LawAnswers.com.au - Australia's #1 Legal Community

LawAnswers.com.au is a community of 10,000+ Australians, just like you, helping each other.
Ask a question, respond to a question and better understand the law today!
Join us, it only takes a minute:

QLD Deciding Where They Live - What Age Should a Child Be?

Discussion in 'Family Law Forum' started by Michelle01, 17 October 2014.

  1. Michelle01

    Michelle01 Active Member

    Joined:
    17 October 2014
    Messages:
    7
    Likes Received:
    0
    Hi :)
    I have 6 children, 4 who are fathered by my ex partner (ended 6 years ago).

    Their ages are 14, 13, 11 and 10. The children no longer want to see their dad very often. I have to push them to go every school holidays and on our parenting plan (not lodged) he was to have them for half the holidays. They are generally begging me to get them after 4 or 5 days, which I do. We live 4 hours away.

    I have had to painfully watch them come to the realisation that he is not a 'normal' dad. The youngest (10) has gradually reached this realisation earlier in the year. I can't even get them to ring him. He is an alcoholic who becomes either morose or aggressive and abusive ( domestic violence). When the children see him, he sleeps all day or sits out the back and smokes or gets so intoxicated that he wets himself. He takes them nowhere. And he has no interest in getting a job so that he can help with their interests, or buy them birthday/Xmas presents. He tells the children that the world owes him, etc, so hasn't worked in 20 years. They have told me that they are so embarrassed by him.

    At this age, do I force them to go? I am in a constant panic mode when they're with him for their safety and the impact he has on their emotional growth.

    We all want to relocate to NZ where we have aunts, uncles, grandparents and cousins who want a part in teaching, guiding and loving my children. They are severely lacking in that area here, they rarely see their other family as they are busy/uninterested.

    How old do they have to be for a judge to listen to what they want? By moving, we can offer them so much more emotionally, indeed it's the ONLY reason I want to go.

    By the way, I'm not being vindictive in anyway, I truly only want the best for my children. And I am happy to send them over in school holidays (as long as their grandparents are there so they are safe), I have never stopped him from seeing his children ever, and have never spoken of him in a derogatory manner in front of them.

    Any family law advice gratefully appreciated.
     
  2. AllForHer

    AllForHer Well-Known Member

    Joined:
    23 July 2014
    Messages:
    2,319
    Likes Received:
    423
    Are there any orders in place?

    Under section 60CC(3)(a) of the Family Law Act 1975 (Cth), the court will consider a child's views, provided the child is old enough and mature enough to have a reasonable level of understanding of those views. Without it being legislated, a court will generally consider the views of children over the age of 12, but the court has also been known to consider the views of younger children.

    Under section 60CD, the court will generally work out what the children's views are based on a family report or the opinion of an independent children's lawyer. It's not often, if at all, that a court will hear directly from a child about their views. This also empowers the court to work out if a child's view has been coached by one of the parents, or if that view is genuine.

    Contrary to your feeling that you can best provide for your children's emotional needs by relocating to New Zealand, in most cases, the court tends to rule that children's emotional needs are best met by having a relationship with both parents.

    Under section 60CC, the primary consideration in what constitutes a child's best interests are first the benefit to the child of having a meaningful relationship with the parents, and second the need to protect the children from harm. Drinking, smoking and unemployment are unfortunate life choices and indicative of a poor role model, but those components, either individually or collectively, are not enough to constitute a risk of harm to the children. Indeed, it may just be perceived as a difference in parenting style, or as you denigrating the father by being critical of his life choices.

    The court will also place significant weight on the fact that the father has maintained consistent contact with the children for six years, indicating to the judge that even though he is facing challenges of his own, he still does want to be a part of their lives.

    To successfully relocate, you would need to show why it's in the children's best interests to move to New Zealand. It's likely the older kids will be heard, and the younger children may be placed under the older children's umbrella because the court doesn't like to separate siblings. As an added note, if the father contested the relocation, the court would be very likely to order that you pay for all airfares associated with facilitating the children's time with the father.

    As always, it's best to avoid court. Organise mediation to discuss the issues you have with the father and try and organise a better parenting agreement that meets both of your needs.

    I hope this helps a bit.
     
    Rod likes this.
  3. Michelle01

    Michelle01 Active Member

    Joined:
    17 October 2014
    Messages:
    7
    Likes Received:
    0
    Thanks for your reply.

