As lawyers in Family Law, we are often exposed to legal matters which give rise to disagreements relating to the surname of a child (or children).
We are often presented with matters where the parents have separated when the child was young and one parent has taken it upon themselves to informally change the child’s surname without the consent or knowledge of the other parent.
"It must be highlighted that as lawyers we have dealt with both mothers and fathers taking it upon themselves to use a different surname for their child without agreement from the other parent. "
Often at birth a child will carry the father’s surname and the father’s surname is registered on the Birth Certificate. We see many cases where despite the father’s surname being on the child’s Birth Certificate, the mother has unilaterally and informally used her own surname for the child.
It must be highlighted that as lawyers we have dealt with both mothers and fathers taking it upon themselves to use a different surname for their child without agreement from the other parent. This issue is not exclusive to just mothers doing so.
There are various reasons a parent will validate informally changing the child’s surname, such as:
- “It was easier when I enrolled the child at school”;
- “The child never saw the other parent and I wanted them to feel connected to me”;
- “I have had other children since separation and I wanted them to all share the same last name”.
If the child has a Birth Certificate with both the mother and the father on it and with the surname registered on the Birth Certificate as “Jones” and a parent has enrolled that same child in school with the last name “Smith”, the child’s last name is still legally “Jones”. In order to change the child’s name legally to “Smith”, the parents will either:
- have to come to a mutual agreement about the child’s last name and then register a Change of Name with the Births, Deaths and Marriages Office; or
- if no agreement can be reached, commence Court proceedings in the Federal Circuit Court of Australia with respect to changing the child’s surname.
In the recent case of Reynolds & Sherman (2015) FAM CAFC 128, it was recognised what a substantial issue the change of a child’s surname is. The Full Court observed that the dispute over a child’s surname is a matter of “real importance” and adequate court time should be allocated in order for the court to consider such an important issue.
It must be noted that informally changing a child’s surname to differ from that which appears on their Birth Certificate is an action which can result in litigation between the parties. Therefore if you are considering such an action it would be prudent for you to first speak with a qualified Family Lawyer about your options and the potential repercussions of doing so.