Family Lawyers are often asked by parents (usually, the primary caregiver for a child) about their ability to change their child’s surname, after separation or divorce.
As with matters relating to the child’s education, religious upbringing and health, a child’s surname (and any change made to it) is considered a significant issue affecting the child’s long-term care, welfare and development. Effectively, therefore, one parent cannot determine for themselves that the surname should be changed without discussing the issue with the other party and obtaining his or her consent. Naturally, perhaps, the other party (usually but not always the father) may strongly oppose any change, severing as it does the nominal lineage between the father and child.
Relevant Case Law
The recent case of Teke & Cegair  FamCA 114 considered the issue of changing a child’s name in circumstances where the father had been absent from the child’s life for approximately eight years.
The mother made an application to the Family Court seeking sole parental responsibility for the child following Consent Orders being made in 2012. The orders sought provided that the child live with her and that she have sole parental responsibility relating to all major long-term decisions including changing the child’s surname. The mother had expressed her desire to approach the Victorian Registrar of Births, Deaths and Marriages to change the child’s name.
In her application, the mother submitted evidence that the father had effectively not been involved in the child’s life for the best part of eight years, aside from one email in 2017. The mother’s evidence alluded that for a period of six months the child had asked her mother at least once a week why should could not change her name. The father’s surname caused the child significant distress when she was questioned by her peers for having two surnames when her father was absent from her life.
In light of the best interests of the child, the Court noted that there was no evidence that there was any impediment to the father having some role in the child’s life, but he did not appear interested. The Court recognised that the child cannot benefit from a relationship that does not exist. The Court also took into consideration the views of the child and her embarrassment of having her father’s name.
On 26 February 2019, the Court found in favour of the mother noting that the father had been provided ample opportunity to participate in the proceedings and had shown no interest or responsibility for the child.
The Court ordered that, the Registrar of Births, Deaths and Marriages should change the name of the child under s 26 (3) of the Births, Deaths and Marriages Registration Act (Vic) 1996 on the basis that the Court approves of the name.
Section 26 of the Births, Deaths and Marriages Registration Act (Vic) 1996 has a provision that permits a parent to make an application to change a child’s surname on a birth certificate if, inter alia, the Court approves the proposed change of name. Whilst Section 4 of the Act defines the Court to mean the County Court of Victoria, the Court considered that the Family Court can use its extensive powers to resolve this jurisdictional dilemma.