QLD Need help responding to urgent Recovery order application

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Brissyboy

Active Member
30 November 2020
11
1
34
Hi all,

I currently have in my care 2 of my sons ( 13 and 14) who have expressed their desire to live with me for the time being as they were having issues and concerns at their mothers place. This has been the case for the last 5 weeks. The mother is fully aware of the situation and has been notified by myself, our sons and authorities that their current wishes are to remain with me until they get the help they need (mediation, family counselling etc). She has refused to communicate with me and has not responded to multiple emails and text messages regarding the matter. Her only communication has been a letter from her lawyer demanding I return the boys or she will seek an urgent recovery order.
There are current consent orders in place with the usual, every second weekend with me and half school holidays.
I have know for sometime that there has been a building of concern from the boys about the way they are being treated at their mums. This is probably due to the fact they are getting older and are starting to work things out for themselves when something doesnt see right.
They presented themselves ( I had no knowledge) to the School Counsellor about 5 weeks ago and raised all their concerns and issues with her. The school contacted me and advised the boys had requested they return to my care after school.
The issues raised were bad enough that the School filed a report to the Department of Child Safety. The investigation is still ongoing but i have had a few chats with them in person and over the phone and their stance is that they are satisfied because they are in my care at the moment, but if they were forced to go back to their mother, they would look into it again. They also have told me they have advised the mother strongly to respect the wishes of the boys.
At one point the mother has tried to pick up the boys from school, to which the school contacted myself as they were aware of the current matter. Eventually the police had to be called ( boys were never aware of the situation until talked to) and they talked to the boys privately to ask them their views and what they wanted. The boys chose to come home with me.
I have tried to communicate with their mother through calls, texts and emails but I get no response. The letter from her lawyer basically stated that she was of the belief the boys are being held by me for no reason. She has not even attempted to talk to the boys verbally since the 11th of Nov and only send them texts every few days just say "mummy misses you" etc

Late yesterday i have received her application to the court for an urgent recovery order hearing, which somehow has been granted and the first hearing is by teleconference this coming wednesday.

My Questions,

Do i have enough time to get a responding affidavit filed to the courts? Every information i have read states I have 28 day to respond and file a response and to serve the applicant. How does that work when the first hearing is in 4 days? Since it is now the weekend, i have booked an urgent phone consultation on Monday with a lawyer, but im afraid it will be too late? If i efile them on Monday or Tuesday, will that be enough time for it to be seen by 9am wednesday?

It says the first hearing is a Duty List hearing, will that mean an outcome will be determined? Both her interim and final orders state that she is seeking an urgent recovery order. Whats the likely outcome of this hearing.

Could this application just be a legal manouvere just to get me to give up given the short time frame?

Thanks in advance for any help.
 

Rod

Lawyer
LawTap Verified
27 May 2014
7,124
957
2,894
Start preparing your material now and file on Monday.
 

Brissyboy

Active Member
30 November 2020
11
1
34
Hi all,

I currently have in my care 2 of my sons ( 13 and 14) who have expressed their desire to live with me for the time being as they were having issues and concerns at their mothers place. This has been the case for the last 5 weeks. The mother is fully aware of the situation and has been notified by myself, our sons and authorities that their current wishes are to remain with me until they get the help they need (mediation, family counselling etc). She has refused to communicate with me and has not responded to multiple emails and text messages regarding the matter. Her only communication has been a letter from her lawyer demanding I return the boys or she will seek an urgent recovery order.
There are current consent orders in place with the usual, every second weekend with me and half school holidays.
I have know for sometime that there has been a building of concern from the boys about the way they are being treated at their mums. This is probably due to the fact they are getting older and are starting to work things out for themselves when something doesnt see right.
They presented themselves ( I had no knowledge) to the School Counsellor about 5 weeks ago and raised all their concerns and issues with her. The school contacted me and advised the boys had requested they return to my care after school.
The issues raised were bad enough that the School filed a report to the Department of Child Safety. The investigation is still ongoing but i have had a few chats with them in person and over the phone and their stance is that they are satisfied because they are in my care at the moment, but if they were forced to go back to their mother, they would look into it again. They also have told me they have advised the mother strongly to respect the wishes of the boys.
At one point the mother has tried to pick up the boys from school, to which the school contacted myself as they were aware of the current matter. Eventually the police had to be called ( boys were never aware of the situation until talked to) and they talked to the boys privately to ask them their views and what they wanted. The boys chose to come home with me.
I have tried to communicate with their mother through calls, texts and emails but I get no response. The letter from her lawyer basically stated that she was of the belief the boys are being held by me for no reason. She has not even attempted to talk to the boys verbally since the 11th of Nov and only send them texts every few days just say "mummy misses you" etc

