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QLD Interstate Custody of Children?

Discussion in 'Family Law Forum' started by FirstTimeMum, 31 July 2015.

  1. FirstTimeMum

    FirstTimeMum Member

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    I have a newborn daughter 9 weeks old. I left my ex partner (1yr de facto) when I was 3 months pregnant because I was not happy. He lives in Victoria and I moved back to Queensland where I used to live.

    I regained the old job I had and worked until days before I gave birth without any financial support from him. However, since I left, the ex has been trying to persuade me to move back and try again to which I always reply with, "I want to have a baby shower here or I want to give birth here with friends and family". I thought it would be good if we get back together for my child's sake but I found out that he has been seeing a new girl and is living with him already. I was so upset and he blocked me off his phone.

    After a few weeks, I gave birth and they found out from a common friend. Him and his mum called me and asked how I was. They were all friendly and so I thought to set aside my anger for my child's sake and communicate again. His mum flew from Victoria to Queensland to meet my child.

    All is going well until recently I filed a registration of birth for my child, I asked the ex to sign the form and return to me. But after a few days waiting, he told me he doesnt want the child to have my surname (I was married before and still currently using the dead ex husband's surname) and use his name instead. On top of that, he threatens to take me to court and get 50/50 custody of children or even take full custody of our baby.

    My legal questions are:
    Are my chances good in having full custody of my child?
    How will it work if we live on a diffrent state?
    Is it true that I will be ordered to move back to Victoria?

    Please shed some light.
     
  2. AllForHer

    AllForHer Well-Known Member

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    When you say full custody, do you mean that the child live with you and spend no time with the father?
     
  3. FirstTimeMum

    FirstTimeMum Member

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    I meant the child live with me and the father will have access if he wants to.

    Another problem I have known recently is that he is on leave at his work because of back pain. I only see two things with him seeking a specialist for that. Its less child support (he hasn't paid yet) and he can't travel on plane since he cant sit for long hours. In that case, he will have no way to visit? Which makes me scared as he wants me to go back and live there. :(
     
  4. AllForHer

    AllForHer Well-Known Member

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    Okay.

    So, I'll look at this in terms of what the court might consider, but bear in mind that there are no laws that govern parenting and family matters until the parents are unable to agree and either one of the parents asks the court to intervene. Thus, the child's living and care arrangements are entirely up to you and the father to decide, but if you can't agree, only then will the provisions of the Family Law Act 1975 form the basis for how the court decides for you. Court costs upwards of $25,000, can often take up to two years, and nobody can ever predict how the court will rule - you might win sole parental responsibility, or you might end up with orders that the child live with her father, so it really is better to avoid court and try and reach agreement with the father instead.

    Your daughter has a legal right under section 60B of the Family Law Act 1975 to know, spend time and communicate with both parents on a regular basis, regardless of the status of relationship between said parents, and the court frowns on parents who take it upon themselves to violate that right or discourage a child from enjoying it. Further, there is a also a legal presumption under the Act that both parents share equally in parental responsibility, and parental responsibility cannot be removed unless by order of the court.

    Such orders are known as parenting orders, and the court must only make parenting orders that it deems to be in the best interests of the child. When making parenting orders, the court refers to section 60CC of the Act, which lists the components taken into consideration when determining what's best for the child. The primary considerations are the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from harm.

    The additional considerations are extensive, but they include the capacity of each parent to recognise and meet the child's needs (including emotional) and the attitude of each parent to the child and to the task of parenting.

    I highlight these two specifically because a parent's failure to recognise, support and encourage a child's relationship with the other parent has often resulted in the child being ordered to live with the other parent. Based on your original post, there are some incidents that lead me to believe this may be a risk.

    Specifically, the father wasn't alerted to the child's birth, which suggests to me that you felt the birth of his own child was not as important to him as it was to you. Given the father's ongoing efforts to be involved in the child's life, I would wager this isn't the case. You may also be interested to know that when determining a child's name, the court considers (among other things) what impact the change of name would have on the child's relationship with that parent, so it would be a good idea to take that into consideration when attempting to name the child after your deceased ex-husband, rather than her own father. Further, it's not ideal to refer to the father's time with his daughter as 'access'. A parent doesn't 'access' his child, after all. He simply parents her.

    In relation to distance, I imagine this will be one of the most significant hurdles to overcome, and there's no way to predict how a court would rule on this. It's likely the court would order either relocation or travel of some description, but how often and who pays is a complete unknown.

    Ordinarily, when the court upholds the presumption of equal shared parental responsibility, it will consider whether equal time arrangements are in the best interests of the child and it will consider the practicability of such arrangements, among other things. If equal time is not in the child's best interests (and it obviously wouldn't be, given the distance between the households), the court will consider if orders for substantial and significant time are appropriate. Substantial and significant time is a mixture of weekends, weekdays, holidays and special occasions, such as Father's Day, Christmas, birthdays and Easter.

    However, if substantial and significant time is also impractical, then the court may order less than that, such as half school holidays and two or three weekends a school term, but again, this is an unknown. All that can be assumed is that the court will determine care arrangements deemed to be in the best interests of the child, based on the evidence of each party, and presumably, those orders would enable the child to know, spend time and communicate with both parents on a regular basis, in accordance with her rights under section 60B of the Act.

    I hope this is in some way helps. Family law is a deeply complex and unpredictable field, but there is one fundamental rule to live by: it's in the child's best interests to have a meaningful and supported relationship with both of her parents.
     
  5. AllForHer

    AllForHer Well-Known Member

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    Sorry, I seem to have gotten it from somewhere that the child is a female for whatever reason. This may be incorrect, and I apologise if it is.
     
  6. FirstTimeMum

    FirstTimeMum Member

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    Yes my child is female :)

    Wow! Thank you for answering my questions. Reading your answer is a bit confusing. Family law sounds complex and I don't really know what to do but get a good lawyer but how can I if im just on benefits and part time job. I'm really scared and intimidated with the ex.
     
  7. AllForHer

    AllForHer Well-Known Member

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    I understand your concern, but I wouldn't assume you need a lawyer, yet, and I would even argue in favour of doing your utmost to avoid the court.

    Realistically, neither lawyer nor court knows what's best for your daughter better than you and her father do. All the court can do is hear the arguments, take a stab at writing up some arrangements and then hope the parents can find some way to make it work so their child can enjoy a relationship with both parents.

    Kids flourish even in separated households when their parents can get along, so it would be better to simply focus on amicability and try to negotiate parenting arrangements that enable the child to spend time with both you and her father, rather than leave that decision to the court.

    If you're fair with the father and agree that the child should spend time with him and enjoy a meaningful relationship with him, then there's no need to feel scared or intimidated. Co-parenting with an ex is hard work because of the emotional energy that needs to be expended in dealing with someone you would probably rather leave behind, but it's been proven time and time again that children are better off when their parents can be amicable.
     

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