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Changing my child's name without the other parent's permission

LGM Family Law | 05 April 2018



Changing a child's name without permission - stock photo source: Bigstock.com

So, the question is - can you change your child's name

without the permission of the other parent?

Following a separation, it sometimes happens that a parent wants to change their child's surname. A parent may see this as one way of helping the child identify themselves as part of a family, particularly if the family is a blended one. Where a child is estranged from the parent whose name the child shares, the other parent may want to change the child's name so that the child feels better associated sharing the same surname as that parent. So, the question is – can you change your child's name without the permission of the other parent?

Where do I go to change my child's name?


Changing a child's name after divorce - stock photo source: Bigstock.com

Changing a name is a legal process and each state has a different Government department that you can go to for changing your name or the name of your child.[1] But, you can't just walk into the official office where you live and walk out with a new name for your child. You must provide the registry with authority from both parents for the name change. This is where complications can arise, for example, if you can't locate the other parent.

How do I know if I can apply to the Registry?


Changing a child's name after divorce - stock photo source: Bigstock.com

The first question is whether or not you have the consent of the other parent for a name change. If not, you must consider any court orders that may be in place regarding parenting. If there are no parenting orders in place, then both parents of a child are said to have what is known as "parental responsibility" for the child.[2] If there are parenting orders in place, they may specify that parents have equal shared parental responsibility.

But what is Parental Responsibility?


Changing a child's name after divorce - stock photo source: Bigstock.com

Parental Responsibility ("PR"), is defined in the Family Law Act 1975 as being "the duties, powers, responsibilities and authority which, by law, parents have in relation to children".[3] As a parent with PR, you have the duty, the power, the responsibility and the authority, to make all decisions regarding the "major long-term issues" of your child. Major long term issues include things like the child's name.

If there is no court order for parenting in place or if any parenting orders that you have don't say anything about parental responsibility, the parents will anyway be presumed to have equal shared parental responsibility for the child. This means that the parents must consult with one another about any proposed change of a child's name.

What if we can't agree?


Changing a child's name after divorce - stock photo source: Bigstock.com

"Consulting" with the other parent requires the parents to make a "genuine effort" to reach a joint decision about the issue/s concerning the child.[4] If there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence, the presumption of equal shared parental responsibility does not apply.[5] However, before a court order may be issued providing a parent with sole PR, the court must be satisfied that those reasonable grounds exist for that belief or otherwise be satisfied that equal shared PR is not in your child's best interests.[6]

In an event, if you can't reach an agreement with the other parent for a change of your child's name, attending a mediation with the other parent may resolve the issue. If you still can't resolve the issue at a mediation, you may apply to the court seeking an order for a change of name[7].

Best interest of the child


Changing a child's name after divorce - stock photo source: Bigstock.com

In all parenting cases, the court will only make an order regarding the child which the court is satisfied is in the child's best interests.

During any court proceedings, you must put your argument forward as to why it would be in the best interests of your child to have their name changed and the court will weigh up the arguments of each party.[8] The Court will consider the following factors in making a determination:-

a) the short and long term effects of any change in the child's surname;

b) any embarrassment likely to be experienced by the child if it's name is different from that of the parent with residence or day to day care of the child;

c) any confusion of identity which may arise for the child if his or her name is changed or is not changed;

d) the effect which any change in surname may have on the relationship between the child and the parent; and

e) the effect of frequent or random changes of name.[9]

The court may also consider matters such as:-

a) the advantages both in the short term and in the long term which will accrue to the child if their surname remains as it is now;

b) the contact that the other parent has had and is likely to have in the future with the child; and

c) the degree of identification that the child now has with each parent.[10]

LGM Family Law is a law firm based in Brisbane practicing exclusively in family law. Although based in Brisbane, LGM Family Law is able to assist clients, whether they are resident in Australia or overseas.

This article provides information only and is not a substitute for legal advice particular to your circumstances.


[1] Registry of Births, Deaths and Marriages in Queensland, New South Wales, Victoria, South Australia, Western Australia, and Tasmania, Births Deaths and Marriages Office in the Northern Territory, and Access Canberra in the Australian Capital Territory.

[2] Family Law Act 1975 (Cth), section 61C

[3] Family Law Act 1975 (Cth), section 61B

[4]Family Law Act 1975 (Cth), section 65DAC(3)

[5] Family Law Act 1975 (Cth), section 61DA(2)

[6] Family Law Act 1975 (Cth), section 61DA(4)

[7] A section 60I certificate must be filed with any application for parenting orders in accordance with the Family Law Act 1975 (Cth) and may be obtained following a dispute resolution meeting between the parents and in other circumstances, including if a parent refuses to attend the meeting.

[8] S & H [2007] FMCAfam 97 at [83]

[9] Chapman & Palmer (1978) FLC 90-510

[10] Beach & Stemmler (1979) FLC 90-692




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What does it mean to be a single mum?Of course, the

kids

are the most important thing in a single mum's life. Kids are the focus and always have been. But along with the children, there are other matters that can confuse a single mum's life.

Centrelink

plays a big part of a single mother's life, mainly because this is where a large percentage of single mums get their finances from. Centrelink are the source from where the

single mother pension

, or as it is otherwise known, the single parent payment comes from. The single mother pension is a subsistence amount, but just the same, it is money to live on, and so it is important, no matter if it is called single parent payment, single mother pension or whatever Centrelink welfare classes it at the time

Often, single mums come out of a

divorce

or defacto relationship only to find that their troubles have just begun, and find that their first step leads them towards Family Law - it's time to engage a lawyer.
There are more than just Centrelink finance problems to worry about, as mentioned before, but also

child custody

issues. Child custody is something that hits right at the heart of

single mums

. If a single mother's ex husband or ex partner has been a domestic violence perpetrator, the mum may be greatly worried about child custody. They worry that their kids won't be safe with their spouse, who has already proven to be abusive because they caused

domestic violence

, which resulted in a divorce or separation.

Even so,

Family Court

will often still order a form of child custody named

Shared Parenting

. Shared Parenting is a form of child custody division of time or parental responsibility between the parents. Mother's often look for a good divorce lawyer to try to avoid share parenting with an abusive ex-spouse after divorce, however in many cases Shared Parenting is still the outcome after the divorce, no matter how good the divorce lawyers have been. They will often settle for visitation at a contact centre or access centre where fathers or mothers are supervised during child custody access.

Please remember the bigger font words,because we will use it often in our website.