//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2010] ACTSC 143
plaintiff. The court approved the proposed change and registration of the child's surname from Blackburn-Moore to Moore.
The court approved a mother's request to change her 10-year-old daughter's registered surname from Blackburn-Moore to Moore. The judge focused on the child's best interests, considering that she already used Moore at school and socially, lived with her mother, and had very limited contact with her father. The Registrar-General had been notified. Although the father was not served, the judge was satisfied that efforts to alert him were sufficient, including that his parents had passed on details of the application. The reasons also note, without deciding, a possible question about which court had jurisdiction to approve a surname change.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,219 words · generated 01/10/2026
In Moore v Blackburn [2010] ACTSC 143, the ACT Supreme Court considered a mother's application to approve the change of her daughter's registered surname from Blackburn-Moore to Moore. The child, referred to as [A] in the reasons, was 10 years old. The applicant, Samantha Jane Moore, was her mother. Jonathon Michael Blackburn, the child's father, was the respondent but was not an applicant.
4 cited instruments linked from this judgment.
The statutory route was s 19(3) of the Births, Deaths and Marriages Registration Act 1997 (ACT). It allowed the Supreme Court, on an application by a parent, to approve a proposed change of a child's name if satisfied the change was in the child's best interests. The mother's application was necessary because the father was not applying jointly with her. After approval, the mother intended to apply to the Registrar-General to register the change.
The evidence, as summarised by Refshauge J, was that the child had not lived with her father since about six months after birth and that he was living in the United Kingdom [2]. Contact was very limited. The reasons describe long gaps without contact and state that the father had not spoken to the child since early 2008 [21]. The evidence also indicated that he had made no financial contribution to her education or advancement, apart from money sent shortly after her birth, before the parents separated [22].
The child's everyday use of her surname was important. She had for some time used Moore at school and in social and academic settings, supported by documents annexed to the mother's affidavit [3]. The judge also noted her close contact and identification with her mother's family [23]. The paternal grandparents had supported the child and her mother and wished to maintain contact with the child [23].
The father was not served. The judge considered attempts to make him aware of the application, including through his parents, who had forwarded details to him [19]-[20]. The court was satisfied that the Registrar-General had been notified, as required by s 19(4) [18]. Refshauge J approved the change, reasoning that it formalised the reality that the child's name was already Moore [25]-[26].
The statutory test was the child's best interests. Refshauge J treated the surname issue as a welfare question, not as a contest over which parent had the stronger claim to have their surname retained. At [11], the reasons reproduce Chapman v Palmer's statement that the court is concerned with promoting the child's welfare. At [15], the judge said the family-law surname-change considerations were helpful in identifying matters relevant to the statutory best-interests assessment.
Those considerations included the short- and long-term effects of changing a surname, possible embarrassment if a child has a different name from the custodial parent, confusion of identity, effects on the child's relationship with the parent whose name the child previously bore, and the consequences of frequent or random changes [12]. Refshauge J also considered it appropriate to include the child's wishes as a relevant factor, referring to In the Marriage of Pylarinos v Reklitis [13]. Further matters drawn from In the Marriage of Beach v Stemmler included the child's contact with and identification with each parent, and the advantages of retaining the existing name [13].
The decision turned on the evidence in this particular case. The child already used Moore in the settings where her surname mattered in daily life [3], [24]. The judge accepted that her relationship and identification with her mother and maternal family were strong, while her contact with her father was slight [21]-[23]. The evidence did not suggest that the change would sever a substantial existing relationship with the father. The paternal grandparents' supportive relationship with the child was also recorded, but the judge did not treat the proposed surname change as inconsistent with that relationship [23].
The court's conclusion was that registration should reflect the child's established use. At [25], the judge said that changing the birth certificate would “formalise the reality” that the child's name was Moore. The order therefore approved the proposed change, rather than treating the matter as a general endorsement of one parent's preferred naming practice.
There was a separate procedural question about notice. Section 19(4) required notification to the Registrar-General. The judge relied on affidavits and expressly found that requirement satisfied [18]. As to the father, the judge read s 19 as not requiring service on him, while recognising that it was desirable that he know of the application [19]. The grandparents had received information and forwarded it to him, and the judge considered nothing further was required in the circumstances [20]. The reasons confirm that the court regarded the attempts as sufficient [26].
