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Reply To: Just Been Hit With Initiating App

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#418
Felix Spencher
Keymaster

Hi Jimmy,

There are 2 ways to interact with Scandalum Magnatum and they are described at our “About Us” webpage http://www.scandalummagnatum.com/about-us/

Membership One; is totally free. All you need to do is go here http://scandalummagnatum.com/registration/ and fill in the registration form, pay nothing, and get treated equally as any respected Scandalum Magnatum member.

Membership Two; involves a one-off donation of US $160.00 and aside from merchandise entitlements and a higher membership grading, Membership Two provides members with access to a private forum, and advanced personalized levels of assistance/support. The kind that can only come from those with real world legal/global experience with “the system”.

I’m just letting you know that as right now you haven’t signed up for even membership 1 (free account) and also because many of our Membership 2 members (costs $160.00) like the private facility that the private chat (exclusive to Membership 2 members) forum provides.

Nevertheless, I will still provide some quick feedback for you to help.

I am assuming from what you have said that the Federal Circuit Court application you’re talking about is actually an initiating application for parenting orders.

Go to the initiating application and look and the section where it says “Orders Sought”. This is usually on page 1 and there are 3 options there; (i) Parenting; (ii) Child support; and (iii) Financial (Property or Maintenance). Each of those options will have a box next to it to be ticked and usually only 1 of the boxes will be ticked and that tells you what kind of Federal Circuit Court application it is that you’re the respondent to.

Observe which of those 3 items is ticked to be sure your matter is genuinely for parenting orders, and not something else. It’s important to know what matter you’re a respondent to but at a guess (from what you’ve said) I’d say it is a parenting matter; so from this point onwards (unless you advise otherwise) I will assume your spouse has filed an initiating application for parenting orders against you and filed it with a notice of risk and a supporting affidavit.

Here’s a few tips on what you need to do next. . . . . .

If you can afford a lawyer and know one you trust then the next thing you need to do is go and see them and (among the myriad of things they will both do and get you to do) get them to;
A) Write a letter to your spouse asking her to advise when you can spend time with the children. You see right now, even though she has filed her initiating application for parenting orders and is withholding the kids, there are no orders in place that say she has sole custody of the kids and that the father can’t see the children; and that combined with the fact that the law acknowledges that it’s in the best interests of the child to have a relationship with both parents means she should provide you with immediate access to the children.

B) Use your lawyer to create a Recovery Order (but only if you believe she has already taken the kids overseas and/or interstate), Pace Alert and a Restraining Injunction.

a) The purpose of Pace Alert/Order is to prevent your partner from leaving Australia with your children without your consent. Just over the last fortnight alone we have had 3 members pursue a pace alert and/or urgently seek that type of order. It happens all the time.

b) A recovery order (is discussed in more depth below but basically it) is an order you apply for when you know your partner has already left with the kids. Conversely the aforementioned pace order is designed to prevent the children from leaving and/or being taken out of the country.

c) A restraining injunction is an order the court makes so you won’t be able to get it made and/or have it in place until the 1st hearing of the mother’s initiating application happens, or if a hearing takes place before that as a result of your filed recovery order and other *documents.

Here is an example of how a restraining injunction might look.

Until further order both parties, their servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the children [children’s name go here] born [put birth dates in here] from the Commonwealth of Australia. This order ceases to have effect 2 years after the date on which it is made. The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders“.

d) This kind of injunction/order prevents the mother from taking the children to another country, and when you have your first appearance in court (yes you must go to court) – if you’re not represented by a lawyer – then you politely request that the honorable judge make such an order to prevent the children from being taken out of Australia. If you are represented then your lawyer will request that the honorable judge make such an order to prevent the children from being taken out of Australia.

Don’t worry if it all seems too much and/or too daunting/complicated, as the courts and judges make these kinds of orders (and see women do what your wife has done to you and the child) all the time, day in, day out.

Now, if you can’t afford a lawyer or can’t find one you feel you can trust you must still apply for a Recovery Order (but only if you believe she has already taken the kids overseas and/or interstate), a Pace Alert and a Restraining Injunction. So . . . .. .

A) Write a polite email/letter (mindful of the fact that the letter will most likely become evidence in the parenting matter she has filed) by yourself to your spouse asking her to advise when you can spend time with the children. Mention that you have not seen them for however long it has been and that it’s in the best interests of the children to have a relationship with both parents; so she understands she has a responsibility to provide you with access to the children and/or vice versa.

B) If you believe she has already taken the kids overseas and/or interstate, then create a recovery order. To be clear; (in simple terms) recovery orders are basically orders from the court that require the kids to be returned to you – the parent of the children. Since applications for recovery orders are usually filed in the Federal Circuit Court this means – since you already have a current parenting case up/running in the Family Court (from the Federal Circuit Court documents your spouse left you) – your recover order application should be a part of your overall *response to your spouse’s parenting orders that she has already filed court. To do this properly you will probably need to go to a community legal centre that provides free services and get them to help you fill out all the *documents to make sure they’re correct.

Recovery orders are justifiably serious because if a parent (such as your spouse) absconds and/or removes children from their usual surroundings (as your X has) then the other parent (you) will usually have a good right/standing to bring an urgent application forward to the court for a recovery order. Upon the basis of your recovery order application, If the court is satisfied that the children have been removed unilaterally and/or wrongly by the absconding parent the court can then order the absconding parent and the children to return within a certain timeframe (usually within 7 days); and in the event of non-compliance of the court’s recovery order by the absconding parent the court can authorize or direct a person or persons – such as state police officers and/or the Australian federal police – to take any appropriate action necessary to find, recover and deliver the children to you.

C) You will still need to have a restraining injunction in place, but as you can see from my notes on that in the above if you can afford a lawyer section the process happens by way of requesting the judge to make such order, and since you’re already going to be in court at some point (by way of either naturally responding to your spouse’s FCC parenting matter and/or by way of you filing recovery orders) you can request the injunction then.

I know it all sounds daunting but these are some of the main things you’re going to have to do in order to both, respond to your spouse’s Federal Circuit Court parenting matter and see your kids again. If you can’t afford a lawyer you can talk to me and/or go to one of those free legal service centres and get them to draft up orders that prevents the child from being removed from Australia that you can use in court when requesting orders to made from the judge.

I can also help you with selecting lawyers if you’re looking for father-centric lawyers that will progress your matter from a father/man’s perspective and at a reasonable price.

Best wishes,

Felix.