SA Family Law - Can Ex Stop Us From Moving Interstate?

[Rebzroo]

Hello, I need help please.

I have three children (8,5,3). Their father and I separated almost three years ago as he is highly aggressive and an alcoholic. I have had the children with me since. For approx 12 months, he would see them maybe twice a fortnight for an hour or so, but he said he couldn't afford child support so to try and help, I told the Child Support Agency that he had them twice a week.

After about a year, I told him he would need to actually have them twice a week to keep paying less. He eventually did. Tuesdays from about 4pm until Wednesdays 5pm and Saturdays 4pm until Sundays 9am. The kids have been coming home worse each time. It is now at the point that our 8-year-old is out of control and an emotional wreck.

A few days ago, my ex took off with them. I called the police but as there is no parenting orders, etc., they could not help. When I got them back, they were all hysterical. I told him it is no longer in their best interests to be going to him and he would need to start family court if he wants to have them.

The biggest trouble is we are meant to be moving back to QLD with my new partner in December. My ex was happy to go back to QLD until he found out I had moved on. He is now saying he will stop me from leaving the state. Can he?

I really don't know what to do. When he has the children, I'm terrified. They have been in the hospital because he didn't keep them safe. He always screams at them and tells them "your mother is a dumb sl**" amongst other things.

Suggestions on Family Law? Help? :'(

 

[sammy01]

Just checking - your ex was happy to move back to QLD but changed his mind when he found out you had re-partnered?

Just checking. Is he still seeing the kids twice a week?

Options:
1. Apply to court for court orders that allow you to leave. Now with him having them 4 nights a fortnight I reckon it is an each way bet which way it would go...
2. Just leave. Now there are real problems here. 1. If he applies to court, you or the kids could be forced to return, at least until the case is completed. Expensive. The other problem is that if you move, what then? Are you gonna stop the kids seeing their dad ever? What if he sees them and doesn't return them? What then?
3. Organise mediation - tell him that you're leaving and want his help to make it happen.
4.Offer him the kids full time and you move to QLD without them.

One more thing: In my opinion, your best option is try mediation through Relationships Australia. It probably won't work but it is a start. Then get a solicitor to write to him offering consent orders and explaining that you will apply to court if he doesn't agree.

You wanna hope that he decides not to challenge in court because it will cost you both a bucket load of money. Now if you wanna leave in December, you need to get started on this ASAP.

 

[Rebzroo]

Hi, thanks for the reply.

I have stopped visits for now as there are safety concerns. I have allowed phone calls at anytime with a warning, and I sent him a text message today asking him if the kids can call him at 5 pm and if this time is not good for him, to please let me know and we can do another time. I also asked him to refrain from name calling me, talking about this stuff, etc., or I will need to end the call to try and avoid upsetting the kids.

I just received a text back saying, "last thing I want is to talk to you, mate. I want to see the kids". So will see how the phone call goes. Yes, he was really happy about going back until he found out I had moved on. My partner is ADF so the move has to happen. He chooses beer over child support when their is a choice to be made about the two and unfortunately that won't change. So I know he won't have the funds for a lawyer. As well as his attitude of "my f****ing kids, my choice."

I have in writing that I will cover half his costs to fly up and spent half of all Holiday's with them, as well as phone calls three times a week from kids to him and the kids will Skype him once a week. This is not from a lawyer, just me trying to work this out. He wouldn't even look at it and told me to go f myself.

I will never ever keep the children from him. It's just at a point that I can't send them there anymore because of the emotional wrecks they come home as. QLD is just one more thing now added to the mix.

 

[sammy01]

Ok - look you might just need to be reminded. You are taking his kids away from him. So when you say "you will never ever keep the children from him", guess what. That is exactly what you're proposing. My ex suggested the same and I called her all sorts of names. I just didn't do it in front of her or the kids....

Just so you know - I'm a dad of 3 young kids. My ex thinks I'm a drunk, a fool and a useless waste of space. She also accused me of domestic violence, but she wound up leaving the kids with me to chase her new fella.

Now I reckon you've got a few real tough decisions to make and the news ain't great. It would be one thing if you and the new fella were moving because of his work (which you are) but let's think this through. Defence folk get moved around lots.

So while the kid's dad might have been ok with moving to QLD, what happens next time your partner gets relocated? Does the dad have to move again and again and again? Or does he just have to not see his kids all that often because your relationship with the new bloke is more important?

So maybe - just maybe you need to think this through a bit more. Look relocation cases are bloody tough. So let me tell ya my story. Her solicitor wrote to me and told me she was leaving and I should just suck it up because if I wanted to challenge it in courts, I'd lose and it will cost both of us heaps.

Her solicitor was bluffing me. So I wrote back and said take me to court. She didn't take me to court but I had 2 things going for me that your ex doesn't. I had consent orders and those orders said I have 5 nights a fortnight and half holidays. And my orders said no parent can move more than 50km away from our hometown. From what I can tell from your case, you don't have a real good case.

Just out of interest - how long have you been living with the new fella? If the answer is 2-3 years then that would be good. If it is less than a year then not so good.

So - here is what you can do. Spend an hour looking at the case files
AustLII Results - relocation

These are court cases that surround relocation. Now in family law precedence don't matter as much but the cases show how it has panned out for others. Now this is an area of family law that I have looked into heaps because I was really really scared it would happen to me. So one piece of help - don't spend more than an hour or so reading. It will just do your head in. Some cases where you think the applicant has no chance; yet they get to move and others where you think it reasonable given the circumstances yet magistrate says nope.