The judgment did not announce a new general test for surname disputes. It applied the statutory best-interests test in s 19(3) and drew on existing family-law authority to identify relevant considerations. The main authority was Chapman v Palmer (1978) 4 Fam LR 462. Refshauge J noted that the decision appeared still to be regarded as authoritative, referring to C v B [2007] FMCAfam 539; (2007) 38 Fam LR 1 [7].
The judgment reproduces Chapman's discussion of how names can become established through use and reputation, and of the practical influence of the adult caring for a young child [8]. It also sets out the factors identified in Chapman for deciding whether a surname should be changed or retained [12]. These matters guide the welfare inquiry; they do not replace the statutory test.
The judge also discussed customary practice. In the Marriage of Skrabl v Leach described a general custom under which a child might continue to use the father's surname after the custodial mother reverted to her own name [9]. Refshauge J questioned whether that custom necessarily remained current, noting reservations expressed in In the Marriage of Mahony v McKenzie [10]. This observation cautions against treating historical social practice as decisive, but the judgment did not formulate a substitute rule.
An important unresolved point concerns jurisdiction. At [16], Refshauge J said it was arguable that the ACT Supreme Court had no power to change a child's surname, because Chapman treated the issue as part of custody jurisdiction, potentially within the Family Court's jurisdiction or that of a court exercising power under the Family Law Act 1975 (Cth). The judge referred to a NSW Local Court order concerning the same child [17], then proceeded to approve the change under the ACT Act. The reasons do not finally decide the jurisdictional question or explain its broader relationship with s 19(3).
Accordingly, the decision's clearest contribution is its application of the ACT statutory test to a particular factual setting, including a child's established use of the proposed surname and the court's assessment of notice. It should not be read, on this judgment alone, as resolving the possible jurisdictional issue for all future cases.
At [4], the judgment describes the statutory mechanism: because the father was not an applicant, court approval was needed before the mother could seek registration. In plain English, one parent's application did not itself change the official record. Approval under the Act was a necessary step in the route the mother was pursuing.
Section 19(3), reproduced at [5], says the court may approve a proposed change if satisfied that it is in the child's best interests. In ordinary terms, the parents' preferences are not the controlling test. The court must decide what best serves the child on the evidence before it.
At [11]-[12], the reasons set out the welfare focus and a list of relevant considerations. These include the effects of changing or retaining the name, identity, possible confusion or embarrassment, and the effect on the child's relationship with the parent whose name is involved. The list is not presented as a mechanical checklist with each factor carrying equal weight. The overarching question remains the child's welfare.
At [15], Refshauge J explains why family-law cases are useful even though the application is made under the ACT registration statute: their considerations help identify what may matter to the child's best interests. The judge uses those cases as guidance for the statutory inquiry.
At [18], the court records satisfaction that the Registrar-General had been notified. This is a distinct statutory condition under s 19(4), rather than a factor going to whether the child would benefit from the surname change.
At [19]-[20], the reasons distinguish service on the father from notification of the Registrar-General. The judge's reading was that s 19 did not require service on the father, but that informing him was desirable. The court considered the attempts made, including communication through the paternal grandparents, sufficient in the circumstances.
At [25], the judge's phrase “formalise the reality” summarises the factual basis of the outcome. The official registration would be brought into line with the name the child was already using in important parts of her life. This was not the only fact considered, but it linked the practical evidence of usage to the statutory best-interests conclusion.
The judgment is most relevant to applications under s 19(3) of the ACT Act where one parent seeks approval for a child's name change and the other parent is not an applicant. Its reasoning may be particularly useful where the evidence concerns a child's existing use of the proposed name, continuity of that use, the child's relationships with each parent, and the practical consequences of changing or retaining the registered surname.
The factual features in Moore included a 10-year-old child who lived with her mother, had used the mother's surname for some time in school and social settings, and had very limited contact with her father, who lived overseas [2]-[3], [21]. The judge also considered family identification and the father's limited involvement [22]-[24]. Those facts explain the decision, but the judgment does not state that any one of them automatically determines another application.
