How to legally change a child’s surname in Australia: A guide

In Australia, about 90% of children of married parents have their father’s last name (according to a Victorian study). And of children born to unmarried parents, 75% also had the father’s surname. 

But if you’re separated, divorced, or even remarrying, you might want to change your child’s last name to yours instead. Or if you’re changing your own last name – for whatever reason – you might want to change your child’s as well.

In any of these cases, you’re likely wondering, can I change my child’s surname legally? And if so, how?

Can I change my child’s surname?

If you are wondering, can I change my child’s surname, then the answer is yes! However, it’s not quite as straightforward as changing your own name. 

Here are some scenarios to consider.

If you’re the mother and the father isn’t listed on the birth certificate or is deceased

As long as your child was born in Australia or is an Australian citizen or permanent resident, then you can simply apply to change the surname of your child. The reason for this is that under the Family Law Act 1975 (Family Law Act), both parents of a child retain shared parental responsibility – even if the parents have divorced or separated – as long as the child is under the age of 18. This includes any long-term decisions, such as a name change. 

However, because you are the only parent with ‘parental responsibility’ under the Family Law Act you can make this decision on behalf of your child until they reach the age of 18. The process is then simple and straightforward. 

The other parent is listed on the birth certificate (or otherwise has shared parental responsibility)

In most cases, when you want to change your child’s surname, both parents will need to give consent. This is because both parents share parental responsibility under the Family Law Act. (Recent amendments have eliminated the presumption of ‘equal shared parental responsibility’ but shared responsibility still remains.) 

So if you’re the parent filing the application and wondering if ‘can I change my child’s surname without the other parent’s permission’ you’ll have to reach out to the other parent for permission. This will absolutely be the case if the other parent is listed on the birth certificate or if they’ve otherwise demonstrated that they share parental responsibility. 

So what happens if your ex-partner doesn’t want you to change the child’s name?

If you have a court order of ‘sole parental responsibility’

If your ex-partner doesn’t want you to change your child’s name, in some cases you might be able to seek a ‘sole parental responsibility’ order. This is a court order that means that only one parent has the authority to make decisions on behalf of their minor children, even if another living parent is listed on the birth certificate. 

This court order overrides the general presumption under Family Law that both parents share parental responsibility. So if you have this court order in place, you can then file for a name change for your child without needing permission from the other parent. 

It can be very difficult to get a sole parental responsibility order. The court will consider the best interests of the child as paramount and the need to protect the children from harm.

If you think this might be the right approach for you, it’s best to speak to an experienced family lawyer first.  

Can I change my child’s surname without the father’s permission?

If the other parent doesn’t want to grant permission to change your child’s surname, and you aren’t able to get a sole parental responsibility court order, you can apply to the Family Court for an order allowing the name change.

Your first step, however, will be to attend mediation or other dispute resolution process, with the other parent. The court will require you to prove that you’ve made a genuine attempt to work through the issues outside of the court system first, which means attending some form of dispute resolution before they’ll allow you to bring a proceeding in the court system. 

Once you’re in the court system, there are some factors the court might consider before making a decision. These could include:

• The amount of time the child spends with the parents
• The impact of the name change on parental relationships
• The impact of the name change on the child
• Whether your child has had a name change previously
• The child’s welfare
• Additional factors that relate to your unique situation, such as cultural customs

Whether you’re going through dispute resolution or court proceedings, we highly recommend that you work with an expert family lawyer who can help put your case in the best light.

How to change a child’s surname in Australia

The steps to change a child’s surname in Australia are fairly straightforward, as long as you have:

• The consent of both parents;
• Only the applying parent is listed on the birth certificate;
• Only the applying parent is living;
• The applying parent has an order for sole parental responsibility; or
• The applying parent has an order allowing the name change.

If you do, then you simply need to lodge an application to Births, Deaths and Marriages in the state or territory where your child was born. If your child is born overseas, and they’re otherwise an Aussie citizen or permanent resident, then you need to lodge the application in the state or territory in which the child currently lives. They need to have lived in that particular place for at least 12 months. 

Children over 12

It’s important to note that children over 12 will also need to agree to the name change. This allows the court to protect the best interests of the children. If your child can’t understand the consequences of changing their name, either due to age or disability, then the court will make a decision based on whether it’s in the best interests of the child. 

How we can help at Australian Family Lawyers

At Australian Family Lawyers, our family law specialists are experts at managing all areas of Family Law, including issues around changing a child’s surname or even changing your maiden name. We can help you understand your options, as well as help you with mediation, dispute resolution, and court proceedings. 

Feel free to request a call back from our supportive team by filling out the form below or call us directly.