Posted on 15 Nov. 2016
What’s in a last name? Ask a parent
By Slater and Gordon
The bard, had poetically written, that a rose by any other name would smell as sweet. However, when it comes to a child’s last name, the family law court might take a more practical spin.
In most cases there is a presumption under the Family Law Act 1975 that both parents have a "shared parental responsibility" for the long-term decision-making for a child. That requires parents to agree upon major long-term issues affecting a child. This may include things like schooling, religion and also the name of a child.
A parent may wish to change a child's name after separation. This usually occurs when the mother has adopted the father's surname at the time of marriage and then wishes to revert to her maiden name after separation. It is not uncommon for people to desire to establish a family unit where everybody operates under the same name. A name can be changed by common usage but this usually will not be legally enforceable.
A mother or father cannot change a child's surname by herself or himself, unless she or he is the only person with parental responsibility. Even then, the other parent may object.
If both parents agree, then the parties can easily apply to the Births, Deaths and Marriages office in their State. The procedure may vary from State to State.
If however the parties do not agree, the parties are required, in accordance with section 601 of the Family Law Act 1975, to attempt to participate in mediation. The mediation session is conducted by an independent party called a mediator. The mediator will remain impartial. If mediation is unsuccessful then the mediator will provide a Certificate that proves you have attempted mediation. This certificate allows you to then apply to the court for an order to change the name of your child.
Most cases involving changing a child's name are heard in the Federal Circuit Court or the Family Court. These courts can make decisions enabling the change of names of children, or otherwise restraining the change of names of children.
Pointers the court considers when making a change
The court will consider a wide range of factors when determining what is in the best interests of the child. Some of these considerations include:
• The short and long-term effects of the change in the child’s surname;
• The short term and long term advantages of the child’s name staying the same;
• Any embarrassment likely to be experienced by the child if his or her name is different from that of the parent with day to day care;
• Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
• The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage; and
• The effect of frequent or random changes of name.
All change of name applications will be decided on a case-by-case basis. The court will not make a decision to change in name merely because it is convenient for the parent having responsibility for the day-to-day care, to use a new name. Ultimately, the court will give primary consideration what is in the best interests of the child and of course take into account the relevant provisions of the Family Law Act.
It would be wise to consider all the implication of changing a child's name before you go ahead. It may be a big step in the child's life and you need to be sure that making such a significant change will be in your child's best interests.
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