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Ask Leon Your Own Question
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 43254
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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I have to attend federal circuit court on Tuesday over

Customer Question

Hi, I have to attend federal circuit court on Tuesday over family law. My ex exhibited intimdiating behaviour towards me and my children, I left the marital home as soon as I became aware of the latter. He says I'm making false allegations. His lawyer has given me until 3 pm tomorrow to choose 1 of 3 experts to compile a family report or they will choose one for me and I don't know where I stand on this.
JA: Because real estate law varies from place to place, can you tell me what state this is in?
Customer: not real estate, family law. Qld
JA: Has anything been filed or reported?
Customer: affidavits have been filed. I received advice from Legal Aid lawyer for that but time frame too tight for that for this query. Ex is after final orders. I was advised to ask for interim orders and that a child conference be arranged.
JA: Anything else you want the lawyer to know before I connect you?
Customer: Have reported what the children told to me to children's services, they said there was a risk to the children but they wouldn't act as I was protecting the kids by removing them. Ex is seeking 50/50. None of the kids wants to spend the night at his house. 14 yr old having panic attacks and is self harming over possibility of being made to see her dad.
Submitted: 4 months ago.
Category: Australia Law
Expert:  Leon replied 4 months ago.

Good Morning.

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand I am very limited on what I can tell you and that you may have to get more detailed advice.

You should have reported the intimidation to the police as well and if you fear for your safety then you should consider taking out an AVO.

The 14 yo has a right to have a say.

Call the court and ask them if they can give you names of report writers.

This is a normal process but the court usually appoints them.

The law when it comes to childrens rights to choose is as follows

Until 1974, children had ‘the right’ to choose which parent they lived with at age 14. Since the Family Law Act came into effect in 1975, there has been no hard and fast rule.

The Family Court now looks at a number of factors in deciding with which parent a child shall live.

There is a presumption that it is in the interests of a child to spend as much time as possible with both parents. That is called a “rebuttable presumption” in that it is a starting point, but many factors are considered before the Court will make such an Order.

The wishes of the child are important. Equally important are the reasons for the Child stating those wishes, and also considerations such as the Child’s age, maturity and level of understanding. There is little point asking a 4 year old, no matter how bright the parents may think the child is. At the other end of the scale, the Court generally looks dimly on a Parent who demands a 16 year old be told by the Court with whom they shall live.

There is no magical age. The 8 year old should normally be asked, however the Court is not bound by what they say. It is a factor to be weighed-up. A 14-15 year old will normally have their wishes granted, so long as they are expressed to be for the appropriate reasons.

One case allowed 2 children (8 and 10 years old - sister & brother) to decide that they wanted to stop living with one parent and start living with the other because the other parent provided proper accommodation, took them to school, put shoes on their feet, and fed them as one would expect to feed children that age. Very basic needs which were not being met adequately by the first parent. At the other end of the scale, a 16 year old child with a significant mental impairment will be asked, however if the Court is not convinced that their wishes are actually in their best interests, other factors will take priority.

The Court specifically looks at the attitude of each parent towards the task of parenting, whether the parents are able to provide adequately for the child and whether a parent will actively promote the relationship between the Child and the other parent. The Court prefers not to separate Children where possible. Violence, drug and alcohol abuse are also considered.

Further if you are not financial apply for legal aid to have legal representation this is not a simple matter and you need a solicitor.

I hope this makes sense and is of assistance. If there is nothing further

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If I have missed anything, or you have any further questions please let me know

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