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VIC Family Law Final Orders - Change and Relocate Internationally

Discussion in 'Family Law Forum' started by sadfamily, 28 August 2014.

  1. sadfamily

    sadfamily Member

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    Hi, I'm hoping someone can help me as to which forms I need to use to change Final Orders, and to get consent to move internationally, along with how to find an Independent Children's Lawyer ( ICL).
    My Final Orders were made 12/8/2011.
    By early September, my daughter ceased attending access as she was indecently assaulted by her biological father's father in law.
    This went to trial last year and he was found not guilty on 6 charges of indecent assault on 2 of my daughters (one of which is now of age). All because their biological father lied under oath in support of his father in law and my daughters were expected to remember exact dates, some dating back 5 years prior.
    My daughters have had no contact with their biological father since September 2011. No phone contact nothing.
    My now 14 year old daughter has asked if she can take her biological father to court with her own representative to get permission to move to the USA.
    In the Final Orders, there is a clause included " The parties do all things and sign all documents required to obtain Australian Passports for each child."......... I completed the application forms, and sent them via registered post along with a phone call to their biological father explaining he'll just have to sign them and send them back to me and i'll pay for them but I did not get
    I am currently still paying my fee for our last Family Law Court adventure back in 2011. These proceedings were brought on because of my older daughter running away for 5 years, in which she hadn't disclosed she'd been assaulted until her younger sister did.
    What forms would I need to gain full custody of my now 14 year old?
    What forms would I need to ask for consent to move internationally?
    How do I find an ICL for my daughter?
    I refuse to attend any form of mediation if that is required, as when initial proceedings were in place it was not a successful mediation at all. Is there anything I need to do there?
     
  2. AllForHer

    AllForHer Well-Known Member

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    What you are asking to do requires more than just 'signing forms' and 'getting an ICL'. You are asking to change final orders, which the court refuses to do unless it meets the standards set by Rice & Asplund, namely that circumstances must have changed significantly for the court to even first consider changing final orders.

    The matter of the bio-dad's father-in-law is already laid to rest - the court ruled that the evidence was not sound enough to prove beyond reasonable doubt that he indecently assaulted the child.

    Additionally, your daughter can't hire an ICL - they're appointed by the court. Engagement of an ICL is not the same as when adults engage lawyers - ICLs rarely even meet with the children they are representing, because they represent *the best interests* of the child in court, not the child themselves.

    On top of that, it takes a lot for a court to consent to moving a child overseas away from the other parent. In fact, it often happens that the court rules the opposite - you're deemed a flight risk with they child, so they confiscate the child's passport all together.

    Your absolute best chance to get what you are seeking is to get consent orders to that effect, which means mediation - and just as some minor insight, refusing to attend any form of mediation won't win you any favours if you decide to take the matter to court.

    I try to help as best I can with information and insight, but this is one circumstance where I would organise an appointment with a Legal Aid solicitor. They offer legal advice for free and can give you direction for your circumstances.
     
  3. sadfamily

    sadfamily Member

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    Thankyou for your response.
    Its been an unbelievable past 5 years with my children. As the detectives said when we went to trial, they were gobsmacked he got off and that just because he wasn't proven guilty does not mean that he didn't do it and with dealing with a "double whammy " of this occurring is really hard.
    Given the fact that my children have had nothing to do with their biological father and a family report was completed when we attended back in 2011, the report was in favour of my children having the opportunity to move to the USA.
    The biological father also threatened my youngest daughter on school grounds, when it came to light what had occurred. I attended a court to put in place an intervention order so she couldn't be approached at school, in which the judge refused, so I told him I wouldn't be adhering to the new Final Orders out of concern for my daughters safety and wellbeing.
    In fact on the Final Order there was an injunction in place of his consumption of alcohol which was breeched when the incidents occurred.
    I contacted Legal Aid yesterday and they stated that I would have to do a new application, and I could request the consent to relocate in that and request to have an ICL for my daughter? I am unsure of what form to use for this. And if need be I will attend Mediation but I know it wouldn't succeed due to the last events in Mediation.
     
  4. AllForHer

    AllForHer Well-Known Member

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    The form you will need is the same as the first time around - an Initiating Application. This is usually lodged to the Federal Circuit Court, but because your claim involves allegations of abuse, they may move it to the Family Court under the Magellan program.

    You will need to write a supporting affidavit for this application, outlining the circumstances as to why you are seeking a change to orders.

    If it's been 12 months since you last attended mediation, you will need to do so again before you can submit an application, even if an outcome is not reached. You will need the s60i certificate in order to commence procedures.

    I would suggest writing up a draft copy of the orders you are seeking - That the mother have sole parental responsibility for the child; that the mother be permitted to relocated to [x] with the child; etc.

    I don't see any reason as to why the request for an ICL to represent your daughter would need to be included in the orders you are seeking - you should just be able to request one at the first mention.

    As I said, however, remember that the ICL does not represent your daughter, the ICL represents the child's best interests. ICLs rarely meet with the child they are acting on behalf of, but that may be a different story given the age of your kids.

    The other advantage you will have is that your kids, at their age, may have their views given weight by the court. Relocation, though, is significant, so how much weight the child's views are given is entirely up the court.

    I hope this helps.
     
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  5. sadfamily

    sadfamily Member

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    Thankyou so much :O) Your advice is greatly appreciated :O)
     

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