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NSW Custody of Children, Domestic Violence and AVO

Discussion in 'Family Law Forum' started by moeono87, 19 April 2015.

  1. moeono87

    moeono87 Member

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    A family member of mine has recently opened up about the trials in her life and I was hoping to get advice as I have no idea about custody rights or parents rights. Her ex became controlling and abusive towards her ( domestic violence). Although he was good to their 3 young children, he began physically abusing her. After some time, she began threatening to leave with the children. After the last beating, he had taken the kids to his parents' house and she was told she would never see them again. With no family in VIC, she returned to NSW without her children. She has been here for 4 months trying to settle in, in hope that she will be able bring her children here to live. She has been in communication with her ex and children during the 4 months.

    She did seek Legal Aid advice about having her kids brought to her, but held off on any legal action, hoping that her and her ex would come to some mutual agreement. At times he will be civil and than other times he threatens to drop the children off at a police station.

    Her ex's parents have said that they made a report about her abandoning her children and filed for full custody. We do not know if this is true. Her ex's parents have now changed their tune saying they want her to come back for the childrens' sake, but she does not trust them. The ex and the parents would never willingly return her children to her and constantly say that if she does not do as they wish she will never see them again. She now knows that she will not be able to have her children unless she gets legal help.
    • How can she find out if they really did apply for full custody of children and what steps can she take to get them back?
    • How does she go about getting an AVO against her ex and his family?
    • What happens if her ex moves to another location with the children without her knowing?
    She is very young, but she loves her children like any other caring mother. She did not abandon her children. She did what she thought was best at the time and did not have much of a choice as they were taken away from her, not left behind.
     
  2. AllForHer

    AllForHer Well-Known Member

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    Regarding the alleged application for sole parental responsibility, the applicant must serve the initiating application on the other party within a reasonably practicable time following its lodgement with the court. If she hasn't received a copy of their application, it may either be on its way, or it may simply be an attempt to scare and intimidate her into compliance.

    My bet is on the latter option, mainly because there is no provision of 'abandonment' of children under family law. Under the Family Law Act 1975, there is a presumption of shared parental responsibility that cannot be revoked except by order of the court on successful rebuttal showing that shared parental responsibility is not in the best interests of the child. It's a very rare order to be made, these days, so even if they did apply for sole parental responsibility, it would require an almost-unobtainable level of evidence to prove that sole parental responsibility is what's best for the kids.

    The laws for AVOs are different in each state, and I'm in Queensland, so my expertise in domestic violence law for New South Wales is limited. Contact the local police station or the family law registry about how to file for a domestic violence order. I'm quite certain it can be done either through the police on your friend's behalf, or by having your friend file directly to the court. There's some good information available here as well: http://www.lawassist.lawaccess.nsw.gov.au/lawassist/lawassist_avo/lawassist_gettingavo_home.html

    Unfortunately, if there is no parenting plan or parenting order in place, either by court order or consent, there are no consequences to the father of relocating with the kids, which is why it is urged that a plan or orders be put in place immediately. I would ordinarily advise of recovery orders, but realistically, they probably wouldn't be successful because the kids currently live with the father and it was the mother's 'decision' to move.

    Your friend would benefit from speaking to Legal Aid about this matter, this time with the intention of following through, and I would also suggest applying for legal aid as soon as possible. The court is a bit come-and-go about how parents manage timing in parenting cases - in some instances, they want to know why the issue wasn't brought to the court's attention earlier, while in others, they send the parties away for a prolonged period to encourage them to reach agreement outside of court.

    As much as I hate to say it, court proceedings do operate as a good motivator for parents to reach agreement, which is why I suggest commencing proceedings. Some are simply scared to have their skeletons pulled from the closet under cross-examination, others don't want to bear the $20,000+ cost of proceedings, while many will encounter proceedings not going their way during mentions and come to their senses when a family report paints them in a bad light.

    The first step is contacting Legal Aid to organise a family dispute resolution conference, where the parties can try and reach agreement. If they can't reach agreement, or mediation is deemed unsuitable by the mediator, a s60i certificate will be issued, enabling the parties to pursue remedy through the court.

    To give your friend some hope, it's important to remember what the court is there for - to uphold people's rights. Children - not their parents, grandparents, or any other party - have rights under s60B of the Family Law Act 1975, and those rights are to know, spend time and communicate with both parents on a regular basis, regardless of the status of relationship between said child's parents, and insofar as their best interests can be met.

    The court will go to great lengths to ensure a child can have a meaningful relationship with their parents long before it will oust a parent from a child's life, provided that's what is in the best interests of the child.

    Summarily, the likelihood of a court refusing her time with her kids is extremely small.

    I hope this helps.
     
  3. moeono87

    moeono87 Member

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    Thank you so much for your help. It definitely points us in the right direction of where to start and also reminds us that we have to do whats best for the kids.
    I am very grateful for this.
    Thank you
     

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