C
hanging a child’s surname post-separation is a common occurrence in family law. The process is relatively straightforward if both parents agree. However, it becomes complicated when one parent wishes to change a child’s surname post-separation and the other parent opposes such change.
In parenting matters, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility in relation to major long-term issues concerning the child. Under section 4 of the Family Law Act 1975(Cth), changing a child’s name is considered a major long-term issue in relation to the care, welfare, and development of the child. This means that parents must consult with each other before making a decision to change a child’s name.
Sole parental responsibility
The presumption of equal shared parental responsibility does not apply if a parent of the child has engaged in abuse of the child or family violence. The Family Court decision of Reagan & Orton [2016] considered whether a mother could hyphenate the child’s surname without the father’s consent in circumstances where she had sole parental responsibility.
Despite not being required under the existing Orders to consult with the father in relation to changing the child’s name, the Births, Deaths and Marriages Registration Act 2003 (Qld) requires both parents to apply to change a child’s name unless:
The applicant is the sole parent;
There is no other surviving parent; or
A Court approves the change of name.
Reagan & Orton [2016] FamCA 330
The Court identified a number of relevant factors in determining whether a change to a child’s surname is in the child’s best interests, including:
Any embarrassment likely to be experienced by the child if their name is different to the parent which they live with;
Any confusion of identity which may arise for the child if his or her name is changed or remains the same;
The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
The effect of frequent or random changes in name;
The contact that the non-custodial parent has had and is likely to have in the future with the child;
The degree of identification that the child or children have with their non-custodial parent; and
The degree of identification that the child or children have with the parent they already live with.
The Court decided that permitting the mother to adopt a hyphenated surname for the child was in the child’s best interests for the following reasons:
The child did not spend regular time with the father from 2014 onwards;
The father did not file any evidence to accompany his objection;
The child was nearly five years old;
The father had limited engagement in the child’s life and the Court inferred that the child had a stronger attachment to his mother as primary caregiver;
The mother’s family used their surname when referring to the child;
The mother’s position was that the child did not have any association with the father’s surname; and
The mother sought to change the child’s surname before the commencement of kindergarten.
Although this decision provides an example of the Court’s approach to determining whether changing a child’s surname is in the child’s best interests, outcomes will vary depending on individual circumstances.
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If you are considering changing your child’s name in QLD (Queensland), then contact the team at James Noble Law today for a free, no-obligation 20-minute consultation today to schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane.
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