Ive just received a letter from my daughters father lawyer telling me i have to hand my daughter over tomorrow. I feel

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Customer: Hello ive just received a letter from my daughters father lawyer telling me i have to hand my daughter over tomorrow. I feel this is putting my daughter at risk . Recently she has disclosed information. One being he got angry when she wouldn't eat something she has hated since eating solid foods he became so angry he called her carzy. Allegedly he pushed the table that connected with her leg then told her her was calling the mental home so she better eat or 2 big men will physically remover to take her to the mental home. Where crazy people live. Ive asked him to clarify to which he blamed me for his behaviour
JA: What state are you in? It matters because laws vary by location.
Customer: This is just one concurn. I strong believe if i let our almost 12 daughter go than im exposing her to DV. Another concern he refuses to discuss is fighting with his wife calling her a dickhead in front of the children.
JA: What steps have you taken so far?
Customer: Qld
JA: Anything else you want the Lawyer to know before I connect you?
Customer: Theres a lot. I went through a very difficult break up in 2018 where her dad tried to take my parental rights away. Im still trying to find my feet and financial ruined.. ive tried legal aid and couldn't get through.. Please can you help us
Answered by John Melis in 3 hours 2 years ago
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John Melis
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John Melis
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Customer
There is no court orders in place. Ive been trying to re do parenting plan he refused and we got certificate to go to court... but unfortunately I cant afford legal assistance. I do have a legal aid form that ill be sending off next week
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John Melis, Expert

Hi, I’m John, solicitor, and reviewing your post, and may need to ask a few questions a long the way to assist you.

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John Melis, Expert

You have provided good information, is there any more details you can tell me

Customer
There is over 12 years of constant issues... from taking her choices away because I put her in baby swimming classes to aapprently me sexualizing her because I asked him if i could get her ears pierced.. to last year getting a letter off child support saying his paying his wife a wage without her knowledge through trust funds.. There is years of emails not much text. I learnt very early on to limit communication to written.
I've had to always have someone with mebecause he says i take things wrong or what not making me douth everything.
The final straw was him blaming me and being sexually assaulted for his behaviour towards our daughter (refusing to eat a certain food she has always hated then telling her 2 men will carry her out of her home and to a mental hospital)
Im far from perfect and been to honest with him thinking its for our daughters best interest and would drive me to do my best.
Our daughter Brigit has never refused to go to her dads until a few weeks ago when i took her to Melbourne due to my sister having very serious health problems.. He was going to try and get me charged with kidnapping... like at her school graduation he called the police on me because we were 15mins .. its every single time any communication any event.. its conflict after conflict.. I have to stop the issues because our daughter is showing really concerning warning signs. She's not coping and feels she has to keep quiet to keep the peace.. Please can you help us?
Ive tried legal aid .. I even went as far as reporting myself to child services to get help but they said my children aren't at risk so referred me on.. only good thing that come from it is .. I got some counselling and I know I'm a good mum who wants the best for my children... and I need legal help to live with hope of one day co parenting..not consist put downs and being undermined
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John Melis, Expert

Thank you for this extra information. Have you considered putting in a restraining order?

Customer
I took all the emails and everything ive got to the court house.. they werent interested.. told me its more a Child safety department issue but they sent me back to the court house who said you'll get more success with family law. Ive been given the DVO forms but was to overwhelming.. i didnt know what to write .. when i asked they said so the issue is he forces your daughter to eat dinner... and i just feel stupid because its just little things that have built up.. it has been until the last 12 months ive open my eyes and seen we're to scared to do anything and our every move is controlled..
Legally can i keep my daughter until legal aid decide to take my case on or should I hand her over?
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John Melis, Expert

You can keep your daughter as long as she's not named as a protective person under the domestic violence order.

What you should do in the meantime is a immediately file for urgent proceedings in the family court to sort out the parenting matter.

The best situation with parenting is to try and resolve the matter amicably without court proceedings through family mediation with a counsellor or lawyer.

The Family Relationship Centre is a good option to start with as you will be able to mediate the process without a lawyer and control the situation in the way you require with the protection and best interest of your child.

https://www.familyrelationships.gov.au/

Equal responsibility for the care and provision of children is assumed by the Court. However, various factors will influence this assumption. Factors includes the current care arrangements for the child, finances, drug use, moral issues and criminal behaviour.

Despite the strong emphasis given to shared parental responsibility after separation, the paramount consideration of the court remains the best interests of the child. Shared parenting outcomes are desirable, indeed preferable, but only where this is consistent with the best interests of the child.

There is a presumption that “equal shared parental responsibility” is in the best interests of children. An order made for equal shared parental responsibility imposes an obligation on the court to consider ordering “equal time” or “substantial and significant time”.

Where an order is made for shared parental responsibility it imposes on parents an obligation to consult on “long-term issues”. Long-term issues are specifically defined in the FL Act to include matters such as health, religion, education, change of name and changes to living arrangements that make it significantly more difficult for the child to spend time with the parent. The court must also consider whether each parent has in the past fulfilled their responsibilities as a parent.

It is possible for parents to come to an agreement between themselves about their children’s care post-separation, without involving any court process. This agreement is called a “parenting plan”. Because it is developed and agreed between both parents, there is no need for the court’s involvement; it is an informal agreement. A parenting plan will generally be more successful where there is a high degree of cooperation and low conflict between the parents. Parents are free to alter the terms of the parenting plans whenever they wish. For example, where the child starts school and arrangements for the school holidays need to be made. In this way, parenting plans provide for great flexibility.

A parent plan must be in writing, signed by the parties and dated.

The parties to a parenting plan will normally be the parents of the child, but could include other persons such as grandparents or step parents who are involved in the care, welfare and development of that child.

The Family Law Act 1975 encourages parties to settle family disputes and to use litigation in the court system only as a last resort.

If the mediation fails the next step is to raise proceedings the Family Court to seek orders for parenting.

You will need to commence an action in the Family Court.

It is recommended that you do use lawyer for this process.

You can run the case yourself

The application is on the following link:

This link is a do it yourself guide on the family court website.

When you seek orders you need to be very precise on the details.

http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/forms-and-fees/court-forms/diy-kits/kit-diy-initiating-application

The most important aspect that needs to be addressed to the court is:

FAMILY LAW ACT 1975 - SECT 60CC

How a court determines what is in a child's best interests

Determining child's best interests

(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

Note: Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.

Primary considerations

(2) The primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

Additional considerations

(3) Additional considerations are:

(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

(b) the nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child);

(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child ;

(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(f) the capacity of:

(i) each of the child's parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j) any family violence involving the child or a member of the child's family;

(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m) any other fact or circumstance that the court thinks is relevant.

Consent orders

(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

Right to enjoy Aboriginal or Torres Strait Islander culture

(6) For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a) to maintain a connection with that culture; and

(b) to have the support, opportunity and encouragement necessary:

(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

(ii) to develop a positive appreciation of that culture.

Once you complete the application you file the same with the court and then serve the document on the other party.

There is a small court fee that you will also be required to pay for the process as well.

You have a legal right to protect your interests in this important situation.

​Thank you for reaching out today.

You have a legal right to protect your interests in this important situation. I am a user like you in this chat forum to assist in your important question today. Thank you kindly for rating me with 5 stars, which helps me support the community. You can come back to this post any time to ask questions without additional charge.

I hope I have assisted with answering your important question today, and thank you for supporting the community.

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