The case also addresses a procedural situation where the Registrar-General had been notified but the other parent had not been served. The judge considered the terms of s 19 and the actual steps taken to alert the father [18]-[20]. The decision does not establish that indirect notification will always be sufficient. It records a conclusion on the circumstances and evidence before the court.
A further relevant feature is the existing use of a hyphenated surname. The judgment notes that hyphenated surnames can serve as a compromise and preserve identification with both parents where a real connection with both exists, but says that circumstance did not pertain here [14]. The passage identifies a possible consideration rather than a general preference for or against hyphenation.
The supplied judgment provides no information about how courts treated Moore v Blackburn after 4 November 2010. It would therefore be unsafe to state that later courts followed, distinguished, or otherwise applied this decision.
The reasons themselves refer to earlier authorities. Refshauge J says Chapman v Palmer appeared still to be regarded as authority, citing C v B (2007) [7]. That is a statement about the treatment of Chapman, not later treatment of Moore. The judgment also discusses Skrabl, Mahony, Pylarinos, and Beach as sources for customary practice or relevant considerations [9]-[14].
For research purposes, the distinction matters: the text supports describing the authorities considered by Refshauge J, but it does not support a history of Moore's subsequent reception. No later cases or treatment are included in the material provided.
The central open issue within the judgment is jurisdiction. Refshauge J expressly recorded that it was arguable the ACT Supreme Court lacked power to approve a surname change because of the relationship between surname change and custody jurisdiction [16]. The reasons do not resolve that point. They refer to a NSW Local Court order involving the same child [17] and then make the order under consideration. The supplied text does not provide a fuller jurisdictional analysis.
The decision also leaves open how much weight should be given to an older social custom concerning children's surnames. The judge questioned whether the custom described in Skrabl remained prevalent, and noted reservations in Mahony [9]-[10]. The reasons do not determine whether there was a new general custom, or how social expectations should be evidenced in other cases.
The child's wishes are identified as a relevant consideration [13], but the judgment does not report a specific statement of the child's wishes. It would be inaccurate to infer that the child expressly requested the change. The reasons also do not assign separate weights to each factor in the Chapman list. Their application is tied to the evidence as the judge summarised it.
Finally, although the judgment says s 19 did not require service on the father, it also says there was some desirability in him knowing about the application [19]. It does not set out a general standard for what efforts to notify a non-applicant parent will be sufficient. Its conclusion that the attempts were sufficient is expressly connected to the circumstances, including the communication through the paternal grandparents [20], [26].
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
1. The proposed change and registration of Samantha Jane Moore's daughter's surname from Blackburn-Moore to Moore be approved.
1. Samantha Jane Moore, the applicant, has a daughter, (who for the purposes of these written reasons will be called [A]), now aged 10. The surname registered in the Registrar of Births of ACT for [A] is Blackburn-Moore. Her father's name is Jonathon Michael Blackburn.
2. [A] has not lived with her father since about six months after her birth. Mr Blackburn now resides in the United Kingdom. Although [A] has had some contact with him, it is very limited.
3. She has for some time now used the surname Moore for school and social purposes. I saw annexed to Ms Moore's affidavit of 9 September 2010 many examples of that use in school documents, documents related to social activities and documents related to academic activities.
4. Ms Moore now applies under s 19(3) of the Births, Deaths and Marriages Registration Act 1997 (ACT) (the Births Registration Act) for an order of this court approving the change of [A's] name following which Ms Moore will apply to the Registrar-General for registration of the change in [A's] surname. The approval is necessary because [A's] father is not an applicant. The court may approve the proposed change if satisfied that the change is in the child's best interest.
5. Section 19 of the Births Registration Act provides:
(1) The parents of a child may apply to the registrar-general for registration of a change of the child's name if -
(a) the child is domiciled or a resident in the ACT; or
(2) An application for registration of a change in a child's name may be made by 1 parent if -
(a) the applicant is the sole parent named in the register or in a register kept under a corresponding law or the law of any place outside Australia; or
(c) the Supreme Court has approved under subsection (3) the proposed change of name.
