Change of Surname in Family Law
An issue which often arises in family law proceedings is where a parent seeks orders for change of surname for a child or for the child’s surname to be hyphenated and the other parent resists such a change in their child’s surname.
Statistically speaking the courts have tended to favour changes of surnames but in every case it depends on the circumstances and the court is guided by a variety of factors that have been laid down in previous cases before the Court.
The importance of a child’s name is illustrated by the inclusion of it in the definition of major long-term issues contained in within the definition of parental responsibility pursuant s.4(1) of the Family Law Act. However ultimately the decision to change a child’s surname is a matter to be determined by the court.
Considerations in relation to changing a child’s surname have been governed by the provisions of s.60CC of the Act. In making decisions under that section, the best interests of the child are the paramount consideration. The factors the court is required to consider in determining the best interests of the child are set out in the Act as “primary considerations” and “additional considerations”. The evaluation of those considerations is guided by specific objects and underlying principles found in s.60B of the Act.
In Devlin & Barta [2007] FamCA 512 Justice Guest referred to the comments in Chapman & Palmer (1978) 4 Fam LR 462 at [20] stating that;
What is clear is that the guiding principle to a determination of a change of surname is the best interests of the children. That must stand above the wishes or proprietary interests of the mother and the father.
In Chapman & Palmer (1978) 4 Fam LR 462 at [466] the Full Court held that the factors to which courts should have regard in determining whether there should be any change in the surname of the child include the following;
- the welfare of the child as the paramount consideration;
- the short and long term effects of any change in the child’s surname;
- any embarrassment likely to be experienced by the child if his or her name is different from that of a parent with custody or care and control;
- any confusion of identity which may arise for the child if his or her name is changed or is not changed;
- the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage (if relevant); and
- the effect of frequent or random changes of name.
In George v Radford [1976] HCA 39; (1976) 1 Fam LR 11,510; FLC 90-060 Watson J held at 11,514:
I consider that the factors which should guide me in this case are as follows –
- the final decision must be governed not by supposed parental rights but must be in the best interests of the children;
- short-term embarrassment must be weighed against long-term effects;
- where the father has a meaningful relationship with his children they should, unless there is a clear contra-indication bearing on their welfare, bear his name;
- children should not be subjected unnecessarily to a confusion of identity;
- a parent does not have the right unilaterally to change the surname of children in his or her custody or care and control: such a change requires the consent of both parents, or an order of the relevant court.[32]
Age of the Child
It seems that the younger the child, the more likely that a court may order a change of surname.
In Porritt & Dunford [2019] FCCA 1146 Judge Turner ordered a change of surname for a 5 year old child. In that case the mother submitted, among a raft of other reasons;
- That the change of surname would add to the child’s sense of identity and belonging to both parties, now that the parties were separated.
- The child was still very young and not aware of her current surname
- There was no evidence that the child would suffer from confusion about her identity if the change of name was ordered.
In Jordan & Klemmer [2014] FCCA 2233 at para [156] Judge Willis considered a change of surname for two children aged 10 and 12 and refused to order a change of surname on the basis that it would confusion as to their personal identity and would disconnect them totally from their father. At para [157] Willis J went on to state:
The effect of this order sought by the mother in my view is therefore, in all of the circumstances in this matter, likely to terminate the children’s connection with their father and paternal heritage. Overall the orders sought by the mother leave no hope for the children to resume a relationship with the father.
Another reason the courts have identified as a reason not to change a child’s surname at a later age is that they would likely suffer embarrassment with their friends as to the name change, and this would be a source of stress upon the child who has been known by that same name for a significant part of their adolescence.
Embarrassment
One of the relevant factors is whether the child will suffer embarrassment as a result of the change of name. This can come in a variety of ways but must be based on sufficient evidence put before the Court.
Hyphenated Names
Often a parent seeks to hyphenate the child’s surname to incorporate both parents surnames. Generally this would not result in a problem for the child in terms of their welfare however at times it may and the court has expressed concern.
In Chou & Parsons [2017] FamCA 65 Justice Hannam stated at [322];
A change to a hyphenated surname would enable each of the children to have their paternal and maternal identity recognised in their name which is in the best interests of both children.
In Sakhagi & Brawn [2017] FamCA 178 Justice Berman referred to the judgment of Fooks & McCarthy [1993] FamCA 117; (1994) FLC 92-450:-in which Justice Warnick questioned the utility of the general adoption of a hyphenated surname. Justice Berman took into account whether the child had a particular attachment to a surname. In that case Berman refused to change the child’s surname to a hyphenated name on the basis that the child, then aged nine, already had a particular attachment to the father’s surname. Accordingly Berman stated at [52] that:
I have found that the child has “a particular attachment” to “Brawn” as a surname and accordingly I do not consider there is any advantage to the child in a hyphenated surname. If anything, such an outcome might appease the parents, but does nothing to provide this child with stability and certainty.
