NSW Family Court - Ex Withholding Kids if Girlfriend is Around?

Discussion in 'Family Law Forum' started by Louise too, 15 January 2019.

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  1. Migz

    Migz Well-Known Member

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    10 weeks !! I’ve been told by my lawyer 5 to 6 months
    She also wants extra $350 per week to help pay for childcare otherwise no kids.

    1. Is there any child support currently changing hands?
    2. If your lawyer is saying 5 to 6 months for your first court appearance, I'd be finding a new lawyer, or better yet, just self-rep, and get all the paperwork into the registry this week.


    Thank you. Can I ask what notice of risk is? And can voice recordings be heard in court? She has even denied me access via seeing them as well as talking to them in the phone.

    Anyway, I can speed up the court process.

    3. A notice of risk is to be filed with your Initiating Application. Click on the link and Print out the PDF copy
    Notice of Risk - Federal Circuit Court of Australia

    4. Yes, voice recordings can be used in court, but the best way is to save that for trial. What you can do in the meantime is transcribe it word for word, complete with date and time and the device and serial number it was recorded on, you can then add this to you Affidavit/Annexure's also noting that should the court request to here the actual audio recording that you are able to produce it should it be required for authenticity.

    5. Speed up the process, yes there are two ways, self-rep, and/or if the children don't have a passport you can actually say you want to take them to Bali on the Easter break holidays, and that you require to file urgently for passports... I heard of another Father doing this and he filed all of his paperwork urgently, admittedly he was getting married in Bali and wanted his children to come along.
     
  2. Rod

    Rod Well-Known Member
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    5. - Urgent orders are not the same as interim or final orders. The other guy may have just received urgent orders as opposed to interim orders. Without more info or case reference can't say one way or the other.
     
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  3. Louise too

    Louise too Well-Known Member

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    Yes I’m paying $250 per week for child support.

    I have started application this week.

    Do I include txt msg etc in my application?

    What is the court process after my application is submitted, does my ex respond? Then it goes to court and the judge decides?
     
  4. Jake Matherson

    Jake Matherson Well-Known Member

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    You file your Initiating application, 60i Cetificate, Notice of Risk and your first Affidavit.

    If the text messages are relevant and to the point you might chose to quote them directly in your Affidavit and attach the screen shots of the messages as annexures to your Affidavit.

    There are different rules for Annexures if you file in the Federal Circuit Court VS the Family Court of Australia just so you know.

    Once you have finished all of your paperwork and made 3 copies (One for you, the court and your Ex) and you have successfully filed all of the above at the Court they should stamp your paperwork and give you your first date.

    You take your freshly stamped paperwork away and pay a process server $100 to deliver your Ex's copy to them.

    Your Ex is then required to respond by filing their Notice of Risk and affidavit etc.
    If you're lucky they will do this quickly but it is likely they wont file it until the last second (1 hour before court) giving you no time to respond and you will have your fist hearing probably before a Registrar.

    Don't expect any changes at the first hearing unless there are significant safety concerns for the child. The Registrar might give you a few directions to prepare you for an Interim Hearing in a month or so and that is the one that you might be awarded some time with the child.

    Just be prepared to wait and longer than you expect.
     
  5. Louise too

    Louise too Well-Known Member

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    Oh thank you for great reply and clearing things up for me.

    The annexures that I will be including are the text message of my ex refusing me to talk to kids and see kids and not taking them to their sport they love.

    Do you recommend I get representation?

    How do I know if I’m filing with the federal or family court?

    Is ex required at the first hearing?

    What happens at the interim hearing? How does the magistrate decide? Would that make us go to mediation again or does magistrate decide?
     
  6. Jake Matherson

    Jake Matherson Well-Known Member

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    I am not a lawyer. Just a bloke going through his own mess.

    I started with a lawyer and had to bail out when I could no longer afford it.

    If you can afford it I suggest using one. But you're here like me looking for advice so you probably can't haha.

    If you're a fast learner and have no problems writing your paperwork maybe do a lot of the leg work yourself and pay a lawyer to look over your work and give you some advice to steer you in the right direction.

    A quick google will give you the list but the short answer, the Family Court of Australia is for the more complex cases. FCC is for things that are a little more straight forward. I would suggest that you're probably going to file in FCC.

    The Ex could choose to not show up. But that wouldn't be good for them. Expect them to show up.

    In your initiating application, you should be asking for Interim orders and Final orders.

    Your Interim Orders are the Orders you want to be in place before you finally get to Trial. i.e The orders you want in place for the next 2 years minimum.

    So at your Interim hearing, the Registrar/Senior Registrar will decide based solely on the paperwork in front of them what is the best course of action for the interim period and hand down Orders.
    Everything is based on paperwork at this early stage, therefore, it might be worthwhile getting some legal advice on your first draft documents before you file them to make sure you're on track.

    Before you get to this Interim Hearing it is likely at you will have a Directions Hearing.

