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2tigers

Children - what happens if you/your partner decide to go home.....

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Grr, internet went off when I tried to post and I lost what I wrote... anyway, SBS TV are looking for people to interview who left Australia with their children without the permission of the other parent. The info I have (I am not connected with SBS at all):

 

Topic: Parental Consent Issues: This episode of Insight with Jenny Brockie will talk about parents who take their children overseas without the permission of the other parent. Are you a mother who felt there was no choice but to leave Australia with your children without the consent of their father? Then Insight wants to talk to you. Perhaps you did it to protect your children. Perhaps you did it because you disagreed with a Family Court decision that ordered shared parenting. Perhaps you went back to your country of origin, leaving an ex-partner behind in Australia. Whatever your reasons, Insight would like to talk to you about it over the phone and potentially have you involved in the program.

Requirements: You need to be happy to share your story on SBS Television. This program is being filmed 7.30pm Friday 27 April in our Sydney studios. We cover travel costs and one night's accommodation for guests. An initial phone conversation with Insight staff is required to confirm your participation. Send a few sentences about your story so Kym has a bit of background before calling. Contact: Contact Kym, Associate Producer by E: kym.middleton@sbs.com.au 'WNA Member - Media Call Service' in the subject line of your email.

 

Read more: http://www.womensnetwork.com.au/page.cfm?PageCode=press-call&site_id=1#ixzz1sFoxBX3T

 

If you can't watch the show when broadcast, I think SBS put a lot of their shows online. Maybe interesting viewing for anyone with children.

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This is exactly why you "should" sort it out before it happens

 

I know this has come up a few times on the thread but I'm really not sure you can. It's a pretty general principle of law that you can't write a contract that overrides statutory or common law - unless in exceptional circumstances

 

I would have thought an agreement between two parents as to who gets to take the kids home if they break up, written when they are still together, is likely to be pretty worthless if the break-up actually occurs and the other parent contests it. Circumstances have changed, etc etc, and common law (precedent) will give them a presumption of contact/access, whatever an agreement written in the past might say

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Yes, it is a great post.I liked it very much.

hope there will be more on this topic in future....

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I know this has come up a few times on the thread but I'm really not sure you can. It's a pretty general principle of law that you can't write a contract that overrides statutory or common law - unless in exceptional circumstances

 

I would have thought an agreement between two parents as to who gets to take the kids home if they break up, written when they are still together, is likely to be pretty worthless if the break-up actually occurs and the other parent contests it. Circumstances have changed, etc etc, and common law (precedent) will give them a presumption of contact/access, whatever an agreement written in the past might say

 

Pintpot, I think you're absolutely right on the legality of any agreement and certainly wouldn't say it safeguards anything. That said, it is probably not a wasted exercise if it prompts parents to at least consider the potential repercussions of a move. Marriage breakdowns are of course not so easy to predict but if a relationship feels rocky, it would be prudent to think very carefully about moving away from support networks.

 

Some of the hard facts about what happens... aside from being stuck somewhere you may not wish to live til your children are adults... if, say, a family member in the UK is hospitalised, you can't rush to their side. You can't just take a holiday to visit loved ones unless your ex agrees to it. If your parents are elderly and unable to travel here, you can't just go and visit (unless you're OK with leaving your kids behind). You might not see them again. You need to consider before moving (whether to Australia or the UK) if you can accept these things. For some people the move can work out great, for some terrible - better to at least be prompted to consider the risks.

 

My mum won't be able to make the journey here again. I haven't broken that news to my child yet but had to wipe little one's tears this week because Grandma is missed so much. I hate that I put my child in this situation. So, forgive me if I am whining a bit here - sometimes venting helps me put back on my happy Mummy face before doing the kindy run. I wouldn't say to people not to move so much as to just be very aware of what they are taking on and avoid some of the shocks.

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Not trying to hi jack this thread just adding some info that may help someone. The laws are very strick here in Australia in regards to marrage break ups where children are concerned so it is not just moving back home with the kids or even taking them on a holiday to the UK (as you will need your "ex" approval) but even moving around in Australia that becomes an issue. This is a single mums forum how ever even some dads may get an insite into the laws regarding moving with children after a break up here in Australia. http://www.singlemotherforum.com

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Not trying to hi jack this thread just adding some info that may help someone. The laws are very strick here in Australia in regards to marrage break ups where children are concerned so it is not just moving back home with the kids or even taking them on a holiday to the UK (as you will need your "ex" approval) but even moving around in Australia that becomes an issue. This is a single mums forum how ever even some dads may get an insite into the laws regarding moving with children after a break up here in Australia. http://www.singlemotherforum.com

 

Excellent point - there are some folk who have been restricted to a particular jurisdiction because one parent "takes the child to kindy on a Thursday" and that area might be a living nightmare for the custodial parent (especially if it is the "other's" home town with all their rellies and friends gathered around them!)

