14 Comments Family & de facto law, financial agreements, consent orders
Thanks for your reply. I believe I do try to think what's in the best interests. But there you have very subjective question because the future is unknown and everyone has so many biases and lack of understanding of the situation overseas which they try to judge with a lack of information. You also have to consider things which might be in the short term best interests compared to the long term which makes it difficult to consider everything. Children are immature although they can appear not to be, there are many things they can't fully comprehend due to lack of experience and understanding. So essentially I'm trying to maximise the opportunities for my children and be able to look out for them as they get older and enter their formative years, which ageing grandparents will be struggling to do, especially because of the large generation gap they aren't as good at understanding how the world is changing and haven't experienced life as the younger generation has which we pass on to our children as parents. The big generation gap also makes it hard to relate to the younger generation so they often make very different decisions for the children.
If the children have lived with your parents in Australia for some years and are happy with their school, have their friends there and so on, the best place for them to remain is where they are.
Take this to court and this is what any court will decide.
I can understand you wishing to reconnect with them, but the only way you are going to do that is to return to Australia, get a residence and a job near them and then after reestablishing a good relationship with them over an extended period say 18 to 24 months, ask them to come and live with you.
They will probably still be reluctant to move overseas with you, and if this is the case probably no court would order them to do so.
yep - totally agree with the last poster.
Algarve - i see your point too. But the legal system is going be very reluctant to agree for the kids to be relocated to another country when they have a stable happy homelife here.
Just out of interest... What country do you reside in? Maybe you could get a legally binding document that facilitates the kids travelling to spend some time over seas with you.
Thank you for all your replies and comments. They are very helpful and insightful.
My eldest daughter spent 3/4 of her life (9.5 years) in Japan and my youngest daughter 1/2 her life (5 years) there. Their school results in Japan were very good as are their grades in Australia, which means they can cope with the challenge and arenâ€™t struggling in class. My children always had a good relationship with the grandparents in Japan and I had plenty of support. My intention was always to give them more opportunities by having English education as well, just like some people send their children to boarding school, only I thought better because they get the love of family. It was naive to allow this situation.
The last time I wasn't able to stay with my children at home more than a couple of days because the grandparents and my brother and sister were all arguing against me and finally wanted me to leave because they couldn't accept anything I was saying. So I couldn't directly talk with my children because my family were always preventing this situation. In the days before my departure, my parents also had my children stay at an unknown location at someone's house for 2-3 days overnight so I wouldn't be able to have access to them to take them with me when I returned back to Japan, and where I am currently.
Would that be considered as not â€œfacilitating a relationshipâ€ with the parent? In addition I have plenty of evidence of Parental Alienation over the last 3 years with comments to me from my parent such as â€œThey donâ€™t love youâ€ in the presence of the children which is untrue, and referring to me as â€œplaying fatherâ€ when Iâ€™m trying to be involved with decisions for the children and checking up on them.
If the grandparents health deteriorates as they are getting older, into their 80s, they may no longer be able to look after them so easily and the future of my children becomes uncertain. Also keeping in contact is becoming increasingly difficult because my mother is very controlling which makes the relationship with the children more difficult.
Thanks for the explanation Algarve, unfortunately none of those facts are going to alter the information given in my last response. To reconnect with your children you are going to have to move here and build a relationship over a period of time.
One other relevant fact will apply once you do seek to have them move back into your care will be their present support; have you been paying your parents to feed, clothe and house your children while they have been there? Once you are living here and seeing the kids over an extended time frame, should your parents show a reluctance to hand them over, you will need to show to the court that you have been financing the kids to be able to even get past first base.
citizen-joe 2019-05-06 20:34:02
I wondering if I should attempt to pick up my children again soon to take them overseas rather than start costly mediation and legal proceedings which will be very time consuming and expensive, dragging on for a long time and could go either way if children continue to be resistant about going. Some lawyers and other professionals have said why don't you just pick them up.[/QUOTE]
Seems an odd suggestion to 'just pick them up'... Especially given their ages, to attempt to remove them against their will would be tantamount to child abduction.
There are 2 issues at play here, both of which should be approached in the same manner in my opinion.
First issue is their current living arrangements & your desire to take them 'home'
Second issue is the family closing ranks to stop you having any contact with them which is not okay..
I agree with other posters that getting a court order in your favour to remove them is unlikely, however, I believe you should engage a professional family relationship mediation service to address all these issues..
It will be an opportunity to allow all members to have their say, see if there can be any common ground, & work from there..
The family should be told that regardless of the kids not wanting to leave, that denying you contact with the kids is not helpful,
Thanks for the replies. Legally speaking I have the right to pick them up and take them because I have parental responsibility, and the legal advice Iâ€™ve had is that I canâ€™t be responsible for them if they stay there. So it really depends on how much the children will cooperate or oppose and logistically how much the grandparents overstep their legal right to keep the children without a court order permitting them to do that. The grandparents have very limited rights if any.
Already the grandparents are illegally withholding the passports, which amounts to abduction, legally speaking, and I can involve the Federal Police. I can also request the Australian Passport Office to demand the passports be returned to them and they will forward them to me. The Passport Office in Canberra has already confirmed this and sent me the documents if I want to start the process.
