Naming a child
Under the Births, Deaths and Marriages Registration Act 1996 (Vic) (‘BDMR Act’):
- a child’s name can be registered under any name, rather than only under the name of one or both of the parents;
- the registrar of Births, Deaths and Marriages (‘BDM registrar’) can assign a name to a child if the child’s proposed name is a prohibited name, or if both parents satisfy the BDM registrar that they are unable to agree on the child’s name;
- if there is a dispute between the parents about a child’s name, either parent can apply to the Federal Circuit and Family Court of Australia or to the County Court of Victoria to resolve the dispute. The court can make an order requesting that the BDM registrar register the child’s name as specified in the order (note that there is no specific provision in the Family Law Act 1975 (Cth) that grants power to a court to order the BDM registrar to record a new name, but courts will do this if it is in the child’s best interest).
The above information relates to the naming of a child after birth. There are additional rules that apply to the registration of the child’s birth and parentage details (see www.bdm.vic.gov.au/baby).
Changing a child’s name
Restrictions to changing a child’s name
Restrictions apply to changing a child’s name:
- A person under the age of 18 cannot apply to register a change to their name unless they are married or have been married.
- For a child born in Victoria, the parents of a child under the age of 18 can apply to BDM Vic to register a change of name. If the child was born interstate, the parents must apply to the relevant Births, Deaths and Marriages Registry in that state. If the child was born overseas but has lived in Victoria for at least the last 12 months, the parents can apply to BDM Vic to register the name change.
- A parent does not have the right to unilaterally change a child’s family name, even if they have the primary care of the child. Such a change requires the consent of both parents or a court order.
- One parent can apply to register a change to their child’s name if that parent is named as the sole parent in the child’s birth registration (or under any other law), or they are the only surviving parent, or if a court approves the parent’s proposed name change (a court will approve a proposed change if it is in the child’s best interest).
- A child’s guardian can apply to register a change to the child’s name if the child’s parents are dead, cannot be found, or cannot exercise their parental responsibilities.
- If the child is 12 years or older, they must consent to changing their name unless the BDM registrar is satisfied that the child is unable to understand the meaning and implications of the name change. This provision may need to be taken into account in any court proceedings.
- The BDM registrar can refuse to register any change to a child’s name if, as a result of registration, the new name would become a prohibited name (the meaning of which is discussed in ‘Registering a new name’ in ‘Changing a name‘).
From 1 September 2021, most cases involving changing a child’s name will be heard in the Federal Circuit Court and Family Court of Australia (FCFCA).
Under the Family Law Act 1975 (Cth), the Federal Circuit Court and the Family Court can make decisions about the names of children where a presumption of parentage arises from marriage, cohabitation, registration of birth or a court. These courts 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 Family Court.
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.
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 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 website of the Federal Circuit and Family Court of Australia.
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 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.