A One Stop Shop for Family Law in Australia
The broad answer is that usually you will not be able to legally change your Child's Surname without the consent of the other parent or an Order of the Court making Orders for a name change, if:
unless either, the other parent is dead or you have a Court Order which says you have 'Sole Parental Responsibility' for the Child.
You can just start to use another name for your Child without registering a change. Doing so is not illegal.
To read more about using a name not registered on the Child's birth certificate, read our fact sheet Can I use a name not on the Child's Birth Certificate.
The Family Law Act 1975 creates a presumption that both parents together have “Shared Parental Responsibility” for long term decisions, which includes a child's name.
This applies to most situations unless the Court has made an Order which specifically names only one parent as having 'Sole Parental Responsibility' for the Child.
Because of the presumption under the Family Law Act that parents have “Shared Parental Responsibility” for long term decisions, it is usually the case that unless either:
a parent cannot legally change a child’s surname.
Whether or not a parent has 'Parental Responsibility' for a Child does have an impact on whether a Child's name can be changed and how easily.
If the other parent is not listed on the Child's Birth Certificate then they may not legally be recognised as a parent of the child and so parental responsibility may not apply to them.
There are some cases in which a father may not be listed on the child's birth certificate, but the father may be legally recognised as having some parental responsibility. The father might have had to either go through Court or have DNA testing to prove they are the father to then pay Child Support, for example.
You can read more detail and in depth explanations in our various fact sheets about Parental Responsibility which are listed on our Child Issues Page.
If a Court Order has been made in the past, then it may state that the parents have “Shared Parental Responsibility”.
Very old Court Orders may not say anything about 'Parental Responsibility' but Court Orders made since 2006 should say what type of 'Parental Responsibility' applies to your situation.
If the Court Order says you have 'Shared Parental Responsibility' then that requires that the parents discuss and agree upon major long term issues affecting the child, which includes a Child's name.
For a full list of what the law says are 'long term issues' read our fact sheet What are Major Long Term Issues Shared Parental Responsibility Parents must agree on.
Even if Orders have not previously been made by the Court, or if the Court Order is an old one which does not state the type of parental responsibility applying, the Family Law Act 1975 still creates a presumption that the parents have 'Shared Parental Responsibility' for long term decisions unless the Court has made an Order for 'Sole Parental Responsibility'.
If you want to apply to change your child's surname, then you need to apply to the Registry of Births, Deaths and Marriages in the State the Child's birth was registered. If the Child was born overseas, then you make the application to the Registry in the State in which the Child lives.
Usually if your Child is 12 years of age or older, they must agree to the change unless a Court approves and orders the change.
There are limits on how many times you can change your child's name. Those limits are for many Australian States:
More information about the process of applying to the Registry of Births, Deaths & Marriages can be obtained from them. Just click on the State you are in to be taken to the relevant link: Queensland; New South Wales; Victoria; Tasmania; South Australia; Western Australia; Australian Capital Territory; Northern Territory.
Alternatively you can apply to the Court and ask the Court to make Orders for a change to your Child's name.
You will also need to make an Application to the Court for Orders to change a Child's name if the Registry of Births, Deaths and Marriages does not agree to do so after you apply to them.
The Do It Yourself Kit for an Initiating Application to file in Court to seek Orders for a change of a Child's name can be access from the Family Courts website. This is the Application form relevant to residents of all Australian States and Territories except Western Australia where the Application form is available from the Family Court of Western Australia at this link.
You will also need to file an Affidavit in support of your Application.
You can find out how to prepare an Affidavit in our separate fact sheet in the Courts - How to Self Represent Section.
If the other parent has started using another name for your Child or you are concerned they may start doing so, then the information in our fact sheet Can I prevent, stop or reverse a Child's name change will be helpful to you.
If you have to appear in Court in relation to an Application about change of a Child's name then you will need to know what sort of information the court wants to know and what factors will influence the decision the Court will make. This is fully explained in our fact sheet What are the matters Considered by the Court when making an Order as to a Child’s name.
Other Questions answered in the Change of a Child's Surname Section
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