The Ex-Files: With his dad barely in his life, can I change my son’s surname?

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Q: I have a son, aged 6. I separated from his father three years ago. My son’s father has since moved back to Australia. My son spends limited time with him: he stays with his father for about a week at Christmas time and for a second week over the July school holidays. Given the father’s limited involvement in my son’s life, I would like to change his surname to my surname. Can I do this?

A: Your son’s name, and any change to it, is a guardianship decision. Your son’s father remains a guardian despite the fact they do not spend much time together. You would need to seek his consent to the change of name.

If your son’s father withholds his consent to the name change, then you will need to apply to the Family Court for a guardianship direction on the issue.

Examples of the Family Court permitting a name change include cases where:

• A father and child had very similar names and a Google search of the son’s name would bring up the father’s history of criminal offending;
• The child had been given the name of a record label. This, understandably, caused the child’s mother concern that the child would be ridiculed at school;
• The father had had no contact with his children for four years. It was noted that it would be easier for the mother to travel with the children if they had the same surname as their mother.

In deciding whether to change a child’s surname, a judge will consider what is in the child’s welfare and best interests. Related to this are the following considerations:

• The effects of the name change, both short and long term;
• Any embarrassment likely to be experienced by a child if their name is different to the parent who is their primary caregiver;
• Possible confusion of identity that may arise for a child if their name is changed;
• The effect of the change in name on the relationship between the child and the other parent;
• The effect of frequent or random changes of name.

Assuming your son’s father does not consent and the matter progresses to Court, a lawyer for child would be appointed for your son and he would have an opportunity to express his views.

However, at age 6, your son is not likely to understand the full implications of a change in his surname - particularly with respect to how this may impact his relationship with his father.

The judge will take into account your son’s age (and his limited understanding of the consequences) when determining how much weight to give his views.

There are some valid reasons why your son’s surname should be changed. Your son spends most of his time with you. You undertake nearly all the parenting responsibilities. It would be easier for you in your dealings with schools, doctors and other organisations if your son shared your surname.

On the other hand, your son’s father has been a consistent presence in your son’s life even though the contact time is minimal. There is the possibility the contact could increase as your son gets older.

Applying to the court to change your son’s name would likely have a negative impact on your relationship with your son’s father. For your son’s sake, it is preferable that the two of you maintain an amicable relationship if possible.

I would suggest you approach your son’s father and ask for his consent. If he does not agree, I would advise against court proceedings, given the risk that the court would decline to make an order in favour of changing your son’s name.

Once your son turns 18, he will legally be able to change his name himself should he wish to.

Jeremy Sutton is a barrister and family lawyer at Bastion Chambers.