redleader Posted August 18, 2013 Share Posted August 18, 2013 Hi people, Just thought I'd ask if any one knows the chances of my ex spouse gaining the right to remove my child from the jurisdiction? In summary, my ex is now married to an australian citizen and has been for a few years. They want to take my child to oz in jan 14 to enable him to start school at the start of the academic year. This will mean taking him out of the Uk education system in the middle of his GCSE's. Dad and partner have no jobs to go to, will be staying with her family at the outset, and then trying to find a house to buy as well. They have not enrolled my son on a course. Their plans seem to be ' we will sort it all out once we get there' I am being pressured to sign the papers to allow him to go. They have already applied for their visa's, and put their Uk house on the market. This is all adding to the pressure they are putting me under to sign. (I did suggest it might have been a little less stressy to obtain my approval before doing those things! ) :arghh: Went to mediation a few weeks back, and the time there was spent mostly with him ranting about my apparent 'failings' I have today had a letter from his solicitor saying that court proceedings are imminent. Any help/ thoughts would be appreciated. Link to comment Share on other sites More sharing options...
Rupert Posted August 18, 2013 Share Posted August 18, 2013 Do they have custody now? Are you the mother? Mothers with custody usually win yes, you might need to explain your situation a little bit further. I would also note that if the child is old enough for GSCEs then his opinion will be very significant in this as well. Link to comment Share on other sites More sharing options...
Quinkla Posted August 19, 2013 Share Posted August 19, 2013 You have no obligation to sign the papers. Your ex would probably get leave to remove from jurisdiction eventually but if your son is 16 then the court is likely to go with whatever his preference is. The GCSE argument isn't going to be very relevant since if he emigrates, English qualifications aged 16 would be irrelevant - his qualifications will come aged 18 when he leaves school in Australia. It does make sense to move for the start of year 11. I hope it works out for you. FWIW, I think it is very selfish to emigrate with children when both parents have an involvement in the children's lives. Link to comment Share on other sites More sharing options...
memmymooch Posted August 19, 2013 Share Posted August 19, 2013 Rupert is correct if old enough to be taking GCSE child's opinion would be paramount so if he wants to go it will probably be a yes if he doesn't want to go and you could provide home stability etc then maybe court would say no will depend as well though in part as to your circumstances and the reasons he is with them not you now Link to comment Share on other sites More sharing options...
Quoll Posted August 19, 2013 Share Posted August 19, 2013 Get a good lawyer! Good luck! Link to comment Share on other sites More sharing options...
Wellers and Whitehead Posted August 19, 2013 Share Posted August 19, 2013 do you know where your son wants to live?? This will have a huge impact on the outcome at his age. good luck! Do not sign anything that you are not happy with, do not feel bullied into signing anything. Link to comment Share on other sites More sharing options...
redleader Posted August 19, 2013 Author Share Posted August 19, 2013 Do they have custody now? Are you the mother? Mothers with custody usually win yes, you might need to explain your situation a little bit further. I would also note that if the child is old enough for GSCEs then his opinion will be very significant in this as well. Yes i am mum. dad does not have legal custody. I do. Son went to live with dad to try a different life.This decision was made without consultation with me. He was not happy at his school, so I made the ultimate sacrifice, and let him go, to see if he could be happy. He is much happier now as he has a network of friends, but he has declined substantially in an educational way, since being with his dad. Link to comment Share on other sites More sharing options...
redleader Posted August 19, 2013 Author Share Posted August 19, 2013 You have no obligation to sign the papers. Your ex would probably get leave to remove from jurisdiction eventually but if your son is 16 then the court is likely to go with whatever his preference is. The GCSE argument isn't going to be very relevant since if he emigrates, English qualifications aged 16 would be irrelevant - his qualifications will come aged 18 when he leaves school in Australia. It does make sense to move for the start of year 11. I hope it works out for you. FWIW, I think it is very selfish to emigrate with children when both parents have an involvement in the children's lives. dad makes me feel it is my obligation to sign the papers despite having very flimsy plans for my son. They will be living with step parents first of all, then trying to find somewhere to live and then get jobs. This is hardly the concrete that I want my son to build his future on, if I am to sign the papers as dad wishes. Link to comment Share on other sites More sharing options...
redleader Posted August 19, 2013 Author Share Posted August 19, 2013 do you know where your son wants to live?? This will have a huge impact on the outcome at his age. good luck! Do not sign anything that you are not happy with, do not feel bullied into signing anything. thank you. I am being bullied into this, due to the way that dad has gone about this. I actually heard of their plans to emigrate thru a friend of mine. Shocking eh? Dad has already applied for visa's, put his UK house on market, etc, before gaining my approval of the idea.He is apparently going to lose a few thousands of pounds to his immigration agent because I won't sign. Wouldnt any reasonable human being, gain the other parents consent BEFORE applying for a visa? BEFORE putting his house on market. They want to go to Victoria. Link to comment Share on other sites More sharing options...
