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WA How to Apply for Full Custody of Children?

Discussion in 'Family Law Forum' started by Xseptional, 4 August 2016.

  1. Xseptional

    Xseptional Member

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    Hey there,

    I am after some help on applying for custody of children.

    Originally from Victoria, the children and I moved to WA in May 2014. We have been separated since 2010 but fully stopped communication in 2012. He has not made any communications to myself; fair enough I have changed my phone number but there are other ways, for example social media, email, etc.

    The relationship was violent and have have intervention orders for us, etc. in place which now have all run out. Pretty much bottom line is, he hasn't seen the children or spoke to them in over 2 years, currently owes over 20k in child support and doesn't respond to the child support agency. I just want to be able to have full say on my children in regards to if they are to apply for a passport or if I am to marry to change their surname, etc.

    The children want nothing to do with him as they were of witness to the violence and have made up their own minds (I have never spoken a bad word of him as I always believed that it is the child's choice to whom they want to have a relationship with and never wanted to taint that for them). What are my rights?

    I, myself want no communication with him as I live in constant fear of him. There were also pedophilia concerns also. Accused in 2006/7 and I also found child porn on his personal mobile which I showed to police whom couldn't do anything as it was from YouTube so in their word was a tricky situation.

    Please help. What can I do so we may move on with our lives and be free of him?

    Thank you.
     
  2. sammy01

    sammy01 Well-Known Member

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    So you believe a child can choose to have a relationship with each of their parents? But you moved the kids interstate...

    Did you ask dad? Did he say yes? Or did you move the kids without his consent and changed your phone number to make it impossible for him to communicate that he wanted to see his kids?

    Ok, I'll play along. You want passports. Either contact him and get consent, or take it to court and apply for passport through the court. They are your only two options.

    Same deal for changing their last names...
     
  3. Xseptional

    Xseptional Member

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    Ok, that felt kind of negative….

    1. I moved interstate as that is where my family is. After separating and living in Melbourne for 2 years I decided to move to where my family was so I had the support.

    2. I did not “ask” the father as he had no communication with us; he only taunted us as the current court orders in place the children were in full-time care with me. He would arrive drunk on my doorstep, he tried to run me over in his vehicle… He was very violent towards me, hence the intervention orders granted so um where do I stop. I hope you get the picture.

    3. I changed my phone number by instruction of police and the women refuge I was currently in as I had to leave my residence in Melbourne as it was no longer safe. So I took my children to WA to where I had family to support me

    4. I will not contact him as you have seen above as to why, so as in passports I would like to take the kids on a holiday which is not looking likely if I was to do so through him.

    5. I do not want to contact him directly as I have fear of what he would do to me.
     
  4. AllForHer

    AllForHer Well-Known Member

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    You've blocked communication, you've relocated unilaterally, you've cited fear of the father (but no mention of an AVO), you have even taken the extraordinary step of suggesting there were child sexual abuses concerns because he had a video on his phone (I sincerely hope you are aware of how farfetched that sounds), and you think your kids had a choice about whether or not they have a meaningful relationship with their father...

    Unfortunately, your case as a legal matter isn't going to have a lot of positives, especially once the Court gets involved.

    First, you don't have any legal rights regarding your kids. Your kids, on the other hand, do. Their rights are entrenched in section 60B of the Family Law Act 1975, and they state that children have a right to know, spend time and communicate with both parents on a regular basis, regardless of whether those parents are married, divorced, separated or have never lived together at all, insofar as their best interests can be met.

    The Court is an institution designed to protect the rights of people, so if in family law you have none, your children have several, and you've in fact violated all of their rights unilaterally, how do you think a court of law is going to feel about that?

    I am sure you've had a lot of support for your actions so far from friends, family and support services, and I am sure you are thinking to yourself 'Well, what would they know? I'll just tell the Court he was violent and that will be that,' but please know that parents have gone into Court with that very same attitude time and time again, and it will shock you just how many have ended up losing residency of their children all together. The Court is not a place for capitalising on sensitive social issues. It doesn't see violent man, battered woman. The Court will treat you and your ex equally, it will only hear evidence, not speculation and opinion, and it cares only about your kids.

    Now, you've asked how to go about getting sole parental responsibility for your kids so that you have full control over them and the decisions that affect their lives. That might sound like a simple matter to a lay man, but I assume that since you're here, you're probably expecting the father to contest the matter, which means that legally, you're potentially looking at three years in Court, $30,000+ in fees, and an extremely low likelihood of success.

    The success rate is based in law - there's a presumption that grants both parents equal shared parental responsibility, and it can only be undone by order of the Court. To get that order, you need to successfully rebut it by convincing the Court that it's not in the best interests of the children.

    When I say 'best interests of the children', I refer to the provisions of s 60CC of the Act. The very first consideration is the benefit to the kids of having a meaningful relationship with both parents. The second is the need to protect them from harm caused by violence, abuse or neglect.

