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Name issues

Discussion about the various issues around name of a child

My ex and I split up in November last year 2006.

After she had the baby in January 2007 she refused me any right to name the baby.

Do I, or is there any law that says I have to sign the birth registration and certificate?
bursyboy said
Do I, or is there any law that says I have to sign the birth registration and certificate?
Well you have raised a very interesting topic that has had numerous court decisions over the years and is a minefield of various Government agencies including BDM. Births Deaths and Marriages.

Documentation

New Born Documentation is a very significant issue which starts at Hospital ward level in respect to the general release of documentation to the women after birth at your local hospital.

The documentation surrounding the baby is most usually given only to the Mother and in a number of cases (Mine is not unique as I have had similar comments from other "Dads") the Mother has the sole ability to complete these documents with no further reference or consultation with the "Dad". The Dad can be completely excluded, there is no requirement for the dad to sign the forms at the hospital. In fact many hospitals, I am informed would prefer not to have Dads involved with the process and many new Dads are activley excluded or perhaps not actively involved and therefore excluded.

In such situations agreed names and or Birth details of the "Dad" can be altered without the "Dad's" knowledge and in fact most "Dads" are not even aware of the full extent of the documentation that comes with a new Bub.

The mother can decide to give the Bub her surname and even indicate the father is "unknown" on the paper work that is sent to BDM.
 There is a small miniscule notation on the BDM form that says there are penalties for false declarations but to my knowledge not one prosecution has been taken by BDM. I also note that even though a signature is required of a third party on the form sent in by the mother there is no requirement for address and contact details of the third party and there is usually never any follow up checks unlike a passport application.
I find the ability for the Mother to take this type of action with absolutely no mentoring from either hospital staff or communication to the partner prior to making changes or filling documents simply outrageous, particularly after an agreement may have been reached on the name while at the hospital.
 
Further I might comment that we have investigated expensive legal action in the past to force a change if a name has been used that was not agreed or there was no consultation in selection of first, middle. last names, however after the event it is almost impossible to change the Master Registrar details without the Mother agreeing to the changes. There are numerous areas of law that can be used and even a verbal agreement can be construed as a contractual agreement to name.

However there is no simple answer where you do not have agreement

If you cannot get a local Family Relationship Centre to get both of you to Mediation then the road is an extremely protracted and expensive process to have the Mother return to the original agreed name and or any agreed name and to allow even a passport to be issued in that name.

My first approach would be to get to Mediation as quickly as possible. Ring the Mediation centres Hotline and work out the best place to go. Time is of the essence here as failing agreement at Mediation you will have to lodge with the Federal Magistrates Court. This is not a fast process but you may well want to sort out contact details etc at the same time. Rest assured that Child Support payments will be very close as most mothers contact the Child Support Agency for money fairly soon after a separation. You cannot avoid Child Support payments and it is your responsibility and right to assist in the child's future needs, love and affection.

I do say that much of the angst could have been averted had the hospital ward staff made BOTH partners/parents aware of the appropriate documentation and completed the documentation WHILE at the hospital. In your case perhaps you were not even at the hospital and I am not sure of the circumstances.

Post Natal Depression

In my personal view almost all mothers get into some sort of depressed state at some stage after a baby either due to hormone changes, stress, Peer pressures in raising techniques, inadequacies such as "I got fat", relationship issues and many more. This happens sometimes early and sometimes much later and can go on for years, in fact many many years. Often minor things can become major full on domestic issues which cause relationships to collapse without strong support from others such as grandparents, who are so important they are specifically recognised in the new laws.

Again my own view is allowing the documentation to be completed at a later date and in a home or other location is unwise should the Mother experience any such "Post Natal" depression and or other such mental stress that could facilitate such changes from an agreed position in the matters pertaining to the documentation.

I therefore find the Hospitals have contributed some negligence in this respect and this is an area that needs some legislative and process review as there are people already in the hospital system that can help parents early on.

Certainly the system needs to change where BOTH partners should be counselled about the paper work and the serious implications of completing paper work that is not agreed on.

What's Next

This matter must be causing considerable grief and on going consternation to you. You need to keep family and friends around you for support and realise this is not a quick fix situation as where two parties are inflexible on this issue the only thing that will get a resolve is a court order. I can say there is hope when you get to court as there are many good judgements in favour of the Dads name as surname. Our friends in the SRL may be more specific about the cases that are most interesting.

