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NSW Chances of Being Granted Full Custody of Children and Relocation?

Discussion in 'Family Law Forum' started by Pennyxx, 1 September 2016.

  1. Pennyxx

    Pennyxx Member

    1 September 2016
    Likes Received:
    I apologise in advance for the length of my story.

    My partner and I have been together for approximately 6 years now and have 2 of our own children. We took on care of his 3 children from his previous marriage at the beginning of this year. My partner and his ex are still not divorced and there are no Custody of Children arrangements in place. The children are between 8-13 years old.

    We found out at the start of the year that his ex's eldest child (who is in her care) had been sexually assaulting my partner's 8-year-old and his 13-year-old. We also found out that the children were sexually assaulted by the ex's child's grandfather and the 12-year-old was sexually assaulted by the ex's father, all whilst in her care. All of this was reported to the Police and FACS.

    The children gave statements and are now receiving counselling. We were only meant to have the children for the school holidays but when we found out this information we told their mother we weren't sending them home and they were to stay with us.

    This is not the first time we have been concerned for the children's welfare in their mother's custody. Approximately 5 years ago, we had the children for our visit and their mother turned up to our home drunk and extremely aggressive and demanding that she take the children. She was arrested but in Court the charges were dropped as it was a first offence. We received an ADVO placed by the NSW Police. And the children were returned to her care.

    Then approximately 4 years ago, the ex was hospitalised and detained in a Mental Health Ward after an attempt at committing suicide due to a drug overdose at home whilst in care alone with the children. We obtained care of the children whilst she was in hospital and enroled them into school until she was released and then she harassed us to return her children to her and my partner gave in and sent them home.

    Then last year, we received our second ADVO placed by the Police. We invited the ex and children over to our house as we were getting along quite amicably at that point and she proceeded to get extremely drunk, started swearing at the children including telling her 12-year-old that he was a "little c**t" in front of us. My partner and myself asked her to leave, but she refused to leave without the children and accused us of "taking her children away from her", so we called the Police. She then decided to ram down our sliding fly screen door and fell into the lounge room.

    The ex has her child in her custody whilst on bail and awaiting sentencing in the Court for the charges which include 20 charges all up. Myself and my partner and his ex all live in a extremely small town and it is quite impossible to leave the house without running into each other.

    The children are suffering with PTSD due to the abuse and are having constant nightmares and anxiety attacks. Every time we run into their mother with her child, the children are re-traumatised and spend days recovering, even missing school because they are too scared to leave our care.

    My eldest stepchild has had to change High Schools last week to an out of zone school 1 hour away due to extreme bullying at the previous school (which is the only school in our area), where the other children at the school had found out the details of the abuse and were taunting him with it and laughing. Children from the school are threatening to "bash him up" due to him being related to a "paedophile".

    My youngest stepchild is asking to change schools now because a few of the kids at school keep talking about the abuser visiting their house, as the ex is good friends with their parents and visits several times a week with her child. My stepchild is being re-traumatised daily by these children's comments.

    The Ex will not communicate with us about any of this despite multiple attempts by us. The only time she communicates is to ask when she can see her children next. We were allowing the ex to take the children out alone for the first few months as we wanted to be as amicable as possible, but each occasion, the children would return distressed and reveal that their mother was talking to them about their abuser constantly and even went to the extent of telling them "you should still love them regardless because they are your family."

    We decided in the best interests of the children to be present on her visits so that they didn't have to feel uncomfortable. The ex is extremely unhappy with our presence at the visits and continues to tell us she wants unsupervised visits. The children do not want this and my eldest stepchild now is refusing to see or speak to their mother.

    The children have been asking us for months if we can move to a different town. My family and my partner's family all live 3 hours away from us and we are struggling without adequate family assistance. We also struggle with obtaining sufficient work where we are due to being such a small town there is not a lot of options. Relocation is an option we are considering but are unsure of our ability to do so.

    I would like to know what steps we should be making at this point. We have applied for Legal Aid to commence Parenting Orders but are awaiting response as we do not have a lot of money. We have been to mediation and given a Section 60I Certificate due to the Family Violence.

    Does my partner have a high chance of being granted full custody of children in the Family Law Court due to the Family Violence and mental instability of the children's mother and the fact that she is in custody of their abuser which we have an ADVO against?

    We would like the visitation with the children's mother to remain supervised. Will this be possible? Does my eldest stepchild have to visit their Mother? If we wanted to move, do we have any options for moving a short distance without applying for Relocation Orders?