In Vine & Wands [2013] FCCA 2284 Judge Scarlett stated at [158] that:
hyphenated surnames are not uncommon in Australian society and have been so for many years.
In Judd & Cotton [2016] FCCA 2306 Judge Williams refused to permit the change of surname and stated at [222]:
I am concerned that if the child’s surname were changed to a hyphenated surname, in the absence of goodwill and commitment to the new surname by both parents, this could be a catalyst for further conflict and resentment between the parents. It could also present difficulties for X unless both parents were consistently supportive. This would clearly not be in the child’s best interests.
In Mahoney v McKenzie [1993] FamCA 78; (1993) FLC 92-408, Warnick J dealt with a situation where the parties had been married for some 18 months, during which time their child, J was born. During the marriage the wife used the husband’s surname “Mahoney”, and J’s birth was registered under that name. After the parties separated, the wife reverted to her maiden name of “McKenzie”. When the husband learned that J was attending preschool under that name he sought orders designed to ensure the use of his surname for J. In the result, Warnick J found it would be in the best interests of J to have the use of both names and in the course of his judgment he had this to say, at page 80-186:
“His mother is Ms McKenzie, his father is Mr Mahoney. J is a product of their union. He would have a united surname. He has an ongoing relationship with both of his parents, though they do not live together. The use of a hyphenated surname might facilitate the recognition by others of J’s life circumstances and the ease with which J accepts his life circumstances.
Finally, the use of the hyphenated surname offers J a middle road in times of rapidly changing social attitudes. I would not purport to assess the degrees by which segments of society hold pertinent attitudes, but I can, I believe, recognise attitudes commonly found in society at this time. Some persons would support the proposition that in theory, if not in the application to a particular child, there should no longer be a preference for a paternal name. Some people would support the right of Ms McKenzie to revert to the use of her own family surname upon the breakdown of her relationship with Mr Mahony. Some people would support the right in Ms McKenzie to apply her surname for J, where she is custodian. Some would support the use of the combined surnames.
As J grows he will become aware of attitudes in the community. He may develop feelings and ideas of his own about his surname and the use of a hyphenated surname would seem to provide him with a non-contentious platform from which he may choose to move in one direction or another, or to maintain the compromise.”
Contact with Parent & Domestic Violence
In Gerald & Kenwood [2013] FCCA 2038 Judge Scarlett permitted a change of surname from the father’s name to the mother’s name and stated at [44]:
The evidence shows that the children have had very little contact with the father in recent years and there are concerns about his drinking and use of violence
Identification and Relationship With Each Parent
It is often submitted in court proceedings regarding a change of a child’s surname that the child’s name does not reflect her identification with both the mother and the father. This is one of the factors the court considers and how that impacts on the relationship with each parent.
If the change is surname will affect the meaningful relationship between the child and the parent the court may not order a change of surname. However there needs to be sufficient evidence in that regard.
Although interestingly in the case of Malmo & Hartigan [2010] FamCA 1182 Justice Rose stated at [29] that:
the bonding and relationship with a parent should not depend on what the name is in the child’s surname
In Lewis & Hing [2011] FamCA 30 Justice Cohen found that although a child wanted to change her name that it was as a result of influence from the mother. Justice Cohen stated at [114]:
The child probably does hold a view which rejects or diminishes her identification by her father’s surname, but this is entirely the creation of the mother who, as the father’s opposition to any change for the current formal situation infers, wants the change as part of her quest to undermine the child’s relationship with the father.
At [115] Justice Cohen went on to state:
The mother has unilaterally taken steps to do this through the child’s name……. I am quite satisfied that to help ensure that the child identifies sufficiently with her father she should use only the surname Hing. Lewis should not be part of her name whether with or without a hyphen or as one of her middle names. I shall make an order to that effect.
In Soler & Berendt [2013] FamCA 853 Justice Foster noted the high level of conflict between the parties and did not permit the change of surname that the mother sought. Justice Foster stated at [47]:
The Court is also required to consider the primary considerations set out in section 60CC. Firstly the Court is required to consider the benefit to the child of having a meaningful relationship with both of the child’s parents. It may be said that in relation to that relationship the question of surname would be of little relevance. However in the context of the inter-parental relationship as referred to above it is important for the purposes of the child’s relationship with his father that he retain the father’s surname. This will provide to the child a valuable reminder of his relationship with the father and as referred to above perhaps minimise the effect of the mother’s ongoing negative views of the father within her own household upon the child.
Relationship With Other Children
The court can take account of how their name will affect the relationship with others including other children in the family who may bear a different surname.
In Maraichers & Tesson [2009] FamCA 780 Justice Brown stated at [30]:
The court must focus on their best interests now and the way their name is likely to impact on them and their relationship in the future.
