When can I change my child’s name?

March 20, 2020

When can one parent apply to change their child’s name?  Recently, the South Australian Civil and Administrative Tribunal heard a Mother’s Application to change her son’s surname and had to consider the question of whether this was in the best interests of the child.  How do you do that when the child is only ten months old?

At birth, the child parents were in a relationship and jointly made the decision to give the child the Father’s surname, however, the parents separated when the boy was 8 weeks old.  The Mother sought to change the child’s surname from that of the Father, to a hyphenated name, representing both the Mother and Father’s families (“Mother’s Surname-Father’s Surname”), however the Father opposed the Application.  

The Basis for Changing a Child’s Name

In order for the Tribunal to approve an Application to change the name of a child, the proposed change must be ‘in the best interests of the child’. If a child is old enough to understand the implications of any proposed change, an Application must not be approved without the child’s consent. However, in this case, the child was an infant and therefore clearly too young to understand the proceedings or consequences of the proposed name change.

Part of the reasons why the Mother said that her son’s name should be changed were that the proposed hyphenated name would best represent the circumstances of his parents’ relationship, and that it would be simpler to change his name before he becomes registered in various systems such as the education system, and before he is aware of his name, than to wait for him to become old enough for it to have an effect.  The Mother further asserted that she felt the child would be isolated within his household because he was the only person to have his Father’s surname.  Although the Tribunal accepted that there was force in some of these arguments, the question was whether these issues were ‘in the best interests of the child’.

In making this determination there are a number of factors to be taken into account which include:

  1. That “the welfare of the child is the paramount consideration and must be determined on the facts of the particular case;
  2. The short and long term effects of any change of the child’s name;
  3. Any embarrassment likely to be experienced by the child if his or her name is different from that of the parent with custody of care and control;
  4. Any confusion of identity which may arise for the child if his or her name is changed or not changed;
  5. 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 relationship between the parents;
  6. The effect of frequent or random changes of name;
  7. The advantages in both the short and long term which will accrue to the child if his or her name remains as it is now;
  8. The contact that the other parent has had and is likely to have in the future with the child; and
  9. The degree of identification that the child will now have with each parent”.

The Best Interests of the Child

When considering the Mother’s Application, the Tribunal placed significant weight on the parties’ recent separation and changing circumstances.  The Tribunal noted it was clear the relationship between the parents and their arrangements for their son’s care was evolving, stating that ‘the break-up is raw’.   The boy remained in the Mother’s primary care, however, the parties had not reached agreement regarding ongoing care arrangements for him. The Tribunal was also mindful that insufficient time had passed for the child to develop a relationship with his Father post-separation.

The Tribunal made the point that its task is not to decide what it thinks is the best name for the child, but whether it is in the child’s best interests for the name to be changed.  As far as that consideration was concerned, taking into account the changing relationship between the parties and noting the boy’s young age, it concluded that the child’s needs were still developing and therefore difficult to determine at this point in time.

The Tribunal specifically acknowledged that it can be difficult for parents to understand that the Tribunal’s decision is based solely on the best interests of the child. This is particularly difficult when a decision appears to coincide with the wishes of one parent more than the other. It is necessary in this situation for parents to accept that any secondary effects upon themselves “must give way to the child’s best interests”. Secondary effects in this case include the Mother feeling embarrassed that her child does not share her surname and the Father’s wish that his son pass down his surname to his future children.

In the end, the Tribunal was not satisfied that it was presently in the child’s best interest to allow his name to be changed.  That being said, it was likely that the argument to change his name might become stronger in time, and although the Tribunal dismissed the Mother’s Application, it was not opposed to the Mother filing a new Application in the future when the child is older. The Tribunal considered that more time was needed to allow the parties to ease the current tensions between them and to allow the child to spend time with both parents. The Tribunal further expressed that more time would provide the Tribunal with an opportunity to properly determine the best interests of the child.

So, if you are considering an Application to change your child’s name, carefully consider the 9 factors set out above that will be taken into account by the Tribunal when determining your application. 

Alternatively, if you would like to speak to one of our Family Law Experts who can help you with this process, book a free consultation today by calling 8231 1363 or contacting us here.

XLR v GFP [2020] SACAT 4