    You've referred to the father being violent, but the Family Court's view of what constitutes an unacceptable risk of harm to children is often far different to what a single parent considered an unacceptable risk of harm. To simply say 'he's violent' with examples is not enough. That kind of evidence is he-said-she-said, the Court places close to no weight in it unless there is third party evidence to support the allegations - an AVO, a report from DOCS, etc.

    Even if the Court agrees that family violence has occurred, it still needs to be convinced that there is an unacceptable risk to the children, as well.

    The other considerations under s 60CC are vast, but the ones which should concern you most is your capacity to meet the children's emotional needs and the 'other matters' part, which quite often includes the capacity of the parents to support the children's relationship with the other parent. I'm concerned that your actions may show you by place no weight on the father's importance in the children's lives, meaning you've failed on both of these counts in extraordinary measure, and as I said before, this has prompted the Court to reverse residency arrangements on more than one occasion.

    Since you're seeking sole parental responsibility, and since this is an order that can only be made ft the Court, you will have to follow the rules of the Court to proceed. First step is to organise a family dispute resolution conference. If that fails, second step is to file an initiating application with the Court. Once you file the application, you must serve a copy of the application on the other parent, so he can decide whether to participate in proceedings or allow it to proceed undefended. It doesn't matter which way you look at it, his involvement is mandatory.

    So, if you pursue proceedings seeking sole parental responsibility for your children, and the father challenges your application and seeks more time with the children, I am afraid that your actions don't paint you in the best of lights.

    Don't mistake our guidance for 'trolling'. You're talking to people who know the Family Law Act and have seen how the Court executes it time and time again. If you want proof that what we are saying has weight, I encourage you to read the decisions about family law that have been handed down by the Family Court and the Federal Circuit Court.
     
    Timnuts likes this.
  5. sammy01

    sammy01 Well-Known Member

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    Yep, negative. You came here looking for help, right? Not someone to tell you that it will all be ok.

    My thoughts - the cheapest way to get your holiday is to contact him via social media / email. Ask for a residential address to post the passport application forms to... Ask him to return them to a post office box... Easy and with no risk to you.

    If he expresses an interest in seeing the kids then realise that as you have said that you believe both parents should have an opportunity to have a relationship with their kids, then you should do what is reasonable to achieve that.

    My thoughts having not seen my kids for an extended period of their lives (and I mean 6 months), it is heartbreaking, soul destroying. But time heals a bit. But it might be worth your while seeing the other perspective. I'm not justifying violence but I can well understand how these situations get out of hand...

    So I've offered you a solution. Your alternative is court. Now the problem with that is that court will provide him with an opportunity to address the magistrate if he chooses, so it won't be a one-way street and at the end of it all, you won't be able to afford a weekend away in a caravan, let alone an overseas trip.
     
  6. AllForHer

    AllForHer Well-Known Member

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    My mistake, you have mentioned an intervention order, but if he accepted without admissions and there have been no breaches prosecuted since, I'm afraid it again won't have a great deal of standing in the view of the Court.

    And actually, on that note, you've said the father had other ways of communicating with you - social media/e-mail/etc. - but given you are adamant about not wanting to have any contact with the father, and given there was an IVO in place that undoubtedly would have restricted contact options by the father, then I would presume that any contact from him by any of these avenues would have resulted in further action by you by way of another IVO. Surely, you can see the flaw in arguing that it was his choice not to contact you?
     
  7. Matthew Lynch

    Matthew Lynch Lawyer

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    Hi Xseptional

    Surprisingly emotive responses from the above. I am happy to answer your legitimate questions.

    Firstly and most importantly, you are in Western Australia so the courts referred to above by AllForHer do not exercise jurisdiction where you are - you need to be looking to the Western Australia legislation and court for information. The WA court does apply similar principles to the Commonwealth Courts and has some identical legislative provisions the Commonwealth Act so there are some general concepts that cross over.

    You can apply for Orders be made that you have sole parental responsibility in respect of the children, that the children live with you and that they do not spend time with their father. You could also or alternatively simply apply for an order that he be required to do all acts and things necessary to allow the children to obtain passports.

    In terms of what AllForHer said about you needing to first go to Family Dispute Resolution - that is not quite correct. You can actually apply to court for parenting orders without first attending Family Dispute Resolution if FDR would not appropriate in all the circumstances, such as in cases where there has been family violence - s66H(8)(b)(iii) of the Family Court Act 1997.

    Let me know if you would like further info.
     
    beans likes this.
  8. AllForHer

    AllForHer Well-Known Member

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    Truly, good luck. You'll need it.
     
  9. AllForHer

    AllForHer Well-Known Member

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    Also, @MatthewL, for the benefit of both myself and other forum users, can you please point to the differences between WA legislation and Cth legislation in regards to family law, specifically parenting matters? Is it primarily in Court rules, or in the legislation itself?
     

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