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Excellent point - there are some folk who have been restricted to a particular jurisdiction because one parent "takes the child to kindy on a Thursday" and that area might be a living nightmare for the custodial parent (especially if it is the "other's" home town with all their rellies and friends gathered around them!)

Totally correct Quoll, it is usually the mum who gives up a job when they have kids and moves with the partner to be nearer "his work" which as you said if often close to "his" family. Seperation sadly does not always go well and the mum is then by law required to get the ex approval to even move suburbs, if you want to move interstate basically forget it unless again the ex agrees mum has no hope even if she has to live in basic povety with no family support that is family law Australian style, so you can imagine the drama of trying to move back home to the UK. As i said have a look at that forum it will open many eyes to things they never imagined could possible be happening.

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Here is a copy of the Hague Convention - http://www.haguedv.org/articles/Washington%20State%20Bench%20Guide%20dvAndTheHagueConvention.pdf

 

And here is a snippet regarding removal with consent, difficult to make sense of the jargon, but gives food for thought.....

 

There are five reasons (see link above) as to why the courts would not return the child through the HC, below is #1, the other four given reason to: Child attains age of Maturity, Passage of One year/child settled, petitioner not exercising custodial rights and grave risk.

 

For anyone reading this - I am not legally trained, just been there and have the t-shirt. Now try to sit on the fence & have empathy for all parties. No-one wins, just the children lose.

 

1. Petitioner Consent or Acquiescence

The judicial authority of the requested State is not bound to order the return of the child if the person, institution or other body having the care of the person of the child had consented to or subsequently acquiesced in the removal or retention.

ICARA requires the respondent to demonstrate, by a preponderance of the evidence, that the petitioner consented to or subsequently acquiesced in the removal or retention.

Some courts, including one in the Ninth Circuit, distinguish between consent prior to removal and subsequent acquiescence, either of which may extinguish the right of return.

To establish acquiescence or consent, courts have required acts or statements with requisite formality, such as testimony in a judicial proceeding, a convincing written renunciation or rights, or a consistent attitude over a significant period of time.

The absence of any meaningful effort to obtain return of the child has been found by some courts to be sufficient to establish the exception.

A petitioner’s repeated actions to locate the child, however, are inconsistent with any claim of acquiescence.

A respondent’s act of concealing removal is inconsistent with any claim of consent.

Additionally, any allegation of prior consent is undermined by filing a petition pursuant to the Convention.

A petitioner’s failure to exercise obligations under a custody agreement does not constitute consent where the agreement giving custody was rescinded before removal and the petitioner’s subsequent action fails to show consent to removal.


"If you spend your whole life waiting for the storm, you'll never enjoy the sunshine"

 

 

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WOW just seen that over 47,100 people have read this thread. If I have helped just one person/family then I am happy. I would not wish the HC on anyone, looking back it was the most challenging time of my life and has changed all of our futures considerably.

 

Please do not ignore the fact that many people do split up, we spend a fortune and lots of time organising the move - but pay little regard to what will happen to the children if things do go pear shaped. What happens to them can change their lives forever. Thats a big burden to carry, so make sure you act wisely.

 

If I could do anything now - it would be to insist that people are made aware of this in their immigration package. But unfortunately, only rose tinted glasses are in those aren't they..... not the real daily facts that life throws. Would we listen anyway? Or just assume it wouldn't happen to us? At least it would be there instead of just not having a clue.


"If you spend your whole life waiting for the storm, you'll never enjoy the sunshine"

 

 

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I'm so sorry for you , I was not aware of this. How unfair. I have been in Oz now 18 months and plan to leave in July with my daughter. I came because of my husbands job, but hate it here. My husband loves it weve been married 20 years in the UK but had the problem of me not settling here. I often wish i never set foot on the plane. My husband is returning back 3 months after me Due to my son finishing his HSC exams. I hope !!, Your story is something that needs to be addressed!! Yes, they make it sound all brilliant on those stupid TV show Down Under they need to tell people the downside of life here. I hope you do get back one day with your son once he is 16 he might change his mind. Stay Strong

