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Leon, Solicitor
Category: Australia Law
Satisfied Customers: 44852
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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8 years ago a family court judge ordered my 3 year old girl

Customer Question

8 years ago a family court judge ordered my 3 year old girl to live with her father. She has endured years of verbal, physical, emotional, chemical and sexual abuse. She has been over seen by many authorities as Dr's, counsellors DOCS, pre-school, two primary schools she has fallen through the cracks. She has given up hope, She is almost 12 and she needs a safe escape and excellent psychologist to recover. Can you help?
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year 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 this is not legal advise but a guide to assist you.

Do you have reports about her mental position having lived with her father?

Customer: replied 1 year ago.
I am not allowed to take her for assessment. I have an affidavit of events that have occurred. She is too frightened to talk. Her abuse and lack of professionals reporting has taught her to not tell anyone any more.
Customer: replied 1 year ago.
I have her for a week from today.I have tried to find a solicitor before , but they did not help her they just took my 5000 dollars.
Customer: replied 1 year ago.
People tell me she is old enough to walk away.
Expert:  Leon replied 1 year ago.

Good Morning.

The court may consider her requests bust she has to be prepared to say what is happening.

Here is the position on a child having a right to choose.

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.

Customer: replied 1 year ago.
But I know 3 children in foster home as they won't live with the abusive father. The court won't let them live the mother
Foster care is not always safe.
Expert:  Leon replied 1 year ago.

Good Morning.

It all depends on the evidence that is there about the parents.

The court does not take children away from a parent for no reason. There has to be evidence against the mother.

If things have changed you have to put that evidence to the court and show that the child would be better off with the mother.

You have to file an application with the court and get all reports from DOCs and also seek orders that she be assessed independently.

This is the only option.

Customer: replied 1 year ago.
Judge watts was proud of his orders and published them for others to follow. There was evidence that the father was violent. I certainly had post traumatic stress from the assault by my husband and his mother whilst I was holding our premature baby. Australia didn't recognise pts then. So the phyc did not know what to call my condition. We live too far apart to share custody.sans souci and Wilborforce. I knew the advice above before I wrote in. It is procedural not intellectual.
Expert:  Leon replied 1 year ago.

Good Morning

Yes but that was years ago. Things have changed and if there is evidence the orders can be varied.

The system is procedural and you have to have the evidence to back up what you are putting up to the court.

I am sorry I cannot give you anything more positive.

If there is nothing further

thank you for using my services.

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

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.



Customer: replied 1 year ago.
I did ask what could happen if she chooses not to go back. The state police do not have juristriction. The federal police are busy. The court takes a year plus to get into. Please the 60i obtainment time. So what do I tell my daughter.
Expert:  Leon replied 1 year ago.

The father can make an application to the court to have her returned.

If you have her living with you, it can be an application where you have breached the orders.

This is why I am suggesting you make the application so it is not an attack on you for breaching the exisiting orders.

If they file for a breach it would be on an urgent basis and the first date would be in 4 weeks.