QLD My near 8 year old son wants to live with me instead of his mum

[Dave78]

My son has recently been insisting on living with me he turns 8 in April, he has brought it up with his mother who then guilt's him saying "Oh you can't do that, I would miss you too much", I went through 3 years of Family court at a cost of 60k beginning with a location order, now I have moved closer to where she vanished with our son I see him every second weekend and half holidays, we now have expired court orders. Whilst he is in her care, he is late or misses a lot of school (I have 4 pages in fine print from Jan 2017 to Aug 17) with more updates to come, he has been left at school until 17:00 on a Friday (as told by his Principle) is left in after school care so she can go "socialise" has no set routines for him, being dinner, bedtimes and can be out until up to 22:00 any night, locks him out of the house, has kicked him out of the car, leaves him in the car at the shops and rings me a couple of times a week to tell me to make him behave for her (this is only the short version of some of what goes on) I am wondering what process I can do to get my son living with me noting I am on a military pension and financially and mentally can't afford another court process.
I can offer more stability as I stay at home on my pension, he shares a room with his half sister when he is with his mum (he has his own room here with me) and his behaviour with me is fantastic compared to when he is with her.
My idea first was to maybe write a parenting plan but as stated above, his mother makes everything difficult and I don't think would agree to it, which would then have to become a parenting order.
Is there any other options or advice anyone can throw in or am I on the right track?
Thank you in advance for any help - Dave

 

[AllForHer]

What do you mean you have 'expired' Court orders? Parenting orders have effect until discharged by the Court or the child turns 18, so if you could clarify what you mean by this, that would be helpful.

 

[Dave78]

What do you mean you have 'expired' Court orders? Parenting orders have effect until discharged by the Court or the child turns 18, so if you could clarify what you mean by this, that would be helpful.

The Orders we had in place were up for review in 2 years, that time has now long passed so technically out of date, I didn't have any money left at the time to apply back to court for a review and only now just finding out the circumstances my son is living in to warrant starting proceedings again.
Good news is I am getting a bit of free help with Legal aid QLD in two weeks as of the phone call I just placed.

 

[thatbloke]

You will find it highly unlikely that an 8 year olds views on where they want to live will be given full weight, and definitely not in the interim. You also need a major change of circumstances to get back into court and "my son wants to live with me" is not one. In theory, after mediation, it is possible to get back on with a valid reason as a lot of changes can happen in two years plus but just be careful what can f worms you open up by starting proceedings on the say so of an 8 year old child.

A review just means mediation, nothing more.

 

[AllForHer]

I essentially echo the above.

Parenting orders aren't invalidated just because they contain an order for their review after two years, so if you can't agree on new parenting orders with mum and decide to file for Court, this would be an application to vary existing parenting orders. As such, will likely be subject to the Rice & Asplund principle, which requires the applicant to show there has been a significant change in circumstances to warrant the parenting orders being changed, or show that the existing orders no longer reflect the best interests of the child.

Nothing of what you've said really alludes to a significant change in circumstances for R&A purposes, but if R&A doesn't prove to be an obstacle, you'd need to show that it's in the best interests of the child to live with you, the best interests being in accordance with s 60CC of the Family Law Act.

While s60CC does facilitate consideration for a child's views, the views of an eight-year-old aren't going to be given a great deal of weight because they're unlikely to be considered old enough or mature enough to fully grasp the long-term impact of their own choices. My stepdaughter is eight in a couple of months and she thinks ice-cream is an appropriate breakfast good and that water is an acceptable substitute for shampoo. Not exactly an expert on her own long-term care, welfare and development at this stage, is she?

Nothing that you've said about mum really rings any alarm bells, either. In perspective, it's a bit farfetched to expect the Court to remove children from their homes because they are in day care until after 5pm on Friday afternoons or because they wait in the car while mum pays for fuel.

The child's behaviour with each parent doesn't really say much about said parents, either. Indeed, many psychologists adhere to the theory that higher volumes of poor behaviour with one parent indicates a higher level of secure attachment to that parent - they don't feel like they have to be on their best behaviour because they don't feel that bond is at risk if they aren't. Just a theory, though, and certainly not saying it's relevant to you, I'm just suggesting some alternative points of view.

Now, it sounds like you really don't want to go to Court, so maybe you could consider improving the care arrangements without totally uprooting the residency arrangements.

Why don't you offer the look after the kid in the afternoon instead of the kid being put in after school care? It benefits you because you get more time with the kid, it benefits mum because she won't have to pay for after school care and the kid might come home showered, fed and with homework done, which takes a load off her shoulders. Might make for a good starting point for equal time in the future, too.

 

[sammy01]

Up for review. Good do mediation. Request 50/50. Request more time. But tell us more details. How far do you live from mum? Would living with you mean changing schools?