That’s Not My Name: Changing a Child’s Surname Post-Separation

A parent may apply to change the surname of their child through the relevant State or Territory Registry of Births, Deaths and Marriages. The consent of both parents is required unless:

• only one parent is named on the child’s birth certificate;
• the other parent is deceased; or
• a court has specifically approved the change of name.

If the other parent does not consent to the change of name, you may apply to the Family Court for a parenting order regarding the change of name. The court will determine the matter based on their assessment of the child’s best interests.

The case law has identified a number of criteria which the court must look at in determining whether the court should order a change of name, including:

• the welfare of the child;
• the short and long-term effect of any change in child’s name;
• any confusion of identity which may arise for the child if the name is or is not changed;
• any embarrassment likely to be experienced by the child if their name is different from the parent who is their primary carer;
• the effect, which any change in surname may have on the relationship between the child and the parent whose name the child bears.
• the contact any non-custodial parent has had and is likely to have in the future of the child;
• the degree of identification that the child has with their non-custodial parent; and
• the degree of identification the child has with the parent whom they live with.

This case concerned an application from the mother to legally change the child’s name from ‘Sakhagi’ to ‘Brawn’.

Relevantly, in this case, the child’s birth certificate reflects the name ‘Sakhagi’. However, this was a compromise between the parties as the father refused to sign the birth certificate unless the child had his last name. Despite the child being legally known as Sakhagi, the mother has used Brawn as the child’s surname in almost all other aspects of the child.

In this case, ultimately, the court found that it was in the child’s best interests to legally change her surname to ‘Brawn’ noting the following:

• the child has used the surname ‘Brawn’ for nine years with the father’s knowledge and in the absence of any action taken by him, with his tacit consent;
• while there is some uncertainty about the extent to which the child identifies with that surname, it is the name which she is known at school, government departments, and socially when in the mother’s care;
• while the father uses his surname for the child when she is in his care, there is no advantage to frequent name changes depending on which parent the child is with; and
• it is not in the best interests of the child to revert to a name which she is unfamiliar with and does not reflect her engagement in the wider community.

This case concerned an application from the mother to change the child’s surname from Porritt to Dunford-Porritt.

The court found that a name change to Porritt-Dunford was in the best interests of the child given the following:

• the child’s current surname was chosen at a time when the parties remained in a loving committed relationship;
• the child had a diverse cultural heritage, and the hyphenated name would reflect this diversity;
• a change of name would not affect the child’s relationship with the father;
• the child is still very young, and it is unlikely that her last name holds any overwhelming significance;
• it would be beneficial for the child to have reference to both of her parent’s name, given both parents and their culture heritages are actively involved in the child’s life;
• the name change will provide the child with a sense of identify to both her parents;
• the name change will avoid any confusion of her stepmother, Ms Porritt, being mistaken for her biological mother;
• the inclusion of the father’s name first will alleviate his fears that his surname will be dropped off and makes the transition easier for the child;
• hyphenated surnames are not unusual;
• there is no foundation for concerns about the use of a hyphenated surname on the internet or social media;
• the child will learn her surname and it will become second nature;
• the mother has not re-partnered and there is no evidence she may change her name in the future;
• a name change will be an inconvenience, it will require the issue of a new birth certificate and a change to passports, medical records and schooling records, but this is only a minor inconvenience; and
• the child has no other siblings in either household, so a change of name will not cause any confusion in this regard.