NSW Is there anything I can do?

[Blossum]

Hi,
I have 2 children (11 & 9). I separated from their father 7yrs ago. Settlement was finalised 4 years.

I had been the sole carer for our children up until 18mths ago.

I live in NSW and our children are in QLD with their father.
Everything had been amicable up until 2mths after they moved to QLD.
I was going through a really tough time and in the best interest of our children I told the father he needed to take them for a while.
It was a verbal agreement that they live with him in QLD (he has his sister for support) for 18mths - 2yrs so I could get back on my feet.
I have spent time with our children 3 times in the last 18mths due to financial issues in regards to the distance and accommodation.
We have done mediation and have the certificate. I have been to legal aid and all they said was apply for aid to go to court.

When our children were with me over Christmas they didn't want to go back. They are too scared to tell their father. I pleaded with him but he threatened a recovery order. The way he now feels about me, he would do it.

It is purely out of spite and control issues for him that he is withholding our children.

I have text confirmation that he changed his mind about it being temporary once he got our children to QLD.
Also have an admittance in a text from him that he's left our children unsupervised and asleep at 3.30am / 4.30am to go to work. (Our children have said it's at least 2 - 3 times).
Our son has told me how he hits him over the back or side of the head when he's angry.
Also he tried to force a panadol down our sons throats and when that didn't work he made him chew it.
I guess my question is could I go to the police as far as the kids being left unattended and what he's done to our son?
Also if I did that would they just remove our children?
Thankyou for taking the time to read this.

 

[sammy01]

Ok so you had to send the kids to dad? I don't care why... Drugs, gambling problem, mental health... what ever... What is most important is that it is no longer an issue... So lets assume that to be the case.

You have two options.
apply to court asap.... Get help to do the paperwork yourself. Google family law and start reading
Here let me get you started
Family Law Self-Help Center - Representing Yourself In Court
OR next time the kids are with you, do not return them...If he applies for a recovery order you get to state your reason why the kids should be returned to your care.

 

[Blossum]

Ok so you had to send the kids to dad? I don't care why... Drugs, gambling problem, mental health... what ever... What is most important is that it is no longer an issue... So lets assume that to be the case.

You have two options.
apply to court asap.... Get help to do the paperwork yourself. Google family law and start reading
Here let me get you started
Family Law Self-Help Center - Representing Yourself In Court
OR next time the kids are with you, do not return them...If he applies for a recovery order you get to state your reason why the kids should be returned to your care.

Ok so you had to send the kids to dad? I don't care why... Drugs, gambling problem, mental health... what ever... What is most important is that it is no longer an issue... So lets assume that to be the case.

You have two options.
apply to court asap.... Get help to do the paperwork yourself. Google family law and start reading
Here let me get you started
Family Law Self-Help Center - Representing Yourself In Court
OR next time the kids are with you, do not return them...If he applies for a recovery order you get to state your reason why the kids should be returned to your care.

Thanks for the reply and info sammy01.

Yep, no longer an issue.
Have a govt accredited job, have done courses to improve my chances of employment (hadn't worked since having our children)
Am currently working 2 jobs.

So, when he applies for a recovery order do I get a say?

I thought it would be processed and I'd have no say. I thought the police would just come and remove our children and there'd be nothing I can do.

 

[AllForHer]

You can ask local police to conduct a welfare check if you're concerned for the kids' safety, but other than that, state police have no jurisdiction to interfere with parenting matters, so they won't remove the children even with parenting orders in place. The proper avenues are to either file an application with the Court for contravention orders, or an application to vary parenting orders.

I guess you could try your hand at keeping the kids next time you see them, but given that you've seen them three times in 18 months, who knows when that will be?

If dad does seek a recovery order, there's a pretty good chance it will be accompanied by an initiating application to vary the parenting orders, and given the kids have been living with him for two years, I don't think there's going to be grounds to dismiss on Rice & Asplund, so you'd probably have to prepare to argue again why the kids should live with you.

I think this will be an uphill battle - they're settled now with dad, and you've shown that you'll uproot their lives and sent them interstate on a whim whenever you feel like life's a bit hard or too expensive. Everyone falls upon tough times in their lives, everyone experiences financial strain, but parents can't just give up their responsibility to their kids when they're feeling a bit down on their luck. How can the Court be sure that you won't send them back to dad's again in a few years' time?

It's also very difficult to reconcile what I think are allegations of abuse with the fact that you sent the kids to live with their dad 18 months ago and haven't withheld them since. You're only citing fears for their safety now that you want residency again, surely you can see what conclusion that might allude to? And the kids' comments to you also aren't worth much unless they're also freely repeated to a family report writer.

You can try for primary residency again, but I think you'll have trouble getting it. I think the more sensible option, and the one that probably better aligns with the best interests of the children, is to negotiate a care schedule in which you see the kids regularly, rather than sporadically as has been the pattern for the preceding 18 months.

