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NSW Custody of Children - Ex Applied for Urgent Recovery Orders

Discussion in 'Family Law Forum' started by SelBel, 1 April 2015.

  1. SelBel

    SelBel Active Member

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    My husband of ten years and I separated recently and I took our 3 children to live 4 hours from where they were living.

    Background was, we were living up north while I was doing a 2 yr internship - my husband was having to travel a lot to keep his job as we had moved 7 hours from our home town. After my internship, my husband insisted we move back to our home town. I consented and stayed on to finish the last two months of my internship and apply for a new role.

    4 weeks after the move I got a new job in a town 4 hours north of the city the children and my husband were based, I consented to them all continuing to live there while I worked and came down on weekends and RDOs. However, we separated 3 weeks after the children started school and I took them to where I work without my husband's consent. He has now applied to have the children ordered back to our home town ( custody of children).

    I have been told he has no chance of the children being ordered back as they have now been in school for the rest of this term and the youngest is only 4. But now I am unsure. I also have a teenage daughter who is now living with my sister in the same town as I have forbidden her to live with her stepfather and she refuses to live with me.

    Also, does this court application effect my child support application?
     
  2. SelBel

    SelBel Active Member

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    Wanted to add that he travelled overnight for his work regularly while we were living away as he had to return to the office in his home town for two days a week - he would fly out early one morning and return the next evening. Because I was working too we had an au pair to assist with the children - will I be able to claim primary carer based on his need to work away? And as he earns substantially more than I do will I be able to claim spousal support in order to continue the au pair?
     
  3. AllForHer

    AllForHer Well-Known Member

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    It is very difficult to get spousal support. It's not 'claimed', per se, as it requires an order from the court have it paid to you, which means you must make an application to the court to receive it. You would need to show extenuating circumstances for needing spousal support, such as extreme financial hardship, and you're probably not going to get that if a) you volunteered (without the consent of the father) to take the children into your care and b) are also working. Even having an au pair shows signs of not being in financial hardship, and if you did manage to show extenuating circumstances, you would likely only receive it while awaiting a property settlement. Unless the court orders it, the father isn't liable for covering the costs of an au pair or other care arrangements while they're in your care.

    I'm not sure I agree with the advice you've received about the children not being ordered back to live with their father. There are some challenges you might face in proving that it's in the best interests of the children to continue living with you.

    First, I assume that since the youngest is 4, the others are older and were likely enrolled in a school while living with their dad. This might come across as acting outside of the children's best interests because they've been uprooted from their home, their routine and their school as the result of their parents' break-up.

    Second, you've made two major decisions about the children's care, welfare and development without the father's consent, the first being the relocation and the second being school enrolment. This might come across as you not giving full credit to the benefit to the children of having the input of their father in decisions about their care, welfare and development.

    Third, it sounds like there may be some other issues with your teenaged daughter that could come into play if it were to come before court. The court may want to know why she doesn't want to live with you.

    And finally, nobody can predict what way the court might swing in terms of orders. It depends heavily on what the evidence is and how each party pitches their case, as well as who the Judge is.

    As for primary carer benefits, you could be entitled to that because you have primary care of the children, not because he works away. You would obviously lose those benefits, though, if the relocation is ordered in his favour.
     
  4. AllForHer

    AllForHer Well-Known Member

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    I just want to add that another challenge you face is that the father was the primary caregiver for a significant period prior to separation. This works to his advantage as well.
     
  5. SelBel

    SelBel Active Member

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    I see. Thank you. Also will the fact that my older daughter refuses to live with me and is living with my sister in our home town rather than move factor against me? My husband has included her in the recovery order even though he is not her biological father. Also would this mean the child support I receive from her father then be paid to him?
     
  6. AllForHer

    AllForHer Well-Known Member

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    It depends on the circumstances. The court may want to know why the oldest is refusing to live with you, and if he is successful in the recovery of the oldest, then yes, the child support will be paid to him, rather than you.
     
  7. SelBel

    SelBel Active Member

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    Thank you for your response - this is certainly contrary to what I have been told. well this is looking quite bad for me really. Surely the fact that the children were only in the home town for 8 weeks and at their school their for 3 weeks and by the time we go to court will have been in school here for 5 weeks work in my favour. Is there anyway to put a more positive spin on my actions? Also would the court want to hear from my daughter herself? She hates me at the moment. Normal teenage stuff, but we have a difficult relationship and she may have a few text msgs from me that could be misconstrued as being abusive. Taken out of context and such.
     
  8. AllForHer

    AllForHer Well-Known Member

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    Please note that what I provide isn't legal advice. I'm not a solicitor, I'm a law student who also guided my partner as a self-represented litigant in a family law matter and "won" (even though I detest that word used in regards to children), so I base my knowledge on a mixture of study, experience and decisions previously handed down by the Family Court of Australia and the Federal Circuit Court. Make sure you're balancing the information I'm giving with what you've been told by a solicitor qualified to give legal advice, and remember, there is absolutely no way at all to predict how a court might order. It might well order in your favour!

