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

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

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:

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 name is a legal process and each state has a different Government department that you can go to for changing back to your maiden 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?

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?

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?

“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

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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