For many cultures, your name holds a lot of importance and ties to your personal identity. It is a valuable source of information; it signifies and carries deep roots for your cultural and familial historical connections. It can represent a lot about a person’s social standing, ethnicity, and gender identity. It is one of the first things we learn as a child, so it goes without saying that changing something so rooted in our identity is a huge decision and not to be taken lightly.
Without permission from both parents, a person under the age of eighteen (18) is not able to legally change their name without an order from the Court. Likewise, a parent is not able to change the name of their child without written consent of the other parent.
If you do not have permission of the other parent to change your child’s name and your child was born in Queensland, you may be able to apply to the Queensland Magistrates Court seeking an Order dealing with this specific issue only.
The main issue for the court is whether the name change will be in the child’s best interest.
In deciding a Name Change Application,[1] the Court considers the following as to whether a proposed change of name for a child is in the child’s best interests:
The Magistrates Court uses guidance from case law assisting the Federal Circuit and Family Court of Australia (as discussed further below). However, an Application in the Magistrates Court is not bound by the same pre-action requirements as an Application in the Federal Circuit and Family Court of Australia.
The Magistrates Court is also only able to deal with the discreet issue in respect to the Name Change Application, which means it is not empowered to make Orders in respect of child contacts or parental responsibility. This is dealt with in the Federal Circuit and Family Court of Australia.
Before considering a Name Change Application, it will be helpful to show the Magistrates Court the following:
Generally, the other parent needs to be made aware of the proceedings before a Court can determine it. However, substituted service can be sought, where you are unable to physically locate the other parent but can serve via electronic means. However, an order seeking the location of the other party is not readily available through this process.
[1] DKL v Van K [2017] QMC 19 at [19] and [24] also see Births Deaths and Marriages Registration 2003 (Qld), Section 9 and 17 and Births Deaths and Marriages Registration Regulation 2015 (Qld) Section 9.
The changing of a child’s name under the Federal Court and Family Court of Australia is expressly referred to in the Family Law Act 1975 (Cth) to be a joint decision to be made together by the parents (or guardians) of a child. If a joint decision cannot be made, the parents have the option to make an Application to the Federal Court and Family Court of Australia.
The decision of Chapman and Palmer (1978) FLC 90-510 set out a range of factors to consider when deciding to change to a child’s name as follows:
The decision of Beach and Stemmler (1979) FLC 90-692 identified six (6) additional factors to take into consideration as follows:
If you are considering filing in the Federal Court and Family Court of Australia, you would be required to comply with any pre-action requirements such as attending mediation before filing an Initiating Application (unless any exemptions apply to these processes).
The initiating parent would also be required to file a Genuine Steps Certificate which would speak to your previous attempts at mediation and your written notice to the other parent notifying them of your intention to file court proceedings.
This would also mean that if you make an Application the Federal Court and Family Court of Australia you may have to anticipate a response from the other parent in seeking parenting orders or time with the child (or related children) at the centre of the Name Change Application and not just the Name Change as a discreet issue.
|
Magistrates Court |
Federal Circuit Court and Family Court |
Dealing with discreet issue of name change? |
Yes |
Yes – however the Court can also determine Parenting Orders depending on the other parent’s response |
Pre-Action Procedures required prior to filing? |
No |
Yes |
Substituted Service? |
Yes |
Yes |
Location Order. |
No |
Yes |
Filing Fee (current as at 13 February 2022). |
$118.35 |
$365.00 to $490.00 (depending on what Orders you are seeking) |
Bailiff/ Service Fee (costs will depend on where the other party is located). |
$140.00 to $300.00 |
$140.00 to $300.00 |
Financial Hardship Application or Fee Waiver. |
No |
Yes |
Additional Filing Fees with Births, Deaths and Marriages – registering Change of Name |
$193.20 |
$193.20 |
Time to first appearance |
1 month |
1 month – 3 months
|
Each name is as unique as the family it represents and so the same approach is not going to work for every family. Our experienced Family Lawyers at O’SheaDyer Solicitors can recommend the best course of action for you.
If this is something you wish to pursue, call us on 47 725 155 to make an appointment to discuss which approach may be best for your situation.
We offer first appointments with an experienced family lawyer for a low fixed fee of $330 (inc gst).
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