    There are some things you can do to, as you say, put a more positive spin on your actions, but they're proactive, not reactive.

    First, organise family dispute resolution with the father. If you do this through Legal Aid, they'll usually provide a solicitor to support you, but be warned, bad solicitors can at times do more damage than good to the co-parenting relationship. The court applauds parents who show they are willing to work together for the kids, regardless of the emotional cost to themselves, and having a mediator present to sort out disputes often helps parents overcome those emotional challenges to make sure the kids needs are coming first.

    You might want to consider how you would like the situation reasonably resolved in family dispute resolution. For example, if the kids keep living with you, how often will they see their dad? How will those times be facilitated? Who will pay for the transport? What about holiday time? How will you and the father communicate?

    Second, enrol in a post-separation parenting course. Relationships Australia can teach you how to communicate assertively with the other parent, how to recognise the impact conflict can have on your kids, and how to ensure you're putting their needs ahead of your own, and the court will credit you with taking a proactive approach to co-parenting.

    Third, be honest about what's best for the kids.

    If your oldest is screaming out to live with her stepfather, and she's older than 12, then the court will probably place significant weight on her opinion. It's often ordered that a teenager will 'spend time with the parent in accordance with the child's wishes'. Court is no place for kids, of course, and that opinion would probably be attained through a meeting between the child and a child expert (or an ICL), but you're better off listening to what she wants than 'forbidding' her from making that decision, because it shows that you're capable of ensuring the kids emotional needs are met if they continue living with you.

    Being honest sometimes (not always, but sometimes) means asking hard questions and getting unsavoury answers. If the kids are not really coping with being away from their dad, then perhaps they are better off living with him. If the father is better positioned to care for them financially, then perhaps they are better off living with him. If he's more able to facilitate transport arrangements and costs over the distance, then perhaps they are better off living with him.

    I'm not saying this is the case, of course, but it's just a way to start thinking about the convincing reasons why the kids best interests would be better met by living with you, if that's the case.

    And finally, let the kids see their dad. I cannot stress enough how critically, critically important this is.

    Making the kids go from seeing their dad every day to not seeing him at all is a fundamental mistake for any parent to make when they're facing court proceedings, but not only that, it's extremely damaging to your children. It shows that you're unable to support the relationship between the kids and their father, which has, in growing numbers, cost many parents residency with their children, and kids don't often thank their parents for that decision when they're older.

    I would strongly suggest organising a weekend once or even twice a month for the kids to see their dad, even if you're present for it. Again, I must stress that this is the single most important thing you can do to put a positive spin on your actions.

    I hope this helps.
     
  9. SelBel

    SelBel Active Member

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    Thanks,
    I allowed him to see the kids for a few hours on Sunday - while I was there, he was moaning that I had refused the previous weekend but all he will be getting is fortnightly access anyway so he may as well get used to it now.
    He keeps emailing and texting me things that I have said on the phone like - I am writing to confirm that you have refused to allow me to see the children on this day or take the children for a weekend that kind of thing, I respond with 'I will not put anything in writing' but the more I think about it the more I realise it will probably look bad for me if I try and deny it in court.
    Also he is getting very angry with me regarding the kids - I have rightly told the children that he has decided he doesn't want to be a family anymore and it is up to him to change his mind. He has said if I continue saying such things to the children he will push for them to be assessed by child psych. Can he do this?
     
  10. AllForHer

    AllForHer Well-Known Member

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    Okay, I'm going to be blunt.

    What you have said to the kids about their father is emotional abuse.

    The decision to divorce you has nothing to do with the kids, whether you like it or not, and imposing your emotional anguish on your children by saying 'your father has decided he doesn't want to be a family anymore' is the exact type of behaviour that will cost you any chance you have of maintaining residency, if you manage to get that at all.

    Further, if you continue behaving in a 'superior parent' fashion, saying things like 'I "allowed" him to see the kids' and "He will only get fortnightly access anyway", it will also come back to haunt you, because the court doesn't care what YOU want, only what is best for the kids.

    Placing the kids in an environment with a hostile, inflexible parent, who is willing to uproot them from their routine, and very mistakenly believes it is "right" to tell them their father doesn't love them, is not going to be what the court decides is in the best interests of the children.

    The father's case is, in my opinion, very strong, and while ever you fail to put your own emotional needs aside so that the emotional needs - and rights - of the children can be properly upheld so that they are freely supported and able to have a meaningful relationship with their father, his case will only get stronger.

    My advice to you is to enrol in a post-separation parenting course. It's very, very clear that you intend on alienating the children from their father, perhaps in an effort to exact revenge on him for falling out of love with you, but I can assure you that the only people who will suffer for your actions will be your kids. If you want to 'look good in court' and give yourself every chance of maintaining residency, you will take every measure possible to ensure the children can continue enjoying their relationship with their father, regardless of the fact that things didn't work out between the two of you.

    I hope this in some helps you see that your feelings about the father have nothing to do with the kids, and I sincerely, sincerely hope - for the sake of your relationship with the kids - that you address these behaviours swiftly, otherwise the father will be very right to pursue a family report during court proceedings.
     

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