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What now? Choosing my child’s surname

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If I were to detail a list of frequently asked questions when it comes to family law matters, somewhere in the list would be – how do I change my child’s surname?

adoption childrenOften when parents separate, the idea of their child having an identity that relates to both their mother and their father is attractive for one parent. Long gone are the days of tradition where a child’s surname was that of the father. More and more, we are seeing children with hyphenated last names or, the recent trend is the mother’s maiden name as the child’s middle name.

Upon separation, it can be difficult for parents to see eye to eye on most things and your child’s surname name is one of those issues. Where one parent seeks to hyphenate or change a child’s last name, seldom is there an agreement by the other parent. So, what do you do then? What if there is a disagreement about changing your child’s last name? The answer lies in the hands of the Court who are ultimately charged with the responsibility of making decisions in the best interests of a child, when parents are unable to do so.

Depending on the circumstances, an Application to the Court to change a child’s name is ordinarily dealt with in the Federal Circuit Court / Family Court of Australia or the Magistrates Court. If you are seeking merely to change your child’s surname and not any other Orders in relation to your child, then the Magistrates Court is usually the appropriate venue. Otherwise, if changing your child’s surname is only one of the many parenting Orders that you are seeking then you are best placed commencing proceedings in the Federal Circuit Court / Family Court of Australia.

Irrespective of where you choose to bring your application, the best interests of the child will always be the paramount consideration for the Court. To better inform themselves when it comes to the best interests of the child, prior to ordering a name change, the Court will consider:

  • The identity of the child during the relationship and whether a change would cause disruption, confusion, embarrassment or difficulty for the child;
  • The short and long-term effects on the child should their name change;
  • The time the child spends with one or both parents and the effect that a change in name would have on the child’s relationship with either parent;
  • Any previous changes to the child’s name;
  • The relevance of the name;
  • The child’s identification with any siblings of the same name;
  • The age of the child and their views and wishes.

Clear as mud? I thought so. Let’s look at some examples that should shed some light on this issue.

In 2019, in the case of Porritt & Dunford, the mother sought the child’s last name hyphenated where the father wished for the child to retain his surname. The child, who was 5 years old at the time, had always been known by his father’s surname and was registered at birth with his father’s surname. The father’s surname had strong cultural connections with his ancestors having always used this surname. The mother also had strong cultural connections with her maiden name. In this matter the Court held that the child’s surname should be hyphenated, citing the following reasons (amongst others):

  • Hyphenated last names are not unusual.
  • The inclusion of the mother’s last name will reflect the child’s cultural diversity.
  • A change of name would not in any way affect the child’s relationship with the father.
  • Having just commenced Prep and being very young, it is unlikely that the child’s last name would hold much significance to him either by way of identity or embarrassment for the child.
  • The change would avoid any confusion when it came to the child’s step-mother, known by the father’s surname, being mistaken as her biological mother.

Often, where there is a dispute about whose surname the child should adopt, common sense prevails and the Court orders that the child’s surname be hyphenated. However, the Court has been known to change a child’s surname completely usually where a parent has remarried and is now using their new partner's surname. This is strengthened when the children have step-siblings who share a surname which is not the same as the child’s.

For example, in the 2018 case of Hardwick & Spurr, the mother sought to change the child’s surname to that of her new husband, where the child who was ten years old at the time was a part of the mother’s family with her new husband who all had her new husband’s surname. In this matter, the biological father of the child had not spent significant or substantial time with the child in many years and the child had been brought up in a family that identified with her step-father’s last name since she was four. Her mother, her step-father and her step-siblings all shared a surname.

In this case, it was ordered that the child’s surname be changed completely to that of her step-father and mother. There were several other facts and circumstances in this case, but significantly:

  • The father had spent very little time with the child since separation when the child was two years old.
  • In that time the mother had remarried and had children who were the child’s step-siblings, and all identified with the same surname.
  • The child had known and used her step-father’s surname since she was four years old.
  • It would be more comfortable for the child to be able to use the same surname as the rest of her family though, the biological father will remain on the birth certificate.

There has been one somewhat recent case in 2016, where the father’s application to have the child’s surname changed to his surname was dismissed by the Court on the following grounds:

  • The child was 13 years old at the time and had always had her mother’s surname.
  • The mother had four other children who all had her surname.
  • The child had not spent any significant or substantial time with the father since birth and expressed a wish to remain in the care of the mother and in her existing living arrangements. It is therefore likely that the child will experience embarrassment if an alteration to her surname is made so that it is different to the name of the parent with whom the child lives with.
  • The child was likely to suffer adverse consequences if her name is changed in accordance with her father’s wishes in circumstances where she is settled, well adjusted, happy and performing well in school.
  • The child is likely to suffer confusion of identity if a change of surname was imposed upon her given that the child had little to no significant connection with the father given his absence in her life.
  • The child is likely to suffer a sense of dislocation and detachment if a change of her surname is imposed now, with effect upon her for the rest of her school career.
  • A change to the child’s surname would have a serious negative influence on the relationship between the mother and child with whom she had lived with her entire life.

As you can see the case law on this issue differs depending on the circumstances of the particular child and that child’s family. Where there is a disagreement between separated parents about changing a child’s surname, you must seek legal advice about your options before you embark on commencing proceedings in Court. In our decades of experience, no two circumstances are ever the same. We tailor our legal advice to suit your individual needs and in pursuit of your desired outcome. Contact our office today to make an appointment for a one-hour strategy session to speak with one of our lawyers about your parenting matter.

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