    The Court will have looked at both sets of paperwork and they might order a Family Report or any other thing they think might help such as further mediation, parenting courses etc.

    This is so that when you have your Interim Hearing you're in and out in 20mins because they have read the family report, seen the recommendation that the father spends X amount of time with the child and the mother spends Y amount of time.

    Go away for 4 months on that schedule and come back for another directions hearing and see if you two have worked together.

    Keep in mind that you/your Ex can stop the court process at any time by coming to an agreement together and filing consent Orders and carry on with your lives saving time, money and heartache provided the court agrees with those Orders.
     
  7. sammy01

    sammy01 Well-Known Member

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    Voice recordings - waste of time. Repeat of danger...

    So warning 1. Don't make this conflict drivien. Secret voice recording kinda smell a bit like you're baiting her for a response. High conflict is your worst enemy. Your next enemy is insanity / irrational behaviour. Now on a normal day you don't go about recording conversations do you? Let alone doing it on the quiet... it is a little bit crazy. Don't make this about the ex and the new GF...

    Make it child focussed. You and the ex get on great. You had lots of access but then the ex changed her mind. If you have any text messages from the ex stating no girl friend then include them.
    Play dumb. It is not your job to convince the magistrate that the ex is a twit. If the ex is a twit the magistrate will work it out for himself (probably as a result of crap she includes in her affidavit). You just paint the picture. You had access then all of a sudden access was refused. End of story. The ex will have to explain herself.

    Next -

    If you make this thing he said she said. Then she will have a point to prove. She (quite reasonably) will want to go to court and tell the magistrate about all the 'lies' and how she feels abused by your 'secret recordings' and there is a lack of trust and she can never trust you with the kids again after this breach of her rights... blah blah. She will storm into the courtroom. She will be angry with you and this sucker could drag on for a year or more.

    Or - keep it simple. You have not seen your kids for a while and you want the magistrate to order that you will see the kids. Nothing else. She then has to make the case that there has been a good reason for stopping from you seeing the kids and new GF ain't enough. So she is confronted with having to go see the Magistrate and realising (if she has half a brain) that she is gonna get torn apart. She will have a good few weeks / months to stew on that reality and you just might find that she will cave and when she does excuse the vulgar metaphor, but you will have her on her knees. At that point get back to us. But hopefully, she will see reason and you guys will never see inside a court house.

    So your case is you and the ex get on great, things have been smooth. But then all of a sudden the ex stopped you seeing the kids and communicated that it was because the new gf was on the scene. Leave the magistrate (if it gets that far and I'm willing to bet it wont) to sort out the details.

    Mate keep your case simple. Do not over complicate things and definately do not go about 'proving' that the ex is a twit. Family law is not about 'proving' it is about "best interest of the children". Make that your focus and you win. Easy. Even if she does pursue this all the way through the system (and I don't think she will) your starting point is a stronger place than trying to deal with what ever brain freeze she's had that she uses to 'justify' stopping you from seeing the kids.

    BTW I wrote an earlier post about writing to her and suggesting you have the kids, without gf present as a short term measure. Did you do that? Can I suggest it a good idea? see either she agrees (great) and in a little while you can talk about introducing GF (btw I'm assuming you don't live with GF?) But if she doesn't respond or better yet sends a response refusing access while GF is around you have an email / text message from you that shows you're willing to compromise and something from her to confirm she is the problem. IT confirms that the ex is stopping the kids because of GF and all done without voice recordings.

    Time to start playing smart.

    And do not agree to be blackmailed into paying additional child support just to get to see the kids. Again. Be clever. Do you have that in writing that she wants an additional $350 per week? That is a bucket load of cash. It is completely unreasonable.

    Final thought - if you can afford legal representation go for it. I think your solicitor is playing games - they do that... Tell you it will be 5-6 months, so they can look good when they get you into court in 10-12 weeks. 5-6 months should be enough to see this case closed. Don't doubt solicitor's first priority is their wallet. I reckon you direct your solicitor to submit your paperwork for you. See the thing is, one honest mistake on their overly complex paperwork can see you waste time. Spending a few grand to get that paperwork submitted might be a good idea. Remember - you pay the solicitor. You are their boss. Tell them you want the paperwork filed within a fortnight.
     
  8. Beth1981

    Beth1981 Well-Known Member

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    My partners ex-wife with-held their son from his father for a month, because of the same reasons. She was jealous of me, and didn't like that their son liked me. We put an urgent recovery order in, it took a couple of weeks, and the judge told her that if she didn't agree to 50/50 care that day, that the father would be given full custody.

    Keeping the status quo is paramount in the courts eyes. I understand how challenging your ex can be, but please just remember that if not then and there, definitely down the track she will be held accountable.

    Good luck.
     
  9. Louise too

    Louise too Well-Known Member

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    Thank you so much for sharing your experience.
    That’s helps heaps
     
  10. Match

    Match Active Member

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    Beth1981, can I ask how long you'd been with your partner / in contact with his kids and whether there were already orders in place when the ex began withholding contact?
     
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