NAMING A CHILD

Chris Gunasekera, Lawyer, Peninsula Community Legal Centre

Changing a child's name

Under the BDMR Act, which came into force on 2 October 1997, the following changes took effect.

A child's name can be registered under any name rather than under the name of one or both of the parents.
If the proposed name of the child is a prohibited name, or if both parents satisfy the Registrar that they are unable to agree on the child's name, the Registrar can assign a name to the child.
If there is a dispute between the parents about a child's name, either parent can apply to the Federal Magistrates Court for resolution of the dispute. The court can make an order requesting that the Registrar register the child's name as specified in the order. There is no specific provision in the FLA either dealing with changing a child's name or granting power to the court to directly order the Registrar to record any change of name. The court will make the order if it is in the child's best interest that it do so.
New prescribed forms for registration of births and deaths were introduced.

Changing a child's name

A person under the age of 18 cannot register a change to their name unless they are married or have been married.
The parents of a child under the age of 18 can apply for registration of any change of name of the child. The child must be domiciled or ordinarily resident in Victoria, or the child's birth must be registered in Victoria at the time of the application. The application must be made in the approved form and must be accompanied by the prescribed fee.
One parent may make an application to register the change of a child's name if that parent is named in the registration of the child's birth in Victoria or under any other law as the sole parent, or there is no other surviving parent of the child, or the Court approves the proposed change of name. The Court will approve the proposed change of name if it is satisfied that it is in the child's best interest.
If the child's parents are dead, cannot be found, or cannot exercise their parental responsibilities to the child for some other reason, then the child's guardian can apply for registration of change of a child's name.
If the child is 12 years or older, their consent to the registration of the change of name is required unless the Registrar is satisfied that the child is unable to understand the meaning and implications of the change of name. It must be noted that this provision may, if relevant, need to be taken into account in any proceedings in the court.
The Registrar will register the change of name of the child whose birth is registered in Victoria in accordance with court orders made under the BDMR Act or any other law.
The Registrar can refuse to register any change of a child's name if, as a result of registration, the change of name would become a prohibited name (the meaning of which is discussed in "Assuming a new name", above).

Most cases involving changing a child's name are heard in the Federal Magistrates Court or the Family Court. This will be so where the child's parents were married at the time the child was named. In family law matters, the child's parent can apply either to the Federal Magistrates Court or the Family Court for an order approving a change of a child's name. The Magistrates' Court of Victoria can make orders by consent of the parties.

Under the paramountcy principle (see: "Glossary" for definition) the court must be satisfied that the proposed change is in the child's best interest. The Federal Magistrates Court and the Family Court have the power to make orders regarding the change of name of both children of a marriage and ex-nuptial children.

The Family Court and the Federal Magistrates Court, from time to time, has made decisions enabling the change of names of children, or restraining (stopping) the change of names of children, or restoring previous names of children. Those decisions were made on the application of either the parent wanting to change the name, or the other parent who was dissatisfied with the change of name.

The matters that the Family Court would usually take into consideration in changing the names of children are:

the welfare of the child as the paramount consideration;
the short-term and long-term effects of any change in the child's surname;
any likely embarrassment that the child has experienced or may experience due to the use of a name that is different from that of the parent who has custody or daily care of the child;
the effect any change may have on the relationship between the child and the parent whose name the child bore during the marriage;
the effect of frequent and random changes of name;
the advantages that will accrue to the child both in the short and long terms if the name remains as it is now;
the time spent, or is likely to be spent, by the child with the parent the child does not live with;
the degree of identification that the child now has with its father;
the degree of identification that the child now has with the mother and step-father;
the desire of the father that the original name be restored;
the wishes of the child in appropriate circumstances;
the degree of harmony or disharmony that the change of name may generate between disputing parents, and the resultant lessening of or increase in tension between the parents, that may either beneficially or adversely affect the child; and
customs regarding the use of a surname in a particular society or segment of society.

The Family Court will not grant orders enabling a change of name merely because it is convenient for the parent having responsibility for day-to-day care, welfare and development to use a new name. In all of the circumstances the Court, taking into account the relevant provisions of the Family Law Act and decisions of the Court, must be satisfied that it is in the child's best interests for the application for change of name to be granted and to make a declaration to that effect.

In regard to children of parties whose parents are not married please see Chapter 5.3 for more information about the change of the legal term "Defacto Relationships".

It must be noted that prior to making any application for a change of a child's name, or any orders prohibiting the use of any name and other matters associated with a child's name, the applicant party must, in accordance with section 601 of the FLA, satisfy the compulsory mediation requirements and also the pre-action procedures. This means that the applicant party not only must provide relevant information to the other party and make a genuine attempt to settle the matter out of court, but they must also obtain a certificate that the matter could not be resolved through mediation. These certificates are issued by dispute resolution practitioners authorised to conduct such mediation. Brochures prepared by the Family Court about pre-action procedures and compulsory mediation may be obtained at any registry of the Family Court, Federal Magistrates Court, or through the courts' websites.

Upon an adoption order being made in Victoria, the adopted child's name will be changed in accordance with the Adoption Act 1984 (Vic) ("Adoption Act"), which deals with the change of name of adopted children (s.56).

Note that the court has to approve the name/s. The court may not do so until the wishes and feelings of the child are first ascertained and due regard is given to them, and the age and understanding of the child is taken into account.

In relation to children adopted from overseas, under the Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption, a new name can be registered when the Family Court makes an order authorising the adoption and approving the new name.

If a child's name is to be changed for reasons not related to a family law matter, the County Court may be appropriate. If in any doubt, readers are advised to contact the Registrar of the County Court for further advice.

County Court of Victoria

250 William Street

Melbourne Vic 3000

Tel: 8636 6508

Web: www.countycourt.vic.gov.au