CHANGING A CHILD’S NAME
Changing a child’s name with both parents’ consent is relatively straightforward; an application, signed by both parents, together with a fee and identification documents, is lodged in the Births, Deaths and Marriages Registry located in the state/territory in which the child’s birth was registered.
But what does a parent seeking to change their child’s name do if the other parent won’t consent to the name change? For children whose birth was registered in Queensland, there’s two options.
The first option is to apply to a Magistrates Court for an Order approving a change of the child’s name. This involves filing an ‘Originating Application’ and Affidavit, providing copies of that material to the other parent, and having a hearing before a Magistrate who will ultimately decide whether to approve the change of name. Of course, the parent who won’t consent to the change of name is given an opportunity to respond to the Applicant’s case. The factors the Magistrate may take into account in such applications include the views of the child and parents and the likely impact of the change (amongst other factors).
The second option is to apply to a Federal Circuit Court or Family Court for an Order approving a change of the child’s name (or for an Order seeking sole parental responsibility in respect of the child). The process in the Federal Circuit / Family Court is similar to the process in the Magistrates Court; applicant files material, respondent is given an opportunity to respond, matter ultimately proceeds to a hearing before a Judicial Officer.
The choice of Court is largely guided by whether it is just the change of name issue, or a number of issues (change of name, living arrangements et cetera) requiring resolution.
Where a proposed change of name alone requires resolution, it’s usually best to proceed via the Magistrates Court as the process is typically a lot simpler, quicker, and more cost effective. Also, and this is a huge advantage of litigating in the Magistrates Court, an application for a change of name in the Magistrates Court is limited to the change of name issue alone, so the Magistrate cannot make other parenting Orders when hearing the change of name application (like Orders concerning how much time a child is to spend with a parent). Magistrates do have the power to make those Orders, but only if a different type of Application (called an Initiating Application) is filed in the Magistrates Court – not where a respondent contests an Originating Application seeking a change of name.
Where a number of parenting issues require resolution, the most appropriate Courts are the Family Law Courts (the Federal Circuit / Family Court) as they are empowered to make Orders in respect of a number of parenting issues, and do so on a daily basis.
**Please note this post is for information purposes only. You should always obtain tailored legal advice before taking action.
This article was written by Kyle Barram, family law solicitor on 28 October 2016. Kyle heads up our team of family lawyers in Townsville.