NSW Need help with recovery order related questions

[gunnerzzzz]

Hi friends,

I have applied for parenting order (interim and final orders) in Family Court of Australia and first court date is 21 April. My ex wife is not allowing me to meet my daughter or sending her to spend time with me since 16/02/2020. Prior to this I was having my daughter for 2 days a week (Friday morning till Sunday morning). Everyday I send her SMS to resolve the issues and allow me and my daughter to meet and I get muted response. I miss my daughter and I feel the court process will take long and I will lose time with my daughter.

Now my question is can I apply for recovery orders and will that help me get my daughter coming home as per previous arrangement till court looks into parenting order? What are some of the things I need to keep in mind when preparing affidavit etc. and if anyone can guide/explain the process I will appreciate it a lot.

I am seeking equal time order (50%) as part of parenting orders.

I daily speak to my daughter on phone and this is the only communication I have with her.

Please help me friends.

Thank you,
Adithya

How long did the previous 2 days a week last go for prior to withholding?

And what reasons have been given?


One suggestion I can make early is that if it was going for awhile, maybe re think 50/50.

Until you're child is old enough to say otherwise, I can't quite remember that age where a court will consider that, I'm sure it's older though..... Precident and time would have been set, making it very hard.

Maybe try pick up from school Friday and drop back to school Monday weekly.

Other factors for 50/50 are:

Parents ability to communicate
Travel distance between homes
Flexibility etc....

Plus this is only an opinion and based of advice and what I've seen, I don't believe judges really like this idea.

Unless you could negotiate this with you're ex, it will be nigh on impossible to get a judge to award that without 100% perfect scenarios.

Also if this has gone on for awhile in terms of 2 days a week, as hard as it is, I wouldn't say that as an option to the family assessor.

A family assessor will be there to advise the best course of action for the child.

And basically it's a short interview, whatever impression they get of he seems like they have the better plans wins.

If you go in 50/50... Wanting to change everything and the mother goes in saying a weekend per fortnight, and there's no history the two of you can do that.... The assessor will go with the mother.

Being reasonable, slightly increasing you're time will make you're life a lot easier in the long run

 

[adi]

How long did the previous 2 days a week last go for prior to withholding?

And what reasons have been given?


One suggestion I can make early is that if it was going for awhile, maybe re think 50/50.

Until you're child is old enough to say otherwise, I can't quite remember that age where a court will consider that, I'm sure it's older though..... Precident and time would have been set, making it very hard.

Maybe try pick up from school Friday and drop back to school Monday weekly.

Other factors for 50/50 are:

Parents ability to communicate
Travel distance between homes
Flexibility etc....

Plus this is only an opinion and based of advice and what I've seen, I don't believe judges really like this idea.

Unless you could negotiate this with you're ex, it will be nigh on impossible to get a judge to award that without 100% perfect scenarios.

Also if this has gone on for awhile in terms of 2 days a week, as hard as it is, I wouldn't say that as an option to the family assessor.

A family assessor will be there to advise the best course of action for the child.

And basically it's a short interview, whatever impression they get of he seems like they have the better plans wins.

If you go in 50/50... Wanting to change everything and the mother goes in saying a weekend per fortnight, and there's no history the two of you can do that.... The assessor will go with the mother.

Being reasonable, slightly increasing you're time will make you're life a lot easier in the long run

Thanks gunnerzzzz.

2 days per week has been going on since July 2018 (1.7 years). False allegations were made against me with FACS and investigation outcome was that these "untrue" and report was closed. After this, my ex has stopped sending. There is no reason provided by my wife. All I get as response is "my daughter is refusing me to meet", "my daughter is refusing to talk".

I have flexible working at my workplace. I can work 2 days a week from home. Would this not be considered at all?

Also, my ex works part-time for 3 days a week and is on govt assistance. Ability to provide for my daughter, ability for my ex to work full time when I can take care of my daughter for 50% of the time and have a career would be considered, do you think? I and my ex live 12 min drive from each other. My daughter's school is like 15 mins drive from where I am moving to (i am shifting in 4 weeks).

I did not get what you meant by this - "Also if this has gone on for awhile in terms of 2 days a week, as hard as it is, I wouldn't say that as an option to the family assessor." I should not propose 50-50 to family assessor?

