by your child if their name is changed;
Any confusion of identity which may arise for your child, if their name is changed or not changed; and
The effect of frequent or random changes of name and if there has been changes of your child’s name in the past.
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.