But as stated before you firstly need to try and mediate through the situation as soon as possible.

You should also get on to the Birth Deaths and Marriages web site and contact them. Check out to see if paper work has been provided. Get a copy of that paper work to see what was signed off. IF the FATHER IS UNKNOWN is listed then you have a reprieve from the Child Support obligations. You can bring to your partners attention the penalties for false declaration are severe, however they usually don't care about penalties and entrenched views are hard to change.

It has always suprised me the number of certificates that go in with "Father Unknown". You need to try and get your name on the initiating documents as it is VERY hard to get on a birth certificate later (In the box marked "Father). Usually, if you are added at some later stage, (There is a form to be added later) your detail is listed at the bottom of the certificate as a notation which is completely unsatisfactory and you will have to get a court order to fix that.

Failing that and after an attendance at the FRC or an approved Mediation Center to get a certificate of compliance you should immediately file at the Federal Magistrates Court. As the child gets older where both parents are using different surnames and neither shows any flexibility to resolving the matter other than through litigation it becomes more difficult. I do not suggest you wait to long before taking some action. You need to get together and discuss these issues and many many other issues like supporting the child and how you are going to interact with the child.

There is some good news in that the changes we and others made to the Family Law Act last year will ensure, if you want it (and we hope you do), you will be able to play a large part in your wonderful new child's life.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 

Changing a child's name

Posted by Grant Riethmuller Federal Magistrate and CCH author

There is no specific provision in the Family Law Act 1975 dealing with changing a child's name. Nor, is there power to directly order that the Registrar of Births in a state enter a change on the register.
However, in all states a parent with an order under the Family Law Act permitting a change of name and requiring a child to be known by a particular name will be sufficient to support an application to the relevant state Registrar of Births to alter the register.
Where it is desirable that the child carry both names, one option commonly taken up is for the child's name be a hyphenated combination of the surname of the parents, for example John Anthony Smith-Jones. Another option is to add the surname that differs from the child's surname as an additional middle name, for example changing John Anthony Smith to John Anthony Jones Smith.

The relevant law under the Family Law Act was conveniently summarised by Lapthorn FM in S & H [2007] FMCAfam 97 where his Honour said:

"83. As in all children's cases the paramountcy principle applies. That is that the best interests of the child are the paramount consideration. That must always stand above the wishes of parents. Neither parent has the onus of proof in these cases as it is for the court to weigh up the competing factors for and against the change. In doing so the court should have regard to:

a) the short and long term effects of any change in the child's surname;

b) any embarrassment likely to be experienced by the child if it's name is different from that of the parent with residence or day to day care of the child;

c) any confusion of identity which may arise for the child if his or her name is changed or is not changed ; d) the effect which any change in surname may have on the relationship between the child and the parent: and

d) the effect which any change in surname may have on the relationship between the child and the parent; and

e) the effect of frequent or random changes of name.

See Chapman & Palmer (1978) FLC 90-510.  

84. In the decision of Beach & Stemmler (1979) FLC 90-692 Justice Connor suggested the following additional factors that the court may wish to consider:

a) the advantages both in the short term and in the long term which will accrue to the child if their surname remains as it is now.

b) the contact that the father has had and is likely to have in the future with the child.

c) the degree of identification that the child now has with the father.

d) the degree of identification which the child has now with the mother and step father.

e) the desire of the father that the original name be restored."

For more commentary on family law issues, please refer to para 25-100 and following.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 

Name changes

After some info if anyone can help.

Have just come across something that indicates my ex-wife may have changed my children's name to that of her new partner.  I was of the understanding that my consent was required for a name change.  It is possible for the ex to deny knowledge of my whereabouts to obtain a name change?  I am in Vic.  If this HAS happened, how do I go about changing it back?  I can prove that we have maintained contact and my location has always been known.

Thanks.
Well the first thing would be to help yourself. Joined today and asked a question, how about doing a little reading/research first!

Most of your answers have already appeared in the FLWG forum under various topics including 'change of name'.

Do a search, do some reading and then come back with questions about what you don't understand.
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