QLD Family Law - Ex Making Decisions Without My Consent?

[Elsie]

My husband and I have only been separated for a week.

I am currently away for a few days for work. I have just received a message from him saying he has primary custody of children and I have to look alternative accommodation. My name is on the lease, I have been paying every bill including rent and I am the mother of those three children.

Surely, he can't make decisions like this when I'm not even there? Is this even legal under Family Law?

I work away from home on a roster. And he has now taken it upon himself to say I can only see the kids every second weekend. Even with him making Centrelink appointments, does he have this right?

In another message, he wrote that if I want the kids full time, I have to quit my job. He won;t even listen to a 50/50 custody arrangement. I am so lost.

 

[AllForHer]

First, I'm sorry you're going through this. It's a challenge nobody ever asks for, but hopefully, the current situation is very closely linked to the emotions still running high and will settle down for you as time goes on.

Now the question of legality.

Since you're renting and you're a named resident on the lease, he does not have the power to restrict your access to your home. If you jointly owned the house, it would be a different story, but in the eyes of the law on renting, you're both tenants, so your legal right to reside in the property is equal and cannot be waived by the other resident. Whether you can or should continue living with your former spouse is, of course, a personal decision to make, but be aware that you will still be liable for the rental payments if you choose to move out. That is, if you refuse to pay the rent, it may still impact your credit rating (and his) even if you're not living there.

The parenting matter is a bit more complicated, but at the moment, the short answer is yes, what your ex has done is legal as either parent can do whatever they want in regards to their children while ever there are no parenting orders in place. The theoretical idea is that parents should be able to communicate and negotiate about what's in their kids' best interests, but unfortunately in practice, it often sees children playing the rope in a bad game of tug-o'-war, which is why parents should aim to get consent orders or parenting orders in place as soon as possible to govern who the kids live with and how often they see the other parent.

To get the ball rolling on getting orders in place, contact Relationships Australia or Legal Aid to organise a family dispute resolution conference with the other parent. The organisation will do the legwork of contacting your ex and organising it for you once you've made contact with them, and the conference will be managed by a neutral third party who will help you and your ex try and reach agreement on the kids' care arrangements. In the event, the father refuses to participate or an agreement can't be reached, you will receive a section 60I certificate which will enable you to file an initiating application for parenting orders through the court.

Court is probably a very long way down the track for you since the separation is still very fresh, but at the very least, if you organise a family dispute resolution conference, it may prompt your ex to get legal advice and he will likely learn the hard way that if he's only willing to agree to alternate weekends, you'll probably get a better deal on time with the kids by taking him to court.

 

[Elsie]

So if it's legal for him to tell me I can't see the kids, that means I can tell him the exact same thing?

 

[sammy01]

Yep - nothing to stop you taking them and telling him the same. But don't. Look it ain't good for the kids and you should make that your primary focus. Yes, I know it ain't good for them not to see their mum either, but you take the kids, he takes the kids, then you take the kids blah, blah. Eventually, the cops and Doc's get involved and it traumatises the kids.

So call relationships Australia or go see a solicitor. But I reckon relationships Australia is a good start.

I would not pay rent on a place I'm not living in. Stuff the credit rating, he lives there he can pay the rent. Just checking - is your name the only one on the lease? How long till the lease expires? Does dad work? can he pay the rent?

Do you have any joint savings? if so take them. If your name is the only one on the home phone / internet you should advise him that you're gonna cancel the accounts and offer him to organise to switch them into his name to prevent them getting switched off...

Next when child support calls. Tell them that he is withholding the kids and you are taking action to gain access. They might agree to minimise child support payments for a while.

Do not go to the house unless to collect stuff and only if he agrees. You don't want an argument and him to call the cops and get an AVO against you.

By the sounds of things he has kind of been planning the separation, so he is a few steps ahead of you.

So I also think you need to respond to the text message about primary care. you should write something about how you don't agree that he has primary care and you feel he is withholding the children AND that you will be relying on the text message as evidence in the event that court action is required. In short you're letting him know that you don't agree with his decision.

Last thing - stay calm. yes, this is bloody stressful. Been there done that. IF you make any rash decisions you'll regret them later. So stay calm.

 

[Elsie]

I work permanent full time. He doesn't. Both names on lease. Lease runs out January 2017. After him draining thet joint account last year, I learnt my lesson and kept my money in my account.

I pay all rent and bills except his phone bill. He has compo money (which was suppose to last him a few years - strongly doubt that now )

He has said I have to move and hand back the car (in both names) as it was paid for by his compo money. And for a kick in the guts, I was informed via text that he met someone else.

 

[AllForHer]

I wouldn't be giving the car back until both parties attend mediation to discuss parenting matters and property settlement. You have a legal interest in all property attained during the marriage, regardless of who 'paid for it'.

Like sammy01 said, it's not advisable to just take the kids. He may simply take them back, and then, as I said, it becomes a nasty tug-of-war with the kids being used as the rope, and they won't thank either of you for that in the long run. It will also damage your case, so you're better off following the correct avenues and getting everything done formally, rather than through vigilantism.