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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5421
Experience:  Dip Law LPAB - Sydney based lawyer
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I've been separated with my ex 3 years the second time, the

Customer Question

I've been separated with my ex 3 years the second time, the first was in 2009 he committed DV from then we have court orders for our son Tomas.
We have moved cities gave the relationship another try but it didn't work out. unfortunately we never changed the orders and 7 years later circumstances have changed.
I was born in ecuador and my dad is sick , I have been begging my ex to let me go on holiday to see dad but he refuses.
Second problem is:
I have a really good job offer in Sunshine Coast that will mean relocating with Tomas from port douglas Again he denied I even asked him if he wanted to have Tomas full time for a couple of months until I settle and I would allow him to take Tomas to Argentina, but he declined to any possible option I gave him I feel like I don't own my freedom and Tomas is and will miss out on family and future opportunities, hope it makes sense and you can help me out.
Submitted: 1 year ago.
Category: Australia Law
Expert:  Patrick H. replied 1 year ago.

Hello and thank you for your enquiry.

Your situation is a little confusing so I have a few questions to try to understand your current situation.

1. What do the existing custody orders from the court say?

2. What is the nature of the domestic violence he last perpetrated against you which is the subject of the protection order?

3. What current access or custody does the father currently have to your son?

4. Where does the father live?

5. Is the father likely to take legal action against you if you relocate with your child without his permission?

Customer: replied 1 year ago.
Hi Patric thanks for your help instead of trying to resume it all I'm sending some pictures of the existing orders that are so old and haven't been able to change as we didn't come to any agreement in mediation so I have the certificate to go to court.
2.- pictures of old and current protection orders, he has asked me to remove the protection order or the item about communication in order to talk to me about Tomas or future arrangements is his excuse to say no to everything.
3.- even tho I'm the order he is to have Tomas only Monday night I have given him every Friday and every second weekend to spend with Tomas (I do it for my son to have a father in his life)
4.- his father lives in the same town Port Douglas ( we moved here when we got back together from 2011-2013)
5- I don't think he would take legal action if I was to move with Tomas as it will cost him, but having said that it is a open possibility
I need to know if should apply to court to change the entire existing order or can I apply for relocation and overseas tracer only as I need to go back home and see my I'll father I would also like to know if I can still apply for property settlement I got divorced on my own last April but the house we have is in ecuador so it got too complicated for me as my priority is all of the above.
Thanks for your time hope the information given helps and please let me know if you require any additional info.
My email is***@******.*** if is easiest to communicate that way
Thanks again
Daniela
Expert:  Patrick H. replied 1 year ago.

To answer your questions:

It is hard to see how you can possibly comply with the existing orders if you simply move to the Sunshine Coast, so unless you get orders that make arrangements that are viable, or othewise reach a new agreement with the father that allows you to make the move, there is a very significant risk that your husband could obtain orders that force you to return your son to Townsville.

If you do apply to the court for new orders to allow the move there is no certainty such orders will be granted. When deciding such issues the courts look at what is in the best interests of the child, and not the parents, and there is generally a presumption that children are better off if they have ready access to both parents. Before granting such an order that permitted you to move, the court would need to be persuaded that any benefits which may acrue for the child from the move outweigh the damage that may be caused to the child's relationship with the husband. Virtually all considerations are taken into account in this situation, so if you can demonstrate a better quality of life for your child because of the extra income you can earn, that is relevantly in your favour, conversely if the father's involvement with the child is only modest, then that also would be a factor reducing the significance of maintaining the parternal relationship. That said the balancing act is very subjective and has to be considered on a case by case basis so only a fully briefed lawyer can give you firm advice as to whether you will succeed in such an application.

As to your proposed visit to Equador, if you don't have a password ***** your child or your child is on the airport watch list *which prevents children from leaving Australia) then you cannot take the child overseas without first obtaining the other parent's consent (needed to get an Australian passport assuming your child is a citizen) and removing your child from the airport watchlist (which requires an application to the court). If you apply to the court for orders allowing you to take the child overseas, the court will likely be sympathetic provided the court has no concerns you would abscond with the child and not return. If the court is concerned that you won't return then the reality is that you may not obtain orders from the court allowing you to leave. In some circumstances the court would accept a bond (e.g. a sum of money being deposited that you would forfeit if you failed to return) as security in exchange for allowing you to take your child, but that is not always granted if the court is unsure that is sufficient to ensure the child's return.

As to seeking property orders, you should normally seek such orders within one year of obtaining a divorce, after which you will need to ask the leave of the court to apply late. Such leave is very often granted, but it will depend on your circumstances. Because it appears the main asset of the relationship is based overseas this can create complications enforcing the orders because , if for example, your ex fled the country, Australian court orders are not generally enforceable overseas, and therefore you might then have to recommence legal action in whatever foreign jurisdiction your ex flees to in order to pursue a claim, and may be subject to the laws in that country, many of which are fare less favourable to women than in Australia.

Finally, if you have concerns about your ex leaving the country with your son you should yourself make sure he is named on the airport watch list as this may prevent your husband from leaving with your son without the court's permission.

As originally noted, your situation is somewhat complex so only a fully briefed lawyer can give you firm advice as to how any of the above contemplated court actions may actually turn out, however, I trust the above assists you in understanding the issues you need to consider when deciding how to proceed.

Good luck and PLEASE RATE MY ANSWER.

Patrick

Expert:  Patrick H. replied 1 year ago.

Hello, I note that you have not rated my answer. Is there something further I can do to assist you?

Patrick