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No court orders but other parent not in contact for years - where do I stand?

Hi there,

This is my first post here, so forgive me if I've done it wrong!

I have a 4 year old son. My relationship with his father ended when he was a newborn, and he has not seen him since he was 3 months old. He has called me twice since then, to abuse me over the phone for being in contact with his other ex girlfriends (both of whom have one child each to him). So he has not seen his son, nor asked about him, for the whole 4 years of his life essentially, though I did offer when it first all happened.

Last I spoke to a lawyer on a free legal advice hotline about it was probably 3 years ago. At that point, she pretty much said not to bother trying to get official custody through the court system, because there was no way the court would grant me full custody (or whatever the new term is for it), even if he attended court and categorically stated that he did not wish to see his child.

Being without official custody makes me uneasy however. I have no proof that he resides with me, so if, worst case scenario, he were to be abducted by his father, I would have a long road ahead of me to get him back. I would also like to change my son's surname, as he himself has chosen to use my surname, despite my protestations, because he's lived with my family and associates as one of us. He has no connection whatsoever to his current surname.

So essentially, my question is two-fold. What is the current state of the family law system re parents who have been uninvolved for significant periods of time being granted custody, and are they likely to let me change a surname that only serves to make my son feel like an outsider in his own family?

Thanks so much for any help. I can't believe I only just found this forum, it's a lifesaver.
Hi BusyBee

Its a tricky situation. What you can do is get orders by Consent. So basically, if you and the Father agree that the little Man  is to live with you and that you're the one to make all long term decisions about him (i.e. Sole Parental Responsibility) and that Dad is able to see him when you both agree, then you can have this made into legally binding documents. So, if ex is happy to do this, it is a relatively straight forward process that any Family Lawyer can help you out with (and shouldn't be too costly.. around $2000).

I'm not sure about the name change stuff, you would need to contact your State Birth, Deaths and Marriages office to see what they need to process it (maybe tis info is available on their website). Even if you do get the orders, you may still need his permission on some issues (such as Passports) but having said that, I'm not yet 100% sure. Name change may be in the same boat. I think Magistrates courts deal with this if memory serves.

Good Luck with it all!
Hi ReallyConfused,
Thanks for your reply. Unfortunately I have no contact with my son's father, and last we spoke, I did approach the topics of both the surname as well as custody, and he refused to sign anything whatsoever, unless I spoke to the CSA and cancelled my dealings with them. I'm sure you probably know that if I do that, I lose part of my income as a single Mum, so it wasn't something I could agree to. He was not amenable to any other deal I tried to strike up.
I cannot believe how much a lawyer will cost :( I am a single Mum studying full time, so doubt I can come up with anything even close to $2000, and I know that Legal Aid won't help me if he hasn't first instigated proceedings.
Thank you for trying though.
BusyBee
Are you getting a significant amount (if anything) from him? If you can live without his Child Support contribution, you can both win here. You can tell CSA that you have a Private Collect arrangement with your ex and that way, it's out of their hands until you re-introduce them (in case things go bad for you Financially). This wont effect your Centrelink benefits.



In regards to Consent Orders, the other option is to go along to a Family Relationships Centre and get a Parenting Plan and then fill out the "Application for Consent Orders" forms that you can find on the Family Court Website.. thats all free! Then all you both need to do is get someone who is Authorised to witness an affidavit (eg a Justice of the Peace or a Sergeant Police Officer) to witness you signing the Application for Consent Orders. This can then get authorised by your local Magistrates Court and bad-a-bing, you're done!  
No, I get nothing from him whatsoever, and nor have I at all, aside from a sporadic couple of minimal payments years ago. My concern is arising a lot from my not being willing to be in contact with him whatsoever if at all possible. It was a domestically violent relationship, though the only involvement from the courts was the approval of a 12 month AVO against him when we separated, which has long since expired.

