Court finds that children should keep their Mother’s surname

by Peter Magee on September 10, 2012

Peter Magee

Alvs Francis reported on Friday 10 August 2012 in Ninemsn news that a Queensland father has been unsuccessful in his Application to change his twin boys’
surname from the mother’s to his surname.

The twins were conceived during a brief relationship between the parties in 2007.

The father argued that he signed the birth certificates when the twins were born in 2008 and the mother told him that she would could change the surnames later. The father also argued that But the father it was “an expectation in 21st century Australia” that a child bear their father’s surname and it was “right and proper“.

However the Court did not accept that the twins needed the father’s surname for their sense of identity and took the view “This is not a case where the mother failed to name the father on he children’s birth certificate and rode roughshod over him by giving the children her surname.”

In addition to the change of name issue the parties were granted equal shared responsibility which means they will equally share major life decisions in relation to the twins such as health, education and religion. The Court ordered that the twins live with their mother and spend every second weekend with their father. The parties were also ordered to urgently attend a course on parenting after their separation.

This matter is interesting as it shows that social changes may affect the way family law matters are decided. Although this is simply speculative, in my view it is likely this matter may have been decided differently fifty years ago. It is more likely that in the past the father’s assertion that it is “right and proper” for a child to have their father’s surname would have been accepted.

Since the role of women in society has continued to change, in particular due to feminism, such arguments are likely to now be seen as outdated and not persuasive. However in different circumstances the father may have been successful in changing the children’s surname.

At Armstrong Legal we are frequently involved in matters where the child’s change of name is being sought by one party. Matters which may affect whether or not the Court grants the change of name include if one of the parties has re married and the child has new siblings with a different surname, if the child has minimal contact with one party and also if in the child’s every day life it is already being referred to with a particular surname.

However parties need to be aware that this is a highly discretionary area of law and the outcome of such cases is difficult to predict. In some instances the Court will favour changing the child’s name to a hyphenated surname, thereby recognizing the child’s connection with both parties, rather than cutting their heritage to one party in favour of another.

If you are either considering changing your child’s surname or alternately your ex partner is seeking to have your child’s surname changed please do not hesitate to contact us at Armstrong Legal on 9261 4555.

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