    No, there are no orders in place. We did have a parenting plan done up years ago (not lodged). It was never really adhered to as the kids used to come home sometimes almost immediately after arriving due to the state he was in (we only lived down the road at the time).
    He did live with his elderly parents up until a few months ago, which was good for the fact that they were there to feed them and look after them. Unfortunately though, he used to abuse them etc to the point that they had to get a AVO on him and the kids got to experience some awful moments. He refused to leave and for months lived outside in their carport. After our separation I had to get a temporary DVO to keep him away from me, as he used to tell the kids he was going to kill me. Unfortunately I didn't take it further after I found out that I had to 'prove' that he had been violent towards me. How do you prove such things? It's not like he waited for an audience when he kicked, punched and threatened to shoot me with a gun.

    He is not mentally stable and has a severe anti social disorder and according to his own doctor, the best move I made was leaving town so the children saw him less often.

    Anyway that's all behind me now but how a Court can think that someone like this can be good for kids and not cause them psychological harm is absolutely beyond me, he has caused them a good deal of harm and it's a constant worry for me how this will affect them as they get older, there is already a lot of distress and anger in them, hence why I am trying to counteract it with moving to where they can be with good people who want to 'heal' them (for want of a better word).

    I am hoping that it can be sorted out without the courts involvement. He doesn't have any involvement in the kids life in respect to schooling, sporting, medical or social. He appears to have no interest in their lives at all. So I'm hoping that it will be enough for the kids to tell him that they want to go. Mediation would be an option but not something I'm keen on as he will do/say whatever it takes to get back at me for leaving him and to quote him 'Its not about what's good for the kids, it's about what I can do to you'.

    And no, despite all this, I have never coached my children, they have enough pressure on them dealing with him without me adding to their stress. I've always acted towards him in a friendly manner for their sake alone, found him jobs so he can move closer to kids as he promised them (to no avail), had him stay at our house (he has no money for accommodation to visit them) although he's only bothered to come see them twice in 18 months.

    How long does a parenting plan last for? Is it worth anything at all? And if he does agree to let them move do I get him to sign something or is a verbal agreement enough?
     
  4. AllForHer

    AllForHer Well-Known Member

    Joined:
    23 July 2014
    Messages:
    2,319
    Likes Received:
    423
    Sounds like a difficult situation. It's surprising, in fact, that such a high conflict situation has managed to reach some resolution outside of court to this point.

    A parenting plan can be changed or revoked by agreement of both parents. They are also not legally enforceable but the court will give it weight when deciding on orders. However, the court will give substantially more weight to the opinion of your kids.

    You could relocate without the father's consent (provided the kids have passports), but he would be within his right to seek an urgent recovery order to bring the kids back to Australia. Whether or not that order would be granted is up to the court - again, it will be decided on the kids' best interests. I really would not advise relocating without first at least trying to reach agreement with the father, and I say 'try' because you need to show the court that you've attempted to have the matter resolved without judicial intervention, even if an agreement isn't reached.

    Likewise, if the father were to pursue parenting orders (which usually follow a relocation order) the father will first have to attempt to reach an agreement with you before he can commence court proceedings.
     
    Victoria S likes this.
  5. Michelle01

    Michelle01 Active Member

    Joined:
    17 October 2014
    Messages:
    7
    Likes Received:
    0
    In regards to my above post, I've just come back from where the kids dad lives. They haven't spoken to him in a couple of months (they refuse to ring him and don't want to see him). I forced them to visit him at his house while we were there for an hour so he wouldn't go all rage if he found out we were in town and they didn't see him.

    When he dropped them back to me, in front of the kids he told me if he didn't get 50% of the house we are trying to sell then there would be violence done to me and then went crazy and said he'd burn the house down so I'd get nothing. My 14 year old son was actually dragging him to the car and telling him to leave.

    The kids told me when they first saw him he was boasting to them how he was going to bash his doctors head in because his doctor told him a was just a drunk, and he also told the kids how he was going to run our ex tenant off the road and bash her head in for tailgating him. This is how he speaks to the kids all the time. About killing people and bashing people, along with his one and only friend who is 15 and on drugs. As previously stated, his elderly parents have a AVO against him and after our relationship broke down I had a temporary DVO against him.

    I'm seriously worried for my children's safety and they are worried that he's going to hurt them, which I never thought he would but after this incidence and seeing how he snaps I'm not so sure anymore. I've also been told that it's likely he's on crystal meth which I would believe.
    They don't want anything to do with him, are scared of him and there's no way I'm leaving them in his care.

    Is there anything I can do? Is this considered a safe environment physically and emotionally by the courts??
     
