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NSW Custody of Children - How Strong is the 'Settled' Argument?

Discussion in 'Family Law Forum' started by Steve1905, 14 September 2016.

  1. Steve1905

    Steve1905 Well-Known Member

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    Hi All,


    A quick question. How strong is the "settled" argument when the child has been alienated? Does it build strength over time or does it hold less water because the main family dynamic remains in the child's original city.

    My son has expressed in a child responsive report that he would like to spend more time in my care. The report also states he seems "settled" in his new city. I have the support of both families to bring my son back to Sydney and offered 50/50 custody of children if they move back to Sydney. The mother has moved twice in 18 months and will have to move again as her rental property is for sale but refuses to move back to Sydney.

    Child living with father will have:

    Father
    2 x Brothers
    2 x Grandfathers
    1 x Grandmother
    All uncles
    All aunties
    All cousins
    Child living with mother in another city will have:
    Mother
    Brother
    Sister
     
  2. sammy01

    sammy01 Well-Known Member

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    How strong? Look, no one can quantify. So the 'seems settled' argument is ok, but it is a small part of a bigger picture. Did you agree to the move? Are there consent orders? What else does the report say? And that is the biggest factor. Magistrates generally don't depart from the recommendations in the family report.

    Mate, I have to tell ya I've read heaps of relocation cases and I"m guessing that is what this is. So for all the cases I've read, I consider myself an expert a result. And all I can tell you for all that work is, there is nothing but inconsistencies within the results of the case I've read....

    Maybe if you proved a few more details, the good folk here might give you a bit more insight from their/our experiences.
     
  3. AllForHer

    AllForHer Well-Known Member

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    This is a hard one to answer because there are so many factors that influence parenting proceedings aside from just child's wishes and whether the child is settled.

    I am inclined to say that the 'settled argument' will be more persuasive than the 'large extended family' argument, though, as will the 'mother is the primary attachment figure' argument. Likewise, the 'settled argument' will most definitely build strength over time because the child will be building community connections and friendships that will have influence as he gets older.

    When you say the child is 'alienated', what exactly do you mean? What are the circumstances behind that statement? How old is the child?
     
  4. Steve1905

    Steve1905 Well-Known Member

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    Hi All,

    Thanks for the responses.

    To answer your questions: no, I did not consent to the move but the move happened while waiting for initial proceedings.

    My son is now 8 and was alienated for 8 months from the age of 6. We had to track them down. Once the mother receive legal aid, they advised her to "let" me see him. I now have interim orders in place for every second weekend and half school holidays but he says it's not enough.

    The child responsive report says he seems settled but wants more time with me. All (even her lawyer) admit her moving was wrong but say that's water under the bridge. He has also asked why I didn't take him with me. I was the primary carer before separation. Hence the move and alienation to establish care.
    There is no primary attachment figure. He hangs on to who he is with or talks to equally. That is why I'm asking for 50/50. The sole reason the mother is claiming she cannot move back to Sydney is affordability. I have proof she is getting more than she claims through Centrelink rorting and her boyfriend renting his housing commission unit while living with her.

    Hope this helps answer your questions.
     
  5. AllForHer

    AllForHer Well-Known Member

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    Don't mistake me when I refer to a 'primary attachment figure'. The term isn't synonymous with 'more important parent' or 'more capable parent' by any means. It's simply a psychology term that reflects attachment theory - namely that when kids are young, they recognise one 'primary attachment' figure (usually the person they've been living with the most), and then develop a hierarchy of other attachment figures as they get older, meaning they become more comfortable being away from the primary attachment figure for longer periods of time. It certainly doesn't insinuate the child loves one parent less and one parent more; it's more a case of that's just what the child is used to, more than anything.

    As such, when you say 'there's no primary attachment figure', a psychologist probably won't agree. It's likely mum, simply because the child has been living predominantly with her for two years.

    I understand the child wants more time with you, but you've got a lot of compelling circumstances here to contend with.

    First, the child's age. At 8, the Court isn't going to put a lot of weight in his views because he's so young, meaning he won't be able to grasp the practical and logistical difficulties of making his request for more time actually work.

    I understand that to remedy that, you're seeking the mother's return to Sydney, but I don't think the Court will compel her to do that, for two reasons. First, she's been living out of Sydney for two years. Second, her complaints about the expenses are probably valid, particularly if she is already being funded by money she's not really entitled to. The weight of that argument is only going to get heavier if the 'Centrelink rort' money is taken away.

    The alternative, I suppose, is to seek an order that the child live with you, but this is where the issue of being settled and having lived predominantly with mum is going to have its real impact, such that I doubt the Court will order a change of residency when the primary argument is the views expressed by an 8-year-old.

    So outside of that, I'd say you're likely to find more success by finding other, more practical ways to have that time increased, rather than ask the Court to establish living arrangements that allow for 50/50 or ask the Court to change residency.

    Of course, that wasn't actually your question, so maybe my opinion there is irrelevant, but in answering your question in shortest form, I'd say that given the child is only 8, his views are going to be given less weight the argument that the child is settled in his current location.
     

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