By Kate Taylor

8 December 2017

Choosing a name for your child is a big decision and often one of the first a couple makes together as parents. But what happens when a relationship breaks down and one parent wishes to change the name previously bestowed upon the child?

One common example is when the mother retains primary care of a child who has historically carried the father’s surname and wants to hyphenate or change the child’s name to reflect her own.

In Victoria, the process of changing a name is governed by the Births, Deaths and Marriages Registration Act 1996. If both of the parents listed on the child’s birth certificate agree to the change, or if the child legally has only one parent, that parent need only make an application and pay a fee. If the child is above the age of 12 years and capable of understanding the implications of changing their name, their wishes must be considered before the change can be made.

A parent cannot otherwise unilaterally change a child’s name without a Court order, which will involve an assessment as to whether it is in the best interests of the child to do so. There are specific factors relevant to the best interests of the child that the Court must take into account when it determines whether the child’s name ought be changed.

In the recent case of Reagan & Orton the Family Court considered this issue in isolation. The mother of a child, who had been just 8-months-old at the date of separation and had been in the mother’s primary care since, “appropriately…sought to retain for the child some identification with the father by the retention of a hyphenated surname” incorporating her own surname. The Court found in favour of the change, having regard to factors such as the potential for embarrassment or confusion, the child’s future relationships with each parent, the level of contact between the child and each parent and the degree to which the child identifies with each parent.

In the 2016 case of Darley & Darley the Full Court dismissed an appeal by the mother in relation to orders that the children of the relationship, aged 9 and 6, retain the father’s surname and that the mother be restrained from referring to them by any other surname. The mother had brought an application to hyphenate the children’s surname, such that it would be Mackenzie-Darley. The Full Court held that the trial judge had rightly considered and made findings of fact in relation to such matters as the children’s identification with their existing surname and the potential for the children to suffer embarrassment or discrimination in the context of their attendance at a Catholic school. A fundamental flaw in the mother’s argument was her failure to establish, either at first instance or on appeal, her own connection with the surname “Mackenzie.” In fact, she conceded that if her application were unsuccessful she would likely retain the surname “Darley” for herself.

The Births, Deaths and Marriages Registration Act expressly provides that it extends only to a person’s legal name and has no power to prevent the change of the name used to refer to a person by virtue of usage or repute. Interestingly, the Court commonly orders that a party is restrained from referring to, or causing others to refer to, a child by a name other than their legal name. In the 1994 matter of Fooks and McCarthy Justice Warnick of the Family Court made orders restraining the mother from using any surname for the child other than that of the father, which surname the child had carried since birth. In that matter, emphasis was placed on the animosity that would be caused between the parties if the child’s surname were to be changed to the mother’s surname.

In summary, the issue of whether a child’s name should be changed depends on the individual circumstances of the case. If parents can agree, the process is relatively simple. However, if no agreement can be reached the matter will ultimately fall to be determined by the Court and its view as to whether a change of name is in the best interests of the child in question.

If you would like to discuss this further, please do not hesitate to contact our Family Law Team.

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