In Minchini & Stacey [2012] FamCA 738 Justice Ryan referred to this relationship with other children as a factor which resulted in a change of surname to a hyphenated name. Justice Ryan stated at [104} that;
N and the child will attend school together. The reality for these boys is that they are brothers who will grow up in the same home. They will be known in the community as brothers. I accept that brothers in this modern age can have different surnames and that the fact of doing so is unremarkable. However, it strengthens the boys’ connection to each other if, at least, part of their names are the same. It strengthens their connection if publicly, for example, at school assembly or on a sports ground their names are called out one after the after.
When a Parent Unilaterally Refers to a Child as a Different Surname
The Full Court in In the Marriage of George and Radford [1976] FamCA 31; stated that;
a parent does not have the right unilaterally to change the surname of children in his or her custody or care and control: such a change requires the consent of both parents, or an order of the relevant court.
Therefore it might be argued that when a parent goes about referring to a child as a different surname that this undermines the consent and order required to change such a surname.
Proprietary Interest – “My Name not Yours!”
Often a parent wishes to change a child’s surname for their own selfish desire or hatred towards the other parent and they cannot provide to the court any evidence as to why it is in the child’s best interests to change their surname.
In Chapman & Palmer it was stated at [77676] that;
To conclude, it must be remarked that there appear to be situations where one parent or the other, and possibly both, appear to attach far too much importance to the question of the child’s surname. It is seen by some parents almost as a proprietary interest. Attitudes of this kind are unlikely to find favour with the Court, and often seem calculated to destroy the relationship between the child and the parent in question. The Court should give no encouragement to parents who seek to change a child’s name for reasons unconnected with the welfare of that child nor to parents who oppose a change only to bolster their proprietorial interest in the child. The fact that the parents are haggling over the surname can of itself engender insecurity and confusion in the child’s mind.
Family Lineage
Often parents will argue that keeping their family name as part of the child’s name would benefit them because of their association with the family lineage. In itself this factor is not determinative.
In Reynolds & Sherman (2015) FLC 93-659 the Full Court expressed concern about the trial judge’s finding that a hyphenated name would benefit the child by giving him “an identity with both families and an understanding of where he fits into each family”. The Full Court stated:
Although we accept such matters may be seen as falling within a trial judge’s discretion, we consider that this line of reasoning comes dangerously close to a presumption in favour of hyphenating a child’s surname where the parents have different surnames. The corollary of the proposition would seem to be that the many children who grow up bearing the name of only one of their parents will not “possess an identity” with the family of the other parent and will not have an understanding about where they fit into each family. It would seem to us that many factors other than the child’s name would be more likely to affect these outcomes. However, in the absence of expert evidence, it would arguably be unsafe to make assumptions either way.
Will Part of the Hyphenated name be Dropped Off
In Hurley & Simpson [2016] FamCA 139 Justice Watts did not permit a child’s name to be changed from the father’s surname to a hyphenated name because of the concern that the father’s surname would be dropped off. At [12] Counsel for the father submitted that;
given the mother’s attitude to the father and the father’s family, it is a reasonable expectation that Simpson (as part of a hyphenated surname) will shortly be dropped off and the surname will ultimately remain as only Hurley.
Watts stated at [123];
I am not attracted to the hyphenated name as suggested by the Independent Children’s Lawyer because I accept the argument of counsel for the father that it is likely that at school the first part of the surname will be dropped off given the length of the double barrel name.
Name Recorded at Birth
Often parents, particularly the father will argue that there was an agreement that the child’s surname be recorded as the father’s name when the child was born. However in Chou & Parsons [2017] FamCA 65 Justice Hannam stated at [321] that:
In my view, separated parents should not necessarily be bound to agreements they made prior to separation, especially where for other reasons relating to the child’s best interest it is appropriate for the child’s name to be changed.
A Reminder of Conflict
Justice Thornton in Jacobova & Stein [2016] FamCA 825 refused to change a surname from the father’s name to a hyphenated name on the basis that given the child’s particular vulnerabilities in that case and her exposure to conflict between her mother and father that a change of surname would be a constant reminder of the conflict between her parents.
This is in contrast to the judgment of Perkins & Everly [2009] FamCA 1055 in which Justice Watts stated at [176] that;
I think that in this case where there is a dysfunctional relationship between the parents, there is significant strength in the argument that a hyphenated name will increase the identification of each child with both parents.
Leigh Finch is a Barrister admitted into the Supreme Court of NSW and regularly appears in the Federal Circuit and Family Court of Australia in family law matters. Leigh Finch accepts direct access briefs in family law proceedings. Leigh also appears as a defence Barrister in criminal law proceedings having appeared in jury trials. Leigh's practice also encompasses civil matters and human rights proceedings.
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