NSW Is it legal for my wife to hide out with my 2-yo kid without telling me?

[smallcat]

don't ignore centrelink. BAD idea.
Learn there rules.
I believe you can get a 13 week reprieve by explaining that your 0% care is courtesy of the ex and you're taking action to rectify the situation. Give it a go, might work.... Sorry ol' mate. I'm exhausted so I can't give you anything more specific than the website with csa rules
Using the Child Support Guide | Child Support Guide
somewhere in that maze they call a policy document is something that is similar to your situation. I'll try and find it for ya but I'm off to bed. Been a big weekend and I'm back to work tomorrow. But the surf at my local was awesome. My fingers hurt from typing...

Called CentreLink and they said if I don't need to provide anything, because my kid indeed is not under my care at the moment.
They also suggest I can call 131524 to "Report Fraud" to CentreLink.... I may give it a go.

I can't find "policy document" on Child Support Guide page, can you tell me how is it related to my situation?

 

[smallcat]

I'm pretty late to this discussion but my thoughts... Yes it will escalate things at at time when the OP seems to be TRYING (unsuccessfully) to de-escalate.. But given there is grounds for a family violence order based on the mention of her previously being violent, he might actually be within his rights to take out a FVO against her and have the children named on the order. Yeah, it might seem to be a bit of a low blow but given how these things inevitably become a case of strike hard and strike early or the other side will, better to get one in before she does IMO. As long as it isn't obviously vindictive, I don't see the issue. There does seem to grounds for worry about the safety of the children if she has been violent before (and there's evidence of it, which there seems to be).

Of course the obvious question is whether the OP is capable of looking after the children full time in his current situation, and what the care arrangements were prior to separation. That may play some part in whether he actually wants to do that. But I think it's certainly there as an option and could start to push proceedings in his favour...

Wow, you are so smart! Yes, I am trying to cool her off but not sure whether this approach will work or not.

I need her to be reasonable to settle both the kid and financial matters with me. On the other hand, I am also preparing for mediation in case she keeps refusing to talk. For the worst case, I still have the reports from different professionals to support me as the only DV victim.

AVO is not an option now because she moved out already, and police will not do these for us as there is nothing happening.

Actually both of us can't really look after our kid by ourselves only. 80% of the time, our kid is looked after by my partner's mother or my mother. How does the court look at this situation?

 

[sammy01]

so this started mid-december. Have not seen the ex since? Gonna be hard to establish grounds for an avo against her given she hasn't seen you in 6 weeks. You're under no iminent threat from her are you?

Just be patient and get to mediation.
why can't you or her look after the kids? that complicates things

 

[GlassHalfFull]

so this started mid-december. Have not seen the ex since? Gonna be hard to establish grounds for an avo against her given she hasn't seen you in 6 weeks. You're under no iminent threat from her are you?

Just be patient and get to mediation.
why can't you or her look after the kids? that complicates things

What I've often wondered about is whether you can get an AVO if your only concern is the safety of the children in your ex's care, even if you have no contact with the ex and have no claim to being the victim of violence from them. Can you have only the children named without yourself also being protected on the order? If so, I assume the knock on effect is that the children would have to be placed into your care since they couldn't remain with the ex (assuming of course the AVO says no contact between the applicant and respondent obviously). Or is that something that only the relevant child protection authority can deal with?

Not saying my question actually applies to the OP in his case, since it sounds like his claim is about the threat of violence towards himself rather than his children...

 

[sammy01]

glasshalf full. Of course if one parent was abusive towards a child then an avo would be applicable and by default would leave the child in the care o fthe other parent. But you're working on a false assumption if you think it is all about family law strategy rather than actual violence. Convincing a kid to lie to the cops is harder than an adult walking into the cop shop and saying their partner is abusive...

small cat - here is a direct link to the bit that explains that if one parent is refusing access and refusing to participate in discussions around access then CSA can make a determination to not enforce 100% care.
2.2.4 Disputed care arrangements | Child Support Guide
Read the bit "Taking reasonable action to ensure compliance with care arrangement"

 

[GlassHalfFull]

Sammy - right, but in many cases, police base their decision to take out an AVO at your request based 100% on your sob story. So your child wouldn't even need to speak to police in order for you to get the AVO. Happened to me, with no real evidence of any violence whatsoever. Just a story my ex told police, full of lies and twisted truths.

I wasn't thinking about it in terms of family law strategy really, although it would clearly be a strategic advantage to have the children placed into your care for 12+ months while your furious ex partner has to wait in 'the system' to get a contested hearing in the state courts to actually try to disprove the allegations. Which in itself may be easier said than done when it's just one person's word vs another and the presumption is that the accused probably did it. How genuine the fear is seems to be more important than whether there is evidence to suggest it actually happened. And then after 12+ months, even if you lose the contested hearing, there'll be no penalty (either in the magistrates court, or indirectly in the family law courts) for losing it, and you've still had 12 months of established care of the children which makes it far more likely that in the family law setting, they'll maintain the status quo and let you remain the primary carer because to make a significant change to the arrangement would be unnecessary disruption to the children.

