QLD Ex refusing to return the children, ignoring court orders.

[Shadz]

Hi all,

I have received an email from the ex-wife stating that she is refusing to return the children to me tomorrow (she resides in VIC). She has stated she has filed papers with the court today. this email was conveniently sent at 5:40pm, ensuring every court/legal service is closed for the weekend.

There are final court orders in place in which I have 100% custody of our 3 children (15,13,8) and Sole Parental Responsibility since 2013. The ex has visitation with the children for the June/July holidays and half of Christmas holidays per year.

She tried to have these court orders overturned last year, accusing me of abuse/neglect etc. but she quickly withdrew her application after the family report found no proof of her claims and that she was unfit and that the children should remain in my care with sole parental. she has also since had 4 IVO's against me in the Victorian courts which were all struck out or withdrawn when she didn't show up to produce evidence etc.

I had already received advice that if she should do this, (as she threatened it all this week), that I should file for recovery orders and contravention of the custody orders. I am currently working on completing those.

1. I would like to find out if there is anyway to get a copy of the current court matter she has started today so that I can at least see what she has stated this time.

2. Is there a way to submit and apply for the recovery orders over the weekend, I have spoken briefly to the children and they are all obviously stressed and freaked out. I would like to have them out of that harmful environment as fast as possible.

3. Any legal advice as to how I should proceed would be greatly appreciated.

 

[AllForHer]

1. Not at this stage. She will have to serve you with the documents, but I imagine you'll have filed for recovery by then.

2. Unfortunately not, but even if you could, it wouldn't be heard any quicker. If you have contact with the kids, just advise them to stay calm while you sort things out.

3. This isn't legal advice, but my suggestion is to spend the weekend organising your paperwork to file an urgent recovery order and contravention orders first thing Monday morning.

The most important thing is to remain calm. You have a big advantage here, and you can probably seek a costs order for the ex's Court action as well.

 

[Shadz]

thank you for your response Allforher. I've spoken with the children and have reassured them and have arranged via Lawtap for a phone appointment with a Lawyer tomorrow.

I just spent almost $1000 on flights for me and my sister to travel to Victoria tomorrow and return with the children. Which is when the ex-wife stated I had to be there or she wouldn't return the children. It was only after I'd emailed advising her that I'd bought all the tickets that she stated she wouldn't return. I'll be apply for those costs to be recovered as they are non-refundable but unfortunately it means I have no funds remaining for legal advice until next week.

A couple of things I forgot to ask above is:

Would you suggest that my sister and I still fly down to the Melbourne airport from Brisbane for the arranged pickup time despite the fact she's stated again via email an hour that she won't be returning the children?

I am also unsure as to what to put for the grounds for it to be an urgent recovery order and whether I can apply for ex-parte given she resides in rural Victoria and will of course try to adjourn and drag out the recovery order process for as long as possible if she gets a chance.

 

[sammy01]

I would write to the ex via text message preferably....
Dear ex, I intend to fly down to Melbourne for the sole purpose of picking up the children as per court orders. Can you please advise and confirm the time that we will be meeting.

Look if she communicates via email and text that she isn't gonna be there, then why waste your time... I know that you're trying to be thorough, but why waste a day in a plane worrying for no good reason.

you don't have to write much in your application. You have sole parental resp.... Children were delivered as per order (insert number from the court orders) the children were not returned as per order( insert number from the court orders)
So will you be getting a solicitor to represent and file the paperwork? If you can scrape the funds together to see a solicitor tomorrow, especially if you can see the one from the 2013 case, as he/she will be somewhat familiar with the case. If not then start reading and get the application in yourself asap.

Start by reading this one
Recovery orders - Family Court of Australia
Then this one
How do I apply to the court when parenting orders have been breached or not complied with? - Family Court of Australia
then this one
Before you file - pre-action procedure for parenting cases (prescribed brochure) - Family Court of Australia
note in particular at the bottom the link to familycourt.gov
Here is a link to the online chat facility...
Live Chat - Family Court of Australia
You wont get to speak to someone till Monday. But the online chat gig can help you navigate through information overload land... which is the place you're about to be...

Stay calm, keep in touch and let us know how you go, or if you need any more help

 

[Rod]

Not sure if it's too late but I'd be going. Non-refundable tickets - may as well use them on the off-chance she changes her mind.

 

[Shadz]

I would write to the ex via text message preferably....
Dear ex, I intend to fly down to Melbourne for the sole purpose of picking up the children as per court orders. Can you please advise and confirm the time that we will be meeting.

Not sure if it's too late but I'd be going. Non-refundable tickets - may as well use them on the off-chance she changes her mind.

Cheers for your responses, Lawyer I booked through Lawtap failed to contact me but I've got another phone appointment for some quick advice in an hour.

All the communication has been done via email. just had her respond to my email, (3rd one I've sent in last 2 days, all worded closely to your suggestion sammy01), this morning stating she will not be returning the children and confirm that she has filed 'paperwork' at the courts.

I've checked my children's phones as well and they are still at her house, they are 6 hours away so they should have already left by now so I won't be travelling down on the flight to pick them up.

Trying my luck with the airlines re. refunds etc. but they were all economy tickets so its probably not going to happen or be worth the cost of transfer etc.

 

[sammy01]

Ok so get a bunch of questions written down for solicitor.
what process to follow etc etc
let us know how you go.

what sort of communication have you had from the kids? via their phones?

 

[Shadz]

I've text and spoken with the older 2 (15, 13) yesterday evening and have text them this morning. youngest was in the bath last night. Currently have my daughter texting me complaining as her brother and her are fighting. Just explained that she needs to just stay calm and relax etc.

 

[sammy01]

ok - so ask solicitor, don't take my advice....

could you text the kids, tell them to get to the police? If they went to the cops said they refuse to go with mum and give them your details? Look the only reason I would come close to suggesting this is if you have real and immediate concerns for their safety. I don't know the case etc etc. But clearly there is some significant history here given that you have sole parental responsibility...

But ONLY do that if solicitor says it is a viable option and only if you really do fear for the kids safety. By the sounds of things the kids are happy enough with mum? fighting with brother etc, that is the usual for siblings, nothing new there. True

 

[Shadz]

Had a welfare check done by the local police last night as at the time the children weren't responding to their phones, they were unharmed/ok etc. at this stage. They're confused as to why they aren't coming home as she hasn't explained anything to them but they are ok. They're being bought and promised lots of items etc. to keep them distracted etc. Oldest doesn't want to stay there but is also mature and aware enough that he doesn't want the other 2 to be there without him. Not a position i'd ever want him to be in but she's refused to take him to the airport anyways.

They'll be ok in her care as long she believes she's in control of this current situation and getting her way. Will be seeking ex-parte for the recovery order so that she hopefully won't get a warning before whoever picks them up shows up for the children - past threats of suicide/mass suicide by her but mainly used as a form of abuse/manipulation/control. The suicide threats and her other mental health issues (nothing diagnosed) were previously brought up in affidavits and family report but she, she withdrew her attempt to overturn the custody orders at the next hearing. Family report supported my 100% care and sole parental responsibility due to the exes 'mental deficiencies' (my words there.).

It seems booking lawyers via Lawtap has been a waste of my time, neither of them have contacted me.