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NSW Family Law Separation - Bring my Children Back Home

Discussion in 'Family Law Forum' started by Jaybron, 12 May 2015.

  1. Jaybron

    Jaybron Member

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    I am needing some help with a family law matter. I am going through a very bitter separation with my ex. In January 2015 he moved out of the family home with my children to his mother's home without my consent while I was in hospital having a back operation.

    He allows me to see my children 12% per week. Monday from 3 - 7pm, Tuesday from 3 - 7pm and on Sunday from 11am to 5pm.

    I have been the primary carer for the children. I am also a carer for my 12 year old son who is diagnosed with Autism. I am concerned about my children in his care. My ex dictates to me and is very controlling and makes up rules on a whim even though there are no court orders in place.

    I am not eligible for Legal Aid and I am unemployed so unable to afford a solicitor.

    I also need help on protecting the family home from being sold. He has cut off all financial assistance with debts so I am struggling financially

    Please help I am desperate to get my children back.
     
  2. AllForHer

    AllForHer Well-Known Member

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    This is a challenging situation.

    If I may enquire, have you applied for Legal Aid, or have you determined from their published assets and means tests that you're ineligible for funding? If you've made the determination without applying, it may be worth applying anyway. It's quite often the case that the circumstances test determines the outcome more than just the financial tests.

    So, beyond the issue of Legal Aid, the first thing I want to say is to be patient with your situation. I imagine you're very frustrated and angry with how things are playing out, but it's important to remember at all times that the kids' best interests are the priority, and part of that is ensuring their exposure to conflict is kept to an absolute minimum. Ensure you don't act rashly by over-holding on the kids or engaging in arguments with your ex. It's better to follow the right avenues than jeopardise your case.

    The process for family law matters is that you must first attend a family dispute resolution conference with your ex to try and reach an agreement about care arrangements for the kids, and by the sounds, property settlement, as well. This can be done through Legal Aid, Relationships Australia, or a variety of other community services, but some family law practitioners also offer mediation at a higher cost, but with fewer delays.

    If you and your ex are unable to reach an agreement, or one of you fails to make a genuine effort (e.g. doesn't show up, is excessively unreasonable, etc.), then the mediator will give the parties a s60i certificate, which is a mandatory document to be filed with any initiating applications for parenting or property orders to be determined by the court.

    In regards to children's matters, the court only recognises the rights of the children to have a meaningful relationship with both parents, which includes knowing, spending time and communicating with both on a regular basis. As such, the court will only make orders in the best interests of the children, and the framework used to make that determination can be viewed in section 60CC of the Family Law Act 1975.

    There is a presumption that both parents have shared parental responsibility for children, and that responsibility cannot be taken away unless by order of the court. This means both you and your ex are jointly responsible for long-term decisions relating to the care, welfare and development of the kids, and such decisions are things like who the kids live with, what school they go to, etc.

    As a matter of interest, the presumption means it's near impossible for orders to be made for sole parental responsibility these days.

    If the court decided it was in the best interests of the kids for the parents to continue sharing in parental responsibility, it would the consider if an equal time arrangement is appropriate.

    If it is deemed inappropriate, the court will then consider if it's in the best interests of the kids to spend substantial and significant time with each parent, which includes a mix of weekdays, weekends, holidays and special occasions. As a general guide, this usually means five or so nights a fortnight, half school holidays and alternating Christmases/Easters, etc.

    I understand that you may want the kids to live with you, but with older kids especially, the court has a tendency to give weight to whatever care arrangements were established following separation. As such, if they're settled living with the other party, it may be considered in their best interests to continue with that arrangement, especially if there is no evidence to show it is doing them any harm. I'm not saying this will definitely be the outcome, more that it's probably better to be open to the possibility, rather than determined to achieve a change in residence. I would definitely be seeking more time with the kids, though, up to a 50/50 arrangement if it

    In regards to the house, you can apply to the court for a caveat on the property to stop it from being sold or dealt with before a property settlement is reached. You can also pursue parenting orders and property settlement concurrently in the same application.

    But the first step is to get a family dispute resolution conference organised. Remember, Legal Aid also offers free consultations, so it's worthwhile booking an appointment so you can get legal advice directly from them.
     
  3. AllForHer

    AllForHer Well-Known Member

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    Sorry, I just realised I left a sentence unfinished...

    " I would definitely be seeking more time with the kids, though, up to a 50/50 arrangement if it works for both parties."
     

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