The Law Handbook 2024

Chapter 4.5: Changing your name 311 meaning of which is discussed in ‘Registering a new name’, above). Court hearings Most cases involving changing a child’s name will be heard in the Federal Circuit and Family Court of Australia ( FCFCOA ). Under the Family Law Act 1975 (Cth), the FCFCOA can make decisions about the names of children where presumption of parentage arises frommarriage, cohabitation, registration of birth, or a court. The FCFCOA can also make decisions enabling a child’s name to be changed, or stopping a child’s name from being changed, or restoring a child’s previous name. The Magistrates’ Court of Victoria can make decisions about a child’s name with the consent of both parties. If consent is refused or withdrawn, the matter is transferred to the FCFCOA. If a child’s name is to be changed for reasons not related to a family law matter, the matter can be heard in the County Court. Contact the registrar of the County Court for further advice on this matter (see ‘Contacts’ at the end of this chapter). When making a decision about changing a child’s name, a court must, above all, consider what is in the child’s best interest (i.e. the paramountcy principle). Therefore, the court considers: • the welfare of the child; • the short-term and long-term effects on the child of a change in their family name; • any likely embarrassment that the child has or may experience due to the use of a name that is different from that of the parent who has primary care of the child; • the effect any change may have on the relationship between the child and the parent with whom the child previously shared a family name; • the effect of frequent and random name changes; • the advantages to the child in the short and long term, if the name remains as it is now; • the time that the child spends, or is likely to spend, with the parent the child does not live with; • the degree of identification that the child now has with the non-resident parent; • the degree of identification that the child now has with their parents’ new partners (if any); • the wishes of the child in appropriate circumstances. The court usually also takes into consideration: • the parents’ reasons for requesting or resisting a name change; • the degree of harmony or disharmony that the change of name may generate between disputing parents, and the resultant lessening or increasing of tension between the parents, that may either beneficially or adversely affect the child; • any customs regarding the use of a family name in a particular cultural community or segment of society. Note that when a court makes an order changing a child’s family name, it is not necessary for the other parent to sign any documents, as the court has the power to order the BDM registrar to register the child’s new name. Children of unmarried parents Children of unmarried parents (e.g. partners living in a de facto relationship) have the same legal status as children of married parents. For more information, see Chapter 4.3: Same-sex and de facto couples and families. Mediation and pre-action procedures In all parenting matters, including disputes associated with a child’s name, the applicant must participate or attempt to participate in mediation before filing an application with a court. This means that the applicant must not only provide relevant information to the other party and make a genuine attempt to settle the matter out of court, but they must also obtain a certificate that the matter could not be resolved through mediation. These certificates are issued by authorised dispute resolution practitioners. Information about pre-action procedures and compulsory mediation is available from the FCFCOA’s website. Adopted children When an adoption order is made in Victoria, the adopted child’s surname is changed in accordance with section 56 of the Adoption Act 1984 (Vic). The court has to approve the adopted child’s new surname or any proposed new first name(s). The court may not do so until the child’s wishes and feelings are ascertained; these wishes are factored into the court’s decision, with the child’s age and level of understanding also taken into account.