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The short answer is “sometimes”, provided that it is in the child’s best interests for the name change.
It is important to understand that a parent’s wishes are irrelevant when determining what is in the best interests of a child.
As a starting point, a child’s name can be changed with the consent of both parents.
What if there is a disagreement?
In cases where parents cannot agree on a child’s name change, the parent wishing to change the name should make an application to the court. Similarly, the parent wishing to stop the use of a name being used for the child other than its registered name may make an application to the court to restrain the child being known by any name other than that recorded on its birth certificate.
Where there is a dispute about a child’s name, the court must determine what is in the child’s best interests. Relevant factors in determining the child’s best interests would include:
- Any confusion about the child’s identity
- The effect on the child’s relationship with the parent if the child was to have a name other than that parent
- Any embarrassment for the child if its family name, for example, is different from the parent with whom the child lives
- Any short or long term advantages to the child if there is no change of name
- The extent to which the child identifies with the parent who shares the same name or family name
- The extent to which the child identifies with the parent and / or their partner with whom the child lives
- The degree of identification between the child and any half-siblings or step-siblings with whom the child lives and who might have other family names
Every case is different and determined on its individual circumstances. Cases in which the Court have made orders, and the types of orders made, include:
Case Example 1: A hyphenated family name has been approved where the child bears the family name of each of its parents.
Case Example 2: The Court ordered that the child should retain the father’s family name in circumstances where the mother had re-married and decided unilaterally that the child should take the family name of the mother’s new husband.
Case Example 3: The Court restrained a mother from using any family name other than the father’s family name because it found that the child identified with the father’s family name and that the retention of that family name was in the child’s best interests.
Case Example 4: A name change was allowed in circumstances where a child had never met his father, had never identified with his father who had been absent from the child’s life and had been incarcerated for most of the child’s life.
Seeking legal advice
Most applications to change a child’s family name are contested and the outcome will ultimately depend upon the circumstances of the situation and the evidence that is provided by each party. We therefore recommend that you seek legal advice if you are considering changing your child’s family name after separating from your partner to help you to better understand your rights and obligations. Contact our Rockhampton Family Law Lawyers.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.
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