Naming a child
Under the Births, Deaths and Marriages Registration Act 1996 (Vic) (“BDMR Act”):
• a child’s name can be registered under any name, rather than only under the name of one or both of the parents;
• the registrar can assign a name to a child if the child’s proposed name is a prohibited name, or if both parents satisfy the registrar that they are unable to agree on the child’s name;
• if there is a dispute between the parents about a child’s name, either parent can apply to the Federal Circuit Court or the County Court of Victoria to resolve the dispute. The court can make an order requesting that the registrar register the child’s name as specified in the order. (Note that there is no specific provision in the FL Act that grants power to a court to order the registrar to record a new name, but courts will do this if it is in the child’s best interest);
• forms for the registration of births and deaths were introduced.
Restrictions to changing a child’s name
The following restrictions apply to changing a child’s name:
• A person under the age of 18 cannot apply to 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 to register a change to their child’s name. At the time of the application, the child must have lived in Victoria for the last 12 months, or the child’s birth must be registered in Victoria.
• A parent who has sole parental responsibility or sole care does not have the right to unilaterally change a child’s surname. Such a change requires the consent of both parents or a court order.
• One parent can apply to register a change to their child’s name if that parent is named as the sole parent in the child’s birth registration (or under any other law), or they are the only surviving parent, or if a court approves the parent’s proposed name change (a court will approve a proposed change if it is in the child’s best interest).
• A child’s guardian can apply to register a change to the child’s name if the child’s parents are dead, cannot be found, or cannot exercise their parental responsibilities.
• If the child is 12 years or older, they must consent to changing their name unless the registrar is satisfied that the child is unable to understand the meaning and implications of the name change. This provision may need to be taken into account in any court proceedings.
• The registrar can refuse to register any change to a child’s name if, as a result of registration, the new name would become a prohibited name (the meaning of which is discussed in “Registering a new name”).
Most cases involving changing a child’s name are heard in the Federal Circuit Court or Family Court.
The Federal Circuit Court and the Family Court can make decisions about the names of children whose parents were married at the time they were named, and ex-nuptial children. These courts can also make decisions enabling a child’s name to be changed, or restraining (stopping) a child’s name from being changed, or restoring a child’s previous name.
The Magistrates’ Court of Victoria can make decisions about a child’s name with the consent of both parties.
If a child’s name is to be changed for reasons not related to a family law matter, the matter can be heard in the County Court. Contact the registrar of the County Court for further advice on this matter (see “Contacts”).
When making a decision about changing a child’s name, a court must, above all, consider what is in the child’s best interest (i.e. the paramountcy principle).
Therefore, the court considers:
• the welfare of the child;
• the short-term and long-term effects on the child of a change in their surname;
• any likely embarrassment that the child has 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 in both the short and long term, if the name remains as it is now;
• the time that the child spends, or is likely to spend, with the parent the child does not live with;
• the degree of identification that the child now has with their father;
• the degree of identification that the child now has with their mother and step-father;
• the wishes of the child in appropriate circumstances.
The court usually also takes into consideration:
• the father’s desire to have the child’s original name restored;
• the degree of harmony or disharmony that the change of name may generate between disputing parents, and the resultant lessening or increasing of tension between the parents, that may either beneficially or adversely affect the child;
• any customs regarding the use of a surname in a particular society or segment of society;
• that children should not be subjected unnecessarily to a confusion of identity.
Note that when a court makes an order changing a child’s surname, it is not necessary for the other parent to sign any documents, as the court has the power to order the registrar to register the child’s new name. Also, it is neither necessary nor appropriate to empower the registrar of the court (under s 106A FL Act) to sign any documents on the other parent’s behalf.
Children of unmarried parents (e.g. same-sex couples, partners living in a de facto relationship) have the same legal status as children of married parents.
For more information, see Same-sex and de facto couples and families.
In all matters associated with a child’s name, the applicant must, in accordance with section 601(8) of the FL Act, participate in mediation and also satisfy the pre-action procedures. This means that the applicant must not only 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 authorised dispute resolution practitioners. Brochures about pre-action procedures and compulsory mediation can be obtained at the Family Court, Federal Circuit Court, or through the courts’ websites (see “Contacts”).
When an adoption order is made in Victoria, the adopted child’s name is changed in accordance with the Adoption Act 1984 (Vic) (“Adoption Act”), which deals with changing the names of adopted children (s 56).
The court has to approve the adopted child’s new name. The court may not do so until the child’s wishes and feelings are ascertained; these wishes are factored into the court’s decision, with the child’s age and level of understanding also 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 (1993), a new name can be registered when the Family Court authorises the adoption and approves the new name.