Baylor (a pseudonym) v Nielson (a pseudonym)
[2025] VCC 1074
•29 September 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| ADOPTIONS, SURROGACY AND NAME CHANGE LIST |
| MARTHA RACHEL BAYLOR (a pseudonym) | Applicant |
| v | |
| RYAN TOM NIELSON (a pseudonym) | Respondent |
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JUDGE: | HER HONOUR JUDGE TSIKARIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 August 2025 | |
DATE OF JUDGMENT: | 29 September 2025 | |
CASE MAY BE CITED AS: | Baylor (a pseudonym) v Nielson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1074 | |
REASONS FOR JUDGMENT
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Subject:Births, Deaths and Marriages Registration
Catchwords: Application for an approval of a proposed change of name of a child – mother seeking change of name – objection by the father to surname – whether a change of name is in the best interests of the child
Legislation Cited: Births, Deaths and Marriages Registration Act 1966; Family Law Act 1975 (Cth)
Cases Cited: In the marriage of Chapman, A.L. and Palmer, R.J [1978] FamCA 86
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms A Merritt (a pseudonym) | Ben von Einem & Associates |
| For the Respondent | In person |
HER HONOUR:
Introduction
1The applicant is the mother of Jason Michael Baylor-Nielson[1] (“the child”) who was born on 18 August 2019 in Victoria. The respondent is the father of the child. The applicant seeks approval of a proposed change of name of her child pursuant to section 26(4) of the Births, Deaths and Marriages Registration Act 1996 (Vic) (‘the Act’).
[1] A pseudonym
2The applicant seeks to change the child’s name to Jason Daniel Baylor[2].
[2] A pseudonym
3The respondent objects to the change of surname.
4In support of her application, the applicant swore an affidavit in support on 16 October 2024.
5The respondent relies on affidavits sworn on 7 April 2025 and 5 May 2025.
6The applicant’s solicitor, Ms Merritt[3], and the respondent made submissions at the hearing which took place on 1 August 2025.
[3] A pseudonym
Background
7The applicant and the respondent commenced a relationship in 2017 and separated in early December 2020.
8The applicant has deposed that the relationship was not continuous and there were several periods when they lived apart.
9The child was born on 18 August 2019. The applicant deposed that from the date the child was born the respondent subjected her and the child to significant violence and abuse.
10The respondent last had personal contact with the child in early June 2021.
11On 1 November 2022, the Magistrates’ Court of Victoria made a Family Violence Final Intervention Order (‘FVIO’) which expires on 31 October 2027, against the respondent, protecting the applicant and the child from family violence. The FVIO contains the exception that the respondent may have contact, through a lawyer or mediator, for matters under the Family Law Act 1975 (Cth), provided the respondent does not engage in prohibited conduct.
12The respondent last contributed to the financial support of the child in August 2023. The applicant deposed that there were arrears in child support owing and she therefore made an application with Services Australia to end the child support arrangement.
The relevant principles
13Section 26(4) of the Act provides that the Court may approve a proposed change of name for a child if the Court is satisfied that the change is in the child’s best interests.
14In the Family Court of Australia (now the Federal Circuit and Family Court of Australia), the issue of the change of name of a child has arisen with some frequency. The leading case is In the marriage of Chapman, A.L. and Palmer, R.J.[4] The Full Court, comprising Evatt CJ, Asche and Marshall SJJ, reviewed a number of relevant authorities, and arrived at a summary of the following factors which a Court should have regard to in determining a change of name application:[5]
“To summarise, the factors to which the Courts should have regard in determining whether there should be any change in the surname of a child include the following:
(a) The welfare of the child is 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 from 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 the parent whose name the child bore during the marriage,
(f) The effect of frequent or random changes of name.”
[4] [1978] FamCA 86 (‘Chapman’)
[5]Ibid [56]
15The Full Court also made a number of observations which I consider to be of considerable relevance to this application. In relation to the desires of the parents of a child it said:[6]
“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 [the] 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.”
[6]Chapman [42]
16It emphasised that the promotion of the welfare of the child surpasses the wishes of the parents and stated:[7]
“[T]he 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.”
[7]Ibid [43]
17The approach to be adopted by the Court was stated as follows:[8]
“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.”
