Children - what happens if you/your partner decide to go home.....

[Parley]

Neil, Marriage breakups are difficult.

I haven't heard anything said that he's abusive or a bad father to his kids, so there is nothing stated to indicate he should not be able to have an ongoing custody arrangement for his kids.

I know he was labelled abusive but we don't really know what that means.

 

Assuming there are no safety issues for the kids, it is in their best interests to maintain a meaningful relationship with their Dad.

[Guest NeilEB]

I meant abusive to the mother - and I said all along that we have only heard one side of the story.

 

Anyway I think we've digressed a bit from the thread, so I'll just leave it this way: VeryHopeful, I hope everything works out for the best for you and the kids, and that somehow the father can become a positive influence in their lives.

 

Good luck :-)

[Guest NeilEB]

Ok, I'm after some advice here and hoping someone can help.

 

My wife and I currently have 1 son (he's 3), and hope to have more children if we ever manage to move to Oz. After reading this thread, it's started some alarm bells ringing, particularly for my wife who now fears she could be stuck in a country for the sake of her children.

 

Now just to set some brief background, it was always my wife's dream to move to Oz after living there about 10 years ago, and I am fully behind the move - possibly more excited and keen then she is now.

 

What she is after is some protection, should things go horribly wrong. Obviously I would hope that if she is unhappy and wants to move back to the UK, then I would follow her and there'd be no problem, but there is always a chance that I get a great job, love the lifestyle etc and don't want to move back.

 

Now I'm not looking for "oh but how can you let a move split up a family" type comments; the hope is that it wont. What I'm wondering is this:

 

Is there anything we can do now, that protects my wife in the event she is deeply unhpanny and wants to return home. Can we write up and agreement and get a lawyer to sign it now, rather then in the emotional turmoil of a 'breakup'? Would the Aussie courts give any consideration to that type of thing, or would they just go on their own rules and procedures?

 

Essentially I would like the agreement to be "they are entitled to retun with their mother, after a minimum period of two years, unless the prospective life in Oz is much better for them" - now obviously this last bit is very vague, but essentially what I mean is this:

 

If I am in a good job in Oz, with a lovely house, and my son has friends and a good school, and loves surfing etc, then I wouldn't want to take all that away from him to be stuck in a council house in London somewhere.

 

No idea if any of that makes sense, and just as a reminder, this is preparing for a 'worst-case scenario', not something we are actively planning to happen!

 

Any ideas?

[Parley]

Not 100% sure Neil, but I do know that Prenuptial type agreements are becoming acceptable in Australia.

An agreement similar to a prenup can be made during marriage. An agreement may be able to cover the situation you are asking about.

One of the conditions is that both parties must have independent legal advice, ie separate lawyers.

 

Suggest you google pre nuptial agreements and read up a bit on the legalities in Australia.

[veryhopeful]

Hi again

 

What I found out, is that court orders made in the UK are NOT enforceable in Australia. So if the court orders are not enforceable its quite possible that nothing else will be. Send me a PM if you would like more information - I tried to register a UK court order but Oz is not a reciprocal jurisdiction so it wouldnt accept it. Dont really want to get into any more personal stuff on the forum but happy to help if you PM me. But basically I dont think you will get anything drawn up in the UK which will be valid here after 3 months from your arrival date - then you are out of the jurisdiction and it is no longer valid nor is the UK jurisdiction interested!

But for your wife, this is the best place in space, dont doubt it til you have tried it. Get an agreement and get here and THEN register it with the family courts within three months if you are in any doubt at all, they are not interested until your children are here. However, , this is far the better life for your children without a shadow of a doubt. IMHO!!

Hope that might be a little bit helpful, I would not have gone through what I went through if I was not sure, and having arrived I am more certain than I was before that I have done the right thing for the kids and at the end of the day they are what matters more than anything.

[2tigers]

Hi again

 

What I found out, is that court orders made in the UK are NOT enforceable in Australia. So if the court orders are not enforceable its quite possible that nothing else will be. Send me a PM if you would like more information - I tried to register a UK court order but Oz is not a reciprocal jurisdiction so it wouldnt accept it. Dont really want to get into any more personal stuff on the forum but happy to help if you PM me. But basically I dont think you will get anything drawn up in the UK which will be valid here after 3 months from your arrival date - then you are out of the jurisdiction and it is no longer valid nor is the UK jurisdiction interested!

But for your wife, this is the best place in space, dont doubt it til you have tried it. Get an agreement and get here and THEN register it with the family courts within three months if you are in any doubt at all, they are not interested until your children are here. However, , this is far the better life for your children without a shadow of a doubt. IMHO!!

