Changing a child’s last name is easy right? Maybe, maybe not.
While informally changing your child’s last name is as simple as writing that name on a piece of paper and/or declaring that the child will now be known as “Child LastNameX”, the process to legally change your child’s last name can be a little more complicated.
In Queensland, if you want to change your child’s last name, you can apply to Births, Deaths and Marriages if your child was:
- Born or adopted in Queensland; or
- Born or adopted overseas and has lived in Queensland for the past 12 months (and is presently living in Queensland).
If your child was born or adopted in another State or Territory, you will need to apply to the appropriate authority in that State/Territory to change the child’s name.
There are rules about when/how you can change a child’s last name, including that you have not changed your child’s name in the last twelve months and the new name is not prohibited. You will also need to give reasons as to why the name change is necessary – for example, the mother has reverted to her birth name and wants the child to have the same name. If a child is aged 12 or older, the parent must also obtain the child’s consent to the change.
Importantly, if both parents are named on the birth certificate, you will need the consent of the other parent to change your child’s last name.
So what if you do not have consent from the other parent?
Presuming that the other parent is not deceased, if you do not have their permission to change the child’s last name, you will need to apply to the Court for an Order allowing a name change.
If the sole issue for determination is the child’s name change, a party may apply to the Magistrates Court of Queensland to approve a change of name (colloquially referred to as an “order 59”), and the Registrar can approve same if he/she is satisfied that the name is not a prohibited name and the change is in the child’s best interests.
Alternatively, a party may apply to the Federal Circuit and Family Court of Australia pursuant to the Family Law Act 1975 for an Order regarding the allocation of parental responsibility. Parental responsibility means all the duties, powers, responsibilities and authority which parents have, by law in relation to children. These include the ‘major long-term issues’, which is defined as including decisions regarding a child’s name.
The Court will need to be satisfied that it is in the best interests of the child that his or her name be changed and the formal records of this should be made according to the law and practice of each State. The welfare of the child is the paramount consideration, but other matters for consideration include:-
- Short and long term effects of a change
- Any embarrassment to the child
- Any confusion of identity
- Effect a change in name would or may have with the parent whose name the child bore in the marriage (or relationship)
- Advantages both short and long term in a change
- Contact the other parent has had with the child
- Degree of identification with the parents and any new child
- The other parent’s wishes.
If you have an existing Court Order that providing that parental responsibility is shared between the parents, then to change a child’s name without the consent of the other parent may be a contravention of that Court Order. You must obtain an Order from the Court allowing the name change.
Practical tip:
Importantly, even if you have an Order that states that you have sole parental responsibility for a child, this may not be sufficient for Births, Deaths and Marriages to register a name change. If you are intending to change a child’s name in the future and have proceedings pursuant to the Family Law Act 1975 on foot, then you should seek a specific Order that allows you to register such a name change. Without same, you will need to file an application in the Magistrates Court or bring the matter back to the family law Courts for determination in the future.
If we can assist you with your family law matter please contact our office today to discuss with one of our family lawyers.
