It is not uncommon where parents have separated and where a child lives primarily with one parent that this parents seeks to make an application at the Federal Circuit Court or Family Court of Australia to change the child’s surname.
The recent case of Waller & Casson [2015] FamCA 725 ( 2 September 2015] is a case where the mother of an 8 year old boy sought to have his surname changed and provides illuminating guidance for parents seeking to change their child’s surname.
This a case where the mother and father had a short relationship from 2006 to 2008, and when the child was 6 weeks old the parents started living together. They separated on a final basis in 2008.
In 2011 the Court made final orders that
- the parents have equal shared parental responsibility for the child
- The child to live with his mother;
- The child to live with his father in accordance with a gradually increasing frequency of times culminating in from the commencement of school in 2013 each alternate weekend from the completion of school Friday to the commencement of school Monday as well as each week from completion of school Wednesday to commencement of school Thursday;
- The child also to live with his father during school holidays as follows.
In 2012, the mother filed an application seeking that among other things, that the child’s surname be changed to include her surname as well as that of the fathers. The father and the Independent Children’s Lawyer opposed the mother’s application.
On August 2015, the matter was listed to be determined on a final basis.
The mother’s reasons for wanting to change the child’s surname
The mother claimed that she wanted to change the child’s surname to include her surname, because this inclusion of her surname, would clearly identify the child’s connection with her family.
The father’s objection to change the child’s surname
The father indicated that the child has known his name as it was, for 8 years and to change his name at this point would not be in the child’s best interests.
The Independent Children’s Lawyer objection to change the child’s surname
The Independent Children’s Lawyer indicated to the Court that there was no evidence before the Court to support the assertion that it would be in the child’s interest to have his name changed.
The Law
In a case known as Chapman and Palmer (1978) FLC 90-510 the Full Court directed that the factors which the Court should consider in determining whether to change the child’s name include the following:
(a) the welfare of the child is the paramount consideration,
(b) the short and long term effects of any change in the child’s surname,
(c) any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control,
(d) any confusion of identity which may arise for the child if his or her name is changed or is not changed,
(e) the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage,
(f) the effect of frequent or random changes of name.
Changing a child’s surname-only if in the child’s best interests
A child’s name is not a proprietary interest
The Court remarked that it is often a case where a parent and perhaps even both parents, appear to place far too much importance to the issue of the child’s surname and seem to believe that they have an ownership or proprietary interest in the child’s surname. The full court of the Family Court went on to say:
“Attitudes of this kind are unlikely to find favour with the Court, and often seem calculated to destroy the relationship between the child and the parent in question. The Court should give no encouragement to parents who seek to change a child’s name for reasons unconnected with the welfare of that child nor to parents who oppose a change only to bolster their proprietorial interest in the child. The fact that the parents are haggling over the surname can of itself engender insecurity and confusion in the child’s mind.””
The mother is unsuccessful in her application to change the child’s surname
In the case of Waller & Casson [2015] FamCA 725, the mother failed to provide evidence which the Court could take into account and in particular has not proven to the Court that the change of the child’s name was in his best interests.
In the present case, the mother has failed to put before the Court evidence which would be relevant to the matters which the Court would take into account. Further there was no evidence presented by the mother, that there is any embarrassment or confusion about the use of the child’s surname.
This was simply a case where the mother preferred to have her surname added rather than a case where the welfare and best interests of the child warranted the change of surname.
Should you wish to find out more information or seek advice as to changing a child’s name, contact us now!
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