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2 Tigers it is not JUST the HC that is the concern, bad as it may be, it is the Family Law System in Australia that is a huge concern and people coming here need to sit down with a "family" lawyer who has a good understanding of family law in Australia even if they have to contact someone over here to get that info. Family Law in Aus is VERY different to the UK. This 50/50 rules is now destroying lives. How many on here are aware that if dad demands it babies that are being breast fed are removed from mum and handed to dad for over night access ? Each partner cant cross an interstate boarder with the children without giving varing amount of notice to the Ex partner often around 8 weeks notice with a full itinerary, so forget popping over the boarder for a quick picnic with friends. If access is writen into a family court order Children may be sick in bed but have to be handed over for access if the other partner demands it. Things like choice of school, church, even doctors must be agreed by both parties. Now that may not sound like a big deal BUT if you have one partner who just wants to be "difficult" then oh boy you have no idea of the drama AND THE COST becasue it can take weeks of legal letters and even a court appearence to get a desision. Forget "family" Christmas or Easter or school holidays, these times are split and the kids handed around like a piece of furniture. I could write pages on this issue but wont bore you all with it, but PLEASE, find out what this law is like in Australia and be prepared for what will happen if things go wrong.

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I know this has come up a few times on the thread but I'm really not sure you can. It's a pretty general principle of law that you can't write a contract that overrides statutory or common law - unless in exceptional circumstances

 

I would have thought an agreement between two parents as to who gets to take the kids home if they break up, written when they are still together, is likely to be pretty worthless if the break-up actually occurs and the other parent contests it. Circumstances have changed, etc etc, and common law (precedent) will give them a presumption of contact/access, whatever an agreement written in the past might say

 

Okay so we are due to move in a month with two small kids and this thread is frightening the life out of me. Is there even any point in contacting a solicitor if when in Australia any agreement made is useless? Anyone made an agreement and when the time comes it stands up in court?

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The best advise i can give to anyone coming to live in Australia is, if your marrage seems to be heading in the wrong direction and you have children, do what ever it takes to turn things around. Go to counciling, the doctor, the church, what ever it takes to prevent your life and your childrens lives being handed over to the family court of Australia.

I tell you once that happens your life and your childrens lives will never be the same, life will become a living hell, you will have to live the rest of your life until your last child turns 18 by the rules and regulations of the family court, and you have no idea just how bad or how expencive that will be.

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I have a brother in Oz who was married to a kiwi, they had one son and 4 years later had a break down within the marriage, she moved where she wanted within the state and he had to follow if he wanted to see his son, and finally had my brother taken through the courts left right and centre and she still would not abide by the courts. She would more often than not deny him access which had been granted by the courts.

 

She then asked for permission to take the boy to NZ for a HOLIDAY and she has not returned him to Oz and there is nothing my brother can do but wait until his son is over 12.

 

The latest is that when she moved his child support payments were deemed not payable and now because she has had a relationship break up, she has applied to the NZ courts for CS and it appears she will get it, my brother has attempted to complete on suicide at least once, feels that no matter what he does he has to pay the price while she gets off scot free and no one mentioned the HC to him or that she could go to prison for taking his son out of the country.

 

So it is not always the men who have their way and the courts do not stick to the 50% scenerio


:biggrin: Just little old me having a look ........ Have fun and enjoy

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I have a brother in Oz who was married to a kiwi, they had one son and 4 years later had a break down within the marriage, she moved where she wanted within the state and he had to follow if he wanted to see his son, and finally had my brother taken through the courts left right and centre and she still would not abide by the courts. She would more often than not deny him access which had been granted by the courts.

 

She then asked for permission to take the boy to NZ for a HOLIDAY and she has not returned him to Oz and there is nothing my brother can do but wait until his son is over 12.

 

The latest is that when she moved his child support payments were deemed not payable and now because she has had a relationship break up, she has applied to the NZ courts for CS and it appears she will get it, my brother has attempted to complete on suicide at least once, feels that no matter what he does he has to pay the price while she gets off scot free and no one mentioned the HC to him or that she could go to prison for taking his son out of the country.

 

So it is not always the men who have their way and the courts do not stick to the 50% scenerio

 

Unfortunately not all Lawyers in AU or the UK and probably all the other countries in the world, are versed on the HC. I was given very wrong advice in AU and fortunately for me that Lawyer was subpoenaed in court and openly admitted he had no idea what it was. And he was a family lawyer. Your brother is best going to a main Legal Aid office, they are in fact the best centre of knowledge that I found, when I asked why other Lawyers were not well versed, it was a case of the Legal Aid system is because of the volume of cases they deal with and their continuous progression with the laws. Some back street, and even main street lawyer may charge through the roof, but may only come into contact with a HC case once in a lifetime, if they are lucky.