redleader Posted August 19, 2013 Author Share Posted August 19, 2013 Rupert is correct if old enough to be taking GCSE child's opinion would be paramount so if he wants to go it will probably be a yes if he doesn't want to go and you could provide home stability etc then maybe court would say no will depend as well though in part as to your circumstances and the reasons he is with them not you now Even if the plans that dad has are not concrete? What do you think? Link to comment Share on other sites More sharing options...
redleader Posted August 19, 2013 Author Share Posted August 19, 2013 update: solicitors letter recieved on friday. today is monday. Hassle from father via voicemail to 'just sign the papers' I have 1 last chance. My son is 'furious' with me. Spoke to son tonight. he isnt furious. just frustrated he says. Odd how having just spent a whole week with my son, he hasnt expressed this frustration despite being asked. Within 24 hours of being in his dads care, my son is apparently 'furious' Link to comment Share on other sites More sharing options...
Rupert Posted August 19, 2013 Share Posted August 19, 2013 thank you. I am being bullied into this, due to the way that dad has gone about this. I actually heard of their plans to emigrate thru a friend of mine. Shocking eh? Dad has already applied for visa's, put his UK house on market, etc, before gaining my approval of the idea.He is apparently going to lose a few thousands of pounds to his immigration agent because I won't sign. Wouldnt any reasonable human being, gain the other parents consent BEFORE applying for a visa? BEFORE putting his house on market. They want to go to Victoria. Unfortunately it happens a lot that one parent decides a beach and a bit of sun is better for a child than a functional relationship with two parents. It usually is the mother though and she usually gets her own way as the courts favour women, no matter what anyone says, it is clear that it does and men usually come off worse. In your case, being the mum will certainly help you, but with a 16 year old this is going to come down to him. Do you know what he wants? Dont sign anything that you don't want to sign. Link to comment Share on other sites More sharing options...
Wellers and Whitehead Posted August 19, 2013 Share Posted August 19, 2013 Were you married when your son was born? This could have an impact if he has parental responsibility, google something like parental responsibility before 1st December 2003. If he doesn't have parental responsibility this will hold you in a better position, however as he is living with his Dad the courts may see it that you know he is the father and with your sons age they may see it that you are very confident he is the father due to the living arrangements !? If I was you I would be seeking legal advice and not to be bullied into something. It is not your fault that the father would lose money if you didn't sign the papers, it's his fault for going ahead without getting your consent first. Of you do not sign the papers which it understandably sounds like you don't want to, he will have to take the matter to court which will take time. on the face of what you have said, he seems like he had got a bit carried away and underestimated how challenging it can be to remove a cold from a country. Again, if he loses out this is his fault, not yours. Do not be bullied by him. If you have regular contract with your son, and it goes to court, I would suggest I will be difficult for him to remove him from the UK..unless your son is very happy to leave and live in oz. Get legal advice. PS. If you get any threatening texts, voicemails etc about 'just sign' or anything threatening, keep them for court. Additionally keep school records/attendance, if his attendance has significantly gone down since in fathers care keep this got court. Link to comment Share on other sites More sharing options...
Quinkla Posted August 19, 2013 Share Posted August 19, 2013 update: solicitors letter recieved on friday. today is monday. Hassle from father via voicemail to 'just sign the papers' I have 1 last chance. You do not have "one last chance". I suspect he has "one last chance" because he is the one who needs consent, not you. His situation is not as dire or urgent as he is making out. If he has put his house on the market, this is easily remedied - he simply takes it off the market. If he has applied for a visa, he could either withdraw the application and resubmit later (partner visas are not age limited) or he could go down the court route. OK, he might lose a bit of money but emigration is an expensive process anyway. It will just be another drop in the bucket. If his agent has misled him about the process of getting permission for a dependent to leave the country, he could sue the agent for lost money. If he is putting pressure on you to act immediately, it is possible that he has received legal advice that his position is weak and he wants you to act before you are able to confirm this with your own legal advice. Taking a child away when he does not have legal custody and when the living arrangements are not permanent or long established will be problematic. Link to comment Share on other sites More sharing options...
memmymooch Posted August 20, 2013 Share Posted August 20, 2013 Even if the plans that dad has are not concrete? What do you think? I think regardless of dads plans it will hinge on your son and the opposing argument that you present in court, if you show that the plans are Woolley and your son will suffer then that would be considered but the things like not having identified accommidation or educational establishment are not in the grander scale of things big issues if dad can show has an idea of location and schools in the area that his employment skills are in demand and enough funds to survive in interim. In my case the children were younger but regardless of the fact that their dad didn't even acknowledge or participate in court proceedings the court appointed a guardian for them to independently ascertain their wishes and feelings about the move. Where the intent to move for better life and opportunities is genuine cases rarely get refused the ones that do are usually where it is apparent that the motive is one of spite to cut other parent out of child life or that there is some other factor that would mean the child was clearly better to remain in UK such as medical condition or disability etc which was not as well catered for. You really need to get some good legal advice. Good luck x Link to comment Share on other sites More sharing options...
