My ex wants to suddenly have custody 50% of our son. He is 7. I am the primary carer, can I say no to his request until

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Customer: Hi my name is***** ex wants to suddenly have custody 50% of our son. He is 7. I am the primary carer, can I say no to his request until mediation
JA: Who currently has legal custody?
Customer: No legal yet. We are not agreeing and our son does not want to live with his da dad
JA: Is there a child custody order in place?
Customer: no
JA: Anything else you want the Lawyer to know before I connect you?
Customer: He is taking him this weekend and refusing to return him Sunday. He insists on keeping him until Friday even though I did not consent
Answered by John Melis in 5 hours 2 years ago
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John Melis
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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.

In relation to your matter, was there any form of correspondence between the parties in written form additionally to what you have told me already.

Customer
It has all been via text. No negotiation just him telling me what he wants. I told him we need to wait until meditaton to get a patenting plan. I have been the primary carer since he left 6 years ago
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John Melis, Expert

Judy, yes you can say no.

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.

Customer
Thank you for that information. My ex insists on having our son for a week against my wishes as the primary carer. I suggested every second weekend and one night during the week as our previous arrangement. He is keeping him for a week against my consent until meditaton. Am l within my rights to collect my son from school on Monday if his dad doesn't return him Sunday as per my repeated request. Our son believes and wants to come home Sunday
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John Melis, Expert

Yes you are within your rights to collect your son as you see required. The best situation in your circumstances to try the mediation process, if the mediation process doesn't resolve disputes between the parents commence proceedings in the family court after you attain a section 60 I certificate from the mediator

Customer
Thank you so very much for your help John. I appreciate all your assistance
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John Melis, Expert

You are welcome, and thank you for supporting the community.

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