(3) The Supreme Court may, on application by a child's parent, approve a proposed change of name for the child if satisfied that the change is in the child's best interests.
(4) The Supreme Court must not dispose of an application under subsection (3) unless satisfied that the registrar-general has been notified of the application.
6. The reason for the difference between an application by both parents (subsection 1) and one parent (subsection 2) is perhaps obvious, but it has a legal basis that I will address below.
7. The law regarding name changes was considered by the Full Court of the Family Court of Australia in Chapman v Palmer (1978) 4 Fam LR 462. Despite its age, it appears to be still regarded as authority: see C v B [2007] FMCAfam 539; (2007) 38 Fam LR 1 (at 26 [107]).
8. In Chapman v Palmer, the unanimous court described the situation in relation to changes of surname as follows (at 465-6):
At common law an adult may assume any surname by using such name and becoming known by it. A surname is not a matter of law but matter of repute: R v Smith [1863] EngR 64; (1865) 4 F & F 1099; Re T (Orse H) [1963] I Ch 238 at 240; [1962] 3 All ER 970; Cowley v Cowley) [1901] AC 450 at 460.
It has been held, however, that an infant is not competent to change his or her name without parental consent (Re T)...
The surname by which a child is known is generally that entered by the parents on the birth certificate. It has been held that the mother may not enter on the birth certificate a name other than that of the father to whom she was married at the time of conception unless with his consent in writing or in an order of the court (D v B (Orse D) [1977] 3 All ER 751). This principle applies even if the parties separated before the birth.
A child will generally be known by the name given to him or her by the parents at birth (subject to what is said above). This arises both from the parents' acts and from the assumptions of others.
The child will generally be assumed to have the surname of the parents or the parent with whom that child lives. This assumption may arise without any overt act on the part of the parent or child.
The difficult question is whether and in what circumstances a parent or a child may by any overt act, formal or informal, seek to have a child known by a name different from that by which the child has been known formally.
In the case of an adult a change of name can be effected without formal steps; the effectiveness of the change depends upon usage and reputation. Formal steps can be taken to assist the process, such as advertising in a newspaper or executing a statutory declaration or deed poll and having the instrument registered.
The surname by which a minor is known will depend almost exclusively on the actions and intentions of the adult or adults in whose custody the child is. It is in the power of his custodians to ensure that he or she is known by the surname they choose, whether as a member of the household, in the neighbourhood, in registering at school, in medical insurance, taxation return or for whatever purposes it is necessary or convenient to use a surname. They have the same capacity to change the child's surname as to change their own. A child need not be given and need not retain the name of his parent or custodian, but whatever name is chosen by his custodians must be established by reputation and usage.
A minor may have the ability, within limits, to bring about a situation in which he is known by a surname of his own choosing. This is more likely to be possible where the minor is approaching majority and where he lives apart from his custodian or where the custodian agrees or does not object to the chosen name.
A younger child residing with and dependant on a parent may have little opportunity to establish a new name for himself without the concurrence of that parent. It is a nebulous area so far as the law is concerned, since it involves partly the question of the child's power to act independently and partly the question of fact whether a particular name is established by repute and usage. Since the parent will have control of most situations in which the surname is used, the younger child has little scope for independent action.
9. In In the Marriage of Skrabl v Leach, (1988) 13 Fam LR 83 Rowlands J described (at 84) the situation from which the court would start its consideration:
In a case where the mother assumes the father's surname on marriage, a child is born and registered with that name and the father remains in close and continuing contact with the child as an access parent, it is normal for the child to continue to use the original name although the custodial mother may remarry or revert to her maiden name - that is currently our general custom.
10. I have to say that this custom may not necessarily have survived the more than 20 years since that judgement. Even five years later Warnick J In the Marriage of Mahony v McKenzie [1993] FamCA 78; (1993) 16 Fam LR 803 (at 809) expressed some reservations about the prevalence of such custom.
