Few situations are more distressing than arriving to collect your children after scheduled contact, only to be told they are not coming back. When emotions run high, it can be difficult to know what to do next. Under Australian Family Law, there are clear legal pathways available if your former partner refuses to return your children after a visit.

This article explains your rights, the legal requirements, and what steps you may need to take if the other parent refuses consent.

Understanding Parental Responsibility Under Family Law

In Australia, both parents usually share parental responsibility for their child, regardless of their relationship status. This principle is established under the Family Law Act and means both parents have a say in major long-term decisions affecting the child.

A child’s surname is considered a major decision because it relates to their identity, family connections, and legal records. As a result, you generally cannot change your child’s surname without the consent of everyone who has parental responsibility, unless a court orders otherwise.

Even if your child primarily lives with you, the other parent may still have legal rights to participate in decisions like name changes.

When Can You Change a Child’s Surname Without Consent?

There are some circumstances where changing your child’s surname without the other parent’s agreement may be possible:

• The other parent is deceased
• The other parent cannot be located after reasonable attempts
• The other parent has no parental responsibility due to a court order
• You obtain a court order permitting the name change

If none of these apply and the other parent objects, you will likely need permission from the court.

Applying Through Births, Deaths and Marriages

Each Australian state and territory has a Registry of Births, Deaths and Marriages that manages legal name changes. Normally, both parents must sign the application for a child’s name change.

If one parent refuses, the registry will usually reject the application unless you provide a court order authorising the change.

This is why many disputes about children’s surnames ultimately end up in the family court system.

Going to Court: What Happens?

If agreement cannot be reached, you can apply to the Federal Circuit and Family Court of Australia for orders allowing the surname change.

The court’s primary concern is always the best interests of the child. This principle overrides the wishes of either parent.

The judge may consider factors such as:

• The child’s relationship with each parent
• How long the child has used their current surname
• The child’s wishes (depending on age and maturity)
• Potential confusion or embarrassment
• Cultural or family significance of the name
• Whether the change strengthens or weakens parental relationships

Importantly, courts do not automatically favour the parent the child lives with most of the time. Each case depends on its individual circumstances.

Common Situations That Lead to Name Change Requests

Surname disputes often arise after:

• Divorce or separation
• Remarriage of one parent
• Estrangement from one parent
• Concerns about safety or family violence
• Desire for the child to share the same surname as siblings

While these reasons may feel compelling, the court still assesses whether the change truly benefits the child rather than the parent.

Informal Name Changes vs Legal Changes

Some parents attempt to use a different surname informally, for example at school or in social settings. While this may happen in practice, it does not create a legal name change.

Official documents such as passports, Medicare records, and school enrolments typically require the child’s registered legal name unless formal processes are completed.

Using a different surname without consent can also create legal complications later.

Can the Child Decide?

Older children may express a strong preference about their surname. Australian courts often give more weight to the wishes of teenagers compared to very young children.

However, a child cannot legally change their own surname until adulthood unless parents or the court approve it.

What If the Other Parent Is Unreasonable?

If the other parent refuses consent without good reason, you still cannot proceed unilaterally. However, the court may grant permission if the refusal is not in the child’s best interests.

For example, courts have approved surname changes where:

• The child had no meaningful relationship with the other parent
• The child strongly identified with a different surname
• The existing name caused distress or confusion

Legal advice is essential before starting court proceedings.

Seeking Legal Advice Early

Family Law disputes can become emotionally charged, especially when they involve children. Speaking with a qualified family lawyer early can help you:

• Understand your legal position
• Explore negotiation or mediation options
• Prepare evidence if court becomes necessary
• Reduce stress and delays

Many matters resolve without litigation when both parents receive proper advice.

Suggested External Links:

• Federal Circuit and Family Court of Australia website
• Australian Government Attorney-General’s Department
• State Registry of Births, Deaths and Marriages
• Legal Aid Australia family law resources

Need help with a child surname dispute?

Speak with an experienced Family Law solicitor. Contact New South Lawyers today to understand your rights and protect your child’s best interests. Early advice can make all the difference.