"If you spend your whole life waiting for the storm, you'll never enjoy the sunshine"

 

 

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Okay so we are due to move in a month with two small kids and this thread is frightening the life out of me. Is there even any point in contacting a solicitor if when in Australia any agreement made is useless? Anyone made an agreement and when the time comes it stands up in court?

 

If you have any doubts about your relationship before you go, maybe you should reassess your move...... talking things through and coming to an agreement before a move is ideal, at least you are being realistic which most people don't do.

 

Seek legal advice, getting an agreement drawn up before your move can only help your situation. This would obviously change over time too, as the children settle it would be more difficult to move back home regardless of what you agree on. If you did end up in court, an agreement would not override the law, but it would be very strong evidence to show both of your intentions before the split. When adults do split it can turn very very nasty and then selfishness on both parts (both parents thinking of their own happiness) can raise its head, the children sometimes turn into pawns. At least an agreement is done when both are being realistic and without emotion. Saying that, at the end of the day, courts shout about making an agreement on what is best for the children, this is debatable, but once in court - they make the decisions. Not you. Your future is taken out of your hands.


"If you spend your whole life waiting for the storm, you'll never enjoy the sunshine"

 

 

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I have a brother in Oz who was married to a kiwi, they had one son and 4 years later had a break down within the marriage, she moved where she wanted within the state and he had to follow if he wanted to see his son, and finally had my brother taken through the courts left right and centre and she still would not abide by the courts. She would more often than not deny him access which had been granted by the courts.

 

She then asked for permission to take the boy to NZ for a HOLIDAY and she has not returned him to Oz and there is nothing my brother can do but wait until his son is over 12.

 

The latest is that when she moved his child support payments were deemed not payable and now because she has had a relationship break up, she has applied to the NZ courts for CS and it appears she will get it, my brother has attempted to complete on suicide at least once, feels that no matter what he does he has to pay the price while she gets off scot free and no one mentioned the HC to him or that she could go to prison for taking his son out of the country.

 

So it is not always the men who have their way and the courts do not stick to the 50% scenerio

Sheeni i am so sorry to hear of this. Dont know when this happened but as 2 tigers has said it does have a lot to do with the legal "team" you use and how much money you have. In our case the family member is now trapped in a state where she has no family support what so ever, no job and very little money, friends have walked away due to all the goings on, the ex has money a good job and a top legal team. Her life is horrendous, he is spitful, vindictive, and controling and there is zero she can do about it as she does not have the money to fight and to be honest she is not as intelligent as he is. EVERYTHING is a fight, orders are twisted to suit his desires and she gets to put up with it or find the money to take him to court, where she gets threatened with Jail for bothering the court over things the two of them should be able to sort out. The tradgedy in all this is to see what this is doing to the children who are now to be honest a total emotional disaster.

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I guess like many people here I have stumbled across this page and too have found myself extremely frightened reading the post. I am an UK citizen with a one year old daughter and whose father is Australian. We have had a very difficult time. After being together for a year and then travelling for 12 months we both returned to Scotland to save for 12-18 months for another trip however my partner did not settle well in Scotland which created tensions in our relationship.

After a year I was extremely shocked to discover I was pregnant and he did not react well at all to the news and could not accept being a father and the responsibilities involved and left and returned to Oz. I was five months pregnant at the time. Very slowly he has began to accept everything and has recently returned to UK (His parents are Italian so he has dual european and australian passport). He has been here four weeks and had made a huge effort and wants to try again and be a family however because of previous difficulties in the UK he has asked me to return to Australia with our daughter and make a fresh start.

In my head I was thinking we could try for a year however now that I found out the reality of the situation it has given me so much to think about. I love him very much however having brought my daughter up on my own for a year, I could not bear to even think about losing her. It makes me very nervous even thinking about the decisions I have to make.

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I guess like many people here I have stumbled across this page and too have found myself extremely frightened reading the post. I am an UK citizen with a one year old daughter and whose father is Australian. We have had a very difficult time. After being together for a year and then travelling for 12 months we both returned to Scotland to save for 12-18 months for another trip however my partner did not settle well in Scotland which created tensions in our relationship.

After a year I was extremely shocked to discover I was pregnant and he did not react well at all to the news and could not accept being a father and the responsibilities involved and left and returned to Oz. I was five months pregnant at the time. Very slowly he has began to accept everything and has recently returned to UK (His parents are Italian so he has dual european and australian passport). He has been here four weeks and had made a huge effort and wants to try again and be a family however because of previous difficulties in the UK he has asked me to return to Australia with our daughter and make a fresh start.

