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SA Changing Child Custody Arrangements - Get Legal Aid SA?

Discussion in 'Family Law Forum' started by FindingAnAnswer1, 21 May 2015.

  1. FindingAnAnswer1

    FindingAnAnswer1 Active Member

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    I lost custody of my daughter 5 years ago due to not appealing. I haven't had regular contact with her since. Every now and then my ex will allow me to speak, Skype or have photos of her. I've had 2 children since and my partner and I are planning on making a move to Tasmania where she resides.

    I'm in the process of applying for Legal Aid SA to try change the custody of children arrangements so that i may build my relationship with my daughter. My question is: what are my chances of changing the current custody arrangements to joint custody and will moving there be of any help?

    I've informed my ex that I want to move there. Since I'm not up to date on my child support payments, she's declined any contact and has also stated that I should not move there and if I do I will not be able to find my daughter.

    Any help will be appreciated thank you.
     
  2. AllForHer

    AllForHer Well-Known Member

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    First, sorry you're going through this. Family law matters are tough, at the best of times.

    To have final orders changed after they've been made, you need to meet the principles of Rice & Asplund, which is that circumstances have changed significantly and that the current orders no longer meet the best interests of the child.

    A move that is significantly closer to the child may constitute a significant change in circumstances, and the arrival of two half-siblings with whom your daughter has a right to have a relationship will also strengthen your case.

    Did the court make orders for shared parental responsibility, or sole parental responsibility in the first instance?
     
  3. FindingAnAnswer1

    FindingAnAnswer1 Active Member

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    I didnt receive any papers stating i lost custody she has told my partner that she has full custody sorry.
     
  4. AllForHer

    AllForHer Well-Known Member

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    Sorry, I might need a bit more clarity here so I can give you better guidance.

    Five years ago when you lost contact with your daughter, was there a court hearing that led to that outcome? Were you served with an initiating application, attend court, and receive a set of orders sealed by the court?

    Or are you just going on the mothers word that she has 'full custody'?
     
  5. AllForHer

    AllForHer Well-Known Member

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    Just additionally, when you say that you didn't appeal, what was that in regards to?
     
  6. FindingAnAnswer1

    FindingAnAnswer1 Active Member

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    No i was not served with any papaers i am just going by what my ex has told my partner. So i just assumed she was right as i have not been in my daughters life for so long. My ex left the state we were living in with our daughter without notifying me. I then got approved for legal aid but i did not follow through
     
  7. FindingAnAnswer1

    FindingAnAnswer1 Active Member

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    My ex left the state 5 years ago sorry. I got approved and did not follow through with it. Unfortunately at that time i was not in the right frame of mind as to why i didnt not follow through.
     
  8. AllForHer

    AllForHer Well-Known Member

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    No worries, thank you for the additional information.

    Given that there are no orders in place yet, the rules of a Rice & Asplund won't apply to you. They only apply when changing existing orders, of which there are none in your case.

    The first step toward parenting orders is to organise a family dispute resolution conference with the mother to try and reach an agreement about care arrangements for the child.

    This is a mandatory step before court proceedings can be pursued, but it's helpful to go into family dispute resolution with some idea about what the court would focus on if it were to decide the matter for you.

    First, the court will only uphold one person's rights in parenting matters, and that is the child's rights to know, spend time and communicate with both parents and other people relevant to their care on a regular basis, insofar as the child's best interests can be met. If those rights are not currently being upheld, the court will do its best to make orders that ensure the child is given the opportunity to have a meaningful relationship with both parents, provided its in their best interests to do so.

    Second, orders made by the court in parenting matters are only in the best interests of the child, and the governing legislation that guides how the court decides on the best interests of the child is section 60CC of the Family Law Act 1975. Have a read of that - it'll give you an idea about what the court would consider in your case, but the primary consideration is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect children from harm. There are about 12 other considerations as well.

    Third, your ex is incorrect about her proclamation that she has sole custody of your daughter. The term custody is not used in Australia. What is used instead is the term 'parental responsibility', which refers to the responsibility of the parents to make major long-term decisions about the child's care, welfare and development, which includes living and care arrangements, education, name changes, religion and medical. All parents, including you, share equally in parental responsibility unless removed by order of the court (and that doesn't happen very often).

    Where shared parental responsibility exists (as it currently does for you), the court will consider whether an equal time arrangement is in the child's best interests, or if not, whether substantial and significant time with be non-resident parent is in the child's best interests. Substantial and significant time is a combination of weekdays, weekends, holidays and special occasions.

    There are some weaknesses in your case, such as having little contact with your daughter for five years, not paying child support and having what I assume is some difficulty communicating with your ex, but if there's no domestic violence issues or other threats to the child, the court would likely order that the child spend time with you on a regular basis so that their right to know you can be upheld.

    Be prepared though - the court would probably look at a gradual reintroduction of time between you and your daughter, and would probably order counselling to help rebuild the relationship, so be ready to welcome those opportunities. Also, court is a slow process, so hopefully agreement can be reached via family dispute resolution before you have to pursue court.

    Summarily, do I think you can get the current arrangements changes? Yes.
     
  9. FindingAnAnswer1

    FindingAnAnswer1 Active Member

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    Thank you, in my application for legal aid I have asked to be able to skype regularly till we move 3x a week so we can start getting to know one another. Thank you for your help - fingers crossed it all works out.
     

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