QLD Custody of Children - International Dispute

[Tamsin]

Hi everyone. I came to Australia with my now ex husband and our two children, who are now 4 and 6 when he got a job over here. Our marriage failed very quickly and I suggested we should all go back to the UK. My visa was linked to him and his job, and I was still a full time mum with a baby, and no right to work here. He refused. It got a bit messy and ended up in court, and his stance was that even if I was allowed to return to the UK with the children he would stay here for his job. I didn't want my kids to go through that and so I borrowed a heap of money and went back to full time study so I could get another visa.

Fast forward to now, I am now in another relationship. We have registered the relationship, have lived together for over a year, and we are very settled. I've finished my studies, have set up a small business, and applied for a permanent residency visa in Australia. The kids are at school and have a really good life. And my ex husband just filed me with a court application saying he has lost his job, he will lose his visa, and we should all move back to the UK.

He has a second statement saying if I did not want to relocate back to the UK he should be allowed to take the children to live in Hong Kong with his family. His grounds are that my business doesn't earn much money (I only do it part time, as my partner is a high earner) and he says I am not able to support the children properly. And that us all moving is the only way for the children to have both parents in their lives. He doesn't have a new job in either of the countries he is saying he should be allowed to move the children to.

He hasn't paid the correct amount of child support in 18 months. I'm so angry that I had to completely change my life and go through a lot of hardship in order to allow my kids to continue a proper relationship with him. I'm also terrified that the court will think I SHOULD move back to the UK with him. Of course I don't want to happily stay here and have my kids distraught because their father has been deported. But I have followed him around the world and put my life on hold for years so he could pursue his career.

Obviously I know it comes down to the judge. But I know that the family court puts the children's best interests first and likes to keep families together in relation to custody of children. Is there a similar onus put onto how settled a family is in their new lives etc?

 

[AllForHer]

If I may, how old are the kids and what are the current care arrangements? Who do they live with and how often do they see the other parent?

 

[Tamsin]

They are now 6 and 4.
The current court orders are that they live with me and spend alternate weekends and a night in the week with their father. We used to do 50/50 but my ex has issues, and the family report showed that he is unable to put the childrens needs before his own and so his time with them was reduced.

 

[AllForHer]

Okay, so you've got a lot of things working in your favour.

First, they're young and you're the primary carer. Ordinarily, the court is reluctant to uproot kids from their familiar routine, household and school, and to order them relocated to another country, away from their primary carer, is a significant upheaval that would likely impact the kids in a negative way, especially given their young ages.

Second, what you've listed as the father's grounds for wanting to take the kids abroad has very limited weight under section 60CC of the Family Law Act. So long as the kids are having their needs met, the financial position of either party is fundamentally immaterial. It's not in a child's best interests to live in a mansion when the cost of doing so is emotional distress caused by separation from their primary caregiver, is it?

Third, everyone enjoys the right to freedom of movement under an international covenant, so a court dealing with this children's matter simply does not have jurisdiction to order that you relocate to another country. Certainly, you, as the primary carer, would encounter difficulty if you relocated such a distance that the father's time with the kids couldn't be facilitated, but as the non-residential parent, the father's decision to move will be seen only as his decision to move away from the kids.

It's a shame you have to deal with this, but I just can't see a court ordering relocation of young children away from the primary carer in a 65/35 arrangement to another country because it would be hard to argue that such a move is in the best interests of the kids. Even suggesting it shows that the father's interests are self-centred, rather than on what's best for the kids.

Some things worth considering - if the kids have passports, apply to have them placed on the airport watch list until the proceedings have been settled to avoid the risk of international abduction. If you haven't already, organise mediation as a show of good faith that you wish to settle things amicably. Consider responding with orders that include provisions for facilitating relationships between the father and the kids if he does relocate abroad, such split air fares four times a year and Skype calls three times a week or something.

Finally, please make sure you get qualified legal advice! What I provide is just a very generalised assessment of the situation, and legal advice will be able to far more specific.

In summary, even though nobody can predict an outcome because it's deoendent on the facts, the individuals and the judge, but I can't see a court ordering in the father's favour. It just doesn't seem likely.

 

[Tamsin]

Thank you, your reply was very informative!
The childrens passports are held by the court, as my ex actually took the children and withheld them from me some time ago. During our breakup he had threatened to take them out of the country, to China which is not a Hague signatory country, if I did not comply with his wishes. This was enough grounds for me to get the court to keep the passports indefinitely.
I have made attempts at mediation three times now, and keep having to re-do my one on one as the issues always change, while he has failed to turn up to any of his own appointments.

I also feel that his moving is purely his own selfish decision, but he is arguing it is out of necessity. He claims to be unable to find a new sponsor for his visa, but he is also not considering other visa options which I had to do when he refused to leave. In your opinion would the visa angle be something that might colour the judges view?

 

[AllForHer]

I don't think so. The father's visa issues aren't intrinsically linked to the best interests of the kids, morally or legally under section 60CC, so again, it's just not something I can see the court giving weight to.

At the bottom line, the court will want to know from the father's evidence why it's better for the kids to be uprooted from their home and removed from their primary carer who has a support network and an established capacity to provide for the kids needs, to be relocated to another country where the father has no guaranteed employment prospects and thus no real evidence to show the kids will be provided for if the court rules in his favour.

That sounds an awful lot like fighting a losing battle, if you ask me.

 

[Tamsin]

This is what I've been thinking and feeling since he served me, but its better to hear it with some Family Law Act reasons too. His papers are full of nonsense like how his parents will provide financial assistance once the children are under his direct care, but to my ears that just sounds like them saying they wont provide any support unless he gets full residential custody. Which doesn't sound like anyones best interests are being considered but their own.
He tried to take full custody once before, after I first left him and he had hidden all our assets, I had no funds and was barely scraping by. He said he should take them as I couldn't care for them. The judge did not like that at all, as he was the one who had caused my financial situation and he denied his requests. Now that I am in a much stronger position and the kids have a very stable home life he has even less chance.
I've been having a bit of a panic about it! I just need to get my head straight and get the ball rolling....

 

[AllForHer]

I am sorry you're facing this situation, but the court has served your kids well once before and will likely serve them well again. Your judge already found once that their best interests were not served by living with the father. This return to litigation with what sounds like very little consideration for the kids might just reaffirm the court's original decision.