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Changing Names – When, How and Why?

By 14 May 2019Parenting

Changing your name, whether it is your first name, surname, or even your whole name, is a deeply personal decision.

You can do this by yourself once you reach the age of majority and is simply done by applying to the relevant Registry of Births, Deaths and Marriages in your state or territory.

In Queensland, this is the Queensland Registry of Births, Deaths and Marriages (QRBDM).

However, there may come a time when you find yourself having to change your child’s name.

This can be a little more tricky and, if necessary, requires the Court’s authority.

Why would I apply to have my child’s name changed?

There are a multitude of reasons as to why you may find yourself in this position. Of significance, your child may be asking you why they have a surname different to yours, saying that they want to share your surname, or even saying they do not identify with the name they have.

In these circumstances, it is critical to ensure that your child knows what they want and the implications of changing their name. What makes this difficult is that you, as a parent, must make a decision that is in your child’s best interests and, in doing so, understand that a change of name is for your child’s benefit, not yours.

When should I apply to have my child’s name changed?

Key to deciding when to apply to change your child’s name is the age of your child and the circumstances surrounding their request.

A common issue that arises is that your child may be of an age where they lack the capacity to fully understand what they may want, let alone the concept of “identity”. It is a tricky situation to be placed in; to want give your child what they want but being uncertain as to whether you can achieve this!

Capacity is a difficult topic too. Technically, a person under the age of 18 lacks the capacity to do most things, like enter a contract.

In terms of changing a name, capacity can be boiled down to understanding the concepts of “identity”, “belonging”, and the significance of a name. This issue is ultimately left up to a Court to decide and, in some instances, depending on the age of the child, requires the child to give evidence as to why they want to change their name and their understanding of what the change of name means.

If you are faced with such a situation and you are uncertain about what to do, then it is safest to get legal advice.

How do I apply to have my child’s name changed?

There are two ways to change your child’s name:

  • Where both parents agree, or where there is only one parent registered as the child’s parent, you can file an application for change of name with the QRBDM and pay the applicable fee;
  • Where both parents are registered as the child’s parents and are in disagreement as to whether the child’s name should be changed, you must obtain an order from a Court authorising the proposed change of name to occur.

Clearly, the first way is quite straightforward and self explanatory; the second less so and worth a more in-depth examination.

Where should I apply to have my child’s name changed?

If a Court is required to determine the issue of changing a child’s name, then you will need to make an application to a Court that has the authority to determine the matter.

An application to change a child’s name may be made to the Federal Circuit Court of Australia (FCCA) or Family Court of Australia (FCA) (where there are ongoing issues regarding the parenting arrangements for the child) or otherwise to the Queensland Magistrates Court (QMC).

It is important to make the application to the right Court depending on your circumstances.

Where there are ongoing parenting issues and there is no final order in place, then you will need to make an application to the FCCA or FCA to first deal with the parenting issues. It is possible to seek to change a child’s name within these proceedings.

If you already have a family law order or you have sole parental responsibility for a child, then you will still need to obtain an order authorising you to change the child’s name. Because there are no ongoing parenting issues, you will need to obtain this order from the QMC.

There is extensive case law from the QMC that indicates that where there are ongoing parenting issues and a change of name is being sought, then the QMC is not the right Court to determine the matter and that an application to the FCCA or FCA should be made.

Test applied by the Courts

If a Court is called upon to determine whether to change a child’s name, it applies a two step process. This process incorporates a review as to whether the proposed name is a prohibited name, and whether the proposed name is in the child’s best interests.

Is the name prohibited?

The first criteria to satisfy the Court about is whether the proposed name is prohibited. There is uncertainty as to what constitutes a prohibited name, but it is clear that a name cannot:

  • be obscene or offensive;
  • practically be established by repute or usage because it is too long or consists of symbols without phonetic significance;
  • include or resemble an official title or rank;
  • include a statement (i.e. “Save Mother Earth” or “Down with Capitalism”);
  • be contrary to the public interest; or
  • be a political slogan.

Once the Court is satisfied that the proposed name is not a prohibited name, it must turn its attention to whether it is in the child’s best interests to authorise their parent to change their name.

Is the change of name in the child’s best interests?

In considering whether it is in the child’s best interests to authorise their change of name, the Court must have regard to a number of elements which include:

  • the views the child has expressed;
  • the views of the child’s parents, as far as they are available;
  • the reasons for changing the child’s name (ie, medical or schooling reasons, social purposes, gender transition, family connection etc,);
  • whether the request to change a child’s name has come from their parent or from the child;
  • whether the child has the capacity to comprehend the concept of identity and the implications a change of name may have.

These are but a few considerations the Court turns its attention to, and they are wholly based on the individual circumstances of each case. Ultimately, the Court has a discretion to determine whether the change of name is in the child’s best interests.

If you believe it is in your child’s best interests to have your child’s name changed and/or your child is asking to have his or her name changed, then it is important to obtain appropriate legal advice as to your rights, options, and potential costs.

The above information is relevant only to Queensland. Each state and territory has its own Registry of Births, Deaths and Marriages and legislation governing the process involved in changing a name.