VIC Recovery Order for non-Australian

[ilovemyson]

Hello

I'm a British citizen and so is my ex- wife. We moved to Brunei to work and have lived in Brunei, both working full time since 2015.

About 1.5 years ago the marriage broke down (abusive relationship - in front of my son too) and I divorced my ex, instituting and finalising divorce proceedings from Pakistan (since I have a overseas PK ID card - I have access to the courts and institutions there), where I subsequently got married from.

We have a son who is 6 years old, who we've both taken care of, after the divorce and separation. He attended the international school I currently work at, and I paid for all his expenses - tuition, clothes, meals etc.

No proceedings were initiated in Brunei. This xmas, my ex-wife took my son to live in Australia with some guy she met a couple of times while on holiday. She only informed me a few days after she had gone - 14th December 2019 that she will not be coming back. That I will not see him again. She refuses to give me her address, or even which part of Australia she is living in.

My son also stated that he'll be starting school there too - I believe she has also enrolled my son into school there too.

Can I apply to an Australian family court for a recovery order to Brunei? Is there anything I can do? Please help.

 

[Atticus]

Can I apply to an Australian family court for a recovery order to Brunei? Is there anything I can do? Please help.

Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, so if you believe the child has been abducted with no intention of returning him to his habitual place of residence, then you can apply in Australia for an order returning him into your care...

Don't know the process, I'm not a lawyer, but you WILL NEED good legal advice & guidance to make sure you are satisfying the procedural requirements, & not wasting time & money.... Sounds like you will need a location order as well as a recovery order. The fact that there are no parenting orders in place will not help you, as I'm sure she will make an application here for parenting orders (assuming she satisfies the filing criteria)...

It will not be a quick process, & time is important... The longer the child is here & establishing a life the more difficult it may be to have him returned

 

[ilovemyson]

Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, so if you believe the child has been abducted with no intention of returning him to his habitual place of residence, then you can apply in Australia for an order returning him into your care...

Don't know the process, I'm not a lawyer, but you WILL NEED good legal advice & guidance to make sure you are satisfying the procedural requirements, & not wasting time & money.... Sounds like you will need a location order as well as a recovery order. The fact that there are no parenting orders in place will not help you, as I'm sure she will make an application here for parenting orders (assuming she satisfies the filing criteria)...

It will not be a quick process, & time is important... The longer the child is here & establishing a life the more difficult it may be to have him returned

Thanks for the reply - unfortunately, Brunei is not a signatory to the Hague convention, so that route inst available, I believe. :'(

 

[Atticus]

Thanks for the reply - unfortunately, Brunei is not a signatory to the Hague convention, so that route inst available, I believe. :'(

No, what is important is that the country a child has been removed TO is a signatory, & Australia is.... As I said, seek professional legal advice in the childs home country, & remember, TIME IS CRUCIAL. It becomes increasingly less likely to have your son returned after he has domiciled here for 12 months or more

 

[ilovemyson]

I am seeking/arranging legal advice.
Another question: I strongly suspect (do not know for certain) that my ex had to fill in forms to say that she had permission from me to take my son to Australia:

1. Application for a subclass 445 visa by a dependent child - FORM 918
2. Consent to grant an Australian visa to a child under the age of 18 - FORM 1229

How do i get this checked or actioned?

Thanks

 

[Atticus]

How do i get this checked or actioned?

Can only suggest you call the department with your concerns & ask if any such forms have been lodged. You may run up against the privacy barrier & if you do, alert them to the real possibility that the law has been broken & that you believe false information was used in the forms

 

[ilovemyson]

Can only suggest you call the department with your concerns & ask if any such forms have been lodged. You may run up against the privacy barrier & if you do, alert them to the real possibility that the law has been broken & that you believe false information was used in the forms

Thank you for your response, I will talk to some lawyers on Monday and then follow your advice, but also notify them that they should not notify my ex for now.

 

[Tim W]

How do i get this checked or actioned?

You ensure that the law firm you instruct in Australia has a registered Migration Agent on its staff.
Prepare yourself - this will take along time, cost a lot, and be ugly.

 

[ilovemyson]

I will do what I can myself.

I am consulting lawyers in the next few weeks/days and will be clear that I only have a certain amount of money. That will mean that I must prepare the affidavit myself, and possibly get advice from them on how to submit and the process of doing that. So far, from the replies I have had so far from some lawyers, I feel/fear their objective is to try and make this as prolonged as possible rather than just charging me for submission of a recovery order and the other possible orders that this requires (initial application, interim, final, location, etc.)

One firm I asked wanted $25000 - $50000 for an initial application plus $50000 ish for final hearing.

It would have been easier if I was also in Australia and not overseas but I believe it is still possible to do this even if I am overseas? Correct?

 

[Tim W]

Certainly you can instruct lawyers in Australia from overseas.
Before they take you on though,
you will need to be able to assure them that you will pay them.
This will typically involve (at least) an up-front transfer
of a significant sum of money in the lawyer's trust account,
before they start work.