    The Police Officer I saw recently told me he was sure there is a 100km radius that we can move in without needing a Relocation Order or the mother's consent, is this true?

    We have tried asking for consent from the children's mother but she won't communicate and then went to a Solicitor and had a letter sent to us advising us that if we "unilaterally relocate", the children they will apply to the Court for an Injunction to stop us.

    We are all at the point of breaking and we just don't know what other option to take as the children's well-being is getting so bad to the point where they are suffering depression and having anxiety attacks so often about having to stay living in this town filled with people judging them and taunting them when they are victims of abuse.

    Thank you and any help on what options we have would be greatly appreciated.
  2. sammy01

    sammy01 Well-Known Member

    27 September 2015
    Likes Received:
    Ok so, with no court orders there is nothing stopping you. (kind of) So what matters? Histoy. When did the mum last see the kids?

    I'd suggest you have two options.

    1. Relocate and see what happens. With the family history, you might be ok.

    2. Go to court to seek orders pertaining to the children. Chance of success: I'd like to say very good. But I've read lots of cases and it is bloody hard to guess.

    Option 3. Write back to solicitor and tell solicitor you're going to move and invite them to initiate court action. Call their bluff...
  3. AllForHer

    AllForHer Well-Known Member

    23 July 2014
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    I am sorry for the situation in which you and your family find yourselves. These sorts of situations are very difficult to navigate, and that difficulty doesn't get any easier when it comes to the law.

    Since it seems that you are most interested in a relocation order, I'll consider this situation from that perspective.

    First, I'll address the situation as it stands now.

    Not having any parenting orders in place means that you aren't restricted by any law from relocating with the kids.

    However, the ex's solicitor is correct in stating that if you do unilaterally relocate (i.e. without consent of the other parent), then they can file for a recovery order to have the children returned to the town of origin.

    Filing, of course, is one thing. Actually getting a relocation order made by the Court is entirely another.

    In the event they did file for a recovery order, each party would be brought before the Court to pitch their case as to why the recovery order should or shouldn't be made, based on why it is or isn't in the best interests of the children. It's impossible to predict what the Court will do in these situations, but based on the information you've provided, I can see merit in your case, namely that:
    • The children currently reside with you and you are still facilitating the children spending time with the mother;
    • There is third-party evidence concerning the well-being of the children in the other parent's care (reports from police, FACS and psychologists);
    • The other parent has a history of police charges against her;
    • There have been two subsequent police-issued AVOs in which she is named as the respondent party;
    • There have been issues in education related to bullying (though this would need to be backed up by third-party evidence of some description to be given weight beyond speculation); and
    • The children's ages mean their opinions are going to be given some weight.
    I'm not going to tell you whether or not I think you should go ahead and relocate without consent. Ordinarily, I recommend that parents do it the right way by getting parenting orders first, but that's because in most cases, I tend to believe a recovery order would be successful since the argument in favour of relocation is usually some variation of 'I just don't like the other parent'. I don't think that's the case here.

    So, I'll just say that I think you would have grounds to argue against a recovery order, if they were to pursue one. In relation to the 100km radius thing, that's not entrenched in law anywhere, but if you're only looking to move 100km away, rather than across the country, then you can probably add that to the merits of your case above, since 100km means regular time with mum is still reasonably workable. Generally speaking, a relocation that means the kids can continue seeing each parent on the same schedule that they are now will mean you won't have to involve the Court to proceed.

    Now, if you do want to follow the proper avenues, you are right to file for parenting orders from the Court. Usually, family dispute resolution is a mandatory pre-procedure step, but it can be bypassed where there are issues around family violence. Given you're now on to your second AVO, I think you'll find yourself with arguable grounds for skipping family dispute resolution and just filing for Court.

    When filing for parenting orders, you have to show why the orders you're seeking are in the best interests of the child, giving thought to the pathway outlined in section 60CC of the Family Law Act 1975 - FAMILY LAW ACT 1975 - SECT 60CCHow a court determines what is in a child's best interests . If you read section 60CC, you'll see the Court must prioritise protecting the children from risk of harm, so if everything you've presented here is fact, and can be presented to the Court as fact (rather than hear-say or opinion), then you've got a fairly decent chance of getting the orders you're after - namely, supervised time and relocation.

    But that's not legal advice. Just my view based on my knowledge and experience in family law.
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