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QLD Custody of Children Dispute - De Facto Relationship

Discussion in 'Family Law Forum' started by SeparatedAtWhatCost, 20 November 2014.

  1. SeparatedAtWhatCost

    SeparatedAtWhatCost Active Member

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    After a ten year de facto relationship and 1 child of the relationship, and one from my previous relationship, my de facto sought sole parental responsibility of both girls and that they both reside with him ( custody of children). Due to being denied Legal Aid twice, and not being able to properly self represent due to suffering depression, anxiety, PND & PTS, I was unable to respond to his extremely hurtful and untruthful 20 page application and affidavit, and orders were made in his favour.

    In my absence, the Federal Magistrates Court made orders October 2012, wherein I have supervised visits with my girls, aged 15 & 5, from 9am to 5pm every Saturday at my mother's house and that this time is to increase. At that time, we had resided in the same suburb for 10 years and I was only 10 kms away from the family home after the separation.

    Around mid 2013, my ex remarried, (to our youngest daughter's child care worker) abandoned his 15 year old step-daughter, and relocated 800 kms away to a remote & isolated part of Central Queensland without even filing a change of address with me or the court.

    I did not agree to any relocation that is obviously going to impair my ability to see my children and affect our ability to have regular contact and therefore not giving us the opportunity to have a significant and meaningful relationship.

    Since my ex's relocation, my 15 year old has returned to my full time care and can't understand how/why she is being denied contact & visits with her little sister. We do not have an address or telephone number for them. The only point of contact is an email address, which they failed to reply to any messages sent. They have only made the little one available for us to see for 2 supervised visits at the park and McDonald's, (supervised by someone we don't know) for 2 hours, twice in twelve months.

    Legal Aid finally accepted my application April 2014 and they don't seem to be getting anywhere. They went and filed another initiating application in the matter that was denied as it needed to include the biological father as a party. The other party already encountered this problem and had to redo their documents.

    The major problem is I want my daughters both back living with me full time and if I can't get that, then regular contact needs to be occurring, there is no reason in the world that the siblings should be separated and kept apart. This is destroying my 15 year old who just wants her sister back.

    This gets worse as I just received notification from Legal Aid that they do not and will not act for the 15 year old as my ex has sole parental responsibility and she is supposed to be in his care. She phoned up and sought independent advice and they stated that because she is a minor she needs to get her mum to call on her behalf. So, at present we have a 15 year old who has no legal guardian or anybody with any legal capacity to sign documents, administer medical treatment or enrol her in school, etc.

    I feel like we are getting nowhere fast and I could really use some help?
     
  2. CathL

    CathL Well-Known Member

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    Amanda E likes this.
  3. AllForHer

    AllForHer Well-Known Member

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    Ordinarily, I try and provide some level of direction on this forum for those in need of guidance for parenting matters, but your circumstances are highly complex and unique. You really do need legal advice on this one, and legal aid can provide free legal advice if you book a consultation.

    Legally, there are a lot of issues in this instance, and I think an initiating application for orders under the principals of Rice & Asplund (that final orders can be changed where circumstances have changed significantly or the orders no longer meet the best interests of the child) is an option, but consent orders will probably work more in your favour.

    You will of course first need to attempt to organise a family dispute resolution with the father in order to try and negotiate an outcome. If you have any contact details for the father at all, Relationships Australia will use this to get in touch with him on your behalf to organise it. You will do your intake first before they contact him so you can discuss the issues that need to be resolved with the mediator.

    I think it's important to keep the issues separate from the emotions, and also to keep a firm grip on the reality of the situation.

    Do I think you will win primary carership for both kids in court? Realistically, no. The court doesn't make final orders for sole parental responsibility or supervised visits lightly, and to swing to the polar opposite of the current situation is going to cause far too significant an upheaval for your kids, particularly the youngest one.

    So, try and focus on what you perhaps can (and should) achieve, which is proper arrangements for your oldest daughter, and proper 'time spent with' arrangements for your youngest.

    While it is unfortunate that dad moved away without your consent, he doesn't need it when he has sole parental responsibility, but he is still required to abide orders by making the child available to spend time with you according to the orders. This means making a reasonable effort to accommodate the orders, such as negotiating a meeting point or paying for half of the flight costs. Repeatedly making no reasonable effort at all would probably qualify as a contravention of the orders.