Hope that might be a little bit helpful, I would not have gone through what I went through if I was not sure, and having arrived I am more certain than I was before that I have done the right thing for the kids and at the end of the day they are what matters more than anything.

 

There is a way around this, its called 'Mirror Orders' where one country makes an order and you can get it made in the next country in their court, so it stands in both countries. i have them.

 

Also, you may find that for some people they don't feel AU is the best place to bring children up, I actually feel my children have a better life in the UK. It really is all a personal choice.

 

I personally would see red flags if I was asked to sign something similar to what your proposing Neil, your wife may need a clear answer before she decides to go and she would be wise to demand that answer too - you either agree she goes home with the children if she is not happy, before she agrees to emigrate, or not. No conditions on regards to material issues, and I doubt your son will be surfing and have a close network of mates for many years to come, he is at an age where he can adapt anywhere tbh. I know its difficult to think of the what if's, but looking at your life in the UK where you are all stable right now, compared to a life in AU where it may become unstable, it may come down to selfish reasons for either country, but always look back to where you came from (UK) and how happy ALL of you are right now. A dream is a dream but it may not work out for all of you, so empathy might be needed somewhere along the line for those not happy.

 

Saying that, I think you and your Mrs are being wise in exploring all avenues here. Good luck, I do hope it works out for all of you.

[veryhopeful]

Hi 2tigers

Which way around do you have them? Maybe Oz court orders are able to be registered in the UK (dont know) but when I tried to obtain mirror orders in Australia of my UK order I was told it could not be done. When I was searching for information on the web there was none - which, when I found I could not register the order then made perfect sense.

 

I am no legal expert but I could not do it before I came to australia. I could have done it after I got here - I think you can register them in the country once the CHILDREN have arrived provided it is by consent but until the kids are here they are not interested.

 

In fact here is the letter they sent me, all personal information removed

 

hope this helps someone, I could not find any information for love nor money!

 

Brisbane Registry

Commonwealth Law Courts

Cnr North Tank & Quay Street

Brisbane QLD 4001

DX 41107 Brisbane

GPO Box 9991 BRISBANE Q 4000

Telephone: (07) 3248 2233

Registry Facsimile: (07) 3236 1534

www.familycourt.gov.au ■ www.fmc.gov.au

Family Law Courts Enquiry Centre: 1300 352 000

01 June 2010

Ms

Address

England

By email ********@yahoo.co.uk

Dear Madam

Re: APPLICATION TO REGISTER ORDERS

I refer your correspondence dated 20 May, 2010.

I note that you are seeking that we register an order made in the ***** County

Court related to arrangements for your children in the Family Court of Australia.

I advise that registration of overseas child orders made in a prescribed overseas

jurisdiction can occur in Australia pursuant to Regulation 23 of the Family Law

Regulations 1984. The meaning of “prescribed overseas jurisdiction” is described in

Regulation 14 and Schedule 1A of those Regulations.

I advise that, unfortunately, the United Kingdom is not a prescribed overseas

jurisdiction pursuant to the Regulations and, as a result, we are unable to register the

Order provided by you in the Family Court of Australia.

Please find enclosed with the original of this correspondence the certified copy of the

Orders which was enclosed with your correspondence.

Yours faithfully

FAMILY COURT OF AUSTRALIA

Registrar B*****

[Guest NeilEB]

 

Also, you may find that for some people they don't feel AU is the best place to bring children up, I actually feel my children have a better life in the UK. It really is all a personal choice.

 

I personally would see red flags if I was asked to sign something similar to what your proposing Neil,

 

I;m not saying that AU is definitely better then the UK - what I am saying is ;what if' our son enjoys it more etc - this is the problem with trying to have this discussion ahead of time - there are so many variables.

 

And what are the red flags you are talking about? Until I saw this thread, I never even thought taking kids home was an issue, and I made her read it - having seen Quoll's story amongst others, then naturally she is worried!

[whopperdaisy]

I would thinnk it very doubtful that an agreement signed before you even arrive here based on a what-if scenario would be very had to enforce, it would at best serve to be an agreement between the two of you to be honoured based on your own integrity. How much that's worth depends on the two of you probably (and if you're making such serious efforts then that may be enough, where it isn't for many).

 

In terms of Veryhopeful's story, lets hope there's a happy ending and she doesn't feel the desire to go home before her ex does. I can't speculate too much based on the brief details given but I will say that I believe that a parent who conducts ongoing long-term abuse towards the other parent is unlikely to be a good influence. The child(ren) can be immeasurably harmed if they witness this abuse of their parent so it does damage the children even if not directed at them.

