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Insights

The Application Form must be accompanied by supporting evidence in the form of certified copies of identification documents that establish proof of the child’s name and all other names ever used by the child. A registration fee is also payable. The Registrar is authorised to refuse an Application in certain circumstances and may do so, despite the approval of both parents.

Do both parents need to approve the change of name?
Whether or not both parents need to approve the change of a child’s name depends on the current Parenting Orders in place. If one parent has sole parental responsibility for the child, then that parent can decide to change the child’s name unilaterally.

Under the Family Law Act, changing a child’s surname is a major long term issue. The Full Court of the Family Court confirmed in the case of Koldsjor & Addington heard in 2009, that if there is a Court Order that the parents equally share parental responsibility for major long term issues, then the changing of the child’s name must be decided jointly between the parents and the parents have an obligation to make a genuine effort to agree.

Under the Family Law Act, where no Court Orders have been made by a Court in relation to parental responsibility, there is a presumption under Section 61DA of the Act that both parents have equal shared parental responsibility for the child until a Court orders otherwise. This presumption can be rebutted where the Court is satisfied there has been abuse or family violence or it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child.

Where there is joint parental responsibility shared by parents and either both parents cannot agree on changing a child’s name or one parent has unilaterally changed the child’s name without the other parent’s consent, an Application to the Court can be made to have the matter determined by a Judge.

The Court is empowered to make an Order permitting or restraining the change of a child’s name. This power is by virtue of Section 22 of the Birth, Deaths and Marriages Registration Act 1995 (NSW). Whether or not an Order is made to change a child’s name is a matter for the Judge to exercise their discretion. When exercising their discretion, Judge’s are guided by the provisions of the Family Law Act and previous change of name cases decided by the Court.

Matters to be taken into account by a Court
When a Judge exercises their discretion to decide whether or not a child’s name should be changed, as required by Section 60CA of the Family Law Act, the paramount consideration for the Court is the best interests of the child. The Court in the case of Flanagan & Handcock heard in 2001, held the best interests of the child must be given careful consideration when deciding whether or not a child’s name should be changed, but the child’s best interests are not necessarily decisive.

The 2013 case of Whinney & Kelleher confirmed that when the Court is deciding whether or not a child’s surname should be change, the Court is guided by previous cases heard by the Court including the 1978 case of Chapman & Palmer and the 1979 case of Beach & Stemmler. Despite the passage of time since these cases were heard, they are still the leading authorities in this area and are often relied upon and cited in recent matters where the Court being asked to make an order to change a child’s surname.

Mere convenience is not enough to change a child’s surname. The Court will look at the circumstances of the case and must be satisfied that other considerations also apply.

Court Orders
The Judge will balance all of the different factors in the particular case and exercise their discretion to come to a decision as to whether or not the child’s name should be changed.

The Court confirmed in the case of Whinney & Kelleher heard in 2013, that where the Court makes an Order changing a child’s surname, it is not necessary for an Order that the other parent sign any documents or empowering a Court Registrar to sign documents on behalf of the other parent. The Court has the power to Order the registration of the change of name by the Registrar of Births, Deaths and Marriages directly.

Conclusion
The Judge has a broad discretion in cases where there is a dispute between parents in relation to changing a child’s surname. The judge is required to consider whether or not changing the child’s name is in the child’s best interests but whilst this is the paramount consideration for the judge, it is not determinative. Judge’s are also guided by decisions made by Judges in previous cases. Each case will be decided based on its particular facts. Our Family Law Department has extensive experience with these matters and would be happy to assist you if you are considering changing your child’s surname.