NSW Custody of Children and Visitation Rights - Divorce in Australia or Canada?

[Scully]

Background: My Husband and I met, married and had our daughter in Canada. He has a gambling addiction and alcohol problem along with some psychological damage from a pretty horrendous childhood. His behaviour was getting increasingly aggressive (including emotionally abusing behaviour) and I came home to Australia late last year for a 'break'. A week before I was due to go back, he had an 'episode'. We discussed the situation, I told him that I would not allow our daughter to be damaged by her parents' behaviour in the way he had and that he needed to commit to his recovery and provide a safe, secure home for his family before we came back.

We have been in constant contact since then, I Skype with him whenever he wanted to see our daughter (now 18month old). He has not, however, done anything about his addiction or other issues. He has threatened me with divorce since before I left Canada however last week, he advised me via cc:email to our immigration lawyer that he was cancelling our spouse visa application as he was pursing divorce. He is yet to provide me with official papers.

Today he had made threatening statements pertaining to our daughter (namely that he could have me arrested for parental kidnapping). Even though he signed a travel authority allowing me to travel with her, I would like to know where I stand with that.

I would also like to know how custody of children and visitation rights works internationally and whether it would be in my best interest to file for divorce in Australia or let him do it in Canada?

If more info needed, let me know.
Any advise is appreciated.

Thank You

 

[Victoria S]

There is a more complex question that requires personalised legal advice from a family lawyer. See here Get Connected with the Right Lawyer for You or you local community legal centre or Womens Legal Service for specific advice.

You might also find the following information about children, separation and divorce in Australia helpful:

• Parenting cases - the best interest of the child - Family Court of Australia
• Divorce - Family Court of Australia
• If you agree on parenting arrangements - Family Court of Australia
• Child Support – Key Things You Should Know - Legal Blog - LawAnswers.com.au

 

[Lotus]

Hi Scully,

I am currently and have been in the reverse situation, and have personal experience with relocation issues.

1) Canada and Australia are signatories to the Hague Convention, and have reciprocal arrangements in regards to children being taken overseas.

2) Both parents have rights to have a relationship with the child. Irrespective of your opinion of your husband's personal issues, he is still the child's father and has a right to have contact with the child.

3) Your husband permitted you to travel outside of Canada for a long holiday, not to leave the country permanently. There was a case where a Canadian woman took her husband and child back to Canada, and once back in the country immediately separated from her Australian husband, thinking she would be able to stay in Canada with the child. The husband was successful in having the child repatriated to Australia. This type of case sets a legal precedent. If your husband commences proceedings in Canada that is where the case will be heard. It will not be in your favour that you have returned to Australia and have decided to stay without having orders permitting you to do this.

4) Get legal advice immediately, but it will be extremely costly to launch a relocation order in the family court and your chances of success are limited.

I do sympathise with you. It is very hard to raise a child without the emotional and practical support of your family, and have to deal with an ex-partner with emotional and mental health issues. I can fully understand why you made the decision that you did, but legal authorities are going to be fair and equitable to both parents and maintain the best interests of the child.