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NSW De facto Separation - Father's Chance of Primary Custody?

Discussion in 'Family Law Forum' started by LORELLE, 1 June 2015.

  1. LORELLE

    LORELLE Member

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    My partner has had a separation with his de facto ex-girlfriend for almost 2 years, and has a 2.5 year-old son with her. We have his little boy for 3 nights every second weekend and that is all at this stage.

    She pays her child support, pays for her brand new car, set up an apartment for her and has spent upwards of 30k over the past year paying for whatever she has asked him for. He has been totally kind and agreeable the whole time. But she is mentally unstable, and his son is much more relaxed and happy in our home. We both work and provide a stable home for him, and we are about to have a baby. We want primary care of his son so that he can grow up with his sister and have the life he deserves. His ex withholds him all the time for no reason and makes life very hard for us despite my partner doing everything he can to provide for her.

    We are about to seek legal advice and he is currently going through mediation. I am just looking for some advice or peace of mind about our chances of winning this horrible battle?
     
  2. AllForHer

    AllForHer Well-Known Member

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    If the mother refuses to facilitate the child spending time with the father on a regular basis, then it's definitely advisable to pursue orders, but attaining a change of residency or sole parental responsibility is a very difficult order to have made.

    Thus far, I wouldn't say you've listed any compelling reasons to support the argument that it's in the child's best interests to be removed from his primary attachment figure and placed instead into the father's care. The mother might be a challenging piece of work, but is the child genuinely at risk of harm with her, given he has lived with her for 2.5 years and there has been no mention of neglect, abuse or family violence?

    Basically, to get residency, the father would need to show that it's in the child's best interests to live with him, and that the child's best interests are not currently being met living with the mother. What the court considers when deciding what's in a child's best interests is listed under section 60CC of the Family Law Act 1975.

    While I'm sceptical about the likelihood of a change in residency, if you can show the parties can communicate that the child has a strong bond with both you and the father, and that it's reasonably practicable, then there's no reason why you shouldn't be able to achieve 50/50 care arrangements.

    In any case, though the first step in all family law proceedings is family dispute resolution to try and reach agreement without court intervention. Legal Aid offers this service, as do most family law practitioners and Relationships Australia.
     
  3. Tony.Walsh

    Tony.Walsh Active Member

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    Sorry to bump in. Can someone explain how to achieve this "reasonably practicable" ?

    Thanks

     
  4. AllForHer

    AllForHer Well-Known Member

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    Reasonable practicability means the logistical capacity of the parents to facilitate the care arrangements they're seeking. For example, if you lived 800km away from one another, week about care arrangements obviously wouldn't be reasonably practicable because it would require the child to either take a flight every week or an eight-hour drive every week, and there would be challenges around schooling as well. With that kind of distance, one weekend a month and half school holidays is more likely to be given consideration because it's workable.

    Does that make sense?
     

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