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NSW Family Court and Application of Australian Citizenship for My Son?

Discussion in 'Family Law Forum' started by furryfaerie, 20 March 2016.

  1. furryfaerie

    furryfaerie Active Member

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    Hi there

    I left the US in April 2014 telling my husband I was coming to Australia to visit my family with our 7-month baby boy. After being back here I told him that I was not returning due to his starting to use meth again. I was scared for our safety as when he is high he is unpredictable and abusive. I have some police reports from during the time we were together but mostly the abuse went unreported.

    I understand that by removing my son from his birth state contravenes the Hague Convention. My husband has not made any application to have my son returned. It is coming up for 2 years which, from what I understand, is a significant date for applications for returning a child under the Hague Convention. I made a decision that was in the best interest of my son, it was not a safe or healthy environment for a child to live in.

    Recently, my husband has been charged with DV 2nd degree Assault, and Kidnapping as well as 3rd degree Harassment and Deprivation of liberty for an alleged incident involving an on again off again girlfriend. He is in jail and awaiting trial, I'm not sure how long this process will take but I get the feeling it's not going to be speedy. So I don't see him making any application to have my son returned now. I'm also hoping this will work in my favour. Do you think so?

    From what I understand my first step in getting custody of my son is to apply to have my case heard by the Australian Family Court system instead of returning to the US and the file here. I am attempting to do a lot of the legwork myself as I don't have the $10K that I have been quoted to do this but 2 different law firms. How do I go about this? Where do I start reading to get an understanding of the laws in my circumstances?

    Most of the information I have been able to find about the Hague Convention is about requesting the return of a child and not much about my situation.

    The things that concern me is my son does not have legal status here. I spoke with legal aid and they suggested that I apply for his Australian citizenship. On the citizenship application, it asks if there are any family court orders which there are not. I did ask my husband in Oct 2015 if he would provide a letter stating he gives his permission but he would. If I apply for Australian citizenship now, would it look dodgy that I have waited til he was in jail?

    Any suggestions of how and where I should start to read would be greatly appreciated.

    Thanks
     
  2. AllForHer

    AllForHer Well-Known Member

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    So, my first comment is more or less for the benefit of other forum users. A person who absconds from a Hague Convention country with a child and without the other parent's consent commits the crime of kidnapping and may be subject to criminal proceedings. The punishment can include imprisonment, so I advise parents considering this path to get legal advice before doing so.

    My second comment now is for the OP specifically. Like all family law in Australia, Hague Convention proceedings cannot be invoked unless an affected party pursues them, so while there are no orders in place and no proceedings afoot, the parents are at liberty to do as they please in relation to their child.

    The application for citizenship is separate again to parenting orders, you don't need a parenting order in order to apply for citizenship for your child. Like Legal Aid, I suggest simply making the application on your child's behalf and tackling the hurdles to attaining it if they arise.
     
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  3. furryfaerie

    furryfaerie Active Member

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    Thank you for your response Allforher.
     
  4. furryfaerie

    furryfaerie Active Member

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    Allforher do you have any suggestions on where I should start researching how to begin proceedings to gain sole custody of my son?

    Thank you
     
  5. AllForHer

    AllForHer Well-Known Member

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    You're aware that if you start family law proceedings, you will have to serve the father with the application so he has an opportunity to respond and participate in proceedings? And if that happens, then the father may seek to have the child returned to the United States under The Hague Convention?
     
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  6. furryfaerie

    furryfaerie Active Member

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    Thanks, Allforher. Yes, I am aware that it could occur and that pursuing is a huge gamble. I have advice that it is best just to do nothing - the longer no one does anything means the more time my son is in Australia the greater chance I have of being awarded sole custody.

    I know what I have done is not the right thing but I also know that it was the safest thing to do. Without going into sordid details, the reason I left was DV and drugs and he is now being charged for that behavior towards another (there is a huge amount of guilt I'm experiencing because I did not do enough when I was in that situation). Given this, I really am anxious to get things "right" moving forward.

    I am waiting to see what the outcome of his current proceedings, I'm expecting his sentence to be approx. 3 -5 years with drug rehab as well. I'm under the impression that the courts take into account what is in the best interests of the child. If someone is incarcerated how could a court order a child to be returned to a place where there is no one to care for him as his father is in jail? He would have to go into state care which would be in the best interests of the child. Am I understanding the "best interests" incorrectly?
     
  7. AllForHer

    AllForHer Well-Known Member

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    I'm of the opinion as well that you should do nothing. Leave it to the father to bring proceedings if he wants, but I wouldn't pursue them myself. There is nothing to 'get right', as you say, because you can't do anything wrong if there are no parenting orders in place.

    On top of that, the child's best interests take into account the primary considerations - the benefit to the child of having a relationship with both parents, and the need to protect the child from neglect, abuse or family violence. Protecting the child from neglect, abuse or family violence rarely ever equates to an order for no contact, so it's likely the Australian court might make an order for time between father and child once or twice a year, with the child to travel to the United States to facilitate that order. It may even make that ruling without the father even bothering to participate.

    In my view, that's where the huge gamble is - you might end up with orders for contact that neither you nor the father actually asked for.

    As I said, while ever there are no parenting orders in place, you cannot do anything wrong as a parent, so there is nothing to get right moving forward.
     
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  8. furryfaerie

    furryfaerie Active Member

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    Thank you very much for your insight Allforher.

    Your point ..." In my view, that's where the huge gamble is - you might end up with orders for contact that neither you, nor the father actually asked for." is not something I had considered. I feel a little less anxious now about having taken the route I have. I will sit tight and wait. Thank you again.
     
  9. AllForHer

    AllForHer Well-Known Member

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    Remember, the Family Law Act governs how the Court must behave when determining parenting matters. It doesn't govern how parents must behave when raising their children. A lot of people tend to think the FLA is law for parents, but it's not. It's law for the Courts.
     
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