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NSW Custody of Children - Breach of Final Court Order?

Discussion in 'Family Law Forum' started by Rachelle Simpson, 26 July 2014.

  1. Rachelle Simpson

    Rachelle Simpson Active Member

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    Hi. In February, we got final orders for my 3 year old daughter to live with her dad & I get 1 day a week supervised for the next 2 years ( custody of children). This was due to me using drugs & being in an abusive relationship. I have not used and am doing random urine tests monthly and ended the bad relationship. For the past ten months, I've been working hard to fix my life to get her back.

    Recently, I've found out that her father is breaking the order by moving out with a new girlfriend and leaving my daughter with his mother. Can I go back and try to get her back now as she is really confused and feels she lost her mum and now her dad? She's been very upset by this as she is told to lie to me and say dad is at work. I just don't want to go back too soon and stuff my chance to get her back and show how I'm better and a good mum again. He fought me for two years to get custody and now walks on our daughter. Would I have a case? Or am I overreacting?
     
  2. AllForHer

    AllForHer Well-Known Member

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    First, courts don't often make orders infringing on a person's right to freedom of movement - including who a person lives with - provided they are not moving so far away as to infringe on a child's right to have a relationship with the non-residential parent. Those kinds of orders are generally only made if the new partner is found to be a danger to the child (and I do not advise fabricating something to that effect because it will only increase the likelihood that you won't see your child at all), or if they are agreed to by consent.

    Second, the child has a right to a relationship with their extended families, so no, you won't have grounds for argument just because the child is spending time with her grandmother.

    Third, the child is three and by the sounds of it, she has been through a lot of trauma already in her young life, including exposure to domestic violence and a drug-addicted parent. No court in Australia is going to give you custody and uproot your child's life again just because the father is moving in with his partner and letting the child spend time with her grandmother. You need to see a counsellor and perhaps do a parenting orders course so you can start identifying the difference between when you're acting in your child's best interests, and when you're just acting in *your* best interests. Your emotions about the father and his new partner are irrelevant.

    In short, yes, you are overreacting. Yes, trying to get custody now will damage your case because you'll basically be showing the court that you consider *another* upheaval in your child's life to be in her best interests, when it clearly isn't.

    I don't mean to come across as harsh, it's just that judges are realists and they won't sugar coat anything. My advice is to follow the parenting orders and invite the father to mediation to negotiate more time with your daughter, even if it's more supervised time. You need to show that you really can put your daughter's best interests first and that means accepting that a change of residence isn't in her best interests, nor is another court battle, nor is prolonging or frustrating conflict with the father.
     
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  3. CathL

    CathL Well-Known Member

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  4. Rachelle Simpson

    Rachelle Simpson Active Member

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    I appreciate your response but I think I didn't explain things correctly or you have understood things wrong.
    I don't have an issue with the father or his girlfriend ( they have been together for 2 yrs - not new relationship) and I don't have an issue if she spends time with the grandparents/extended family.
    My reason for concern and why I was seeking advice on this site was because he has broken the court order by moving away from my daughter and in with his girlfriend after the court order she is to live with the father.
    My intentions here are to protect my child and do what's best for her only and don't want her to feel like no one wants to be with her or everyone leaves in her life. So I don't have issues with identifying what's best for me and what's best for my child and I am getting counselling for my drug & alcohol problems and have done a few parenting courses too.
    I don't have any intentions to try and gain access back by making issue up, my best option to be able to have her back in my life and care as soon as possible is show the court I have gone and done what I needed to fix my life and a show a period of time that I have maintained this for. I agree its not in my child's best interest to have her life uprooted any more than it has been already, again my reason for seeking advice was not to benefit myself and try getting her back through taking her father to court over his partner or time spent with grandparents its about him breaking the order and creating a sense of abandonment with my daughter and me being concerned for her. If he doesn't want her to live with him than why go through court over the past few years and ask for custody. As long as I stop the drug use and ended the violent relationship (which I did ) it would be better for her to have stayed with me not be taken from her mum and then after 10 months with her dad he then leaves her with grandparents and a feeling of abandonment and I don't know what else she must feel and think but I know she is sad and unhappy.
     
  5. AllForHer

    AllForHer Well-Known Member

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    Thanks for clarifying - that does add some insight.

    The question that immediately comes to mind is - are you absolutely sure that she is now living permanently with her grandmother, and that this isn't a temporary fix while they, for example, finish the move? Did the father tell you this information, or was it word of mouth from your daughter?

    I would consider calling the father to mediation to share your concerns - that your daughter seems unhappy, that you are concerned with the living situation, that you feel the orders have been contravened to the detriment of the child. It's important to the court that you do your utmost to avoid further litigation.

    If this proves fruitless, then you can file for a breach of orders, but I still am not convinced that a court would give you primary carership again. I am still convinced that trying to gain primary carership now would damage your case. Ten months clean is a fantastic achievement and I commend you for it. However, moving from primary carership to supervised visits once a week for two years, after two years of litigation, is quite a significant order for a court to make. It shows they have very little faith in your capacity to put your child's best interests first. That means you need to build a track record of doing just that before you will have a strong chance of gaining primary carership, and pursuing further litigation for primary carership after just ten months doesn't coincide with that track record.

    I am sorry you are going through this. Children's matters are delicate and painful for all involved. Try and keep perspective about what your goals are.
     
  6. Rachelle Simpson

    Rachelle Simpson Active Member

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    Thank you for the advice this has helped me, I will now try to find a way to deal with this without going to court as I really don't won't to do another thing that looks to be a negative thing on my behalf. Your honesty and direct answers have been really appreciated and if I could ask just one more question for you to answer, Is it likely I will ever have a chance at getting my daughter back and if so what would be a sufficient amount of time to be classed as a track record. Or is it unlikely I will ever get back to live with me. I wouldn't expect it to be fulltime streight away and hope it would be something that would happen over a period of time as this is what would be the least disruptive to my daughter again. This is something I really feel I need to know so I can keep perspective of my goals and actually set the right goals to be aiming for. If this is something compleatly unlikely to happen then I need to somehow deal with that I won't have her in my life now.
     
  7. AllForHer

    AllForHer Well-Known Member

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    From a legal perspective, final parenting orders are only generally amended by the court if circumstances change substantially in that such orders no longer meet the best interests of the child.

    But!

    Parenting orders are best perceived as the 'Plan B' for shared parenting - it's the go-to agreement for when you can't reach an agreement. Parenting plans made after parenting orders override parenting orders, so the opportunity for you to negotiate with the father for more time over the coming months/years is still very much alive and well.

    In your circumstances, I would be aiming for a couple of things.

    First, committing yourself to fixing your life, which you seem to already be doing.

    Second, building a positive and healthy relationship with your daughter, knowing that primary carership is only a very small factor in a child-parent bond.

    Third, strengthening your parenting relationship with the father so that you can negotiate more time with your daughter.

    Finally, I would give yourself a four-year goal to gain 50/50 for when your daughter starts school. I'm not saying it will happen - but it is still something you can potentially aim for.

    Feel free to PM me of you'd like further assistance. I hope I've helped you a bit.
     
  8. Rachelle Simpson

    Rachelle Simpson Active Member

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    Thank you again for your help and taking the time to answer my questions. You have helped me a lot. From what I understood from your message I can approach the Father and ask for more time with my daughter and he is able to allow me more time than what the actual order states, which we would then create a parenting plan of what we agree to and this would overrule the Final Order from the court.
     
  9. AllForHer

    AllForHer Well-Known Member

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    Correct - orders count for nothing when the parents can work together. :)
     

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