Guide to changing your child’s surname in NSW

There are many reasons why a parent might want to change their child’s surname. Most commonly, parents will want their child to bear the same name as them.

It is important to understand the circumstances in which you can change your child’s surname, the process to do this and the obstacles that you may encounter.

In this post I will discuss the following topics:

1. Whether you can change your child’s surname;
2. How to change your child’s surname;
3. What happens if you and the other person with parental responsibility for the child cannot agree on which surname your child should use; and
4. How we at Turnbull Hill Lawyers can help you.

Can you change your child’s surname?

Under the Births, Deaths and Marriages Registration Act 1995 (BDMR Act), yes, it is possible to change your child’s surname in some circumstances.

The specific process can vary depending on jurisdiction and circumstances. In New South Wales (NSW) this is possible if your child is under the age of 18 years, their birth is registered in NSW or, if born overseas, they have been a resident of NSW for at least 3 years immediately prior to the application being made.

If your child is over the age of 12 years, they must also sign the application.

A child’s name can be changed once in a 12-month period and a maximum of three times in their lifetime.

How to change your child’s surname in NSW

If there are no court orders in place, the Family Law Act 1975 (Cth) stipulates that there is a presumption that both parents of your child have parental responsibility. That is, the authority to make decisions concerning the care, welfare, and development of your child. This includes changing your child’s surname.

The BDMR Act in most circumstances, requires both parents to jointly apply to change their child’s name. If you both agree, you can lodge an application at the Registry of Births, Deaths and Marriages (BDM).

If you make a sole application to change your child’s name, you are required to satisfy one of the three below circumstances in order for BDM to grant the application:

1. Be the only parent named on the child’s birth certificate;
2. Be the only living parent of the child; or
3. There is a court order approving the proposed change in name.

It is important to note that even if there is a court order in place providing you with sole parental responsibility of your child, you are only entitled to solely apply to change your child’s name if the court order specifically approves the proposed change in name. 

What happens if you cannot agree on which surname your child should use?

If you can’t come to an agreement with the other parent, you may be required to attend Family Dispute Resolution. If this process is unsuccessful, you can then submit an application to the Federal Circuit and Family Court of Australia to change your child’s surname.

If this process is not possible or is unsuccessful, in your application to the court you must also include the following documentation:

1. An affidavit (a written and sworn/affirmed statement by you) detailing:
2. Reasons why your child’s surname should be changed;
3. Whether you and/or your child have any contact with their other parent;
4. Where an order is sought without the other parent’s consent, why they should not be informed; and
5. Whether your child is already using their other name unofficially.
6. A copy of your child’s birth certificate.

Elements that the court will consider in a change of surname application include:

1. The welfare of your child;
2. The short and long-term effects of the name change;
3. Any embarrassment your child may face from having a different surname to the parent with whom they live with;
4. Any confusion of your child’s identity that may arise;
5. The impact of the name change on the relationship between your child and the parent whose name your child previously bore; and
6. The effect of frequent or random name changes.

The court must be satisfied that the change of name is in your child’s best interests and promotes the child’s welfare. This application is determined on a case-by-case basis.

Get legal advice on changing your child’s surname in NSW

It is important to note that changing your child’s name is a serious decision and should not be taken lightly. You should discuss the matter with your child and obtain independent legal advice that is specific to your situation to decide if this is in your family’s best interest.

Call us today

As trusted family lawyers servicing Newcastle, Maitland, Sydney, and the Hunter Valley region of New South Wales, we will assist you throughout the entire process of changing your child’s surname to make it as simple and stress-free as possible. 

Contact us today to discuss the next steps for your family law matter.