Remarried Women Changes the Surname of her Son

19/12/2014

Mary sought advice from Watson & Watson as to whether she could change her son Stephen’s surname as she had remarried and had children with her second husband.  The Federal Circuit Court of Australia (Family Court) can order that a child’s name can be changed in certain circumstances.

Mary was married when she was quite young and has a child Stephen from her first marriage.  Mary has divorced, remarried and now has two children Zack and Rebecca with her new husband.  Mary had taken her new husband’s surname.  Stephen has a different surname to his brother Zack and sister, Rebecca and Mary wanted to change Stephen’s surname so that his surname was the same as his brother and sister and Mary’s new surname. 

Stephen’s father had little contact with Stephen following the divorce. 

Mary sought advice from Dennis Grant Senior Family Law Solicitor of Watson & Watson who advised Mary in relation to the circumstances in which the Court would grant a name change for her son, the process to obtain a name change and the nature of the evidence required to ensure the success of the application.

The Family Law Act provides that the name a child uses is a major long term issue and the change of name is one where the joint decision of the parents would be required.  In the absence of any agreement between the mother and the father then either the mother or the father could bring an application to the Court for an order to change the name of the child. 

The paramount consideration in determining the application to change the name of a child is the child’s welfare.

The Court will have regard to:

1.           The welfare of the child as the paramount consideration.

2.           The short and long term effects of any change in 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 the custody, primary care or control of the child.

4.           Any confusion of identity which may arise from the child if his or her name is changed or is not changed.

5.           The effect of any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.

6.           The effect of frequent or random name changes.

7.           The advantages both in the short term and the long term which accrue to the child if their name remains as it is now.

8.           The contact or the time that the child spends with each parent and is likely to have in the future.

9.           The degree of identification that the child has with the mother and also the father.

10.         The degree of identification which the child will have in general.

It is critical that the evidence for a name change must be carefully considered and prepared.  This is more important where either the mother or the father objects to or does not consent to the name change for the child.

For Mary the Federal Circuit Court found that it was in the best interests of Stephen that he has the same surname as his mother brother and sister.  The Court made Orders to that effect and Mary was able to apply to the Registry of Births Deaths and Marriages to have the new name registered.

If you have any query in relation to whether your child could change his or her name then please contact Dennis Grant or Richard Watson to discuss and we will advise.

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