In my head I was thinking we could try for a year however now that I found out the reality of the situation it has given me so much to think about. I love him very much however having brought my daughter up on my own for a year, I could not bear to even think about losing her. It makes me very nervous even thinking about the decisions I have to make.

 

If you feel your relationship is rocky to begin with, moving to the other side of the world will probably not fix it. In reality, yes you could go over there and decide your relationship isn't what you hoped for, but then you wouldn't be able to just come home. He would have to agree. Good luck in whatever you decide, its a toughie for sure.


"If you spend your whole life waiting for the storm, you'll never enjoy the sunshine"

 

 

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Guest india12

The other shock is that if you have been in Oz a year your spouse can divorce you via the internet for $250, this will then have an impact on your financial settlement, as the laws in Oz are very different to the UK in terms of maintenance and property settlement. It can be a nightmare.

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The other shock is that if you have been in Oz a year your spouse can divorce you via the internet for $250, this will then have an impact on your financial settlement, as the laws in Oz are very different to the UK in terms of maintenance and property settlement. It can be a nightmare.

 

Here in OZ if mum gets a monetery settlement then if she has over $1000 in the bank she cant apply for legal aid all legal advise needs to be paid for out of her own funds and with lawyers charging like wounded bulls that money wont last long. Every time the parents have an issue they cant work out they MUST to go to medication (there is free mediation) takes "months" to get a place but NO LAYWERS are allowed so this can be a real trap for either party who may not be as smart or as decent as the other partner, private mediation costs on average $3000, after that then you have to go to court for a judgement and again that take months and costs HEAPS. Once your settlement runs out, then try living on center link payments which are adjusted according to any financial support ordered by the courts from your ex.

Start adding things together, a vindictive partner who wont let you relocate (supported by the court) drags you to court at every opertunity until your settlement runs out, then you start to fight becasue he is saying he cant afford to pay support so you end up living on centerlink payments just above the poverty line with no family to support you because they are all back in the UK. You cant move to get away from him or her as the case may be, you cant move to get a better job, you cant move to live in a nicer less expencive area, you cant move if you meet a new partner, you cant move to get the kids into a better school to name just a few things without the written approval of the ex, and this is all fully supported by the family law courts of Australia.

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The original link has expired but another article about the story is here. The girls and their mother left Italy after what they (including the girls) describe as considerable abuse from the father. One of the girls described him breaking one of her thumbs in a rage. The girls say they are settled and happy in Australia and don't want to leave. There have been many court hearings and at on point a relative went on the run with the girls. The papers last reported that the father has given up and gone back to Italy although I suspect that is unlikely. They argue that he gave permission for them to come to Australia, he says only for a holiday. This has dragged on for quite some time and the girls' family has gone to extraordinary lengths to try to stay here.

 

The girls had a court case claiming they should be afforded the right to be heard in court; they lost that case. Had they won, it could have had enormous ramifications for future legal hearings. I have mixed feelings about it in that it may add to pressure on children, not all of whom are equipped to express their feelings in a daunting situation. Children's feelings should be considered but the possibility of them being pressured and manipulated by one or both parents would be a problem. On the other hand I know only too well the heartbreak of having a child pleading with you not to send them to their other parent only to have to make them go, no matter how scared or unhappy they seem.

 

There are probably plenty of sensible decisions made by courts that we don't hear about but I certainly know of many erratic, strange or downright scary orders made by judges here and some of those I have watched in action seem lacking much sanity (maybe that is what the job does to them?) - I have heard more than one lawyer describe family court as a crap shoot. I'd say it is worse than that. Before I harp on any more - I'll say that anyone with doubts about a relationship before coming here should think very carefully - going through court appearances over years without family support close by is very hard indeed. If you can work on things and get to a better place for a while before leaving, it may reap rewards in more ways than one. Simply moving here, while rewarding ultimately for some, is not easy and to do that on fragile foundations would have a lower chance of success.

 

Stepping away from the pulpit now...

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Mods: I have just noticed this sticky has moved to the folder 'Feedback and Announcements'..... correct me if I am wrong, but I can't see how it falls within that category?


"If you spend your whole life waiting for the storm, you'll never enjoy the sunshine"

 

 

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Just a suggestion - maybe in the 'Moving back to the UK' thread may help people more? It would probably get missed here and it really could save a lot of people a lot of money and heartache if they are aware of the laws with moving back home with children?


"If you spend your whole life waiting for the storm, you'll never enjoy the sunshine"

 

 

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