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VIC Custody of Children - Son Not Returned on Holiday?

Discussion in 'Family Law Forum' started by link7four2, 25 June 2015.

  1. link7four2

    link7four2 Member

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    My roommate's ex has taken their child over to Perth (from Melb) on a holiday. This was originally meant to be 12 nights, but she has since changed the return dates twice, and what was meant to be 12 nights has become like 32. They share custody (their son is probs at our place more than hers tho) through private agreement. Centrelink though has her down as the primary care giver with total 100% custody ( custody of children) even tho he's tried to get it fixed up it's not happened.

    He really wants his son back, misses him bad. Does he have any legal right for her to bring him home, or something?
     
  2. Tracy B

    Tracy B Well-Known Member

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    Hi,

    Does your roommate's ex (child's mother) still live in the same state as your roommate (child's father)? It does not sound like she is relocating the child.

    You mentioned a private custody agreement. Is this court sanctioned? If not, the mother can move the child to another state or country as she pleases. To recover him, the father will need to apply to court for a recovery order. However, given that there does not appear to be a risk of permanent relocation, and the mother seems to be just extending a well-intentioned holiday, the court may refuse to make the order for immediate recovery and adjourn the matter to wait for the mother to return from the holiday herself, with her son.

    A Centrelink status is different from a custody status. It's really more for determination of Centrelink payments. It does not allocate custody rights.

    This appears to be better resolved in family mediation, rather than court. It seems to be more of a domestic issue (communication, managing expectations, parenting decisions) unless the mother appears to be moving the child interstate permanently.

    If this goes to court, the ONLY consideration would be: what is best for your roommate's son? While your roommate may miss his son, as any good father would, he should be asking what is in his son's best interests? Is his son enjoying the vacation? Is there another reason to have his son back, other than your roommate missing him (e.g. missing school, medical care)?
     
  3. AllForHer

    AllForHer Well-Known Member

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    I don't agree with the above in its entirety. If the child was in a 50/50 arrangement and has since gone 4 weeks without seeing the father, then I would argue in favour of pursuing a recovery order in the child's best interests. It is not ordinarily deemed appropriate for a child to go from seeing a parent frequently to not seeing them at all, and there are elements here that lead me to suspect an attempted relocation is under way, such as the other parent telling Centrelink they have 100% care and nearly tripling the length of a holiday from one side of the country to the other.

    Seek legal advice.
     
  4. AllForHer

    AllForHer Well-Known Member

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    Further, I want to remind readers that the primary consideration for what's in a child's best interests is the benefit of having a meaningful relationship with both parents.

    Contrary to what Tracy B has suggested above, time with his father is of greater concern to the court than the child's enjoyment of the holiday.
     

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