Are you wanting to change your child’s surname but you have no way to contact the other parent or they won’t agree to a surname change? In specific circumstances such as these, the Court can step in and order a surname change, as outlined below.

By Kirsten Lesina

Federal Circuit and Family Court of Australia (“FCFCOA”)

If you are seeking the change the surname of a child without the consent of the other parent, you can make an application to the FCFCOA, however you must first attempt to reach an agreement on the matter with the other parent through Family Dispute Resolution.

Once you make an application to the FCFCOA, the Court will consider a range of factors when deciding whether to make an order to change a child’s surname. These factors include:

  • the short and long term effects of a name change;
  • any embarrassment to the child;
  • whether a name change would cause confusion of identity;
  • the effect a change in name would or may have with the parent whose name the child currently bears;
  • the advantages, both short and long term, of a change;
  • the contact the other parent has had with the child;
  • the degree of identification with the parents and any new child; and
  • the other parent’s wishes.

Magistrates Court

You can also make an application in your local Magistrate Court, by filing an Originating Application and Affidavit outlining why you would like to change the name. You must serve copies of the Application and Affidavit on the other parent, and they are then given a chance to respond.

The Magistrate must consider whether the name is a prohibited name, and that the change of name is in the child’s best interest. If the child is over 12 years old, the Magistrate will also consider their views on the proposed name change.

Other factors to consider

If you are seeking orders in relation to other parenting matters, your best option would be to start proceedings in the FCFCOA as they can make orders in relation to matters such as time spent with the children, parental responsibility, the issuing of passports as well as a name change, whereas the Magistrates Court can only make orders in relation to the change of name.

If all you are seeking is a change of name, then it is likely that the quickest and cheapest avenue would be to make an application in the Magistrates Court.

If you would like advice in relation to changing your child’s surname, please make an appointment with one of our friendly family lawyers.