SA Family Law Court Date Pending - Kids Involved?

[No_Pony]

Hi. I've recently been to conciliation, which failed due to other side choosing to ignore existing joint liabilities. The highlights are: ex has brain tumour and has not worked for sometime, he served papers on me based on a 50/50 split. I have 85% care of the three young children. He needs to get out of his current residential property owned by his brother. He wants to move in the jointly owned property next to me.

The issue is that my 11yo daughter is already currently getting counselling and had has recently started 'cutting' herself. I strongly feel that having their ill father right next door will be overwhelming for the kids and near impossible to keep a routine with the kids. I also strongly feel that it will become a popularity contest with the kids. It will be near impossible enforce discipline if required, or maintain boundaries as they will simply run next door (either way) if they don't like what is happening. This opinion has been confirmed by my daughter's psychologist.

My query is: what are my legal rights under family law in relation to this? A family court date is likely to be set towards the end of 2015. Can I prevent him moving in? What would be the negative implications of me moving out of the family home (5years)? The kids are 11, and twin boys 9.

Thank you for any help.

 

[Tracy B]

Hi No_Pony,

I apologise for your question going so long without someone responding.

Has there been any changes in your situation since you last wrote?

You basically ask two questions here:

1. Can he move into a jointly owned house?
2. Should he move into the jointly owned house, which happens to be next door to you and your kids?

The first question is likely, yes. The house is jointly owned. Which means, he has an interest in the house. This means, you cannot prevent him from taking possession of his share of the house or using it (e.g renting it out).

The second question is more complicated. If you think it will hurt the children if he moves in next door, you should speak with him about this. Perhaps seek meditation (different to conciliation) or another form of dispute resolution. Does he know about your concerns? What does he think about your view that it will hurt the kids?

If your ex does not move in to the house next door, does he have anywhere else to go? Can you and your kids move in to another residence? There are no legal consequences to you moving the kids out of home. There may be psychological issues for your children, removing them from their known environment, relocating them to a foreign place, education concerns. Have a chat with Relationships Australia, family councillors and other professionals who are better positioned to answer this for you.

Finally, courts are of the opinion that it is generally better for children to see both their parents on a regular basis. Courts do not receive well acts, taken by one parent, that prevent children from seeing their other parent. I would recommending working with your children, asking them for their opinion, working with the psychologist and other family/child professionals to see what really is best for your children, not just what you believe to be best for them (because unfortunately, sometimes they are not the same thing, despite the well intentions of the mother).

 

[No_Pony]

Hi. Thank you for your reply.
Much has happened since April. I did lodge an affidavit in court to request a judge deny him the right to move into the adjoining house. The judge agreed and he was denied the ability to move in, on the basis that if we could not live together, how could we live as neighbours? I was very fortunate that the judge agreed with my position and it was a huge relief to me. I was absolutely serious in my intention to move houses for myself and the children if he moved in.
Since April we have also had a financial separation which was stamped by the court in late May and finally settled only last week. I have stretched myself to buy him out of the two properties. The ultimately split was approx. 67/33. It was slightly more to him that my lawyers advised and slightly more to me than his lawyer advised, but we avoided a potentially financially draining trial and therefore I am happy with the compromise.
Thank you for your words.

 

[Tracy B]

Hi No_Pony,

Thank you for updating us on your situation. I am glad to read your matter has been resolved and in a manner favourable to you. It sounds like you have finalised the separation and can finally move on from this period in your life.

I wish you the best of luck for the future.