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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 18861
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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Hi, I have been seperated from my husband for almost two years.

Resolved Question:

Hi, I have been seperated from my husband for almost two years. He was on a temporary spousal visa (from Fiji) and we seperated before he got his permanent residency, but is now still in Australia illegally. I do not know where he is and I've had no contact with him since January 2012. We have a now 2 year old son. He was 3 months old when we seperated. I would like to change is surname, as I have reverted to my maiden name. I'm unable to do it without the father's consent, unless I have a court order. As I don't know where the father is, I need to get a court order - how do I go about doing this? How difficult is it likely to be?
Submitted: 5 months ago.
Category: Australia Law
Expert:  Leon replied 5 months ago.
Good Morning,

My name is XXXXX XXXXX X am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question.

The court order will need to come from the family Court of Australia and you will need to provide detailed evidence in your affidavit that you are unable to locate the father.

You will need to file and initiating application with the court And the following link is the do-it-yourself kit for such an application.

http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Forms/Do-it-yourself+kits/Initiating+Application+Kit+%28do+it+yourself+kit%29

You would seek the orders that the child's name be amended to your maiden name and that the court make this decision in the absence of the father.

In the affidavit you will need to provide detailed evidence of all searches that you have done to locate the father and that they have failed.

If you have contacted his family in Fiji and ask them to provide you with any information they have you would also include these correspondence in your affidavit.

It is your responsibility to prove to the court that you have exhausted all avenues of contact, and you have been unsuccessful in locating him.

The court will grant you your order provided it is satisfied that you have done everything you can to locate the child's father.

Does this make sense?

Customer: replied 5 months ago.

Hi yes this makes sense, I guess I just need to understand how far I have to go. Or what would be the situation if I was able to get a message to him via family in Fiji and he refuses to respond - which is the likely scenario, or refuses my application - which is the second most likely scenario. Would I be able to present a case for why my son's name should be changed even if the father refuses to consent? Basically, this man has not been in my son's life since he was 3 months old, he's provided no financial support, has made no enquiries as to his well being. He is not likely to have anything to do with my son in the future either. Where do I stand legally if I can get a message to him but he refuses to cooperate or refuses to even answer?


Thanks


Clare

Expert:  Leon replied 5 months ago.
Good Morning,

You would need to to write to his family and advise that you wish contact details for him so that he can sign papers to change the child's name.

If you know friends that may have contact with him you should contact them and again in writing ask them if they could provide you with his contact details so that you can speak to him.

The father has a right to know and this is why the court needs to be sure that you have done everything you can to locate him.

The fact that he's not providing financially for the child does not mean that he cannot object to the change of name.

If you can get a message to him and he refuses to cooperate or even answer, provided you can show evidence that you have sent the application to him to the court is sufficient.

You would have to show that it is in the child's best interest for the name to change and the court accept your reasoning should the father response to your application and appear in court.

Does this make sense?
Customer: replied 5 months ago.


Ok, thanks, XXXXX XXXXX


 


Next question - I'm actually now living in Fiji, I have a three year work visa.. I currently still register my fathers address in Victoria as my Australian residention address. Would I have to be present at any hearing in Victoria?


 


And of course - how much would this likely cost, if I'm making the application myself i.e. not engaging a solicitor.


 


Thanks


Clare

Expert:  Leon replied 5 months ago.
Good Morning

You are going to have a problem because you have to be in Australia to file the documents and also here when the court makes the decision.

While in Fiji you should be collecting as much information as you can and provide that to the court as part of your affidavit so that they are satisfied you cannot locate him.

If he does not show, then cost would be your time and the filing fee to the court.

If he shows and makes you run a hearing and you appoint a solicitor you would be looking at around $20,000 - $30,000.00 form beginning to end. If you have done most of the work at the beginning it can be less.

I hope this assists you.

Is there anything else I can assist you with?
Customer: replied 5 months ago.

One final one I just thought of, but you may not be able to answer it. The intention is to remain in Fiji permanently, but that won't be for about 5 years when I'm eligible to apply. Once we were permanent residents in Fiji, perhaps even citizens, could I apply to change my son's name via Fijian law? Perhaps deed poll? You probably can't answer that, but I just thought of that. It's a lot easier, and cheaper, to go to court here!


 


Many thanks for your help. Pretty much confirmed what I already suspected might be the case, but I was having trouble trying to find out for sure.


 


Kind Regards


Clare


 


 

Expert:  Leon replied 5 months ago.
Good Afternoon

If you decide to remain in Fiji, then you have to comply with the laws of Fiji to change the child's name.

I cannot tell you whether you have to go to court or whether it can be done by deed poll as I'm not familiar with the court system.

But if you choose to remain in Fiji then the change of name has to be under Fijiian law.

Does that make sense?


Customer: replied 5 months ago.
Yep, good, that all makes sense, thanks.

Clare
Expert:  Leon replied 5 months ago.
Good Afternoon Clare

You are very welcome and thank you for using my services. 

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards
Leon

Leon, Solicitor
Category: Australia Law
Satisfied Customers: 18861
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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