 

I think there is a certain amount of difference between the habitual abuser and the person who blows up under extreme pressure of separation and court (not that its OK). I don't know which of these applies in veryhopeful's case but tapping phone calls etc sounds pretty extreme. In theory orders should be made that protect the parent's safety as well as the children but I know from personal experience this is not always the case.

[2tigers]

 

What she is after is some protection, should things go horribly wrong. Obviously I would hope that if she is unhappy and wants to move back to the UK, then I would follow her and there'd be no problem, but there is always a chance that I get a great job, love the lifestyle etc and don't want to move back.

 

Essentially I would like the agreement to be "they are entitled to retun with their mother, after a minimum period of two years, unless the prospective life in Oz is much better for them" - now obviously this last bit is very vague, but essentially what I mean is this:

 

If I am in a good job in Oz, with a lovely house, and my son has friends and a good school, and loves surfing etc, then I wouldn't want to take all that away from him to be stuck in a council house in London somewhere.

 

 

Hi Neil, sorry I should have made myself easier to understand. From what I can read above, it sounds to me that if your enjoying your life there, have what you consider a good job and what you would constitute a good life etc, that you wouldn't let her take the children home? The problem I see here is, that yes if your enjoying your life there you would see AU as a better life for the children. But your wife may think totally opposite, this is where the problem lies for a lot of people, we all have different thoughts. A lot of women who have been caught up in this have ended up depressed and felt like a prisoner due to the father not allowing the children to return.

 

If your wife doesn't feel confident that you would allow her and the children to return if she didn't like it, then she will feel anxious, its such a huge decision to make. What I have found out that money and material objects mean nothing if your not happy, happiness in yourself means the world.

 

Feel free to PM me if you like, If there is anything I can do to help please ask

[2tigers]

Hi 2tigers

Which way around do you have them? Maybe Oz court orders are able to be registered in the UK (dont know) but when I tried to obtain mirror orders in Australia of my UK order I was told it could not be done.

 

 

I'll message you so not to paste all my life on here LOL

[Guest guest36187]

This is a tough and emotive subject. Having left two stepkids in the UK (This was their choice not to come - they were 17) I can see both sides.

 

I know there would have to have been some very strong arguments raised in order for my OH to have signed anything for his kids to be able to be taken anywhere.

[whopperdaisy]

This is a tough and emotive subject. Having left two stepkids in the UK (This was their choice not to come - they were 17) I can see both sides.

 

I know there would have to have been some very strong arguments raised in order for my OH to have signed anything for his kids to be able to be taken anywhere.

 

I think that is reasonable where the person in question is a decent parent and it involves taking them away from their home country. When that is not the case, when, one parent just can't settle overseas and is suffering or where one parent is abusive, it becomes horribly complicated and there's no neat or perfect answer is there? The Hague Convention has very worthy aims but it has significant flaws that cause untold heartbreak.

[Guest readybrek]

I get the Hauge Convention thing, but what happens if say my partner leaves me? I'm on his 457 visa and without him I have no right to stay, what then happens with my children? Do I get deported with my other child? As only two are legally his. I am scared and confused, I haven't even been here a year yet, I wanted a contract before we came but everyone said I was being paranoid and he said .. well a lot of stuff and I believed him.

 

I'd like to stay as the children are settling in but have no idea of my rights, and I am currently fully reliant on him financially as we came for his work and decided I would not work until the children settled in. Please someone give me some advice or point me in the direction of someone who can assist.

[Guest siamsusie]

Just wanted to say welcome to Poms In Oz Readybrek.

 

Hopefully you will receive the answers you are looking for.

 

Susie x

[2tigers]

I get the Hauge Convention thing, but what happens if say my partner leaves me? I'm on his 457 visa and without him I have no right to stay, what then happens with my children? Do I get deported with my other child? As only two are legally his. I am scared and confused, I haven't even been here a year yet, I wanted a contract before we came but everyone said I was being paranoid and he said .. well a lot of stuff and I believed him.

 

I'd like to stay as the children are settling in but have no idea of my rights, and I am currently fully reliant on him financially as we came for his work and decided I would not work until the children settled in. Please someone give me some advice or point me in the direction of someone who can assist.

 

Hi there readybrek, I am sorry to read your having a dilemma after only being in the country a short time. Unfortunately I know of a situation (court case) the same as yours and the outcome was not good. I urge you to get legal advice, make an appointment with legal aid preferably in the city where there are more staff, quicker for an appointment and a bigger chance of finding a lawyer who is clued up with the HC and immigration.