Since our separation, I have always wanted 50-50 but I wanted to make our relationship work again also. I thought my gesture to allow her to emotionally have my daughter and me not creating more complex issues would help our relationship. But it didnt. Because I try to make relationship work, court may rule against 50-50 just because of precedence? It seems unfair. My ex and I have regularly gone out almost every weekend (lunch, dinner, road trip, movie, playgrounds, visited her house for coffee) with our daughter till end of 2018. In 2019, she reduced going out but we still have gone out a lot. I have detailed which dates we have gone out in affidavit.

My daughter and I have good relationship. I take her out, camping etc. With my ex, she is mostly stuck at home. In a single studio with hardly any room for her to play or have private space. Do these things matter and have weightage?

Also, can you please explain what this mean - "Being reasonable, slightly increasing you're time will make you're life a lot easier in the long run". Should I ask for less and slowly as time progresses in court, I should increase my time?

I served the parenting order court documents a day go and already my ex has stopped the one phone call I used to have daily with my daughter. Reason given - "my daughter is refusing to speak" when till yesterday she was speaking well. Isn't this parental alienation?

I have photos and videos taken by my daughter where is is having good time. Letters written to me where she says "i miss you on weekdays". I do not drink or smoke.

I am also anticipating lot of false allegations to be laid against me.

What recourse do I have given all such circumstances, its very disheartening to think that despite all this, I will probably get less time with my daughter. Is this how bad the system is broken?

Please advise me how I can best take this forward and get equal time.

 

[gunnerzzzz]

Courts look at a child's best interest. If she's settled in a routine for this amount of time, plus the court process is long to add on top.

Now with covid 19 even longer, a trial won't take place until atleast late 2023, that's if you are lucky.

Mine started in may 2018 with paperwork, trial got vacated due to covid 19. We start again with a call over in august.

Looking at 4 years of a routine minimum by you're trial.

A long precident will have been set, courts won't look at you trying to do a nice thing to try and save you're marriage early on. It's about best interests of the child.

Who working can help but both parents have a responsibility to provide. If the homes are settled and the child is provided for won't matter who works more.

You live close which is good.

What I mean is the assessor has limited time and essentially there report carries a lot of weight. They aren't investigators. They won't fact check what you or you're ex say.

It's basically they read the court docs & ask you some questions.

They will work off the same principle... Child's best interest & who's proposal fits best in line.

The risk of asking for too much more could throw favour the other parents way and I wouldn't suspect you could really get less, but you never know what you're ex will say.

And getting a judge to ignore a report will be a very hard task. No matter how you feel it was handled.

Being slightly more reasonable in terms of not a drastic change in time will make you look better and guarantee more time then you have.

They also take stock of significant time. Even though the mother may have more overall time, hers will be mid week and will lack quality time.

May end up only getting a report that says something like every second weekend.

4 full days & 6 nights a fortnight sounds better than 3 hours on Wednesday & every second weekend.

Only way I believe you could get 50/50 is by getting the mother to agree and settle.

Dosent sound like that will happen by how things are.

Ultimately it's you're decision how you wish to proceed. Just providing my feedback.

Also parental alienation is hard to prove. It sucks but I'm going through that myself.

Hell even trying to prove she lives elsewhere and lies on affidavits is hard, even with sms messages saying otherwise.

Without some firm of neglect or abuse, will be hard to increase time that big I feel

Also on trying to increase time. Remember if you go to trial, you're child will be 2 to 3 older by then. May not be too long after this she will want to stay more with you and be able to express that more. You're ex could be more willing to comply by then and flexible. Wouldn't push that too much.

The usual bs lawyers put in is... Upon xxx age attend mediation to discuss. Essentially worthless. There will be court orders in place with no reason for the ex to comply unless she has a change of heart.

 

[adi]

Courts look at a child's best interest. If she's settled in a routine for this amount of time, plus the court process is long to add on top.

Now with covid 19 even longer, a trial won't take place until atleast late 2023, that's if you are lucky.

Mine started in may 2018 with paperwork, trial got vacated due to covid 19. We start again with a call over in august.

Looking at 4 years of a routine minimum by you're trial.

A long precident will have been set, courts won't look at you trying to do a nice thing to try and save you're marriage early on. It's about best interests of the child.

Who working can help but both parents have a responsibility to provide. If the homes are settled and the child is provided for won't matter who works more.

You live close which is good.