Cheers

 

[Rebzroo]

Thank you, I will take a look through them. trying to only look at it all for an hour will be hard, but I know what you mean- my head already feels like it will explode

 

[Blue Grass]

OK, first stay a million miles away from court if you can help it. Once you go to family court, say goodbye to making any decisions of your own. The courts will rule what you do and when you do it. It is also a lottery, depends on the judge, get one on your side and you will be fine and each time you go to court you will get the same judge but get a judge who goes against you and you will face a battle every time you go to court.

Best thing to try is Relationships Australia. You will find them on the web just look them up. A place you can sit down with your ex and a mediator and try to work out a fair solution. Think moving interstate is a difficult task. Some judges won't even let you move a few suburbs away if the other partner is against it.

 

[Rebzroo]

Thanks for your reply blue grass. He is refusing to go to mediation etc. He has not seen the kids for a month or even phoned them.... I have been getting the kids to call him a couple of times a week
Our eldest refuses to talk to him most of the time the same with the youngest.

Miss 5 will talk but he gets bored and says he is busy after about 5-10 min. None of them have asked to see him etc. And he hasn't asked either. I have been recording everything word for word. I'm now waiting to see what will happen as I have updated child support :/

Master 8 has always had a lot of things going on, the doctors were looking at autism, ADHD, and other things. Since he has not been to his dad's he has become the sweet little boy he once was again. Nightmares, bed wetting, explosive meltdowns etc. have almost complete stopped. Miss 5 and miss almost 4 have had no more nightmares and are back sleeping in their own beds. So I think for their sakes it is a good move.

I think I'll just take my chances

 

[Corinne]

I've just been through a case not so similar to yours but vaguely.

If you bail without orders confirming dad's visitation, the judge may assume you don't have the capacity to facilitate their relationship with him and that would be bad for you because the kids have the right to spend time with both parents. Considering you've already kind of been withholding them.

If it's on record that he hasn't been paying child support, that's bad for him.

The judge won't necessarily see your perspective about the bedwetting and nightmares. All you can do is write it in your affidavit but at the end of the day, it's just your word against his written on paper, with someone who has absolutely no idea about your kids or your family reading it and trying to make a decision.

The judge would probably want to appoint an independent children's lawyer to confirm these behavioural issues.

Lastly, step parents hold little if any weight in these cases. There was a step parent ADF member in my case but the judge still ordered her to not be allowed to move 20kms from their current residence without a court order or consent from my partner. So you're already in the wrong mindset by assuming you have the right to move because your new bloke has to. This isn't the case.

I would strongly recommend sorting this out before you leave.

 

[AllForHer]

I'm with the rest, but I have some comments about the gaping holes in your case that you need to address, too.

First, "the kids haven't seen their dad in a month". Let's not forget why that is: "I told him that if he wanted to see the kids, he would need to start family court proceedings". You're the reason the kids haven't seen him, and you made that decision unilaterally with absolutely no consultation with the father. You've already failed the test of being able to support the children in having a relationship with their father.

Second, you have provided no evidence whatsoever to suggest that the nightmares and the wetting are because of the father, yet you've speculated that improvement is because they're not seeing dad anymore. I could make various arguments as to why they might have improved, chief among them being the lack of exposure to what is clearly an acrimonious co-parenting relationship. You're critical of the father, and if it's deemed to be of such severity that the court will doubt whether you're able to keep it to yourself when the kids are around, then you will again have failed the test for supporting the kids' relationship with their dad.

Third, the father has expressed a desire to see the kids, and you've offered phone calls instead, then been critical of how those phone calls play out. 5-10 minutes is actually an outstanding amount of time for a five-year-old to be on the phone, ours will hardly last two minutes if there's colouring to be done or a movie she wants to watch. You'll be pitching that the kids can maintain a relationship with dad via phone call if you're allowed to relocate, but the evidence suggests you're not very supportive of that, either.

Fourth, you haven't provided much context about when the father 'took off' with the kids, but all the same, it seems it's a problem when he does it, but it's all okay when you want to make a permanent move to Queensland. Think about that.

Fifth, you are blatantly prioritising your own new relationship over the kids established relationship with their father, and quite frankly, it is extraordinary to determine for yourself that your kids, all under the age of 8, don't love their father and don't want to spend time with him, such that it would totally okay for them to move. This man has not just one, but three kids with you, and since the oldest is 8, it means he was in their lives, full time, for at least five years before you separated, but all of a sudden, seeing dad is distressing for them now that you're divorced? Rubbish.

My suggestion to you is to do a post-separation parenting course. You need insight about what these kids need and about how to support their relationship with both parents. While ever you have a dad-is-expendable attitude about this, it's likely the court will determine the kids need to see their dad more often than can be facilitated if you're allowed to relocate because they won't receive enough support and encouragement just from you alone.

 

[Rebzroo]

Yes, I have left out a lot of things as this is "public". All I can say really is that the kids have stopped going to his house on advice from police, child protection and a lawyer, not me just wanting to. I know it looks like the classic "mum wants to paint a bad picture of dad to run off with new man" but it honestly it is not the case .

If I could privet message someone on here I would be able to explain more, just not wanting to put it all up for the world to see.