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Brief advice needed, temporary orders?

Hi guys,

my first post here in SRL (and definitely not the last), so a brief overview: wife walked out two years ago, I raised the three kids since, then one month ago she talked two of them into moving in with her temporarily - then decided she wanted all three 100%, and is pursuing that. She gets free legal aid and help from her employer, and as I now pay child support I won't be able to afford much legal help, if any.

I have started the process of FRC, but that looks like it will take weeks if not months to proceed. In the mean time, I have been advised (by friends) that I should get 'temporary orders' to ensure things at least stay as they are, one with me and me getting some access to the other two.

Can anyone please tell me, is that a wise/necessary step, and if so, what paperwork do I need? If someone can point me in the right direction of the forms and the process, I'd really appreciate it.

Thanks,
GaryB

Firstly youdo not say if you have 'existing' orders- this will make a difference,

If there are no orders then the basis of any application will be on 'a practice has existed'

Firstly there are no quick answers

You have been posting?? on the DIDS forum and F4E - so I would assume the reason you are here is because of conflicting advice?

You should apply for membership of SRL-R where yourcase can be kept more private and where you are likely to get detailed responses. Additionally many basic answers are provided in the SRL-R material. You would understand that the SRL-R Execs don't spend much time giving answers that they havealready provided elsewhere




SRL-Resources. the Family Law People on this site (look for the Avatars) www.srl-resources.org Non gender Professional and peer support for SRLs. Closed site, no public forums, no search engines, no lurkers, guests or the other side and their Lawyer and Friends.
GaryB said
Hi guys,
wife walked out two years ago, I raised the three kids since, then one month ago she talked two of them into moving in with her temporarily - then decided she wanted all three 100%, and is pursuing that.
This is a public forum so we wont go into any detail but it seems something has changed after two years. If there are no orders go and get them back. She cannot just completely overturn what has been the arrangement for teh last two years. There is no order stopping you getting them back.
GaryB said
She gets free legal aid and help from her employer, and as I now pay child support I won't be able to afford much legal help, if any.
How does she get help from her employer. Where are teh children when she works. There is far more to this story that needs to be understood. If you have no funds you can get legal aid. Has the mother taken the children back because she believes she can fund them? i.eprovide for them?
GaryB said
I have started the process of FRC, but that looks like it will take weeks if not months to proceed. In the mean time, I have been advised (by friends) that I should get 'temporary orders' to ensure things at least stay as they are, one with me and me getting some access to the other two.
Yes it will take some time. As mentioned if there are no orders and they want to be with you and they were with you for years get them back. If the mother has had contact thenhow much has she had? Was it regular? You need to complete the case profile documents on the SRL-Resources site. You need to immediately get Mediation under way at an FRC near you. Call up Unifam or one of the FRC's and organise some mediation. If it is urgent as she has "taken" the children see if they will get you in more urgently. The FRC is the beginning of a long road up to a year or two before orders are finalised. It will take two or three months in the FRC and if there is no resolution a further three to six months to interim orders in the Federal Magistrates Court and if property is involved it can get complex and then a further year or so perhaps until final orders.

You are best to put as much effort as possibleto resolve this before considering a court ordered solution.

Executive Secretary - Shared Parenting Council of Australia
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the long and the short of it

look, im not telling you that you have to do this but its how i got my start in the family court. all the forms can be downloaded from the family courts of australia web site. if there is no court procedings as yeat you need to file an application in a case. briefly stating what orders you are seeking. along with that you will want an affidavit to support it. remember to mention in the application that you wish the matter to be heard urgently. you dont need to elabourate on this. after that its just a wait to get a hearing date. you will not only need to file these forms with the court but you will need to serve your EX with them as well.

looking at previous responses you have had i will agree that if there are no orders you have every right to take your kids back. your their father and unless there is a court order in place you have as much right to thoes kids as she does.

dont be shy in your application either, if you want full time with your kids ask for it and tell the court that she took them without your concent. This would have disturbed the children in some way… different routine and seperation from you. the court will see that she had obviously not though about the kids when she did that.
Butterfly - he cannot file an application until he has a FRC certificate.If it is an urgent application he can lodge it - however the rules concerning urgent applications are fairly straight forward and since there are no suggestions of abuse or abduction it may not be processed.

He does not have 'every right' to take the children back - they are not property. The fundamental principle of Family Law is that children have all the rights - not the parents. In this case the children went back to their mother willingly - albeit perhaps for the wrong reasons and he has acquiesced


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

my bad

im not familiar with FRC but my case started in 2005 so there was no requirement to speak to any other body before going to court.

my point with the children was that there is no legal matter at hand hence there is no penalties involved if he were to have the children stay with him but once again considering the childrens best interests is of primary concern

my ex took my son away and refused to return him before there were any court orders, there was nothing i could do untill the matter was brought infront of the courts

The decision to removed a child

Before a parent take the decsion to remove a child from the other parent's care or limit the time the child can spend with the child, it would be wise to review both the federal Fmily law Act and any relavent State laws.

For example, section 60CC of the Family Law Act mentions 2 primary considerations used to determine a Child's best Intersts. 1/ is the benifit to the child of a meaningfull relationship with both parents and 2/ is the need to protect the childs from physical, mental or emotional abuse.

Then there are the secondary considerations, and the one of particular relavance here is 3C which says

the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

Removing or severly limiting a child's contact with the other parent could hard;ly be described as encouraging the relationship.

Later parts of Sect 60CC are also relavent.

State laws also needs to be consider, for example the only time a parent can be charged with kidnapping in NSW is if the child is a ward of ther state or subject to an order granting DoCs parental responsibility. Yet, in Queensland,a parent could potentially be charged with "Child Stealing" if they remove the child from the care of a parent who has lawfull care.

Unless there a genuine concerns for the child's welfare, the court is the place to decide any issues, assuming mediation has failed. The Family court has long taken a fairly hard line on parents who continue with unilateral action in relation to their children.


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