I'd stake my life savings on him being unwilling to cooperate no matter what deal is struck, and he'd just stuff me around once he got the papers in his hands to sign. I'm pretty sure I'd be back here in 6 months in the same situation as I am now unfortunately. He doesn't want to know his son, but he doesn't want to officially sign away his rights - never mind that he wouldn't be, but who can argue with a screaming madman on the other end of the phone. Thus my thinking that the court route is probably the only way I'll ever see a result - but I worry what that result will be.

I wish it could all be nice and amicable, we could both sign the papers and be done with it. I truly do.
A long shot but do you have access to Legal Services through your Uni?

I totally understand where you're coming from as I was in a similar situation but then again, I had the money for a Lawyer who was able to respond to my ex's post break up bullying.

You said that he wouldn't sign anything unless you cancelled your dealings with CSA, is there someone who could pass on the message that you would get them off his back (through arrangement of Private Collect) if he signed off on the Consent Orders? As you could imagine, they're probably hounding him for the money. Just trying to think of a work-around for you.

If you don't have access to Legal Services through Uni, I think you could give Legal Aid a crack. You certainly don't have anything to lose. They wouldn't argue to the "Sign the Consent Orders and we'll set you free of Child Support" line but they would launch the legal proceedings and if he didn't show up to Court on the day i.e. you have an undefended case, then perhaps the Magistrate would assume that he doesn't want to be involved? From what Ive read on Auslii, you may have a good chance of getting what you want.
BusyBee said
Being without official custody makes me uneasy however. I have no proof that he resides with me, so if, worst case scenario, he were to be abducted by his father, I would have a long road ahead of me to get him back. I would also like to change my son's surname, as he himself has chosen to use my surname, despite my protestations, because he's lived with my family and associates as one of us. He has no connection whatsoever to his current surname.
 
1. You don't need official custody to have custody. Your concern makes no sense.

2. Why would he be abducted by his father if the father isn't involved in his life? Your concern makes no sense.

3. You can file an application with the court to change the child's surname. Easy peasy.

4MYDAUGHTER
ReallyConfused: Thanks so much for your ideas. My uni has no legal service unfortunately, so I'll give Legal Aid another call, though I'm pretty sure they said last time (3 years ago) that they would not be able to help me unless my ex had already begun proceedings. Something about them only responding to cases, rather than instigating them themselves. I'm fairly confident he probably wouldn't turn up to a court hearing about the whole thing - so it's nice to know that that might work in my favour. It's all such a guessing game for those of us who are new to the court system.

4mydaughter: My concern makes no sense to you because perhaps you have more experience, knowledge and confidence in how to manage the court system. It makes sense to me, a complete newbie to the whole thing, because all I've had to base my concerns on is the general opinion of random people I've spoken to. Thus why I've come here, to where I was hoping to receive more accurate advice from people who've been through the same thing I have.

To answer your individual points though, I am concerned about not having paper proof of my son residing with me, as I have been told, by non-experts of course, that should, on the off chance in the worst case scenario, my ex have a bee in his bonnet about it (which whilst a long shot is not altogether unfeasible) and take my son somehow, I have very little recompense other than to appeal to his better nature *cough* or take it through a lengthy court process. If that is wrong, I'd love to know what the process would actually be in that circumstance, rather than have you belittle my fears.

As for the surname, I understand that there is a specific form I can fill out and lodge with the courts to have it changed. My question was what is the likelihood that a court would grant that request. I don't want to waste the time, money or emotion on going through it if it's proven that it's very rarely successful.

Thank you
Local Courts are VERY wary of making 'sole' orders and unless you live somewhere extremely remote it will get bounced back to an FMC. Technically local Courts do not have the authority to make Final Orders unless these are with the consent of both parties and even so 'sole responsibility' orders are likely to be sent to an FMC.

Finding a solicitor to do this for $2,000 is a big ask

If you make a Court application for Orders you would still need to obtain a 60i certificate before making the application.

If you made an application to the FMC there would be several hearings before an undefended case decision of such importance is made.

Legal Aid funding is not only dependant on your income but whether they consider it a viable use of funding. If your State Legal Aid is on a tight budget they may adopt the attitude "If it isn't broke why try to fix it".

