Ordinarily a child's name is a matter of state law and is provided for under the Births, Deaths and Marriages Registration Act 1996 (SA). Where the parents agree, a change of a child's name can be done by completion of a form at the Registry of Births Deaths and Marriages.
Where parents do not agree, either may apply to the Magistrates Court for an order changing the child's name. The Family Law Courts do not actually make orders changing a child's name but may make an order providing for the name by which the child is to be known, the name to be used in enrolling the child in a school, etc. If there are already proceedings for parenting orders and the name is a disputed issue, it may be convenient to make this application at the same time. However, if there are no parenting issues in dispute and the only dispute is as to the child's name, the Magistrates Court is the appropriate arena.
A child of any age must consent to a change of name unless the child is unable to understand the meaning and implications of the change of name [Births, Deaths and Marriages Registration Act 1996 (SA) s 26].
One parent may apply to the Registrar of Births Deaths and Marriages to change a child's name if:
- the applicant is the sole parent named on the birth certificate
- the other parent has died or cannot be found
- the court is satisfied that the change is in the best interests of the child and approves the change.
Before the court will grant an order the parent applying must satisfy the court that the change of name will be in the best interests of the child. The non-consenting parent can tell the court why the child's name should not be changed, and it is up to the court to make its decision, taking all matters into account.
The Family Court has set out the following factors that a court should consider in deciding whether or not a child's name should be changed:
- the welfare of the child is the main consideration
- the short and long term effects on the child of changing the child's name
- any embarrassment that is likely to be experienced by the child if the child's name is different from that of the parent with guardianship and/or residence
- any confusion of identity that may arise for the child if the child's name is, or is not, changed
- the effect that a change of name may have on the relationship between the child and the parent whose name the child previously had
- the effect on the child of frequent or random changes of name.
The court also takes into account the relationship between the non-consenting parent and the child and the contact that parent has had, or is likely to have, with the child, as well as the degree of identification the child has with that parent, or with the parent applying and, where applicable, any step parent. If the court makes an order authorising the change of a child's name, the Registrar may then accept the application to register the change of name.
Even where the court makes an order authorising the change of a child's name, the change must still be registered at the Births, Deaths and Marriages Registry for it to be effective.
The cost of filing an application to change a child's name in the Magistrates Court is $131 and, if there is more than one child, an application for each child will need to be filed. There is an additional cost of $218 to register the change with the Registrar of Births, Death and Marriages (which includes the new birth or change of name certificate).
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.