    For living arrangements with your oldest, you should try and negotiate consent orders that see parental responsibility handed back to you. In court, the judge would likely listen to your daughter's wishes because of her age, and likewise, the court knows that it is unreasonable to give sole parental responsibility to the non-residential parent. You should know also that while the court is reluctant to separate siblings, it will where it's in their best interests to do so, and I would suggest that is the likely case here (that is, if the court decided not to simply order your oldest to resume living with her step-dad).

    I am sorry for your situation. It is very complex and I strongly urge you to get in touch with Legal Aid for a free consultation to get legal advice.
     
  4. SeparatedAtWhatCost

    SeparatedAtWhatCost Active Member

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    Ok. Thank you. I have taken all on board and appreciate your time & help. I am seeking further advice from legal aid and have appointment this week. Currently my solicitor is attempting mediation/dispute resolution. My ex defacto abandoned my oldest daughter and threw her out prior to relocating to his new remote & isolated address. Once he had sought & was awarded sole parental responsibility of both girls, the oldest child (step child) was neglected, made to feel unwelcome in her own home and eventually kicked out. He has made it very clear that she is not welcome in his new family and he will not even supply an address. Being returned to his care is not an option. He has been withholding the youngest since he moved 18 months ago and not allowing anyone regular contact or visits. I understand that as he doesnt need my permission to relocate but from what I've read, he cant move the children over 200kms away without permission from the court if it means that the order cannot be adhered to. As a parent and sibling, we should have the opportunity to have a significant and meaningful relationship with one another. His main reason for this legal action according to this affidavit was allegedly to keep the girls together and to give them a stable, routine environment which I allegedly was too unfit to provide for them. He has moved 5 times in 3 years and has still failed to notify myself or the court of any change to the circumstances. He changed the oldest daughters' school 3 times in 2 years and allowed her not to attend school for 8 months of one year in Year 9. Surely, the court will question his parenting given the abandonment of one child and the total withholding and alienation of the youngest. How can he show total disregard for the court order and for the magistrate who made it? Why isnt there someone who cares that we have only seen the little one twice in twelve months? Will it not be asked as to why it has been ok for my oldest to be in my care full time without a problem for the last 18 months, if I am such an unfit parent? Neither the police nor child services have even been involved in my children's life or mine. There has never been any violence or abuse. I suffered from PND and just seem to have been continuously punished for it..
     
  5. SeparatedAtWhatCost

    SeparatedAtWhatCost Active Member

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    I'll give them a call Monday. Ill also try Citizens Advice
     
  6. AllForHer

    AllForHer Well-Known Member

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    If you haven't seen your daughter regularly in 18 months, this is a contravention the court will take very seriously. If it ordered the kids spend time with you, it's because it sees there is a benefit to the children in having a relationship with you, which simultaneously upholds their right to have a relationship with you.

    Likewise, the oldest missing school for nine months is also very concerning.

    If legal aid continues to be a problem, you might consider appearing in person. There are plenty of resources available for self-represented litigants to help them with formalities, filing and appearing in court. Provided you have evidence to support your claims, it is likely the court would consider amending the orders if it deems the circumstances to be substantially different to when orders were made and are no longer in the child's best interests. You can file an initiating application with a supporting affidavit to commence these proceedings.
     
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  7. Strongarms38

    Strongarms38 Well-Known Member

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    Hi Seperatedatwhatcost.