Change of name requires the agreement of both parties or a Federal Court order ie the FMC. You could expect raised eyebrows from an FM if you said a 4 year old child accepted the name change. A child of that age would not understand the consequences.

A large percentage of surname disputes result in hyphenated surnames.

A passport application requires the permission of both parents unless there is a Federal Court order to the contrary.


SRL-Resources. the Family Law People on this site (look for the Avatars) www.srl-resources.org  Non gender Professional and peer support for SRLs. Closed site, no public forums, no search engines, no lurkers, guests or the other side and their Lawyer and Friends.
I am concerned about not having paper proof of my son residing with me, as I have been told, by non-experts of course, that should, on the off chance in the worst case scenario, my ex have a bee in his bonnet about it (which whilst a long shot is not altogether unfeasible) and take my son somehow, I have very little recompense other than to appeal to his better nature *cough* or take it through a lengthy court process. If that is wrong, I'd love to know what the process would actually be in that circumstance, rather than have you belittle my fears.


1. A piece of paper with court orders isn't going to stop a motivated parent abducting a child.

2. You don't need existing parenting orders to recover an abducted child - although there exists a misconception that you do.


As for the surname, I understand that there is a specific form I can fill out and lodge with the courts to have it changed. My question was what is the likelihood that a court would grant that request. I don't want to waste the time, money or emotion on going through it if it's proven that it's very rarely successful.

An Application for a Change of Name is a relatively simple thing. You say that the father hasn't seen the child for a number of years since shortly after the birth? The father doesn't sound that interested in being in the child's life? Right? If you can provide evidence of this apparent 'lack of interest', I don't think a FM is going to have too many problems making an order. You could successfully make this application yourself providing you are prepared to put in some work.

Questions for you:

1. Why would a father who hasn't seen his 4 year old child since he/she was born abduct a child?

2. What makes you think the father in this instance would abduct your child?

3. Why would a mother have difficultly changing a child's surname when the father hasn't been in the child's since he/she was born?

4. Could it be that you are seeking this information because you have done a runner with the child?

I'm not belittling 'your fears'. It's just that I'm not sure that your fears are rational given the situation you have described.

4MYDAUGHTER
SRL-Resources said
Local Courts are VERY wary of making 'sole' orders and unless you live somewhere extremely remote it will get bounced back to an FMC. Technically local Courts do not have the authority to make Final Orders unless these are with the consent of both parties and even so 'sole responsibility' orders are likely to be sent to an FMC.

Finding a solicitor to do this for $2,000 is a big ask

 

I live in a Metro-area (about 15 minutes away from my capital). My Consent Orders were lodged with a Suburban Magistrates Court and were Sole responsibility orders and also had other stipulations. They were signed, sealed and delivered in 3 days without 60i certificate or fuss. At no stage did I have to attend court nor did my lawyer or ex.

My Consent Orders actually cost me $1780 which also included 5 letters to the ex. I had paid $900 before this for a couple of appointments and 7 letters to the ex and my Will. My guy was great, professional and I saw him 3 times (one of which was to signed the orders in front of him) - rest of my communication was via email or through his Assistant. We have a family friend who is also an Accredited Family Lawyer who described my relatively painless case as money for jam.
SRL-Resources: Thank you so much for that info. It gives me somewhere to start.

4mydaughter: Thank you for clearing up the misconception of needing orders to recover a child. It's that kind of info I came here for, because everyone seems to have a different opinion, leaving you with a hundred possibilities and no idea which one to believe. Could I dare to ask what the process is in that circumstance, and what time period you're looking at getting your baby back in?

His father is about as uninterested in a child as a parent could be, and yes, rationally, I know that the chances of him abducting him are slim to none, but as a parent, I have back up plans for back up plans for worst case scenarios :) That's my incredibly unlikely worst case scenario, made marginally less unlikely because I know he still harbours a lot of anger toward me.