What I mean is the assessor has limited time and essentially there report carries a lot of weight. They aren't investigators. They won't fact check what you or you're ex say.

It's basically they read the court docs & ask you some questions.

They will work off the same principle... Child's best interest & who's proposal fits best in line.

The risk of asking for too much more could throw favour the other parents way and I wouldn't suspect you could really get less, but you never know what you're ex will say.

And getting a judge to ignore a report will be a very hard task. No matter how you feel it was handled.

Being slightly more reasonable in terms of not a drastic change in time will make you look better and guarantee more time then you have.

They also take stock of significant time. Even though the mother may have more overall time, hers will be mid week and will lack quality time.

May end up only getting a report that says something like every second weekend.

4 full days & 6 nights a fortnight sounds better than 3 hours on Wednesday & every second weekend.

Only way I believe you could get 50/50 is by getting the mother to agree and settle.

Dosent sound like that will happen by how things are.

Ultimately it's you're decision how you wish to proceed. Just providing my feedback.

Also parental alienation is hard to prove. It sucks but I'm going through that myself.

Hell even trying to prove she lives elsewhere and lies on affidavits is hard, even with sms messages saying otherwise.

Without some firm of neglect or abuse, will be hard to increase time that big I feel

Also on trying to increase time. Remember if you go to trial, you're child will be 2 to 3 older by then. May not be too long after this she will want to stay more with you and be able to express that more. You're ex could be more willing to comply by then and flexible. Wouldn't push that too much.

The usual bs lawyers put in is... Upon xxx age attend mediation to discuss. Essentially worthless. There will be court orders in place with no reason for the ex to comply unless she has a change of heart.

Thanks mate. Knowing what you expect helps a lot. Atleast mentally I can be prepared.

Don't you feel this system of "best interest of the child" is skewed towards the parent who gets more time at the time of separation because they get a chance to set routine? At the end kids get used to any of the parent (assuming there's no abuse, violence etc) arrangement. How can this be the definition of "best interest of child". I am surprised, I know I will be surprised with lot of things when I go through this process.

A child needs both parents right. Because of a routine, not allowing other parent time seems strange.

If courts do not cross check, assessors do not cross check if someone is lying or not. Where is our recourse? I hear you, I have few SMS etc as well and now I am getting to know all these doesn't matter. People can lie their way through the system.

While we have so many of us who have suffered through this system. Can we do something to influence positive change in the system?

Any tips on what I should or shouldn't when I go through family report process?

 

[adi]

I am keeping a list of times when I was not allowed to talk with my daughter and where some mean things were said like "why dont you move on like we dont exist" etc. Where can I provide these as evidences to show that some form of alienation is being done?
I have submitted my affidavit as part of parenting order application.
When the court proceedings start, can I submit this list of when, what happened and what was said or its with family assessor?

Kindly help.

 

[gunnerzzzz]

Thanks mate. Knowing what you expect helps a lot. Atleast mentally I can be prepared.

Don't you feel this system of "best interest of the child" is skewed towards the parent who gets more time at the time of separation because they get a chance to set routine? At the end kids get used to any of the parent (assuming there's no abuse, violence etc) arrangement. How can this be the definition of "best interest of child". I am surprised, I know I will be surprised with lot of things when I go through this process.

A child needs both parents right. Because of a routine, not allowing other parent time seems strange.

If courts do not cross check, assessors do not cross check if someone is lying or not. Where is our recourse? I hear you, I have few SMS etc as well and now I am getting to know all these doesn't matter. People can lie their way through the system.

While we have so many of us who have suffered through this system. Can we do something to influence positive change in the system?

Any tips on what I should or shouldn't when I go through family report process?

You cross examine assessors come trial, if it goes that far.

You're points on which parent has the most time is based on personal feelings of the parents.

This is about the child.

That's why there's I believe it's called significant and substantial time. One parent may get more time, but the other has as my assessor put it "fun" weekend time.

Tips, be prepared with you're proposal fully. Ie time, nights, how it's surpossed to work moving between households.

Talk about efforts you make to overcome difficulties with you're ex. Don't just say they did this or that. Let them probe as to what issues have happened to cause such.

Don't go taking in stuff to show like my child does xxxx. Or talk about recording calls or show them. So they want me more etc.

These things also raise questions as to how they come about, like are there difficulties in one parent letting go causing potential uneasyness in the child.

