VIC Family Court Orders - Husband's Daughter Wants to Live with Us - Options?

[Megan09]

My husband sees his daughter (10 years old from a previous relationship) every fortnight. We have no family court orders and he hasn't seen her in over 14 months, but talks every Wednesday on the phone.

He went and saw her at her school sports and she was so excited as she said mum always has a reason to why I can't come over. She has told us numerous times before that she wants to live with us and even did on her sports day.

My husband went and saw a lawyer and told us when we have her next (will be these school holidays apparently) to not return her if she is really wanting to live with us. Also we were told to text the mum to inform her and say we will ask her over the next few days if she wants to go back.

My only question is, what happens if her mother applies for recovery orders?

She obviously has to lie as our lawyer is certain she won't get one . Anyone got some opinions, please?

 

[AllForHer]

I'm confused - he sees her every fortnight, but hasn't seen her in 14 months? Can you clarify what the current care arrangements are?

 

[Megan09]

He was seeing her every fortnight but for the last 14 months he has not as the mother moved in with a new boyfriend with who she had a baby with. She obtained full care of her three older kids 13, 16, 17. They lived with their dad since the youngest was 3, so she doesn't need us to look after his daughter every second weekend as she said to us on the phone "I have babysitters now".

 

[sammy01]

Ok, I'm confused when you say " She obtained full care of her three older kids 13, 16, 17. They lived with their dad since the youngest was 3. so she doesn't need us to look after his daughter every second weekend as she said to us on the phone "I have babysitters now" Do you mean that the other three kids share the same dad as the 10-year-old?

Ok, so 10-year-old comes lives with you. Make sure the kid understands what to do if mum approaches her or tries to pick her up from school. Tell the kid that if she doesn't want to go to mum's, she will have to be very clear with adults about that and refuse to go.

If the mum tells lies, it will get messy. But those lies will need to be substantiated in court - magistrates have heard it all and they are pretty smart.

 

[AllForHer]

I'm also inclined to ask why the father hasn't sought any time with the child for 14 months if those were the care arrangements beforehand. Why was the father so accepting of the mother's decision to stop the previous care arrangements? Why didn't he act sooner to get that time reinstated?

 

[Megan09]

We have to pay for a lawyer. We can't get any legal assistance like she does. We have text message proof for when he was messaging for her on the weekends and her mother just ignored them.

We just worry that if we do not return her, we might have to if her mother lies on the recovery orders. She isn't in a stable home as she is in grade 5 and about to move schools again for the 9th or 10th time. Which is ridiculous.

 

[AllForHer]

Okay, so "Just take the child" is basically the very last suggestion I would give to a parent, and even then, the circumstances would need to be dire, like a risk to the child's safety. You haven't said the mother is violent or poses a risk to the child, and if you take the child without consulting the mother, there's an extremely high chance the mother will pursue a recovery order.

You want to avoid this, for many, many reasons. First, it'll cost money to defend. Second, the likelihood of you succeeding I would say is substantially lower than the chance of her succeeding because the child hasn't spent time with dad in 14 months. Third, it'll damage your case in future because it will show you don't have any insight as to the impact of a change in residence on the child.

Instead, your partner should follow the correct avenues - organise family dispute resolution through Relationships Australia or Legal Aid and try and negotiate an agreement for the child's care arrangements. Make it clear that you will be pursuing orders through the court if the mother continues to withhold the child.

And if she refused to participate or agreement can't be reached, then actually pursue orders through the court. A parent who isn't seeing a child for no reason other than a difficult other parent stands an extremely good chance of getting time with the child even as a self-represented litigant.

If you do choose to take the child, here's the legal side of the thing.

The court is bound by the Family Law Act 1975 to make orders that it determines to be in the best interests of the child. Section 60CC of the FLA provides a list of elements the court must consider when determining what's in the best interest of the child.

The opinion of the child makes up just one of those elements, and generally speaking, the court won't ordinarily place a great deal of weight on a child's opinion unless they are over the age of about 12 (maturity and circumstances pending). Thus, even if the child does say 'No, I want to live with [parent]', it'll still be weighted against all the other factors.

However, while there are no orders in place, you can take the child. I just don't think it's a good idea, that's all.

 

[Megan09]

Does anyone know if you can find any lawyers that make payment plans in Vic or Melbourne?

I don't mind paying $1000-$1500 a month, just can't afford the fixed fee rate or any up front cost we have received from a child custody lawyer or icl.

Thanks

 

[Megan09]

I see your points. Considering he hasn't seen her for 14 months, she will more than likely be approved of the recovery order.

Thanks

 

[Megan09]

One more thing. What is the worst thing that could happen if we don't return her and she obtains a recovery order? It will then be in court to do an interim order.