    Your situation isn't exactly what one would call normal. I'm not 100% sure on the family court guidelines in your state. These do vary from state to state. The one constant is always the best interests of the children. Any legal action you now need to take must be represented in that form. Your not going to get anywhere arguing about your ex. The court will only consider the kids. At 15 the court is likely to supply your daughter with her own counsellor to talk to her and so she can feel safe in expressing her views without any influence from either parent. This is just a necessity so her story and her wishes are represented with impartiality. There are many non-for-profit legal avenues you can work with to try and solve these difficult circumstances. If you have orders in place then generally a court will rule in favour of those orders unless there's a genuine and acceptable reason for altering them. The saddest part is the amount of time this will all take. The system works extremely slowly. Technically if you've already got orders then your ex shouldn't have the ability to take the children out of the state you live in. Your ex is required normally to supply to you or your lawyer or receive an order from the court to allow such a big change. Also must keep you up to date on residential address and contact number. Without an order from the court allowing the move which would contravene existing orders your ex should not be allowed to move at all without authority. You will need a lawyer to deal with all these aspects as obviously I don't know the orders you've had in place and what the guidelines are for your state. Getting something concrete in place for your eldest daughter is a good idea. By the sounds of it your not likely to receive any resistance from another party which will make it less stressful. Again each state is different in terms of each parties rights and the rights of siblings would also be taken into consideration. Applying for mediation should be your first step as this is commonly required before court proceedings can occur. So book your appointment and attend. They'll issue your ex a date to meet with them and have his appointment. He may choose to not show in which case they'll give you a certificate to take the matter to court. This is required. Make an appointment with legal aide for some advice. They'll charge only minor amount for a consultation. What they tell you you should in no way take as the gospel truth. Consider it a guide and nothing that is set in stone. He being the primary carer is in a better position than you are. But it is supposed to be the obligation of each parent to ensure the children have a safe and stable relationship with each parent. Sadly this is quite often not the case. You need to seak either contravention orders if the orders you have in place are not being adhered to. Sadly still not a fast solution. Patience is both difficult and neccessary. Given the mention of your mental health issues you should seak a written and formal letter from a psychiatrist or a psychologist which ever you've been seeing for help. A psychiatrist will carry more weight. But a letter stating your mental health currently and weather that incapacitates you from being able to safely look after your children and attend to there attachment needs. Approach all action from the children's perspective as that's the only thing the court cares about. This should see you receive the best chance for success. Following protocol is important. So have a consolt with legal aide. Take notes regarding their advice in moving forward. Then get your mandatory mediation appointment done and then at least you'll know within a certain time frame your next step. If you're lucky he'll attend mediation and either it'll progress to dual mediation or you'll get a certificate to pursue legal action. Doing what the court requires is essential to improving your chance for success. If he doesn't and you do the court will want to know why he failed to participate as the court requires. You will definitely need a lawyer. Sadly they aren't cheap and if he gets a lawyer that is working for his best interests rather than the children's this process can be extremely expensive and slow. Avoid sending any threatening or abusive emails. Hopefully you can put something in place relatively quickly to ensure you at least get to either see or speak to your daughter regularly. I wish you all the very best. I hope that any information I've provided is helpful in some way.
     
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  8. SeparatedAtWhatCost

    SeparatedAtWhatCost Active Member

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    Is deserting and abandoning your 13 year old step daughter after seeking SPR for her, or moving 800kms away without supplying her with the new address, (when it states on the order that she is to live with him,) and/or separating her from her half-sibling, (whom she is very to close & attached to,) an act of child abuse or family violence. He failed to ensure she went to sc hool regularly, denying her bus money or mode of transport to get there, he refused to feed her or supply her with food, and threw her out of the house on at least 3 occasions prior to relocating without her. In his attempts to be rid of her before he left, he asked numerous people (some even strangers) if they would be willing to let her live with them. At twelve and a half he had left her about 200kms way with strangers. She was getting up at 4am and working with horses all day til around 3. This was immediately following his favorable outcome from the FM.

    Despite swearing in his affidavit, that he had accepted full responsibility for her and treated her like his own daughter, and that the sole purpose of his litigation was to ensure the kids were kept together, in a safe stable routine environment, and so that the eldest continues school, (as i was alleged as being not capable of taking her) and that eldest child was scared of me, and doesnt want to see me or spend time with me. He also claimed that he was the one who paid for everything for the eldest which i can prove he did not. My now fifteen year old is taking not seeing her sister regularly very well, not only does she feel like she has been used like a pawn, but she feels hurt, betrayed and frustrated, and angry that her sister is not with someone who cares enough about her to encourage and facilitate contact between the children and their mother. He was her father for over 10 years and since getting the order that he wanted and sought, he has just rejected and seems to want nothing to do with her. She hasnt spoken to him in over 2 years now as he just wont talk to her, but he will not vary the order, as he does not want to notify the court of his relocation over 800kms away, and he doesnt want them to know that he hasnt even been caring for or looking after the eldest child, who he changed schools on 3 times in 3 years, eventually not even enforcing she attends school regularly in years 7 & 8. His current actions totally contradict what he swore he was going to do. He has made himself look like he has perjured himself in all of his previous affidavits.

