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The short answer to this question is:  no, but……read on.

When a relationship breaks down, one party may want to change the surname of the child or children of that relationship. There can be a number of reasons for this, but the three main ones are - the parent who has primary care of the child (that is, the one the child spends most time with) may have repartnered, or the primary parent just hates their former partner, or the other parent has little to do with the child. There will be other reasons, but let’s unpack these three.

The primary carer has repartnered  

There can be multiple scenarios under this heading. A typical one might be – following separation, Jane starts a relationship with Bob. Bob has three children, in the same primary school age bracket as Jane’s two. Bob has primary care of his three and Jane has for hers. They all live in Bob’s house – a sort of Brady Bunch. All five children go to the same school. Jane has taken Bob’s surname as hers. Jane asks her children’s father, Jim, if he will agree to her changing their children’s surnames to Bob’s. She reasons that would make it much easier for their children at school, as all five of them would have the same surname. And easier for Jane in her life, as they would be known by her/Bob’s name. Jim refuses to agree “They’re my kids, they will always have my name,” he says. Jane and Bob try mediation, but that doesn’t solve the issue. Jane threatens to take it to court.

What would the court do? That depends to a large extent on whether Jane’s relationship with Bob appears to be long-lasting, and how much time her children are spending with Jim. On the first point, people sometimes get married, to show the court in this type of cases (and in relocation matters) that they are in a permanent relationship, although that, alone, probably isn’t a good reason to get married. Even assuming that Jane and Bob can convince the court they are going to stay together, if Bob has a good relationship with his children (he sees them regularly and is involved in their activities), it seems unlikely that the court would agree to a change in their surnames. Once the children turn 18, the Family Courts don’t have any jurisdiction over them, and they can change their surnames themselves if they wish.

The primary parent hates the other parent, wants them totally out of their life, wants to revert to their maiden name (if the mother), and change the children’s surnames to that name

Just hating the other parent isn’t usually enough to convince the court to change the children’s names. There can be exceptions, for example where there has been family violence, but the courts are reluctant to agree to a name change where the other parent has an ongoing relationship with the child.  

Where the other parent has little to do with the child

If that is the choice of that parent, the courts are more likely to agree to a name change. If the non-primary parent lives, say, overseas, but makes a real effort to keep in touch with the child – regular FaceTime sessions, Christmas and birthday presents and, if it can be afforded, that parent coming to Australia to visit the child, or the child going overseas to see their parent. So, mere distance between the parents is not enough to justify changing the child’s name.

There can be other, more extreme examples of the courts agreeing to a name change – the other parent has been found guilty of sexually assaulting the child and is serving a prison term, or DNA testing has shown that the other party is not the child’s biological father – although if that person has a close, ongoing relationship with the child, the courts may take a different view.

Hyphenated, or double-barrelled surnames are another option, and the courts are often more likely to agree to that as a solution.

So, this is not an easy topic. If the matter goes to court, it will depend very much on the facts of each individual case as to how the judges is going to decide whether or not a child’s name should be changed.

The friendly, experienced Family Law Team at Tonkin Legal Group are here to help you if you have questions about this or any other Family Law matter. Book an appointment with us today or contact us on (03) 9435 9044.