NSW Family Court Orders Restricting 14-Year-Old to Live with Me?

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Jakota

Active Member
18 April 2018
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Hi.

My 14.5 years old son is fear of going back to his mother's house, as his older brother was verbally and physically bullying him, and his mother is turning a blind eye on it.

Background:

There are consent orders for the kids (twins) to stay 4 nights at my place every 2 weeks, and to live at any other time at the mother's place. However, one of they boys decided to move in with me, a few months ago, due to stress and emotional issues at his mother's place. At the last hearing, the judge did not agree with the given evidence, so he instructed me to return the 14-year-old boy to mother's care.

I returned him to the agreed change over place (maternal parents' house) and he went to school from there. However, since then, he never returned to my home or the mother's home and he has been living with his friend's houses. And everyday he would inform me he is safe and sound and going to school as requested.

He fears of going back to his mother's house, and he can't stay at my place due to family court orders restricting me from having him. Right now he has been staying at different friends' houses for the last 4 weeks.

Next hearing is in 6 weeks time, and I contacted FaCS, and they advised me that if I submit a report of danger at his mother's place, they will investigate. However they will have to identify where he is, and return him in accordance with the court orders, unless there is a proven danger.

Please help, as I don't want my son to be out there living with his friends. He is very mature and earn around 100+ a week doing photoshoots and videos for commercial purposes, so he is not afraid of lack of money or that matter.
 

Clancy

Well-Known Member
6 April 2016
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You have to make reasonable efforts to see that the judges custody orders are carried out. However, the judges orders to not come with a set of chains for the child now do they? Children can and will enforce their will if they are determined enough and, besides the use of chains and locked doors, there is not a god damn thing you can do about it. The child is the one with the ultimate authority. This is the one thing the system repeatedly fails to comprehend.
 

AllForHer

Well-Known Member
23 July 2014
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What do the orders say about spending time with you? Are you subject to a no contact order of any description? Do you have equal shared parental responsibility? What's mum's stance on all this?
 

Jakota

Active Member
18 April 2018
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31
The mother sent a few SMS to him to return, but nothing else. I have requested her to let him stay with me while they mend their relationship, but the mother would not allow it, which means he is not allowed to stay with me as it would be a breach of court orders.

50/50 parental responsibilities and there is anytime contact orders, meaning there is no restriction to how or when we contact the kids.
 

AllForHer

Well-Known Member
23 July 2014
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You need to provide more clarity about what the orders actually say before I can give any real guidance here.

When you say the mother won't allow it, do you mean to say that the orders for time that the child spends with you requires agreement between the parents?

For example:
That the child spend time with the father as agreed between the parents.

Is there any provision for other time?

For example:
That the child spend time with the father as agreed between the parents, and failing agreement, each Monday from after school until before school Tuesday and every alternate weekend from after school Friday until before school Monday.

What is the exact order that restricts the child from living with you?
 

Rod

Lawyer
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27 May 2014
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I'd be making another application to the court as circumstances have changed (son living at friend's houses).

As long as you have a clean skin (ie not encouraged this behaviour) then you stand a chance of having a change made.

Maybe one or two emails to the mother, but no more, asking her to fix the problem at her end. Keep it polite and full of fatherly concern without being over the top. These emails and her replies, if any, are then produced as part of your application for a variation in orders.

BTW, would child support be a factor in the mother's thinking?
 

Jakota

Active Member
18 April 2018
10
0
31
You need to provide more clarity about what the orders actually say before I can give any real guidance here.

When you say the mother won't allow it, do you mean to say that the orders for time that the child spends with you requires agreement between the parents?

For example:
That the child spend time with the father as agreed between the parents.

Is there any provision for other time?

For example:
That the child spend time with the father as agreed between the parents, and failing agreement, each Monday from after school until before school Tuesday and every alternate weekend from after school Friday until before school Monday.

What is the exact order that restricts the child from living with you?

The children are to live with the mother and spend time from Thursday after school to Monday morning school starting time, and 2nd half of school holidays.
 

Jakota

Active Member
18 April 2018
10
0
31
I'd be making another application to the court as circumstances have changed (son living at friend's houses).

As long as you have a clean skin (ie not encouraged this behaviour) then you stand a chance of having a change made.

Maybe one or two emails to the mother, but no more, asking her to fix the problem at her end. Keep it polite and full of fatherly concern without being over the top. These emails and her replies, if any, are then produced as part of your application for a variation in orders.

BTW, would child support be a factor in the mother's thinking?


Her affidavit to the court has 70% about child support payments, so I would say yes in regards to child support
 

Rod

Lawyer
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27 May 2014
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One option is to have him live with you and you tell the ex you are not applying for a change in child support and you say in the same conversation the alternative is new court orders with a change of child support.

Advantage of this is your son is looked after quicker, convenient for you/less stress, no court/lawyer fees. Disadvantage you pay more than you need in child support and your costs go up.

Otherwise see my first post and go to court.
 

AllForHer

Well-Known Member
23 July 2014
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Okay, so what would I do?

If I was absolutely sure the child was couch-surfing and most definitely wasn’t living with Mum, I would contravene the orders and tell the child he can stay with you.

The legislation holds that a party won’t be held in contravention if they have reasonable grounds for going against the order, and I think you have a decent chance of arguing that you have reasonable grounds in these circumstances.

Provided there isn’t a long history of contravening the orders on your part, then the Court is also unlikely to dish out any punishment harsher than a bond if you do fail to establish reasonable grounds.

In short, I think the risk associated with contravention proceedings is significantly less than the risk associated with a 14yo child couch-surfing all over town.

You have shared parental responsibility so the Court obviously considers you a capable parent. Do what you need to do, and tell Mum that it’s better for the child to stay at one of your homes than on a different couch every night.

How long has it been since the recovery order was made?