11. Nevertheless, the law seems clear about the right of a parent to change the surname of a child and the role of the court. In Chapman v Palmer, the court said (at 468-9):
In regard to the surname of a child, the change or retention of a particular name may affect the child in a number of ways. The most common situation is one in which the desire of the father to maintain a close relationship and identity with the child is in conflict with the desire of a mother, on remarriage, to establish a new family unit, identifiable as such. The desires of the parents are, however, of secondary importance when put alongside the welfare and the wishes of the child in question. Because a change in a child's surname may cause him or her confusion and because the issue usually arises between the parents the court will exercise a supervisory role in the matter when called upon to do so.
It does not follow that it is essential for a custodial parent in every case to make application to the court to change the surname of a child...There are cases where the custodial parent may effect a change in the child's surname without the consent of the other parent or the leave of the court. The other parent may have no objection, may have no interest, may not be traceable or may be dead. In circumstances such as those the custodial parent may take action which is effective, so far as third parties are concerned to change the child's surname; this is largely a question of fact, depending partly on the parent's actions and partly on recognition of those actions.
The other parent would not be precluded from making an application to the court to reverse the change. As in the present case, this is the manner in which the issue often arises. However it arises, the issue before the court is always the same - what should be done to promote the welfare of the child. The court is concerned only with that issue and will not decide the case on the technical ground of whether the parent had or did not have the right to change the child's name.
The appellant in the present case submitted that his Honour approach the case as if it were the wife's application. The issues are the same, however, as if the wife has applied for an order. The only difference is that the court must consider the effect on the child of reversing a change which has occurred.
The general principle appears to be that the court will not intervene to prevent a parent from changing the surname of a child in the custody or care and control of that parent (or to direct that a name be restored where a change has occurred), unless the court is satisfied that the change was made without the consent of the other parent and that it does not promote the welfare of the child_._
12. The court then identified (at 471) the factors it said were relevant. These were:
To summarise, the factors to which the court should have regard determining whether there should be any change in the surname of a child include the following:-
(a) The welfare of the child as the paramount consideration.
(b) The short and long term effects of any change in the child's surname.
(c) Any embarrassment likely to be experienced by the child if its name is different to that of the parent with custody or care and control.
(d) Any confusion of identity which may arise for the child if his or her name is changed or is not changed.
(e) The effect which any change in surname may have on the relationship between the child and parent whose name the child bore during the marriage.
(f) The effect of frequent or random changes of name.
13. It seems appropriate to include, as did McCall J in In the marriage of Pylarinos v Reklitis (1979) 4 Fam LR 629 (at 633) the wishes of the child as a relevant factor. These were added to by Connor J in In the marriage of Beach v Stemmler (1979) 5 Fam LN N13 where his Honour, after referring to the factors referred to in Chapman v Palmer, held:
(a) Both long and short term advantages if the name remains as it is now.
(b) The contact the father has and is likely to have with the children.
(d) The degree of identification with the mother and the stepfather.
(e) The degree of identification with any child to be born to the mother and the likely confusion if the father's name is restored.
(f) Desire of the father to have the original name restored, while that is a relevant consideration it should be subordinate to the overall welfare of a child.
14. I note the useful discussion by Warnick J in In the marriage of Mahony v McKenzie about names created by hyphenating the surnames of the child's parents. Though, of course, there are many reasons for that, her Honour did enumerate a number of benefits including a compromise where there was a dispute and a continuing identification with both parents after separation where there is a real connection with both parents. That circumstance does not pertain here.
15. While the considerations relate to the issue of retaining or changing a name is in the family law context, it seems to me helpful as an identification of what is relevant for the consideration, under s 19(3) of the Births Registration Act, of the child's best interest.
16. I pause to note that it is arguable that this court has no power to change the child's surname. Chapman v Palmer held that the change of surname was part of the power in relation to custody in the court and that would appear to mean that the approval of a change of name may be within the jurisdiction of the Family Court of Australia or courts exercising power under the Family Law Act 1975 (Cth).
17. If that is so, I can rely on the decision of the New South Wales Local Court at Goulburn made on 23 July 2010 where it ordered:
(1) That the service of this application on the Respondent be dispensed with.