Guest The Pom Queen Posted August 20, 2013 Share Posted August 20, 2013 Personally if your son is 16 I would let him go, do it for him though and don't be bullied by your ex. If you put up a fight it could strain relationships between you and your son and you don't want that. All kids think they are missing out on something, once he gets to Oz he will probably realise it isn't all its cracked up to be and will soon be back home with you. Its hard letting your kids go, I know that, my eldest is 19 and only moved ten minutes up the road with his mates but I was a wreck. He had to do it though as he needed to become independent and stop me being too over powering. Link to comment Share on other sites More sharing options...
redleader Posted August 20, 2013 Author Share Posted August 20, 2013 Were you married when your son was born? This could have an impact if he has parental responsibility, google something like parental responsibility before 1st December 2003. yes dad has Pr. He applied for it a few years ago and I allowed it without question. It seems strange to me that having got PR he now wants to challenge the terms of it by taking my son out of the country before he is 18. unbelievable, Dad will be taking me to court. In a strange way, I cant wait to see the evidence he will provide for his case. I will eat my hat if any court decides that the flimsy plans that are in place for this are just waved through, even if my son does want to go. Incidentally, does anyone know if dad is getting in on a spouse visa, I read somewhere that he will find it more difficult to get in after the age of 50? This might also be a reason why they are harrasing me. Also I heard that the visa charging structure is changing soon, so that might be another reason . thanks all so much for your help guys. This whole thing is very stressful, and i appreciate your input. Link to comment Share on other sites More sharing options...
Sammy1 Posted August 20, 2013 Share Posted August 20, 2013 Your son is sixteen. His own wishes will have enormous weighting. Link to comment Share on other sites More sharing options...
redleader Posted August 20, 2013 Author Share Posted August 20, 2013 Your son is sixteen. His own wishes will have enormous weighting. I'm aware that the court will take his views into consideration, but it does have to be in the childs best interests as well. Surely moving to another country where there are no firm plans, is not 'in his interests' What would be in his interests, is that dad goes over there, sorts out living arrangements, jobs etc, and son can follow once all is in place? Thats how I would do it as a parent. What do you think? Link to comment Share on other sites More sharing options...
blossom Posted August 20, 2013 Share Posted August 20, 2013 I'm aware that the court will take his views into consideration, but it does have to be in the childs best interests as well. Surely moving to another country where there are no firm plans, is not 'in his interests' What would be in his interests, is that dad goes over there, sorts out living arrangements, jobs etc, and son can follow once all is in place? Thats how I would do it as a parent. What do you think? That is a short term problem. He won't even have the option of doing that without putting your son on the visa first. And fees have already gone up, so it's not that. Personally if it is what he wants I would also let him go, on the condition that he pays for him to come visit you once a year. He is nearly an adult, and this could be his last chance to be able to experience oz. Once he is independent he won't be able to get a permanent visa without getting the right type of job and experience. He could still come back at any time, but going the other way is hard. Having said that, I wouldn't be rushed into anything. I'd have a good chat with your son about exactly what he wants. I think you are convincing yourself that the court will side with you when it probably won't if he wants to go. Better to have him not resent you. Link to comment Share on other sites More sharing options...
Quinkla Posted August 20, 2013 Share Posted August 20, 2013 In a strange way, I cant wait to see the evidence he will provide for his case. I will eat my hat if any court decides that the flimsy plans that are in place for this are just waved through, even if my son does want to go. I feel for you and hope the court does rule in your favour. But - and I mean this in the nicest possible way - you are looking at this with emotion in your eyes. A court won't. It is important that you get dispassionate advice from a lawyer who knows the way a court will think. He or she won't be able to guarantee an outcme but will understand what evidence counts and what won't. At the moment, you are focusing on the bits that matter to you, not the bits that would matter to a court. Link to comment Share on other sites More sharing options...