 

[Blossum]

You can ask local police to conduct a welfare check if you're concerned for the kids' safety, but other than that, state police have no jurisdiction to interfere with parenting matters, so they won't remove the children even with parenting orders in place. The proper avenues are to either file an application with the Court for contravention orders, or an application to vary parenting orders.

I guess you could try your hand at keeping the kids next time you see them, but given that you've seen them three times in 18 months, who knows when that will be?

If dad does seek a recovery order, there's a pretty good chance it will be accompanied by an initiating application to vary the parenting orders, and given the kids have been living with him for two years, I don't think there's going to be grounds to dismiss on Rice & Asplund, so you'd probably have to prepare to argue again why the kids should live with you.

I think this will be an uphill battle - they're settled now with dad, and you've shown that you'll uproot their lives and sent them interstate on a whim whenever you feel like life's a bit hard or too expensive. Everyone falls upon tough times in their lives, everyone experiences financial strain, but parents can't just give up their responsibility to their kids when they're feeling a bit down on their luck. How can the Court be sure that you won't send them back to dad's again in a few years' time?

It's also very difficult to reconcile what I think are allegations of abuse with the fact that you sent the kids to live with their dad 18 months ago and haven't withheld them since. You're only citing fears for their safety now that you want residency again, surely you can see what conclusion that might allude to? And the kids' comments to you also aren't worth much unless they're also freely repeated to a family report writer.

You can try for primary residency again, but I think you'll have trouble getting it. I think the more sensible option, and the one that probably better aligns with the best interests of the children, is to negotiate a care schedule in which you see the kids regularly, rather than sporadically as has been the pattern for the preceding 18 months.

Thankyou Allforher for the reply.

There are a couple of things I'd like to clear up.

We only have a parenting plan at the moment.

I'm meant to see my kids next QLD school holidays.

The reason I've spent time with them only 3 times is because I drive a school bus in NSW and the holidays are ATLEAST one week difference aswell as the fact that their father had refused to let me get them as I wouldn't give him my address. This I know I will have to give with any court orders but at the moment I don't feel safe with his feeling towards me to give him that.

Also I have been trying to get them back since Jan 17.

He has only been in QLD and looking after our children since mid SEPT 17.
Before that they were living with the fathers sister and family and he visited 4 times between July 16 - May 17.
He hadn't seen our children from May 17 through to Spet 17. This was due to him working away.

The children were emotionally neglected with their Aunty. She told me she didn't want them there. I was ready to go and get them but he refused to allow it.

As far as sending them interstate on a whim, that couldn't be further from the truth. There was a lot of thought and heartache in the decision that I made and I live with that everyday. It wasn't that life got too hard or expensive either, events happened in my life that were out of my control and I did the best thing at the time.
As I said it was amicable back then and their father was totally supportive of me and the decision at the time.
I agreed to the children to going to QLD on the condition that their father was going to be with them. When he told me that his sister would be looking after them I was distraught. But at that time it was too late.

Our children came and stayed with me over Christmas for 4 weeks. They were more than happy to stay with me. They were both upset that their father wouldn't allow it.
As far as withholding them, I had been advised in both July 17 (children were with me for 2.5wks) and the last holidays that it would go against me in court.

I have been worried sick about their emotional and psychological wellfare since Sept 16. It has nothing to do with the me wanting residency.
I have done everything that I can think of civilly and by the book and that is why I am on here asking the question.
There is a lot more that I'm not going into and I can understand from what I've originally posted you can come to those conclusions, but they couldn't be further from the truth.

 

[sammy01]

3 things.
1. do you have court orders / consent orders? anything going back to when you guys first separated?
2. You have already answered your own question at the very start - legal aid and apply to court. If you don't get legal aid then get back on here and apply to court and self represent.
3. nothing to stop you from doing the court application. ASAP.

So look you could keep the kids, refuse to return them... And yep you will get a say in court. No the cops wont come knocking.. So this is an option... Maybe he will get legal advice and realise that he is wasting his time (BUT - there is no certainty... Magistrate is just as likely to order the kids back to dad at least in the interim and in-fact there is the possibility that you take this through court and the kids still stay with him).
The other problem with withholding the kids is that it is high conflict. I reckon the ONLY time to withhold kids is when you have serious concerns for the kids welfare... Now you have suggested that dad is abusive... Look I reckon my ex is abusive towards the kids, she threatens to hit them AND she does hit them... They tell me she has slapped them on the face. She smokes in the car with them and 2 kids have asthma... Bad parenting? YEP.. child abuse? nope, or at least not bad enough to give me grounds to stop them visiting her.

Other options? move to QLD? is that an option? They have Govt jobs there too....

So apply to court, I'm guessing you're not gonna get legal aid. Not if you're earning an income. But I'm only guessing. There are lots of websites that help with self representation.... There is a book called 'breaking up' by a guy called Larkin... Get it from the local library.