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Just been told my Son is being taken interstate Tomorrow Morning! Can I take action to stop this

Hi everyone, I am new here

I have just found out, approx 3 1/2 hours ago that my son (14) is leaving to move interstate in the morning with his father, step mum and family. I have received no calls, no intention whatsoever that this is happening! I called his dad's mobile only to be told it's none of my business and he hung up on me! This is not the first time this has happened, his father did the very same thing 10 years ago! We have never had any court orders in place, basically I had a whole heap of bad legal advice which did not help me get my son back then. They moved over here to the same state just last June, and now moving back to the other side of Australia! I have no idea where to start, does anyone know what I can do to stop this?
need to move as quick as possible and seek an order preventing the move

relocation is now easier to stop than it was years ago

will need an application, for final and interim orders and a detailed affidavit.

big thing to to on your own.  Normally you will need to see a lawyer asap
thank you Koala for your advice, I feel like my hands are tied until Monday morning as no one is open, we have called police and been told that with no court order in place, there is nothing they can do. Does anybody know anywhere I can call out of hours? If I wait until Monday they will be gone already :(
Hi Burdee,

I have been in a similar situation to you. The children had gone to visit their father for the weekend and I got a phone call to say he would not be returning them…ever!

There were no orders in place so the police said there was nothing they could do.

I had a solicitor at that stage who started filing a "Recovery Order" which has an affidavit attached where I had to state the facts about when , why, who… all details about the the visit to their dad's house, what was said about the children not returning, exact call times, he said, she said, what the pattern of seeing each parent had been recently  etc. (The family court of Australia has detailed information under the forms you can download section).

 The court can hear recovery applications within a week from memory??(my ex saw his solicitor who advised him to get them back to me before the recovery order was filed as they really don't look good in any court proceedings!!! So they were returned very fast after this.)You would not be able to file this until the court opens Monday morning.

The problem I can see here however is the age of the child. At this age the court will take into consideration his opinion on this. How does the child feel about this?

I want to say that this experience was the most stressful horrible thing that has ever happened to me- I have never ,and hope I will never be that distressed again in my whole life!! So my heart goes out to you at this time.
Thank you for your advice and support BeautifulDAY

I think what's so hard is that my son does not reside with us, so am worried a recovery order may be no use :( My son said he is unsure what he wants to do, he said that if he has to start yet another new school that it would be easier to do if living with the family he knows the best. What he means is if he starts to live here, he has a whole new school AND family to settle in with. Which I can understand, just seems so unfair tho on everyone involved, his father didn't even give us a day together to say our goodbyes. O_o
be ready for monday

write out all the types of things mentioned by BDay

 If using a solictor, get an apt first thing, take all info with you (in electronic format so they dont have to type it again).  Also take a cheque for $2K to cover the inital costs .  That will get a lawyer ,moving pretty quickly

Given there are no current orders you will need to know what arangments, both short and long term you want.  And have a clear idea of this

it will need to be  an Initiating Application + Aff given there are no curernt  Orders.  When filing  need to ask for a quick retrn date and short service.

Hi again Burdee,

The fact your son does not reside with you does make the situation different. Be warned koala's advise about contacting a solicitor, to do this is going to cost you at LEAST ten grand.

I am new to family law myself but from what I understand you can file an application with either the Local Court , Federal Magistrate's Court or Family Court of Australia effectively restraining the child from relocating from their residential address they currently reside with the father.

In the event that a Court does make an order returning the child to the area they now live , the Court will need to make an order with whom the children will live. Essentially a Court cannot make an order with respect to the father's residence, but rather, only that of the child.

You could seek in that application that the child reside with you on a full time basis, whereby they would maintain their schooling and extra curricular activities, friends etc.( If the proceedings were successful you could get a costs order against the father for the expense of commencing court proceedings against him.)

You would need to decide pretty much straight away to do this, as if the child settles in to the new school makes new friends etc a court would be less likely to order the child return if this was showed to be the case … so it would be hard to do in a few months months time.

But like I said before if a Court determines a child is old enough to take their wishes into account the above will not apply.

You may have to file an initiating application( Family Law) to the court to at least get half the school holidays and details for arrangements on who pays the cost of flights etc, but once again even in this case the child's wishes will most likely be taken into account and if the child at this age refuses to abide by any court orders made , there will be essential not much you could do about it.

