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NSW How Do I Get My Son Back Under Family Law?

Discussion in 'Family Law Forum' started by Erica, 2 January 2017.

  1. Erica

    Erica Active Member

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    Hi, I'm new to this forum.

    As it's a public holiday weekend, I'm unable to seek legal advice/ start action until tomorrow and I'm hoping that some members here who have been through similar circumstances can help with information until then.

    Background:

    My 8-year-old son is on a contact visit with his father. I reside in NSW, his father resides in SA. There is no parenting plan in place.

    The history till now is fairly straightforward and uncomplicated. The first time my son and his father met (ever) was in May 2016. His father had contacted in April 2016 and expressed his wish to be in his son's life. He began with phone calls and regularly 'Facetime' called, perhaps 3 or 4 times a week, and also posted him gifts during that time.

    Child support had previously not been paid for many years, but he began paying from that week.

    Visit one: We then mutually agreed for him to travel to where we live on May 4th (the day before my son turned 8) and spend the day with him, which he did, and the visit went well. Following the visits regular phone calls, and the posting of gifts continued

    Visit two: A visit was mutually arranged for my son to fly to Adelaide in July 2016 and spend a week with his father (and half siblings from his fathers other relationships). The visit went well, although he did return him two days after the agreed date and to a different airport than was agreed due to him not booking the return flight in time.

    Visit three: A visit was mutually arranged for my son to fly to Adelaide in October 2016 and spend a week with his father. The visit went well.

    Visit four: A visit was mutually arranged for my son to fly to Adelaide and spent two weeks with his father. This was the longest visit yet, but as previous visits had gone well and it was the Christmas break I agreed to the longer visit. We agreed on December 20th until the first week of January.

    There was not a set date agreed on (my mistake :( ) as I understood flexibility re the cost of flights on certain days during the holiday period. I contacted his father on December 31st to confirm flights for this week. He replied that he is keeping him until Australia Day (another 3 1/2 weeks!) and will not reply to any texts or calls except to say that I will hear from his lawyer on Tuesday.

    I feel that a 5-week visit is far too long, especially after previously only ever having the 2x one week visits. I am also extremely concerned that he won't return him at all. After 48 hours of trying, he finally allowed me to talk to my son on speakerphone. I kept the conversation light and bright and my son did sound happy and well.

    What can I do to have my son returned home under family law? What should I do? If I apply through the family court, would anything even happen before Australia Day when he has said that he will return him? With his refusal to return him at the agreed time, I have no faith at all that he will even return him on Australia Day.

    The only other relevant information I can think to include in this post is that my son has always resided with me. My relationship with his father was for less than a year. I left due to domestic violence when I was six months pregnant. I later found out that there was a history of domestic violence in his previous relationships and was the cause of the breakdown of his marriage also.

    My son is doing extremely well in school, he has attended the same school since kindergarten and is entering year 4 this year. He has been the first child in the entire school body to reach the schools 'achievement/behaviour' rewards throughout the year, often months ahead of the next student achieving that stage (bronze silver gold etc).

    He is the youngest sibling of seven children (currently four remaining at home) so he has been raised with a lot of love and attention.

    Any help, information, etc would be greatly appreciated. Especially re timeline, costs, etc. I'm trying to keep my wits about me but it's not easy!

    Thanks in advance
     
  2. sammy01

    sammy01 Well-Known Member

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    Nothing will happen before Australia day...

    So hopefully you will get the kid back then. If not, contact a solicitor.


    Now I get you're concern about the kid being away so long... Guess what kids bounce since you've had 7 kids you know that. I'm willing to bet the kid you get back will do as well at school as the kid you sent.

    Given that you have agreed for the kid to go in the past, you're on a hiding to nothing to bring up claims of DV. If you had fears of DV, you should never have sent the kid.

    Now you've acknowledged your mistake as far as agreements about return dates - learn from the mistake. Next time - make sure dates are confirmed prior and refuse to send child without confirmation.
     
  3. Erica

    Erica Active Member

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    I wasn't claiming DV as an issue, just included it in my post as to history. If I thought he was at risk I would not have sent him. Confirmed dates won't mean anything, he could have a confirmed date/flight and still not put him on the plane.

    My concern is that he has refused to return my son at the agreed time, extended the visit by 3 weeks without discussion, and therefore removed any trust/good faith so I have no reason to believe that he will return him at all.

    I should have been more clear in my post - what I meant was, should I wait till Australia Day to see if he does return him or start proceedings immediately?

    I've not been in this position before, I've raised my son alone for 7.5 of his 8.5 years, and I've been very supportive and encouraging of him having a relationship with his dad - three interstate visits in five months shows this
     
  4. sammy01

    sammy01 Well-Known Member

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    So have you heard from his solicitor yet?

    Look, my thoughts - you could see a solicitor to start court but unless he has very good reason to think the child is being abused then the courts are not gonna like what he has done. Now he says he has spoken to a solicitor - good - solicitor should tell him the same.

    What do you think? Is he gonna return the kid at the end of the month? What is your gut feeling?