Talk about efforts you make, enroll in sports, school activities.

Talk about extended family's involvement in the child.

Talk about mediation efforts, courts love people who want to keep it out of courts.

On that, have you done any mediation yet?

Sure there's more, but don't say my ex is a b***h, terrible mum, she does this and that.

 

[gunnerzzzz]

I am keeping a list of times when I was not allowed to talk with my daughter and where some mean things were said like "why dont you move on like we dont exist" etc. Where can I provide these as evidences to show that some form of alienation is being done?
I have submitted my affidavit as part of parenting order application.
When the court proceedings start, can I submit this list of when, what happened and what was said or its with family assessor?

Kindly help.

You submit those in affidavits describing the situation and anexure them to place at the back of the affidavit.

They need to be before the court and served on the other party beforehand.

a. The other party needs to know what they are arguing against.

b. The judge needs to be able to see it beforehand to consider it and be able to make orders because of such.

One parent withholding from the other is a situation happening constantly all over the country. I don't hear personally of parents being withheld from the child because of alienation that much.

Which is why I say it's hard to prove.

 

[adi]

I am keeping a list of times when I was not allowed to talk with my daughter and where some mean things were said like "why dont you move on like we dont exist" etc. Where can I provide these as evidences to show that some form of alienation is being done?
I have submitted my affidavit as part of parenting order application.
When the court proceedings start, can I submit this list of when, what happened and what was said or its with family assessor?

Kindly help.

One mediation was initiated by me just short of a year back and my ex was not willing to mediate so I got form 60I. I tried to save the marriage for another 10 months from receiving form 60I, when it did now work. I have approached court. I have submitted only one affidavit and I am having first directions hearing. I initiated the application in "family court". Later I realised family court handles only complex matters and I should have applied to "federal circuit court". Had a phone chat with registrar after raising this via their support team and she said date in next federal circuit court is 3 months away and again there it might be decided if proceedings should be in family or federal circuit. So I left the directions hearing as per my initial application to the family court.

My ex is a good parent, I am not having the mindset to malign my ex in anyway. My daughter has as much right to be with me as much as my ex. I just want to have my time with her and take care of her as a father. However, my ex will put lot of allegations on me for sure. Like I was falsely accused with FACS - although I do not know who complained but from the nature and type of allegations I can roughly guess.

I wont take things to assessor or court showing because of such videos or recordings I deserve more. However, if my ex puts serious allegations, can I show them (as defense not offense) that to make my case that my relationship with my daughter is not what is being alleged against me? Will this carry any value?

Given my wife was not okay for mediation before approaching court, what if she is strongly against anytime for me or very reduced one and just goes on with allegations? Will only her concerns be heard and if I am flexible, court will naturally think I will compromise and expect me to compromise and give me reduced time anyway? I would love to resolve time with my daughter be resolved through mediation but depends on what other person is willing to negotiate. In the first mediation, my ex did not even want to negotiate. Can court persuade her to mediation?

What is the difference between parents witholding a child just like that vs due to alienation? Isn't not allowing to meet alienation? Sorry I am bit confused.

I am a resident here and my extended family are overseas so are my ex's but her parents are now in the country. Not having extended family involved with the child will go against me? I already encourage and used to take my daughter to lot of sports and other activities.

I can submit more affidavits in the court as things progress?

 

[gunnerzzzz]

I only placed suggestions to discuss. It won't go against you. Just helps build a platform.

If you're ex raises allegations, they will be in her applications (affidavit, notice of risk) the assessor will get all that and ask if there's merit to do so.

Courts can't make people mediate.

They can order parenting classes.

Allegations are not just heard from one side.. You're ex will put xxxxx in, you will respond xxxx. That will be a matter for trial.

Only if theses strong evidence of violence or risk to the child will orders be made early to reflect that.

I'm just saying alienation is hard to prove in a court. Withholding isn't right, but courts move at a snail pace and don't necessarily care if it takes 3 or 4 months of one parent being without. Punishments never really reflect the severity of the issue for breaches.

 

[adi]

gunnerzzzz, can you please tell me what will happen at directions hearing? After directions hearing, will I get some form of interim orders? Also, after submitting affidavit as part of initiating application for parenting order, when can I submit any additional evidences - like documentation of when have i been stopped from speaking to my child, some SMS messages that throws some light on my ex's behaviour.

Thanks for your help.