Disputes Over Naming A Child

On the online platform Reddit, a woman recently shared that her current partner has a child from a previous relationship who has two first names. The parents of the child separated prior to the child’s birth. Since the baby was born, significant disagreement has erupted over the child’s name with the father ultimately implementing a name for the child in ‘mums house’ and a name for the child in ‘dads house’. This post illustrates some of the issues that can arise when there is a dispute over naming a child.

The woman’s post explained that the father’s chief concern was that he had not been involved in a major decision concerning the child (rather than the specific name given to the child by the mother). The mother had named the child after her grandmother/herself and her mother and given the child her surname. The woman added that the names were rather similar and gave the example of the dispute between the parents being similar to the two sets of names as “Sarah Katherine Jones and Samantha Elizabeth Smith.”

Naming a child in different cultures

Regardless of whether parents are separated or still together when a child is born, it is not uncommon for a child to be given one parent’s surname. There is no requirement for a child to have a particular surname but it is common in western cultures for a child to be given the father’s surname.

The parents in the above matter have since agreed for the child to take the father’s surname, but no further agreement was reached about the child’s first or middle name. As a result, the father has started calling the child by a different name when in his care.

Examples of when a child may have different names in different settings may be in families where the parties are from different cultural backgrounds and may be known to family members of the same cultural background with a culturally specific name.

The Family Law Act

The principles and pathways applicable in the event a dispute erupts over naming a child are set out in the Family Law Act. These are as follows:

A child’s name falls into the category of a ‘major long-term decision’ under section 4 of the Family Law Act. In the absence of court orders, both parents have parental responsibility under section 61C of the Act. That responsibility can be exercised together or separately and is not changed upon separation of parents, or breakdown of their relationship.

Should orders be in place allocating parental responsibility between parents then the orders will prevail and dictate how the law applies on such an issue. If an order is made for sole parental responsibility, then the parent with that responsibility is at liberty to make the major long-term decisions, without the input of the other parent, to the extent that the responsibility is not limited by any orders.

If an order is made for equal shared parental responsibility, then agreement is required for major long-term decisions. An order for equal shared parental responsibility requires those to consult the other person in relation to the decision to be made about that issue and to make a genuine effort to come to a joint decision about that issue.

Court orders for naming a child

If agreement cannot be reached, either parent is at liberty to seek an order from the court on the issue in dispute. If this occurs, the court can determine the issue under section 64B(2)(i) of the Act. If the issue is determined under s64B(2)(i) then the best interests of the child paramountcy principle applies.

Alternatively, the court can be implored to use the injunctive power under section 68B(1) of the Act to restrain a parent from changing a child’s name. An order under s68B(1) has the welfare of the child as the paramount consideration.

Thirdly, the court could decline to make orders in relation to the name, and essentially dismiss a parent’s application. This occurred in the 2010 decision of Redden & Mains [2010] FMCAfam 1338.

Redden & Mains

In the Federal Magistrates Court decision of Redden & Mains, Federal Magistrate Dunkley (as he then was) set out the considerations to be taken into account when making a decision about naming a child. He said the court should consider:

• The advantages, both short term and long term, which accrue to the child if her name remains as it is;
• The time that the child has with each parent;
• The degree of identification that the child has with each parent and with other children of the father and mother;
• The short and long term effects of any change to the child’s surname;
• Any embarrassment likely to be experienced by the child;
• Any confusion of identity that may arise for the child, if a name is changed or not changed.

Ultimately the case law states that a change of name will only be ordered if it is in the child’s best interests for such an order to be made. A parent may consider bringing expert evidence, particularly if the name is of cultural significance. This may relate to the importance of the name or to any impact of a change of name, or the use of multiple names for the child on their long term care, welfare and development. In this context, the child’s age and identification with the name may also be relevant factors.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.