    My thoughts are he will. And my thoughts are, you're right - he has shot himself in the foot. So once you get the kid back, you should write to him and say no more visits without consent orders written up at his expense.
     
  5. MartyK

    MartyK Well-Known Member

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    If you have genuine concerns for the welfare of the child, and the child ordinarily lives or spends time with you, even in the absence of court orders, you can file an urgent recovery order.

    The agreement, in writing I expect? Between you and the father, was that the child was to be returned to you in the first week of January? This period has not yet elapsed so you should probably at least wait on it until after this period, if this is the path you will take.

    I would suggest, if you are intending to see a lawyer, that you also discuss with them having some orders written up, that can be sent to and negotiated with the father through his lawyer, if he ends up getting one, and for any agreements about the future arrangements for the child to be filed as consent orders.
     
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  6. Erica

    Erica Active Member

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    I received a text from his father saying that he isn't returning him. He stated that he had genuine concerns due to 'C's (child) welfare as he had headlice (not true) and because he doesn't know what basic fruits and vegetables are (also not true). He stated that he has true fear over the general wellbeing of 'C'.

    This is the third visit ever. Meaning he has spent a total of 4 weeks with 'C' in his 8 years, all within the past 6 months. What do you think my chances are of getting an urgent recovery order? Are they only issued where there is abuse involved?

    Does anyone have any experience or information re timelines? Could this take months?
     
  7. AllForHer

    AllForHer Well-Known Member

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    My thoughts.

    File for a recovery order, together with interim and final orders. Request it be heard urgently on grounds you've raised above, but also that the child is due to start back at school at the end of this month. Either the registrar will have it heard urgently or not, so no harm in trying.

    The timeline is dependent on the registry, but on average, your first hearing will usually be three or so weeks after filing if deemed urgent, or six or so weeks if deemed not urgent.

    Recovery order will likely succeed, but make sure your interim and final orders provide for the child to spend time with the father moving forward, perhaps supervised since there's an established risk he won't return the child.

    The reasons he's given for retaining the child are not good enough to justify uprooting the child in such a way. Lice? Does any kid under the age of 10 not have lice? And the complaint about fruits and veggies is both speculative and irrelevant.

    Just my view, but hope it helps.
     
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  8. sammy01

    sammy01 Well-Known Member

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    Yup, go see a family lawyer ASAP - LawTap: Find a Lawyer & Book Online. In the first instance, the lawyer will write to your ex, telling him to return the kid or risk urgent court action. That letter could be in the mail within a few days. So it is a good start. That alone might be enough for the ex to pull his head in.

    Failing that urgent recovery order...that will only take a few weeks. Yep, stressful - but stay calm, it's not like the kid has not been with his dad already so I'm sure your child will be fine.
     
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  9. Erica

    Erica Active Member

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    Hi, has anyone had to do Family Dispute Resolution before applying for the recovery order?

    I saw a solicitor on Friday (because Legal Aid isn't open until tomorrow due to the holidays). The solicitor filled in legal aid forms online, but I didn't actually see them and I don't know what he wrote (he asked me about my basic financial info, etc and I assumed that's all they required).

    Towards the end of the appointment, he started talking about FDR and if that failed, then we go to family court for a recovery order in May! He finally told me that he'd only applied for Legal Aid for the FDR and that we would apply again for money for the recovery order after the FDR aid was approved.

    He phoned the child's father while I was there to ask for his solicitor's details or his postal address. He refused and hung up on the solicitor. He also phoned my ex's sister to ask for my ex's address (who my child flew to this contact visit with) and she denied any contact with her brother, any knowledge of where he is and then also hung up.

    I've tried everything I can think of to get his address but have come up with nothing. His first ex-wife said she doesn't know his address, email etc, only a phone number. She finally admitted after being caught in a few lies that she does not want to get involved and jeopardise her relationship with her ex (they have a daughter together).

    After days of trying to track down the most recent ex-wife, she was too scared to help, expressed that she is terrified of him, was very sympathetic but too fearful to be involved (they also have a daughter together).

    Three relationships in five years, three children involved, all three relationships ended due to domestic violence. The violence is towards the women, not the children. I don't and didn't think my son would be in physical danger on an access visit, but the longer he spends there until I get this recovery order, the longer he is exposed to how this 'man' treats women. No idea if any of this is relevant which is why I'm asking.

    So basically:

    1. Am I required to do FDR before applying for a recovery order?

    2. Is the solicitor trying to take a 'back door' into legal aid funding or is this normal? Should I just go directly through legal aid?

    3. Should I continue to try every avenue to get ex's address or will a solicitor do that? The only info I have left to try is two previous employers and the football club where he is currently head coach

    4. Does the history of DV over the 3 relationships mean anything?

    Apologies for the long post, I understand that it's not legal advice but personal opinion but it all helps, especially when you're feeling like a fish out of water.

    Thanks
     
  10. AllForHer

    AllForHer Well-Known Member

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    What proof do you have that the father has been violent?
     
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