I'm debating with the ex and her solicitor about adding an Order to our draft Consent Orders. Basically, I want something in there that prevents either one of us from changing our children's names from those that appear on their birth certificates. They've (the ex and her solicitor) assured me that neither parent can do this. Is this assertion correct? Could either one of us legally rename our children without the written consent of the other?
Clearly YES (Certainly pre July 2006)
There are many many cases about change of names. Some have judgements that allow the changes some do not. The Federal Magistartes web site used to be a great resource for finding material as the published cases were itemised by category but now its all linked to Austlii and is no where as user friendly in my view.
The first principal is TRUST NO ONE when it comes to names. It is a very important matter not to be dealt with lightly. For example a mother may enrol the children in the school system with her maiden name. Once they are in the school system with a name that is different you may as well forget it. It is extremly hard to change common useage back.
I've had a brief look on Austlii and it's peppered with cases where one party wants to correct a perceived spelling mistake (Italian surnames) OR someone wants to change the second part of a double barelled surname etc. What do you think? Am I pushing too hard for this to be included? Don't want to appear to be pedantic in front of the Magistrate.
Changing a name requires only an advice to Births Deaths and Marriages with a stautory declaration and no real penalty for false declarations. Take a look at the BDM web site for the requirements in your state.
The new Family Law Act did not specifically deal with name changes and we did ask for some amendments in this area but is does suggest now that it might make it significantly more difficult to change the name if that would affect the ability of the child to have a meaningfull relationship. There is a new section 60CC "Attitude of Paernts" and talks about the willingness of each parent to facilitate and encourage a close relationship with the children for the other parent which is now a major item in determining factors. Chnaging a name might clearly contravene this section.
Here is an older extract of a case in 2004 that uses a lot of case law precedent and is before the new legislation was implimented. In this regard there is another case somewhere in the Federal Magistrates case files that talks about a maternal bonding for fathers where the surname is an important heritage or "roots" or "culture" factor. I cant remember exactly what that case was but I do know orders were made for the name to be changed back to the fathers surname. The one below is interesting.
No. (P)PAM 3267/2004
BEFORE: FEDERAL MAGISTRATE SCARLETT
DATE: 24 November 2004
MADE AT: PARRAMATTA
47. As the father is applying for an order changing the child's surname, I will cite the principles that apply to this consideration.
48. In Chapman and Palmer (1978) 4 Fa" LR 462; FLC 90-510, the Full Court of the Family Court stated that the general principle appeared to be that the Court would not intervene to prevent a parent from changing the name of a child in the custody (however) described of that parent unless the Court were satisfied that "The change was made without the consent of the other parent and that it does not promote the welfare of the child".
49. The Full Court set out a number of factors to which a court should have regard, including:
a) The welfare of the child is the paramount consideration;
b) The short and long term effects of any change in the child's surname;
c) Any embarrassment likely to be suffered by the child if his or her name is different from that of the parent with whom that child lives.
d) Any confusion that may arise for the child if his or her name is not changed;
e) The effect that any change in surname may have on the relationship between the child and the parent whose name the
child bore during the marriage (if the parties were married); and
f) The effect of frequent or random changes of name.
50, In Beach and Stemmler (1979) FLC 90-692 Connor S took into account the matters set out in Chapman and Palmer (supra) and mentioned certain additional matters that may be relevant:
a) The advantages both in the short term and the long term that will accrue to the children if their name re'_'ains as it is;
b) The contact that the husband or father had and is likely to have in the future with the children;
c) The degree of identification that the children now have with their father: and
d) The desire of the father that the original name be restored.
51, In Mahony and McKenzie (1993) FLC 92-408, Warnick J attached no significance to the fact that the child's surname had been registered as the father's surname at birth, He held that a number of benefits could be expected to arise from the use of a hyphenated surname, made up of the surnames of each parent. One such advantage was that the use of the name accorded with the reality of life. The child had an ongoing relationship with both parents.
52. In Flanagan and Handcock (2001) FLC 93-074, the Full Court held that the power to change a child's name is clearly an aspect of parental responsibility as defined by 5.
61B of the Family Law Act. The resolution of a dispute between parents of a child about that child's name is ultimately to be resolved by the making of a specific issues order under the provisions of s. 65D, which is governed by the provisions of s. 65E. In its turn, 5. 65E requires the court to consider the welfare of the child as the paramount consideration,
In this Part1, parental responsibility, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
54 Section 65D of the Act states:
(I) In proceedings for a parenting order, the court may, subject to this Division, ma/ce such parenting order as it thinks proper.
(2) Without limiting the generality of subsection (1) and subject to this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order
(3) (Not relevant).