[8]Ibid [44]
18The reasoning in Chapman has since been applied in the Federal Circuit and Family Court of Australia.
Submissions
19The applicant submitted that the name change is in the best interests of the child for the following reasons:
(a) The respondent has not sought any relationship with the child since he was born.
(b) The respondent has not been a part of the child’s life at all, and as such the child does not know his father.
(c) The respondent was abusive towards the child and the applicant.
(d) The applicant’s father had undertaken the parental role, and since the passing of the child’s grandfather, the child has sought to replace his existing middle name with his grandfather’s middle name.
(e) The child wanted to share the same surname as the applicant’s family to further honour his grandfather.
20The respondent submitted the following:
(a) That as the child’s father, he had plans to be a part of his child’s life, and removing his name would remove him further from his son.
(b) Maintaining his surname would serve as a reminder that he is the child’s father. In addition, the respondent’s father wanted his grandson to bear his family name and pass it down the generations.
(c) He had no objection to the change in middle name.
Disposition
21The respondent’s desire to maintain some material connection with his child through the retention of his surname as part of the child’s hyphenated name is understandable. I note however that the respondent did not dispute the contents of the applicant’s affidavit in which she detailed instances of violence and abuse perpetrated against both the applicant and the child. This was perpetrated against the applicant and the child when she was still in a relationship with the respondent, and when the respondent had contact with the child after the relationship ended. The respondent has had no contact with the child since early June 2021 and last made any financial contribution towards the maintenance and upkeep of his child in August 2023.
22Although the FVIO is in place, it contains a Family Law Act 1975 (Cth) exception. As at the date of hearing, the respondent had not taken steps to pursue parenting orders or participate in counselling or mediation with the applicant. The applicant has effectively had the sole parenting responsibility of the child since the relationship broke down in late 2020. She has been supported in this role by her family, particularly her late father.
23The clear guiding principle for the Court is “the best interests of the child” and that stands above the proprietary interests of the parents. I accept that it is in the best interests of a child to know both parents and to share a relationship with both parents.
24In reality though, the respondent has not been a part of the child’s life for a large part of his existence. He does not have presently, nor has he had, any meaningful relationship with the child, having last had contact with him in early June 2021. He has not taken any steps to be a part of the child’s life to date, as permitted by the exception to the FVIO. Moreover, he does not dispute that he has perpetrated violence against the child. I consider such behaviour to be fundamentally inconsistent with his parental obligations and role.
25As noted earlier there is no opposition to the change in the child’s middle name.
26The applicant has day to day care of the child and has been responsible for the long-term care, welfare and development of the child. The child continues to be known by his current hyphenated surname when he does not have a connection to or meaningful relationship with the respondent. It is my view that this is more likely to cause him embarrassment or confusion of identity than if the surname name were to be changed solely to the applicant’s name. In addition, having just the applicant’s surname will simplify the applicant’s interactions in so far as administrative matters are concerned such as schooling, travel and healthcare.
27I find that it is in the child’s best interests to be known by the applicant’s surname as the child has no connection to the respondent’s surname. A change in the name will formally recognise the mother’s role as primary caregiver and the role and connection the child has to his maternal family, particularly his maternal grandfather. It will also minimise the potential for embarrassment or confusion likely to be experienced by the child if his name is different from that of the parent who has custody or care and control of the child.
28I am also required to consider the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship. The respondent opposes the application because he has plans to have a relationship with the child and because he submits it serves as a reminder that he is the child’s father. In my view, the surname should serve more than a reminder that the respondent fathered the child, and that having a meaningful relationship with the child and being a part of his life is not predicated on the child bearing the respondent’s surname.
29Although there has been an FVIO in place since 1 November 2022 and the respondent was not precluded in attempting to make contact with the child within the Family Law Act 1975 (Cth) exceptions provided in that order, he has taken no steps to pursue contact with the child. Having his son carry his surname was not enough to motivate him to take meaningful steps toward being involved in his child’s life in a safe, non-aggressive and consistent manner. I am of the view that the violence he perpetrated against his child and his ongoing absence from his life, is more detrimental to the relationship, than the change in surname will be.
30I find that it is in the child’s best interests to grant the application.
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