Previously my family made all kinds of false legal claims over the children to support their case whatever way they could to win the argument and bully me. When I got legal advice which supported my case, they resorted to having my children stay at their friendâ€™s house for a couple of nights and took them out of school for 3 days while I was in the country. I have the Absence Details from the school which proves the grandparents took them out of school. All they would tell me was the children were â€œsomewhere safeâ€. How is that facilitating a relationship when they are manipulating the children and preventing access? Instead of all the bullying they should have been having a civil discussion, which they werenâ€™t able to do. When I got the chance to sit down with my eldest daughter and have a private conversation, my brother and sister would impose every few minutes and try to listen in. So all the time they havenâ€™t had any legal standing but theyâ€™ve been able to control every step because they have the levers on my children and manipulated every situation possible. There has to be something illegal about that because they are minors we are talking about. Especially the youngest is still only 11.
Even if I arrange mediation, itâ€™s probably not going to get anywhere because my parents think they know whatâ€™s best for my children and whatâ€™s best for their future and before they will consider the children returning, want me to meet all their requirements. If I unenroll my children from school and officially notify the school they are moving when Iâ€™m back, will that have any standing. Can I stop my parents from reenrolling them against my will, since they donâ€™t have parental responsibility? Iâ€™ve already told the schools Iâ€™m withdrawing my permission for my parents to make decisions for my children such as signing consent forms.
Going down the mediation and/or legal path straight away seems likely to cost a lot of money and be very time consuming. And the outcome seems to be anyoneâ€™s guess. So whatâ€™s the point? I might as well just give up and save a lot of money. And it's hard not to continue being alienated from my children further anyway from a distance in the current situation, unless I can get them away from my parentsâ€™ influence. I can't easily put my foot down for anything about what I expect anymore, even for their education when my mother is against it. I canâ€™t discipline them because theyâ€™ve taken away my authority with my parents acting as though they have the final say and can overrule me as they please and disregard my â€œparental responsibilityâ€. Even in the current situation, the law is still in my favour so I should be able to have much more of a say about things, which is being obstructed and undermined.
Recently the children have become increasingly disrespectful to me and disregard my directions. This is in large part due to the interference in my directions to my children, whereby my parents override my decisions, such as for their education, which undermines my standing as their parent. The children see â€œwho is in chargeâ€. Since they are in my parents care, it is their responsibility to discipline them appropriately and facilitate a relationship. Some of this is small things, for example the number of after school language lessons Iâ€™d like them to take is a 2-3 times a week, whereas my mother has decided it canâ€™t be more than once a week, even though Iâ€™m paying for it and itâ€™s done via Skype so they donâ€™t need to go anywhere. This difference in priority will have a major long-term effect in the level of their language ability and being bilingual.
The Family Law Act states that parents (of a child) have â€œparental responsibilityâ€ which means, â€œall the duties, powers, responsibilities and authority which, by law, parents have in relation to children.â€
The purpose of â€œparental responsibilityâ€ is to allow the child to achieve their full potential as a person by the involvement of both of the childrenâ€™s parents in that childâ€™s life. How do the parents fulfill that responsibility? The parent is expected to maintain the child until they reach 18 and until that time a parent has the authority to make decisions regarding the childâ€™s major long-term issues, including:
â€¢ Religious and cultural upbringing
â€¢ Living arrangements
As well as making decisions in respect of the childâ€™s day-to-day care, welfare and development, which includes:
â€¢ The childâ€™s manner of dress
â€¢ The childâ€™s diet
â€¢ The childâ€™s discipline
â€¢ The people the child associates with
â€¢ What the child can view on TV, bed time, etc
Mate, sorry but with that attitude you are setting yourself up for failure, you came here and asked several questions, we answered, but then you want to quote what you believe to be Australian family law to us.
All I can suggest is that you make an appointment to see a relationship counselor who works in the family law area, eg Relationships Australia, for ways to deal with your situation. And that you go and see these people as soon as you get back to Australia and before you attempt to see your parents or children. see Relationships Australia.
citizen-joe 2019-05-10 08:03:54
First of all. Mediation is a legal requirement before you can apply for orders relating to children in Australia... You don't have to arrange mediation through a solicitor.. That is costly & unnecessary... You can arrange mediation yourself, which is what I recommend you do.. Relationships Australia is one such organisation.
If the grandparents do not attend or mediation fails, then you are provided a certificate that will allow you to pursue orders..
As far as orders go... The kids clearly do not want to return to Japan at this time. I can tell you given their ages,that their wishes will be given considerable weight in court... That is a fact.
If you are not willing to compromise on that point then yes I agree, you may as well give up now & save your time & money...
As for parental responsibility, it is more of an obligation than a legal right... No state or federal police will act on your behalf or intervene because you have PR...
So to go back to my first post suggestion... You are best off arranging private mediation to see if there is any common ground that can be built upon, not to have everybody agree with you & have the kids move to Japan, because that dosen't seem like it's going to happen, but to come to some point that you are given the opportunity to have a relationship with your kids again...
Perhaps it's possible that once you accept that these kids do not want to leave at that moment & that whole situation is defused, things & attitudes will change markedly for the better...
At the moment they are kids with new friends & lives here.. As they grow older I have no doubt that they will have a relationship with you & perhaps even visit & or live in Japan... But that may all depend very much on how you act now..