Late yesterday i have received her application to the court for an urgent recovery order hearing, which somehow has been granted and the first hearing is by teleconference this coming wednesday.

My Questions,

Do i have enough time to get a responding affidavit filed to the courts? Every information i have read states I have 28 day to respond and file a response and to serve the applicant. How does that work when the first hearing is in 4 days? Since it is now the weekend, i have booked an urgent phone consultation on Monday with a lawyer, but im afraid it will be too late? If i efile them on Monday or Tuesday, will that be enough time for it to be seen by 9am wednesday?

It says the first hearing is a Duty List hearing, will that mean an outcome will be determined? Both her interim and final orders state that she is seeking an urgent recovery order. Whats the likely outcome of this hearing.

Could this application just be a legal manouvere just to get me to give up given the short time frame?

Thanks in advance for any help.

Start preparing your material now and file on Monday.

Thanks Rod, yes im spending this entire weekend preparing an affidavit and Notice of Risk.
So once I efile all the documents, do I still wait for the copies back and serve on the other party? If I file on Monday, would I receive them back Monday or Tuesday? Or is the timeframe too short.
I have never dealt with anything to do with court before, so its new to me
Thanks
 

Rod

Lawyer
LawTap Verified
27 May 2014
7,124
957
2,894
Copy the other side as soon as you file at court so they at least have a copy. Then when stamped send the stamped copy.

The lawyers for the ex will not be able to say they haven't seen the documents. And remember they are the ones filing an urgent order.
 

Brissyboy

Active Member
30 November 2020
11
1
34
Copy the other side as soon as you file at court so they at least have a copy. Then when stamped send the stamped copy.

The lawyers for the ex will not be able to say they haven't seen the documents. And remember they are the ones filing an urgent order.

Thankyou Rod, I greatly appreciate your comments.
Can you provide any info on what will likely happen at the Duty List hearing, will the urgent recovery order application be dealt with there and then?
My interim and final orders will be the same, and be along the lines of "asking for the recovery order to be dismissed, and that a family report/ conference is conducted so the views of the children can be heard.
The evidence in my affidavit relies alot on "the childrens views" and also the DOCS report, which im guessing I would have no chance to get a subpoena in time .
 

Brissyboy

Active Member
30 November 2020
11
1
34
Link below may be of some help

Duty List Hearing
"There are current consent orders in place with the usual, every second weekend with me and half school holidays"

Are the consent orders final orders, if so when were they made?


Consent orders were final orders, created in July 2019. We were doing mutual agreement week on and week off. She made it hard for that arrangement to work as communication between us is very poor, and the children were getting caught in the middle. I decided to take a step back and agree to majority care to her so the children had more stability. I now understand that signing them was a major mistake.
 

Brissyboy

Active Member
30 November 2020
11
1
34
Update to this situation in case it helps anyone in the future.

First court date was 2 days ago. She has a lawyer, im a self rep.
Her lawyer could not convince the judge that the children needed "recovering" given the evidence on both sides. I didnt really have to say much as her lawyer kept digging her own grave.
Given the ages of the children involved, Judge said she needs to hear their views and ordered a child inclusive family conference which will happen next tuesday. The Judge has also requested that a representative from DOCS be present at the next hearing to give their views on the report made. Next hearing is next Friday. Judge suspended consent orders but made an order that the children visit the mother in the meantime, however her partner could not be present.