    How do I bring these things to the attention of the magistrate and somehow apply for legal costs, and costs for ruining for my daughters education, legal costs.. as i didnt start the legal action which was totally unnecessary, (as proven by the fact that i have been a capable parent of the eldest for the last 18 months since being back in my care, and my daughters prior to separation attendance at school (while in my care also) and by his total disregard shown for the court order, (that he sought) and costs for contravention action necessary to enforce order and location order so i can serve him with legal documents that he is avoiding receiving by not supplying a current address? AND pain and suffering for rejecting the eldest stepchild after SWEARING IN HIS AFFIDAVIT that he loved her, and that she was like a daughter and that he would always be there for her as a father & that she would be going to boarding school when it were time.

    I need help, matter currently in hands of mediator for Dispute resolution practitioner from Legal aid which he has just ignored, all I have is a po box, and I can't serve him there.

    Any recommendations/help/advice for dealing with matter?
     
  9. SeparatedAtWhatCost

    SeparatedAtWhatCost Active Member

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    ok, no contact since late September 2014, we did receive after the last visit and email from the new wife stating that after our last 2 visits and given the fact that she has done everything in her power to see to it contact is maintained, the counseller (that supervised the visit in the park) and their solicitor (no mention of who) has instructed them to cease all contact and visits immediately, and that she will organize for contact at an authorized contact centre but that she didnt think it would happen before Christmas and that if it didnt, she would have the 5 year old call on Christmas morning. No call received. No address supplied aside from po box for us to even send presents. Myself and my teenager havent had any contact since. All numerous contact attempts every four to five days have been ignored.
    He has failed to reply to invite to mediation sent by legal aid, I am awaiting their next step (i.e. what they are prepared to fund) As a direct result of the unhealthy and undernourished state her sister looked like when we last seen her, the teenager started to vomit uncontrollably, and get severe stomach cramps on a regular basis, to the point where I have had to call the ambulance, who have now admitted her twice now. The last admission was from two days before Christmas until about a week after New Years. After the tests they concluded the only problem was chronic anxiety from not seeing her sister regularly enough and also from being worried about her care and well being.
     
  10. AllForHer

    AllForHer Well-Known Member

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    I remember your first post regarding this matter, and have read your one posted in the last few minutes on the other thread, so I'll address both here.

    In the first post, of particular concern to me was the issue of sole parental responsibility and how it is not able to be executed under the current arrangements.

    If the father has ignored all attempts to address the issues via family dispute resolution, then the mediator should issue you a certificate that will enable you to lodge another initiating application with the court.

    The process is quite similar to the first time around. When seeking changes to final orders (which is what you would be doing), the court will apply the principles of Rice & Asplund, which stipulate that final orders will only be amended where there has been a significant change in circumstances, or where the current orders no longer meet the child's best interests. In this case, the change of residency for the child is significant, and thereby, the allocation of sole parental responsibility to the absent step-father is not in the child's best interests. You will need to prove it's in the child's best interests to live with you and for you to have sole parental responsibility.

    I understand that you are angry but I cannot stress enough how very crucially important it is not to make your feelings toward the other party the core of your argument. There are some things you have mentioned that will be of very little relevance, such as the time spent on a farm (I assume). What is of importance is that your child has been diagnosed with anxiety. Suggesting it's because she hasn't been spending time with her sister is conjecture - it's important to let the court decide for themselves about that, but another point of interest for your case and the child's best interests is that you are unable to get your daughter any help from, for example, a counsellor or psychologist, to help deal with her anxiety because you don't have parental responsibility.

    Another point of interest is the change of schools and the lack of school attendance. You would need to show how you are more capable of ensuring her attendance and providing a stable environment that facilitates a proper education and routine.

    If you wish, you can seek orders for the child to spend time with her sister, but there is obviously some sensitivity about this - her sister lives 800km away and the parents of her sibling are clearly unsupportive of their sister-sister relationship. You would need to pitch to the court how this contact time could be facilitated - meet half way? Pay for flights? Drive all the way? How often? Where would she stay? In what environment could they safely and meaningfully spend time together?

    Further, you could apply to have your costs covered, just be aware that it's uncommon for the court to award costs in parenting matters. I'm not saying it won't happen - you would need to prove the first proceedings were entirely vexatious - but just don't get your hopes up, that's all.

    I hope this in some way helps.
     

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