You can change your child's surname following separation but only if you follow the correct procedure and you comply with legal requirements. A Court will stop any attempt to change your child's name if the Court is satisfied that the change was done without the written consent of both parents and if it does not promote the welfare of your child. What then are the legal requirements and steps to be taken?
You can change your child's name at the Births Deaths and Marriages Office which is a Government office that maintains a register of all births, deaths, marriages and changes of name and adoptions that occur within South Australia. To change your child's name, you need to complete a form titled “Register a Change of Name Application”. You must select the relevant application form relating to whether or not your child is under or over than 18 years of age. To complete the application form, you need to comply with the following:
Your child must consent if your child is capable of understanding what a name change means.
If a parent of the child does not consent to changing the child's name then you can arrange for and attempt mediation. Mediation is a procedure between you and the other parent to resolve any differences. The mediation session is conducted by an independent party called a mediator. While the mediator is there to ensure that the mediation remains child focussed, the mediator is not an advocate for either parent. They must not provide legal advice to either parent and must remain impartial. Community organisations that provide mediation include:
If you have any fears for your safety while attending mediation it is important to notify this and you will be able to conduct a ‘shuttle mediation' which is where both parties are in separate rooms and the mediator moves between each room.
If mediation is unsuccessful and you still want to change your child's name then ask the mediator for a Certificate that proves you have attempted mediation. This certificate allows you to make an application to the Family Law Courts requesting that the Court makes an order to change the name of your child.
To complete this process, you can either: hire a family lawyer, apply to legal aid for legal representation or represent yourself. The Court will take the following matters into account when deciding whether or not to change a child's name. These include, but are not limited to, the following:
You need to be aware that the Court will not necessarily grant an order allowing you to change the name of your child and will only do so if it is in your child's best interests as the child's welfare is always the paramount consideration. In some instances, as a compromise, the Court has hyphenated the child's surname. If the Court does agree to a name change, it will make a declaration that it is in the best interests of the child. In instances when the Court has granted a change in your child's name, you must nevertheless lodge this change at the Births Deaths and Marriages Office in proper form.
Each State/Territory has its own Office or Registry of Deaths Births and Marriages and therefore procedure for changing your child’s name may or will vary.
This article contains general information only. For advice regarding your own personal circumstances, always seek individual advice from a qualified professional. Read the full singlemum.com.au Disclaimer here
Erin has a Bachelor of Laws and Legal Practice and a Bachelor of Arts. Erin has practised exclusively in family law and de facto law since completing her degree in 2007. Erin commenced as an Associate of Camatta Lempens in July 2009. She has experience in all areas of family law and de facto property matters and also matters involving children You can read Erin Smyth's full profile here
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