How very heartbreaking you couldn't get to say goodbye, what an unfair frustrating situation you are in.
Manu lawyers require funds intrust before they start proceedings.  The $2K I mention is to get things started .  It all depends what happens next and down the track what the legal bil will be in the end, but if you get out of something that like this for $10K in legals you would have done well
As your son is 14 the Family Court could say he is old enought to make his own mind up. Other problem is that there are no orders in place. You can still apply to the court but...see my previous comments.

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas. 
Burdee,

The thing I have discovered is representing yourself takes knowledge of court processes, family law rules, the way previous Judges have ruled on different circumstances etc. This knowledge takes time to even get a basic grasp of,( this web site is so helpful to that end).

In your situation you probably don't have much time to research all the things you need to by Monday. If I was you, and this is just my personal opinion , I would do as koala suggested and electronically compile detailed evidence going by the rules of writing an affidavit ( forums on this found on this site), this will save you the money of the solicitor compiling and typing it up.

Many law firms have a 'first appointment free ' policy so find one of those and get a professional opinion on what your chances of a successful application  are given the age of the child.

If you decide to go ahead you could use the solicitor to complete and file the relevant applications quickly which will cost a few thousand dollars,( most cost around $380 per hour including GST) then you could do the rest yourself by telling the solicitor you no longer need their services and filing a notice of change of address for service with the court ( which means you will receive all court correspondence).

If you do it this way make sure you have a copy of all paperwork as the law firm may with hold it.

To file an application is not very expensive,it depends on what type it is, some are free, an initiating application is only about $250 I think .

This way you will avoid the expense of the solicitor attending the hearing /s , which from my experience is 2 to 3 thousand per hearing also frequent communication between lawyers also adds up very quickly.

It is possible to represent yourself as many people on this site will attest to.
Burdee, I doubt the court will order the child to stay in your state. His usual residence appears to be elsewhere, at best the teen was a visitor. Better to seek a continuance of your established or restablished bond. In this way he could visit you or you him and dad will have a means to ensure that visits are only visits. It is a pity things didn't work in the past.

Burdee If I were the judge I would not make the teen stay with you. Each to their own opinion. Perhaps one day section 121 will be changed allowing all of us the freedom of speech we deserve and the rightto know what every one else is recieving and some certainity in our expectations in famly law.

I think you should save your money for visits. Perhaps dad won't allow any without a court order, which means you may need to apply for same. If you cannot afford a lawyer don't bother with one and seek a mediated court lodged parent agreement re visits. The teen and hs dad deserve assurances also. Maybe in the future dad will let you take him for a bit. Depends.

Those who think the new relocation and relocation suppression orders are so easy to understand are naive. Only my opinion. Each to their own opinion.

Last edit: by Secretary SPCA

Burdee

This is an abstract from a recent document by Federal Magistrate Reithmuller.

2.4 Unilateral interim relocations


It will be the unusual case in which an interim application for unilateral relocation will be sustained, usually where the respondent has failed to act quickly: see for example, B & B [2007] FMCAfam 82 and R & R [2007] FMCAfam 29. In Robson & Johns [2008] FMCAfam 721, Coakes FM carefully analysed unilateral relocation cases before declining to make the mother return. The parties separated on 1 May 2008 after eight years, with the mother moving from the central coast of NSW to a town near Port Macquarie with the parties two-year-old child. The case dem-onstrates that there is no rule about uni-lateral relocations, and that with careful preparation, return can be resisted in a small number of cases.
I have read Guests post. It is hard however to give more guidance without particulars, have you considered making application to join SRL-R so that you can discuss your matter in detail in confidential forums that aren't visible to other parties?

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas
Hi again Burdee,

I just wanted to share two interesting cases I found on AustLII on this subject.

Walken & Bodert [2010] FamCA 123 (10 February 2010) .This is a case involving a 13 and 15 year old and includes a discussion of the weight to the children's views at this age, one parent residing in NSW the other in QLD.

Ulmarra & Radley [2010] FamCA 41 (28 January 2010). In this case involving a 14 and 15 year old who's father had moved them to Victoria was ordered back to Sydney . The mother had been seeing the children every second weekend and half the school holidays.

I thought this might help if you were doing any research on the subject.
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