(2) That the consent of the Respondent Father be dispensed with.
(3) That the court make the declaration that it is in the best interests of the child of the relationship, namely, [A] born on [date provided] that her name be changed to [A] Moore.
(4)(a) That the mother be authorised to apply to the Register of Births Deaths and Marriages that the child previously known as [A] Blackburn-Moore be now registered as [A] Moore.
(4)(b) That the sealed copy of this order be served upon the Registrar of Births Deaths and Marriages who is requested to give effect to such an order.
(5) That the applicant mother be authorised to make application for the said child of the relationship in the name of [A] Moore without obtaining the consent of the Respondent Father.
(6) The Applicant mother is authorised to apply for a passport of the said child of the relationship in the name of [A] Moore without obtaining the consent of the respondent father.
18. Section 19(4) of the Birth Registration Act requires that the Registrar-General have notification of the application. I have received an affidavit of Ms Kaylah Noonan sworn 2 November 2010 deposing to the service of the originating application and an affidavit of the applicant sworn 9 September 2010 deposing to service on the Registrar-General. I am satisfied that s 19(4) has been complied with.
19. I note that it has not been possible to serve Mr Blackburn, the defendant, with these proceedings. My reading of s 19 of the Birth Registration Act is that it does not require service on Mr Blackburn, although obviously there would be some desirability of him at least knowing of the application.
20. I have read carefully the affidavit of Ms Moore sworn 9 September 2010, in which she deposes to attempts made to ensure that Mr Blackburn is aware of the application. I note that contact has been made with the paternal grandparents of the child and they are clearly aware of the application and have forwarded on to their son details of the application. In my view, nothing further is required of the applicant in these circumstances and I am prepared to proceed to deal with the application.
21. I read, in addition to the affidavit of Ms Moore, sworn 9 September 2010, a copy of the affidavit, the original of which was filed in the NSW Local Court at Goulburn on 23 July 2010, being an affidavit of 16 July 2010, that presumably was used in support of the application for the orders of the NSW Local Court at Goulburn that I have referred to above (at [17]). It detailed the contact, or, more fairly, the lack of contact, between [A] and her birth father. He had, apart from the initial period of six months, virtually no significant contact with her, and the evidence suggests that he has shown little interest in having any more contact. There have been periods as long as two years when there has been no contact whatsoever. He even failed to see her on Christmas day when she and her mother travelled to the United Kingdom in 2005. He has not spoken to her since early 2008.
22. He has made no financial contribution to her education or advancement, apart from some money forwarded to her shortly after her birth when Ms Moore and Mr Blackburn returned to Australia from the United Kingdom. This was before their separation in June 2001 and his return to the United Kingdom.
23. [A's] paternal grandparents have given support to [A] and to Ms Moore. They paid for the trip Ms Moore and [A] made to the United Kingdom in 2005. The grandparents obviously have confidence in Ms Moore and [A's] paternal grandmother described her as "a good mother". Naturally, they seek to remain in contact with [A]. The evidence was that [A] has much contact, and identifies very closely, with Ms Moore's family.
24. As noted above, her school and formal expectation is that she would be known by the name [A] Moore, and that appears to be her name. In any event, a court acting under the Family Law Act 1975 (Cth) has approved the change of name.
25. In all the circumstances it is clearly in [A's] best interests that her birth certificate be changed to formalise the reality that her name is now [A] Moore. Accordingly, I approve the proposed change in the registration of her surname from Blackburn-Moore to Moore.
26. I consider that the attempts that have been made to serve the defendant with the application regarding the proposed change to [A's] surname are sufficient. Accordingly, I will order that the registration of the surname of [A] Blackburn-Moore to [A] Moore be approved.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Solicitor for the applicant: Dobinson Davey Clifford Simpson
Moore
Blackburn [2010] ACTSC 143
(1978) 4 Fam LR 462
(2007) 38 Fam LR 1
(1983) 13 Fam LR 83
(1993) 16 Fam LR 803
(1979) 4 Fam LR 629
(1988) 13 Fam LR 83
The court approved the proposed change and registration of the child's surname from Blackburn-Moore to Moore.