So in that sense, while technically commonwealth family law 'rules' over family violence orders, because it takes so long to get to a contested hearing/trial, whoever sinks the boot in and excludes and isolates the other ex partner first essentially wins the battle (in most cases). I know that's a pretty cynical way to look at it, and I would never subject my children to being pawns in a power struggle with my ex partner, but I can see how it would benefit those who are prepared to do it...

 

[sammy01]

Best interest of the kids....
http://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s65daa.html
Where practical a magistrate MUST consider shared care / failing that then substantial and signfiicant.
Sure the avo creates a 'status quo'. But you don't have to wait until the avo expires to apply to court, so it isn't automatically 12 months. And those family court judges were not born yesterday...

Glasshalffull - respecfully, the op didn't mention dv and you raised the prospect of an AVO? mate start your own thread if you wanna talk about your issues with avo's. I'll probably agree with lots of your thoughts, but this is not your thread, this is some other punter looking for advice about his situation.

 

[GlassHalfFull]

Best interest of the kids....
FAMILY LAW ACT 1975 - SECT 65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Where practical a magistrate MUST consider shared care / failing that then substantial and signfiicant.
Sure the avo creates a 'status quo'. But you don't have to wait until the avo expires to apply to court, so it isn't automatically 12 months. And those family court judges were not born yesterday...

Glasshalffull - respecfully, the op didn't mention dv and you raised the prospect of an AVO? mate start your own thread if you wanna talk about your issues with avo's. I'll probably agree with lots of your thoughts, but this is not your thread, this is some other punter looking for advice about his situation.

He did mention DV. I quote: "FYI, we have an Event No. with the police because she beat me to bleeding half year ago, and the Police Inspector confirmed with me that I was the victim (but no AVO)."

I accept that I probably went slightly off-topic with my comments though, although I think they do relate to his situation since clearly he would have the grounds for an AVO if she literally beat him bloody 6 months ago, but the question remains whether it would be in his best interests. It sounds like it wouldn't.

 

[smallcat]

if she literally beat him bloody 6 months ago, but the question remains whether it would be in his best interests. It sounds like it wouldn't.

Hi GlassHalfFull, can you further elaborate this?
Getting an AVO against ex, in order to have the kid solely for xx months while waiting for the hearing, it sounds a very vicious strategic move. No matter what the result is, you already lose the precious xx months to live with your kid.


Hi Sammy, I haven't seen them since they moved out (4 weeks now). I will request to see my kid and also start negotiate with her to see what she wants and what is her plan.

I don't think AVO will works for us after she moved out, as we have no in-person interaction since then. But I miss my kid very very much, can't help not to cry... As she is emotionally unstable and always arguing with her mother, hurting our kid is just a matter of time. (especially when our kid is getting older)

I read the section of "Taking reasonable action to ensure compliance with care arrangement", but it seems it is referring to cases when "care arrangement" is in place. We don't have any agreement about our kid yet, so it is irrelevant to me at the moment I think.

I have full time job and she is too lazy to do household things, that's why she asked her mother to stay with us 7x24.

I will have my own pre-mediation meeting with mediator very soon, will see how it goes. In fact she said "separated" only but not "divorce" yet. If I ask her for mediation, I think this means declaring war and she will be pissed off.


Thanks for the helpfulness of both of you! BTW, do you believed that those women organizations will teach your ex how to take advantages over you?

 

[GlassHalfFull]

Hi GlassHalfFull, can you further elaborate this?
Getting an AVO against ex, in order to have the kid solely for xx months while waiting for the hearing, it sounds a very vicious strategic move. No matter what the result is, you already lose the precious xx months to live with your kid.

Yes, that's exactly what it is in many (most?) cases. But guess what? It works. Once you have established a reasonably long term care of the children, courts are more unlikely to hand the care back to the other parent, even if that parent is capable or previously looked after the children. That's why it's a tragedy that so many family law cases take so long to be resolved. By the time a trial and a decision is handed down, care has been established by one parent or the other and except in cases where there is very clear negligence or risk, it's unlikely that the children will be asked to be uprooted again.

I'm not sure what you mean by your last sentence though. If you got an AVO against your ex, SHE would be the one who loses xx months living with the child, not you. And she may also lose many more years with the child too, seeing them only for a day on weekends or something.

I don't think AVO will works for us after she moved out, as we have no in-person interaction since then.

Not necessarily. You don't NEED recent in-person interaction, although it would certainly make the case stronger. What I was discussing with Sammy is whether a risk of violence to the child would be enough to get an AVO against her. We seemed to agree it could, and since she is in contact with the child, that may be enough since the risk is potentially high and imminent.

In any case, I'm not necessarily recommending you get one. I'm just saying it would benefit your case if you did (at least in terms of strategy). It is indeed a vicious strategic move, but it is one that happens regularly from what I hear.