Child’s Name Change After Separation

Background

A parent may for a variety of reasons wish to obtain a child’s name change following a separation. In the recent case of Somerville & Somerville (No.2) [2018] FCCA 2665 (21 September 2018), Judge Mercuri of the Federal Circuit Court of Australia ordered a child’s name change from that of her biological father to an altered derivative of the biological mother’s maiden name and that the Mother make application to the Victorian Registry of Births, Deaths and Marriages to register the child’s surname be changed as ordered.

The parties had been before the Court on previous occasion with Final Parenting Orders made in November 2017. The Orders provided for the Mother to have sole parental responsibility (meaning that she was able to make all major long term decisions for the child without considering the wishes of the Father). The Orders made in November 2017 also provided that the Mother be able to relocate with the child from the Melbourne area to the Brisbane area, for the Father to spend no time with the child and only to communicate with the child through cards, letters and gifts limited to 3 occasions per year.

Court Analysis

The Mother brought an application to the Court for the Father to be brought to account for publishing matters relating to the previous proceedings which identified her, the maternal grandmother and the child which negatively influenced members of her church group in Queensland. This was prohibited through the November 2017 Order and more generally by section 121 of the Family Law Act, however in the same application the Mother sought a Court Order which allowed her to change the name of the child.

The Father denied involvement in the publishing of private and identifying material and sought that the child’s surname not be changed. He sought that the matter not be allowed to proceed on the basis that there had been no material change in the circumstances from when the November 2017 Order had been made. This is a well-established principle upheld by family law courts applying the decision of Rice v Asplund [1978] FamCA 84; (1979) FLC 90-725.

The Mother pointed to the relocation to Queensland and publication of identifying negative details as a material change in the circumstances which the Judge accepted.

The Mother relied on evidence provided in the November 2017 proceeding from doctors and health professionals treating the child to establish that the mental health of the child was affected by the conduct of the Father to the extent that she had been diagnosed with Post-Traumatic Stress Disorder. The Mother arguments included that the child’s name change would assist in the child’s rehabilitation. Further, that publication of identifying negative details has caused her embarrassment which will follow her if she continues to use the surname; that she no longer wants to be associated to the Husband and reminded of the ‘harrowing abuse’ she suffered during the relationship. The Mother also argued that she wanted to have a surname that the child and her can share that will allow the child to identify with happiness and emotional assurance.

The Father posed that the application for the child’s name change was just another way in which the mother was seeking to eliminate any trace of him as the child’s father. That evidence given the doctor and health professionals in the November proceedings did not relate to a change in the child’s surname and that there was no evidence before the court that changing the child’s surname would assist in her rehabilitation.

The court considered a leading case which summarised factors as those to which a court should have regard in determining whether there should be a change to the child’s name:

1. the welfare of the child is paramount;
2. the short and long term effects of any change in the child’s surname;
3. any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control;
4. any confusion of identity which may arise for the child if his or her name is changed or is not changed;
5. 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; and
6. the effect of frequent or random changes of name.

His Honour also considered in detail each of the relevant provisions within section 60B of the Family Law Act.

Orders

After thorough consideration of the evidence with reference to the Family Law Act and relevant precedents, the Judge ordered that the child’s name be changed to that proposed by the Mother.

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