SA Process of Filing for Recovery Orders?

[lillypilly]

Hi everyone,

I am just wondering...if a parent up and goes interstate without waiting for family court or the other party's approval, what normally happens? Is it the family court or the other party that files for recovery orders?

And when one is filed, can it be argued against from where they are then living or is it a given that they are made to return?

Thanks

 

[AllForHer]

Is the relocating party taking the child with them?

 

[lillypilly]

Yes, sorry, both the parent and the children

 

[AllForHer]

So, the other party, not the Court, would file for a recovery order. The Court doesn't look highly on parents who relocate without the consent of the other, and even less so when proceedings are on foot, but with that said, it's impossible to predict what the Court will rule.

The relocating parent is better off filing an application in a case to seek permission to relocate, rather than just moving and seeing if the other files for recovery.

 

[lillypilly]

Thanks @AllForHer

The next court is in 6 weeks time and an application will be put in then as well. Is it a rare thing for a court to say yes to relocation during proceedings? What sort of things would they consider? I know I'll probably get strips torn from me but the situation is pretty dire and I'm weighing up options.

My fiancé and my eldest son have already relocated along with all household things etc. This has been the plan for 12 months. I'm staying at my mother's house with the kids, trying to sort this all out. And I'm 4 months pregnant.

My lawyer has all documents from police, child protection, child councillors, etc, and long story short, all match with my affidavits of why I am worried about them spending unsupervised time with him, etc (extreme family violence toward me and the children).

The last time the judge ordered he see the kids at a contact centre for six visits with a report to be made at the end, we are waiting for the report now. What would most likely happen?.

 

[AllForHer]

It's impossible to predict an outcome in relocation matters. Without any contradicting evidence, your case in favour is probably fairly persuasive, particularly given your pregnancy and being away from the support of your family, but I don't know, some judges rule in completely the opposite direction.

Has an interim order for parental responsibility been made?

 

[lillypilly]

No, there hasn't really been anything apart from the last one where the Judge said that he wants the report after the visits and that the children live with me at the moment. I think the next one is the interim.

I also have a voice recording of him saying that he will talk about it to his lawyer in response to me saying that if he lets us go I will not collect any child support from him. He is motivated by money and control.

 

[AllForHer]

Possibly, but you won't be able to persuade the Court of that. If it were me, I wouldn't play that recording, because it kind of looks like you will punish him if he tries to make you and your child stay, ergo he's going to have to pay to have a relationship with his kid.

See how that can be turned on its head?

Stick to the facts, don't speculate on your ex's motives. Whatever they are, they're irrelevant to the child's best interests.

 

[sammy01]

OK - so just checking. Did you ask your solicitor's opinion prior to moving?

Is the court case an application on by you to request to move? Or an application by him to be able to see his kids? By the sounds of things it is the latter...

Look moving prior to court based on either of the two possibilities mentioned above is a bad idea... I don't think magistrate is gonna want to hear you say - look magistrate you have to agree to the move because you've guys have already basically done it

So what is the plan if the magistrate orders you back?

One more thing - how far away are you moving? I think that is gonna be the big one... If you're moving more than say 6 /8 hours away, you're really limiting dad's time to school holidays and the occasional weekend. That isn't good.

Let me tell you what it looks like from here.... You don't want him to see the kids. He was seeing them at a contact centre and now that is coming to an end, you're putting up other obstacles to stop him seeing them... While I may be completely wrong - do you understand why / how it could be perceived that way?

So with you relocating - What proposal are you putting forward to provide the kids with time with their dad? So if you can answer my questions then maybe the opinion given here will be more precise.

Look either way, can you let us know here how you go.

 

[lillypilly]

Hi @sammy01

Yes, I can definitely see how it would come across that I'm doing that to keep the kids away from him when you word it that way. Ok, so my fiancé and I had planned the move (SA to QLD) 12+ months ago and both myself and the ex are originally from QLD with all our family there.

The ex said yes to the move - then found out I had moved on... Things became dire after a few months with him becoming more and more erratic and violent and abusive towards both me and the kids to the point that I stopped contact in mid March last year.

The abuse, etc has been documented by myself and also occasions that I didn't even know about by strangers that saw him hurt the kids. I sent him a message when it got to that point to say that the kids need to be safe. You can imagine how well that went down...

He then started going to the school and having a go at my eldest son who was 11 at the time (not his child) and threatening him with violence. He was also going to the school and had hurt our son a number of times. He bit him on the ear when our son didn't want to hug him. Another time he "knuckle" back handed our son across the head so hard he fell to the ground. Don't even get me started on how angry I was/am with school for keeping an eye on him.

We live in a rural "one coppa town" and I think the principal was very wary of the ex and intimidated by him. This sort of thing continued - I tried to change the kids' school and he called them and said no, so I couldn't. His mother then came for a holiday from overseas and they went to a lawyer where I was then served with court docs in July.

He was/is seeking 100% care of the kids and also that I can not take them out of the town we live in the meantime. So we then had our first court mention in September where after the Judge read my affidavit, he told the ex that if he wants to see the kids then it needs to be supervised. The ex went spastic to say the least and refused.

He then moved an hour and a half away (he was living 500mtrs from their school). We went back to court at the end of Oct and the Judge told him he has to see the kids at the contact centre and a report to be made after six visits.

In Mid Dec, my fiancé had to go - he had organised the transfer when we first were told yes and couldn't change it (army). We decided that as my eldest son would be starting high school he would go with my partner and start fresh in the new year to save possibly changing schools part way through.

I have stayed in SA, but the house I was renting when this started was sold in Jan, so I have been staying in a spare room with the kids at a friend's - not ideal. My lawyer and I are hoping to get consent orders before or at the next court date at the end of April, but knowing that he most likely won't, we are also drawing up relocation application for the next one as well.

I have asked if he has any input or ideas on him spending time with the kids if we do move and he only laughs and says "told ya, ya not going anywhere". I was thinking, as he would stay at his brother's house in QLD and his brother and his wife are good people that they act as supervisors. If they said yes to that then:

A) I would pay for him to fly up and back every school holidays. He said "f**k that I don't wanna hire a bit of s**t car".

B) I suggested that if he would want to relocate back to QLD I pay for his moving cost - He said "nope"

C) I then asked if I do a order stating that he dose not pay any child support again, including if he gets a job (he pays $15 a month for three kids and is hundreds behind) He said "look ill talk to my lawyer but im not promising s**t".

After speaking to him since he has changed his mind again and is now back to "ya not going".
This is why im scared.

I don't know what to do and I can't house hop forever. It's why I am trying to work out if I don't get either his or the court's permission at the next one, if it is worth the risk of just going and trying to fight a recovery order.

I don't know if the courts would consider letting me go with it in court? Or if they order the kids to come back - can they if there is literally nowhere for them or us to stay. I have been told I don't need to worry that he would "get care" of them because he has simply done way too much emotional/ physical things to them and its all been reported, etc.

Obviously I have just skimmed over it all. I know no one can tell me - "just go", I just need to know the likely hood of things, thank you