As for your other questions;

Why would it be hard for me to change his surname? I have no idea. Logic would tell me I have the best case for a surname change ever, but I've no idea to what extent logic prevails in the family court system. Thus why I asked.

Could I be asking because I've done a runner? After choking on my morning coffee, I suppose yes, I did a runner in so far as I left an abusive relationship and drove the 15km back to my parents house with his son. He clearly knows where I live, and I have not prevented his access to his son if he had wanted it.
Busybee your not the only single parent with a non contact parent with these fears- I was told by my lawyer that the orders stating who the child lives with etc… are pretty crucial once the kids start school as the school legally has to give information about the child or allow the non contact parent to collect the child from school, if the non contact parent shows evidence they are the biological parent of the child and if there are no order on file then the schools have to allow the child to go with the non contact bio parent.

It may seem ridiculous to some that after a few yrs of absence a non contact parent will waltz in and cause a fuss but it DOES happen for many reasons.
Jayden said
Busybee your not the only single parent with a non contact parent with these fears- I was told by my lawyer that the orders stating who the child lives with etc… are pretty crucial once the kids start school as the school legally has to give information about the child or allow the non contact parent to collect the child from school, if the non contact parent shows evidence they are the biological parent of the child and if there are no order on file then the schools have to allow the child to go with the non contact bio parent.

It may seem ridiculous to some that after a few yrs of absence a non contact parent will waltz in and cause a fuss but it DOES happen for many reasons.



Is it more that the non-custodial parent is not able to pick up the child if  there are orders in place?
Im just wondering how that works some people have family members or friends pick up the children after school

BusyBee, if your ex did take your child, you would have to file for a recovery order. As to how long it takes them to return your child, depends on how long it takes for the authories to find him
reallyconfused said
Is it more that the non-custodial parent is not able to pick up the child if  there are orders in place?
I'm just wondering how that works some people have family members or friends pick up the children after school

BusyBee, if your ex did take your child, you would have to file for a recovery order. As to how long it takes them to return your child, depends on how long it takes for the authorities to find him
basically if there are no orders filed with the school records the non contact parent is legally able to pick up children without the lives with parents permission- so a non contact/custodial parent can go into the school office during class time request to take the child out of school and as long as they provide evidence(birth cert of child, and I.D. stating there name etc…) that they are the parent. If no orders are in place then the the presumption is that both parents have 50/50 responsibility for their children and are therefore allowed to take children/seek info from school without the permission of the other parent.

if orders are in place stating the contact parent has full/sole parental responsibility etc… of the child then the parent needs to be contacted by the school before the child is allowed to be removed by the non contact parent, OR if orders state specific days/times when each parent is to have the child in their care etc.. if it is say tuesday and dad has kids on tuesday but mum rocks up to the school wanting to take them home- the school would need to contact the father if he has not already provided them with details of a change of arrangement for that day.

for me personally we havent seen/heard from the non contact paren in some time(years) but the concern of the fact he could(if our orders were not in place) turn up and take the children from school without my knowledge is a huge concern, as you said to Busybee it depends on how long it takes to find him before  the children can be returned.

So if my understanding is correct  you want sole responsibility to be ordered because your 4 yr old wants to change there surname?

you have stated you know its highly unlikely the other parent will abduct the child so surname change is the primary reason obviously.

lets say your 4 yr old wanted a tattoo instead of changing their name …. would you be seeking  sole responsibility so you can grant him/her this wish?

just wondering why mothers seem to always want sole responsibility and no contact

yes i know not all mothers seek this

would be interesting to see how many applications to family court for formal contact orders are by fathers due to being denied access and of those how many responses ask for no contact and sole responsibility

You can fool some of the people some of the time but you cant fool all of the people all of  the time unless they work for CSA and youre a Payee:)
BusyBee said
4mydaughter: Thank you for clearing up the misconception of needing orders to recover a child. It's that kind of info I came here for, because everyone seems to have a different opinion, leaving you with a hundred possibilities and no idea which one to believe. Could I dare to ask what the process is in that circumstance, and what time period you're looking at getting your baby back in?