 

The couple split up within a few months of arriving, the family (dad, mum and son) were in AU due to his visa linked to his job. The Dad met someone else within months of arriving and moved out of the rental, the mum got on a plane with her son and brought their son home. HC began and she had to return her son to AU. A two year court case began, she wanted to bring her son back to the UK, but the law stated that she had broken the HC and although she could not legally stay there, the son could still legally stay there with the father, and so she had to apply for an international relocation order. Within the two years of her and her son being there she wasn't allowed to work or claim any benefits, she lived off hand outs and church goodwill. She had to sell the family home in the UK to fund the case.

 

Now the twist - within the two years of the court case, not only had her son now began school and settled, but she had met someone and changed her mind about wanting to come home to the UK. The courts wouldn't allow it, and after spending over £100,000 on legal fees and then uprooting her son from his father, new life and her from her new partner - she was told she had 28 days to leave the country, with the child. So she came home and is now rebuilding her life again here in the UK.

 

It is so complicated its unreal, I was also sent back to AU for over 2 years whilst the courts made decisions, I was unable to work or claim any benefits, I suffered terribly and my absolute heart goes to anyone who goes through this.

 

I hang around on this website to give what little advice I can about this topic, I wish I could help you but it really is legal advice you need.

[whopperdaisy]

Another thing to consider very carefully for anyone going through this... if you do apply for relocation, there are many judges here who may consider that means you do not support the child's relationship with the other parent, which they may count as reason to award far more custody to the other parent than they may otherwise do. So there are risks associated with even applying.

[BobinOz]

Hi Readybrek

 

You refer to your OH as "partner", does this mean you are not married to him? If this is the case, I would guess, and it is a guess because I am certainly not a lawyer, that you have no claim over his two children under the Hague Convention and he has no claim over your one child either. So if it were to all go wrong, you would go home with your one child (if you had to leave the country) and he would do whatever with his two.

 

As for would you get deported, you should be okay to stay in this country for as long as your visa is valid. You say you are on his visa, but surely your passport has a visa stamped in it, so whilst you did come in off the back of your partners visa, you do now have your own.

 

So, are you married or are you partners?

[RockDr]

Hi Readybrek

 

You refer to your OH as "partner", does this mean you are not married to him? If this is the case, I would guess, and it is a guess because I am certainly not a lawyer, that you have no claim over his two children under the Hague Convention and he has no claim over your one child either. So if it were to all go wrong, you would go home with your one child (if you had to leave the country) and he would do whatever with his two.

 

As for would you get deported, you should be okay to stay in this country for as long as your visa is valid. You say you are on his visa, but surely your passport has a visa stamped in it, so whilst you did come in off the back of your partners visa, you do now have your own.

 

So, are you married or are you partners?

 

My interpretation of Readybrek's post is that the three children are hers, and two of the three are also his. So while he doesn't have any claim over the child who isn't his, both parents have claim to the other two.

 

@Readybrek if this is more than just a hypothetical question, I strongly advise you to get in touch with an immigration lawyer.

[BobinOz]

Reading it again I think your interpretation is probably right RockDr. I think it's still worth looking into though, because unmarried fathers have less rights generally then married ones. A quick search suggests that much depends on whether the child was born before or after 1 December 2003.

 

As you say, if this is a serious issue it's time for readybrek to see a lawyer.

[B1K3R]

Interesting thread, thanks for bringing it up. Not sure if it was asked (too many posts to read!), but if my wife heads back to Europe with our daughter with my consent, does she need some kind of approval letter from me or there is no need?

 

Cheers

[Guest NeilEB]

Interesting thread, thanks for bringing it up. Not sure if it was asked (too many posts to read!), but if my wife heads back to Europe with our daughter with my consent, does she need some kind of approval letter from me or there is no need?

 

Cheers

 

Not an expert, but if you don't 'press charges' then I can't see this ever being an issue. Mind you she might want something to cover herself in case you change your mind later on and try to say she took them without consent.

[whopperdaisy]

I was advised by a solicitor that it is better to get written permission, ideally in the form of a stat dec, just in case immigration in another country en route is having a crackdown or gets a bit over-enthusiastic. I didn't ever have to use the permission (this was while I was with my child's father) but better safe than sorry. A stat dec is easy to do - you can get the form from most newsagencies and sign it in front of a JP.

[janine the party queen]

http://tools.ntnews.com.au/stories/46894191.php

 

Thought this might be of interest.

[whopperdaisy]

I wonder what the background story is behind this, what caused her to leave in the first place. Either way, it seems sad for the child to have a parent jailed.