  6. AllForHer

    AllForHer Well-Known Member

    Joined:
    23 July 2014
    Messages:
    2,319
    Likes Received:
    423
    If you reasonably believe the kids will be in danger if they spend time with their father, then you can refuse to send them and seek an amendment to the orders. In some cases, the court will order an urgent family report to assess the situation properly. As before, the kids' opinions will be taken into account by the court.

    Is dad likely to pursue litigation if you refuse to send the kids?
     
  7. Michelle01

    Michelle01 Active Member

    Joined:
    17 October 2014
    Messages:
    7
    Likes Received:
    0
    There are no orders in place, just a parenting plan between us that is about 5 years old, which neither of us adhere to (he wasn't allowed to drink when he had the kids and I wasn't allowed to move to another town, he broke it within 24 hours of signing it and has been constantly drunk since - I'm talking comatose/passed out, and I moved with his permission - in my opinion you can't look after children if you are face down on the ground passed out).

    I've never once stopped the kids from seeing him whenever he or they wanted to because he lived at his parents house so I knew they were there to look after them. Since them getting the AVO and having him evicted from their place I only send them up to him if his parents are in town so they can stay at their place, not his. This is because I believe they are not safe.

    I reported this latest incidence to the police so it was on record. They informed me that he's getting worse ie. has threatened to burn Centrelink down recently and also driving around town every day doing burnouts in his car (he's 46 years old) and being a general nuisance. Does the court look at this kind of thing? Police and maybe medical records? It was on his doctors advice that I moved away, he told me he shouldn't be in charge of the kids at all and to move as far away as I could.

    In regards to him pursuing litigation - who knows? He doesn't actually care about them, indeed he can only handle them for a couple of days and then has had enough. His ego knows no bounds and because I left him he will do anything to get back at me, so it's possible but only for revenge purposes.

    I want to avoid court, as if they force me to send them to visit him with orders, I still won't do it if I believe my children are in danger. I've read some alarming outcomes where children in much more terrible situations (where the parent has abused their children) have been ordered to spend time with them.

    I get that there are situations out there where parents who have split up use the children to get back at each other etc but this is not the case. I fear for my children's safety and they are already displaying psychological and emotional problems. My 9 year old thinks about suicide and my 13 year old is full of anger at his father and wants to kill him "slowly with a butter knife".... For the past 5 years I've been constantly trying to repair the damage he has done when they have been with him and witnessed the things he has done and the things that he says and am now resorting to sending them to a psychologist.
     
  8. AllForHer

    AllForHer Well-Known Member

    Joined:
    23 July 2014
    Messages:
    2,319
    Likes Received:
    423
    I don't ordinarily point this out on a public forum because I think too many parents exploit it, but basically, if there are no orders in place, you can do whatever you want.

    A parenting plan is an agreement, but it's not enforceable by the court. The judge would ordinarily give it weight in a hearing, but one that is five years old, littered with breaches, and now also impacted by a domestic violence order is probably not going to have a lot of bearing on the outcome.

    If you want something that is enforceable and can protect the kids, you could initiate an application with the court, but of course, you would first have to mediate with the father, unless you can prove there has been family violence.

    The other option is to do what you feel is in the best interests of the kids and leave it to the father to pursue court action, if he so chooses. If you're still considering a move to New Zealand, you should at least invite the father to mediation to show that you've tried to reach an agreement about it. You could also consider a child-inclusive conference so the opinions of the kids can be heard, and you might even pitch that you'll facilitate them spending time with the father by paying for flights once or twice a semester (provided the kids agree).

    If an agreement can't be reached and you decide to move anyway, it's possible the father might pursue an application for a relocation order, in which case you will have the opportunity to argue why it's in the best interests of the kids to be moved to New Zealand, how you plan to continue facilitating their time with dad (though you could probably argue the case for an order that the kids spend time with dad in accordance with their wishes), and why you want to move (e.g. because you have family there).

    The father may be able to seek an injunction to temporarily stop you from leaving the country until the orders have been made and the kids can be placed on the airport watch list, but the interim is not as important as the outcome. It's better to cop this on the chin if you have to so that it doesn't appear that you've unilaterally fled with the kids.

    I would suggest being careful about how you show your dislike of the father around the kids. While it is certainly understandable, a hearing may lead to a family report which might reveal the kids have been influenced by your anxieties. This can sometimes be heard by the court as a failure to support the relationship with the other parent. It's important you have a history demonstrating that you recognise the kids have a right to enjoy a relationship with both parents and that you support and facilitate that right.

    It is, of course, impossible to predict the outcome in family matters, and this is by no means legal advice. It's just my thoughts on your situation. Hope it helps anyway.
     

Share This Page

Loading...