Perhaps you need to read the article on 'recovery orders' on my web site. I'm not permitted to post links to articles here.

Here is a bit of the article..

What is a Recovery Order?

A Recovery Order is defined in section 67Q of the Family Law Act 1975. It is an order of the Court that can require a child be returned to a:

    * parent of the child
    * person who has a parenting order that states the child lives with, spends time with or communicates with that person, or
    * person who has parental responsibility for the child.

A Recovery Order can authorise or direct a person or persons, such as police officers, to take appropriate action to find, recover and deliver a child to one of the people listed above. As well, a Recovery Order can provide directions about the day-to-day care of a child until the child is returned or delivered.

A recovery order can also prohibit the person from again removing or taking possession of the child. In these cases, a recovery order can authorise the arrest (without warrant) of the person who again removes or takes possession of the child.

Who can apply in a Family Court for Recovery Orders?


You can apply for a recovery order if you are a:

    * person who the child lives with, spends time with or communicates with as stated in a parenting order
    * person who has parental responsibility for the child in a parenting order
    * grandparent of the child, or
    * person concerned with the care, welfare and development of the child. For example, you may be the person who the child lives or spends time with but there is no parenting order that states this.

There is more on my web site.


Its not the courts or police responsibility to locate an abducted child. Courts and Police don't act as child recovery agencies. Parents generally are required to find abducted children themselves with the backing of a court order.

How long does it take to locate a child? How ever long it takes you to find them.

I presume you are worried about all this because your child is about to commence school.

You say you suffered domestic violence… is there an AVO in place?

PS - there is a lot of inaccurate misinformation being posted in this tread.

A school WILL NOT KNOWINGLY allow a non-custodial parent or third party to pick up a child from a school unless that person or third party is listed in the child's enrolment forms IF they are aware (notified) of a custody dispute situation or are made aware that a parent has concerns about a child being abducted by the non-custodial parent or third party. If a school is not notified of such concerns, they won't know to remain vigilant in this regard.

A school has legal obligations with respect the care of a child and are responsible for a child whist that child is in there care.  If they are made aware of abduction concerns they with NOT allow a parent to take a child if there are no 'parenting orders' that specify such. Evidence that a parent is a 'biological parent' means absolutely nothing in a situation where a school has been notified of custody/abduction concerns/situations.

Last edit: by 4mydaughter


4MYDAUGHTER
BusyBee said
3. You can file an application with the court to change the child's surname. Easy peasy.
 
The problems with this are…

  • You file an application;
  • You serve the application;
  • The other party files responding documents, most likely resisting the name change and seeking time with the child;
  • You wait 12 or 18 or 24 months for a trial and have the associated expenses…
Well there is always that possibility - that the other party might seek further parenting orders.

But that's life. Every action has consequences.


4MYDAUGHTER

lawyer

reallyconfused said
SRL-Resources said
Local Courts are VERY wary of making 'sole' orders and unless you live somewhere extremely remote it will get bounced back to an FMC. Technically local Courts do not have the authority to make Final Orders unless these are with the consent of both parties and even so 'sole responsibility' orders are likely to be sent to an FMC.

Finding a solicitor to do this for $2,000 is a big ask

 
I live in a Metro-area (about 15 minutes away from my capital). My Consent Orders were lodged with a Suburban Magistrates Court and were Sole responsibility orders and also had other stipulations. They were signed, sealed and delivered in 3 days without 60i certificate or fuss. At no stage did I have to attend court nor did my lawyer or ex.

My Consent Orders actually cost me $1780 which also included 5 letters to the ex. I had paid $900 before this for a couple of appointments and 7 letters to the ex and my Will. My guy was great, professional and I saw him 3 times (one of which was to signed the orders in front of him) - rest of my communication was via email or through his Assistant.We have a family friend who is also an AccreditedFamily Lawyer who described my relatively painless case as money for jam.

Who was your lawyer? He sounds a professional who knows what he is doing.

Last edit: by Secretary SPCA

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