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Can I change my child’s last name without their father’s consent?

Mother and son making faces. Changing a child's name without the father's consent.

by | Oct 17, 2021 | Blog, Children

If you have separated from or divorced your partner and have a child together, it’s likely your child has the father’s last name. You may wish to change the child’s last name to yours instead. How easy is it to do this, and is it possible even if their father is against the decision?

The answer is yes, but it can be difficult and you may need the help of a Melbourne child custody lawyer.

Why can’t I change my child’s name via the usual process?

The normal process to change a child’s name in Australia is by lodging an application to Births, Deaths and Marriages in the state or territory in which your child was born. If your child was born overseas, then most states let you lodge an application provided that:

  • your child is an Australian citizen or permanent resident; and,
  • has lived continuously in that particular state or territory for at least 12 months.

You alone can complete the application. However, if the father is also listed on the birth certificate then his consent is usually required. This is because under the Family Law Act 1975, both parents of a child under the age of 18 share parental responsibility for the long-term decision-making for that child. This doesn’t change should the parents separate or remarry, and it includes decisions relating to their name.

Therefore, in most cases the only way you can legally change your child’s last name without the consent of their father is if the father has passed away or you are the only parent listed on your child’s birth certificate.

However, there may be an alternative. A court order issued by The Federal Circuit and Family Court of Australia (FCFCA) or a Family Court in your state or territory can allow you to change your child’s last name.

Before you begin court proceedings to change your child’s name

Before embarking on court proceedings, you’ll need to prove that you have participated in Family Dispute Resolution (FDR). This means you need to make a genuine attempt to reach an agreement with the child’s father outside of court, and obtain a certificate proving that the matter could not be resolved in this way.

FDR is a mediation process where you discuss issues with your former partner, as well as any other family members who may be involved in the dispute over the name change. The FDR practitioner is impartial and independent and cannot give you legal advice or tell you what to do; they are there to mediate the discussion.

Testart Melbourne divorce lawyers are experienced mediators and can guide you through this entire process, doing everything we can to keep your case out of the courts.

​​If mediation fails, you should be able to get a certificate from your FDR practitioner, which will enable you to begin court proceedings. Before this, however, it’s a good idea to engage the help of a child custody lawyer. They will be able to help you navigate the court proceedings and provide advice on the processes involved and the likely outcome.

Mother and young daughter outside. Can I change my child's last name without their father's consent?

What does the court consider when making a decision?

The court will consider your child’s best interests when deciding whether the name change can take place. Some of the factors it will consider include:

  • the amount of time your child spends with each parent;
  • the impact the change of last name might have on your child’s relationship with their father, whose last name they currently bear;
  • whether there have been changes to your child’s name in the past;
  • your child’s welfare;
  • the short- and long-term impacts of both your child’s name remaining the same and of it changing.

The Court will also take additional factors into account, some of which are:

  • customs regarding the use of a last name in a cultural community;
  • the degree of harmony or disharmony that may result between you and your child’s father as a result of the change of name, and how this might affect your child;
  • your reasons for requesting or resisting the name change.

What happens once the court decides in my favour?

If the court does issue a court order permitting the change of your child’s name, then you must submit this along with your application to Births, Deaths and Marriages in your state or territory.

If you’re looking for a family lawyer in Melbourne to help you change your child’s last name when you don’t have their father’s consent, get in touch with Testart Family Lawyers.

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