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NSW Separation and Child Matters

Discussion in 'Family Law Forum' started by TSAUS, 30 April 2015.

  1. TSAUS

    TSAUS Member

    29 April 2015
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    I have been married for 6 years and have a 1.5 year old child. I am living with my in-laws at the moment. My mother in law (MIL) is extremely controlling over my child and there is no doubt she is undergoing trauma for years due to her own bad marriage and other hormonal issues she is having for a long time. Since the birth of the child, MIL had been verbally abusive to me (she has said things like I'm not a disciplined mother, not a protective mother, she will stop child playing with me, no use me being in the house & better to go to work etc) especially in front of the child. She is also controlling all aspects of my child. My husband hasn't helped in fixing this situation and communication has been very minimum between us with him working long hours and work related travel etc.

    Although I never plan on divorce, I like to find out:
    1. About my rights as a mother to leave the house and go to my parents house with my child if verbal abuse continues as it is not a good environment for the child or myself.
    2. I have been restricted of access to child seat as well and therefore can I get help from my family for transportation to leave the house?
    3. If I leave my in-laws house & my husband insists that we come back and live with his parents which I don't want to, is it best to go for alternative dispute resolution so that the child can spend time at both houses if some kind of informal agreement can be reached? Of course it is going to be difficult if both parents are living in separate places but don't really want a divorce.
  2. AllForHer

    AllForHer Well-Known Member

    23 July 2014
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    At the moment, this seems a bit more like a domestic relationships issue, rather than a legal one. You might find better aid in family counselling than legal recourse, but I'll address the situation as best I can.

    In terms of rights, you don't have any rights 'as a mother', but you do have rights as a person. Under the ICCPR, you have a right to freedom of movement, which entitles you to leave the property if you wish and live at another location. When there are no court orders or parenting plans in place, you're also free to take the child with you as you and the father share in parental responsibility, meaning you can make decisions about the child's care, welfare and development. You can also seek the aid of your family members to assist in transportation, and I would add that transporting a child without an appropriate restraint is illegal.

    As a matter of interest, only you and the father have parental responsibility for the child, meaning the grandparents are unable to make any decisions about the child's care, welfare and development without a court order to do so (which is only ordered under extenuating circumstances, like the child having lived with the grandparents and then one of the parents dies, etc.). That means your mother-in-law cannot impede on you taking the child with you.

    In terms of living situations, there are no rules about marital living arrangements that you must follow, and if you don't want to live with your partner's parents, you aren't required to do so by any bind imposed by marriage. If you want to live in separate houses, that's fine.

    Family dispute resolution is an option, and you can negotiate a parenting plan around who the child lives with and when the child spends time with the other parent. Parenting plans are non-binding agreements, so they court can't enforce them, but it at least gives some guidance and proof about care arrangements should you need it later. I suspect there may be greater challenges in the financial situation, though. The implication with marriage is that all of your assets are declared shared, so you won't be able to claim any benefits like single parent allowances or child support to fund your living in another household.

    You might benefit more from advice from Relationships Australia for family counselling than from legal guidance. I may be wrong, but it sounds like you are not being adequately heard by your partner and as such, your needs are not being addressed. It's unusual to have questions asked about children's matters when the parties are still together, rather than separated or divorced, and the Family Law Act 1975 simply assumes that the only real disputes requiring legal remedy are those arising after separation or divorce, such as property division and children's care arrangements.

    Anyway, I hope this helps in some way. I really strongly suggest talking to Relationships Australia. They have a wonderful range of courses to help people cope in a wide range of family dynamics.
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