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NSW Ex has Custody of Children - Daughter Refuses to Go Home?

Discussion in 'Family Law Forum' started by Shan4382, 1 August 2015.

  1. Shan4382

    Shan4382 Member

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    My 14 year old daughter has come on her usual schedule visit with me which happens every second weekend and school holidays. She comes with her twin sister on arriving yesterday and she informed me that she doesn't want to go back to her dad's, thinking I could speak him about this.

    I rang him where I brought up the issue only to be abused by him and his girlfriend and he told me that if she doesn't return home he would turn my other twin against me as she and I don't have a great relationship it won't take much. My daughters have lived with their father and stepmother for just over three years as they have custody of children. I felt this was the right thing to do at the time because I had to move in with my mother in a two bedroom apartment after my separation with my partner. I also had two younger children, so the place was very small and they had their own room at their father's.

    A short time later I became addicted to drugs and lost everything, I received the help I needed and got clean. I got myself a place big enough for us all in a safe environment and been two and bit years clean. I'm working in rebuilding my relationship with my children. The twin who isn't the one that wants to stay has resentment and hurt towards me, this is why it would be easy for him to turn her against me. I have offered to do counselling to build a relationship with her but her father won't allow it.

    I'm so confused. Please help.

    Do I send her back and have her resent me as well?
     
  2. AllForHer

    AllForHer Well-Known Member

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    Are there any court orders in place?
     
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  3. Shan4382

    Shan4382 Member

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    No we have never got any before I asked him to take them it was 50/50 mutual agreement
     
  4. AllForHer

    AllForHer Well-Known Member

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    Thank you for the additional information.

    If there are no parenting orders registered with the court, then who the child lives with remains a matter for the parents to decide. It's impossible, therefore, to provide legal direction, since family law doesn't apply unless one of the parties asks the court to intervene and make such decisions on the parents' behalf.

    What I can give you is some scope about how the court might determine this matter.

    Under the Family Law Act 1975, any parenting orders made by the court must be made in the best interests of the child, and the court uses section 60CC of the Family Law Act 1975 to guide its decision about what's in the child's best interests. The primary considerations are the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from harm caused by abuse, negligence or family violence.

    There is also a list of secondary considerations, and chief among those secondary considerations is any opinion the child might express about their care arrangements. As a rule of thumb, kids over the age of 12 are ordinarily considered old enough and mature enough to make an informed decisions about their own care arrangements, so it's quite common for the court to rule that the child live with whichever parent he/she asks to live with, and spend time with the other parent in accordance with their wishes. Of course, that is only in the very rare circumstances when the court has to make a ruling - about 95% of parenting cases initiated with the court result in orders made by consent, or agreement of both parties.

    However, you're not at court, yet, and if you end up in court, there are absolutely no guarantees about what the court might rule. It's entirely unpredictable, but it does remove power from your hands and the father's, and it does cost an awful lot of money.

    So, my suggestion to you is to send your daughter back in the first instance. Realistically, she has a routine at her father's home that it's not a good idea to interrupt simply because your daughter has asked you to. There may also be unseen factors influencing her request - for example, she may be using your house to escape the rules and boundaries imposed on her by her dad, which is quite a common behaviour for kids in their mid-teens.

    However, I would then organise a family dispute resolution conference with the father to discuss care arrangements and whether or not they should be changed. Relationships Australia offers child-inclusive conferences, which is where a child expert will spend time with your daughter to work out her feelings about the situation and what she wants to happen. The child is not directly included in mediation (it's inappropriate to do so), but her views are shared with the parents through the psychologist and any problems she may be having can be addressed.

    Relationships Australia also offer family counselling, which might also be considered to help you reconnect with your other daughter, and help the father recognise why it's detrimental to the twins to alienate either one from their mother.

    I commend you for getting help and getting clean. That takes an enormous amount of courage and commitment, and I hope my comments help in some way.
     
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  5. Shan4382

    Shan4382 Member

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    Thank you you have helped alot I'll look into relationships relationship Australia today, I took my daughter home yesterday like the agreement but she has threatened to run away so I'm going to look into counselling for her too
     

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