lebourvellec Posted August 20, 2013 Share Posted August 20, 2013 yes dad has Pr. He applied for it a few years ago and I allowed it without question. It seems strange to me that having got PR he now wants to challenge the terms of it by taking my son out of the country before he is 18. unbelievable, Dad will be taking me to court. In a strange way, I cant wait to see the evidence he will provide for his case. I will eat my hat if any court decides that the flimsy plans that are in place for this are just waved through, even if my son does want to go. Incidentally, does anyone know if dad is getting in on a spouse visa, I read somewhere that he will find it more difficult to get in after the age of 50? This might also be a reason why they are harrasing me. Also I heard that the visa charging structure is changing soon, so that might be another reason . thanks all so much for your help guys. This whole thing is very stressful, and i appreciate your input. There is no age restrictions with Partner visas - which by the sounds of it is they visa your ex is applied for. These take about 9 months to process - your son will be added as a dependent on the visa. He will not lose any money on the visa application, since you have never said how old your son is - I take it he is not yet 16 this is why they are requiring your consent. Australian Government will not grant you childs visa unless they have your consent - this is all due to the Hague Convention, but once child is 16 this no longer applies. But have seen some case officers still request consent even when child is under 18. Your ex has many options, either he withdraws the application, application goes on hold until he gets the consent through the court. Or he can change your son on the application to a Non-migrating dependent (your ex visa will be granted - and they can then apply for a Child visa afterwards a child under 18 should not have much issues getting this visa. He has many options - it is not all or nothing. As for losing thousands of pounds..... a court case, and solicitors fees going to cost him more. Depending on when he applied for the visa - including your son on the application, either cost him nothing, or $670 after 1 July. If changes your son to non-migrating dependent and then applies for Child 101 visa once they are settled - this would cost currently $2060. If he does go to court - he will need to show that they have researched where they are going, where living, job prospects, schooling, how they will keep in touch and visits home etc. The visa charges are going up again in Sept - not sure why he is harassing you - but likely because his visa will not be granted without your consent if your son in on the application as a migrating dependent, if he is still under 16- if over 16 his Case officer maybe insisting on it. I dont know what I would do in your position (my daughter is only 2), but I dont thing it is unreasonable to want them to be settled before your son comes to join them if that is what he wants. You ex has options that means he doesnt have to go to court. Link to comment Share on other sites More sharing options...
redleader Posted August 21, 2013 Author Share Posted August 21, 2013 But - and I mean this in the nicest possible way - you are looking at this with emotion in your eyes. A court won't. At the moment, you are focusing on the bits that matter to you, not the bits that would matter to a court. I have been asked this question many times. Am I letting my emotion get in the way of the real facts here. And honestly, I dont think I am. Since being with his Dad, my son has declined educationally. Dad hasnt included me in on school reports, parents evenings, medical procedures, sons mental state. Why would a father not include me? because he has, even for the last 2 years wanted to exclude me from my sons life. Contact with my son, once he was with his father was reduced to 'when he wants to come and see you' When my son was with me, contact with father was everyother weekend without fail. Why was contact with me reduced AS SOON as my son was in dads care? (in case you are wondering, there is no reason why contact SHOULD be reduced with me) REason: because his dad wants to cut me out of sons life. Going to Oz is the final step for him to achieve that. Incidentally, when I asked dad initially about contact whilst in Oz, he said son had an open ticket for 1 year. I asked to see son twice a year. he point blank refused and said, 'it wasnt possible' I dont think he can prove that he 'promotes contact' so this is just one of the issues I have. For anyone else going thru this, I would suggest joining 'families for fathers' it has a massive amount of info, and I have found a mackenzie friend who has done lots of 'leave to remove' cases, and I will be enlisting his help. Link to comment Share on other sites More sharing options...
Quinkla Posted August 21, 2013 Share Posted August 21, 2013 I have been asked this question many times. If this matters as much to you as it seems, please don't do McKenzie's friend. Please take independent legal advice. You are emotional - it is understandable but it shows. You need someone who is totally dispassionate who can call the odds and help you decide whether to contest this and, if so, how to formulate a case. I am on your side. I have taken bans on this forum for expressing my views about parents who emigrate with their kids against the other parent's wishes. Please take it from an independent wellwisher - right at the moment, you will be fighting against both your ex and your own emotions. Link to comment Share on other sites More sharing options...
Que Sera Sera Posted August 21, 2013 Share Posted August 21, 2013 I've had a sort of similar situation to this. My EX and his new wife emigrated to Australia leaving our two daughters behind with me. But at age 15 my eldest desperately wanted to give it a go with her Father and experience Australia. I really was not happy but at the end if the day I realised that she would be old enough to make up her own mind very soon and would probably do it anyway later on. He is old enough to make that decision and I'm sorry but if you refuse and he doesn't validate his visa with your Ex then you may deprive him of any future chance to emigrate when he's older . Couldn't you agree but on the proviso that he is going to validate the visa only and he be allowed to return after hus holiday to finish his GCSE's he then has 5 years to make up his mind whether to join his Father or stay in the UK with you. I understand how unselfish this is going to be on your part but at least this way you are keeping his best interests at heart and he won't resent you, you are also giving him choices. Good luck Link to comment Share on other sites More sharing options...
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