What’s in a Name? Legal Disputes Over Naming a Child

Deciding on the name of a child can take months of thought. Even happy couples struggle to agree when it comes to choosing a given name for their new baby. It can be an even more fraught issue if the parents cannot agree on the child’s surname. In Australia, there is no legal requirements for a child to bear a particular surname, although historically it has been more common for a child to take the father’s surname. The issue of what to name a child can become even more contentious when the parents are separated or divorced, to the point that sometimes the parents can only resolve the matter in court. This article looks at legal disputes over naming a child.

Parental responsibility

To understand the law in relation to naming a child, the first step is to appreciate the concept of ‘parental responsibility’ under Australian Family Law. Parental responsibility refers to the power of a person to make decisions for a child under the age of 18. Of course, parents make dozens of decisions for their children every day, from what they eat to when they go to bed. But some ‘major long-term decisions’, such as where the child goes to school and whether they follow a certain faith, have special importance because they are likely to have genuine impact on the child’s life. The law says that these important decisions should not be made unilaterally by one person if more than one person has parental responsibility for that child.

Under the Family Law Act 1975, naming a child is considered a ‘major long-term decision’. Therefore, those with shared parental responsibility for a child must genuinely try to make a joint decision on the name of the child.

Although it is usually the biological parents of a child who exercise parental responsibility, this is not always the case. A parent can give up or lose parental responsibility, in which case the other parent has sole parental responsibility, and can make all the major long-term decisions (including naming the child) without the other parent’s input. Conversely, a person who is not the biological parent may gain parental responsibility for a child, if that is in the child’s best interests (s 64B(2)(i)). In that case, the person deciding the child’s name may not be a biological parent, but someone who has been invested with parental responsibility.

Court order

When those with shared parental responsibility cannot reach an agreement on the name of a child, and mediation cannot resolve the matter, either person can apply for a court order to settle the dispute. As unlikely as it sounds, there is a substantial case history of parents litigating their children’s names, notably in the cases Chapman & Palmer (1978), Beach and Stemmler (1979) and Flanagan and Hancock [2000]. These court proceedings are often initiated by one parent asking the court to use its injunctive power under section 68B(1) of the Act to restrain the other parent from changing the child’s name following a separation. In these cases, the court has either granted the injunction or declined to make orders in relation to the child’s name (see the Federal Magistrates Court of Australia decision in Redden & Mains [2010]).

When making a decision about the surname of a child, the court takes into account a number of factors, all of which are aimed at determining what is in the best interests of the child:

• The short and long-term impact on the child of changing their name
• Any embarrassment the child might feel from having a different surname from their parent
• Any identity confusion the child could experience from changing or not changing their name
• The impact on the relationship with their parent
• The time that the child spends with each parent
• The child’s identification with a particular name
• The degree to which the child identifies with each parent, and with siblings and half-siblings who share the name, and
• The cultural or family significance of a particular name and the relevance of this significance to the welfare of the child.

Case study

In Redden & Mains, the separated parents disagreed over a number of matters relating to their child, including the child’s surname. The child had always been known by her mother’s surname. The father requested that the child be given his surname, or at least that the child hyphenate his surname with the mother’s surname. The father argued that since he had conceived children with another woman, he wanted his daughter to have the same surname to feel connected to her half-siblings.

The court declined to make the applicant’s order on this matter, determining that it was best for the child to continue to be known under her mother’s surname.

In reaching this decision, the court gave weight to the fact that the child:

• was registered at birth with the mother’s surname
• had two forms of identification in that name, including a passport
• was known at pre-school by that name and responded to it
• was known to doctors under the name and recorded with Medicare by this name, and
• had an existing relationship with her father and stepmother seemingly unaffected by the difference in surname.

As this case demonstrates, the court will decide a naming dispute on the best interests of the child, not on the wishes of the parents. For any legal advice or representation in court, please contact Go To Court Lawyers on 1300 636 846.