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Sole Parental Responsibility

on what grounds can a Sole PR order be granted?

Hello everyone. I have a query relating to applying (successfully) for a Sole PR order, or changing the existing shared PR order to a Sole PR order.

I have 2 (9yo & 6yo) children and have been divorced for 5 years. My ex hasn't seen the children for 3 years (by his choice), although he now claims that I didn't allow him to see the children, which isn't true. He has not applied to court or attempted to contact me or the children at all during the last 3 years.

My youngest child suffers from sever Autism, and during the last 4 years since the diagnisis, I have been the sole parent responsible for everything to do with assisting my son and helping him and supporting him, hoping that I can find something, some way that I can help him more, and perhaps enrol him into a therapy of some sort to make his future more "normal" as any other child/person. All decisions relating to schools, education, day-to-day care, food, clothing, everything for both children have been made only by me, as the father never attempted to take part in any of the mentioned responsibilities. The only thing that he has been doing is paying his child support regularly - which is great - although due to registering as self emplyed immediately after getting the Child Support assesment, he is now required to pay only $30 a month for both children, including a child who has sever health problems.

A relative recently suggested to me a new institute for Autism, located in Israel which is said to almost cure Autism and allow children suffering from it to grow into independent individuals. Of course, I jumped at this chance to allow my son to have a "normal" future. The institute will only accept Israeli residents into its program, and being of jewish background, obtaing residency status is quite simple for me.

As I have a shared PR order with my ex, I contacted him and explained what I wanted to do and asked if he could sign a consent for our Autistic son to obtain Israeli citizenship and to travel to Isarel with me to attend the program for approx. 12 months. He has refused without giving any logical explanation. I suggested that perhaps he could take the child there, he has also refused. In fact he has said that he "will have nothing to do with anything, and will not sign anything, and doesn't care about anything" was his exact response.

I feel that my ex is being unreasonable, and is NOT acting in the best interest of the said child and is simply being spiteful. I feel because of this I am not able to exercise my rights as a parent to attempt to do whatever I can to try and help my child. I also feel that in a way my son's human rights to get help for his condition are being taken away from him, without any reasonable explanation.

I am wondering if I applied to the Aus Magistrates Court to have the current shared PR order changed to a sole PR order, allowing me to have the sole responsibility to make such decissions in the best interest of my children; is this enough as a grounds to change the current order or should I not even bother. I know that if I do, my ex will try and fight it. Is there any chance for success?

PS I have no intentions to take his rights to see the children away, or apply for a no-contact order. I am very happy for him to see the children if he wants to. I am simply concerned that his decissions relating to the children are being spiteful and unreasonable due to him having personal issues that he still has towards me.

Thank you.

Israel is not always as safe as Australia. eg war,guns,ect. Maybe your childs father is worried about this.
Also fully research about a medical miracle before believing as you may be dissapointed to find fact is not the same as fiction. Citizenship is not something you can change back and forth every year.
The courts would probably be expensive and time consuming with no guarantee of success. The fact you want to change a childs nationality could be a very big problem to both the father and the Australian courts. You are in fact asking to relocate and change a childs citizenship.
I am not a legal person, but personally I believe that you are asking a lot of the courts and father.
Hi kalimnadancer. I can assure you prior to making such decission, I have thoroughly researched the medical side of things. There is no cure for Autism (unfortunately), but more intensive therapy and assistance with potentially better outcome is in fact available in other countries. Australia is unfortunately not very developed in this field. I have no intention to change my or the child's nationality as we are both AUs. citizens and intend to keep our citizenship. Being jewish, I believe it is my human right to ADD Israeli citizenship as both countries are dual citizenship countries. I do not believe I am asking for a lot of the court or the father, considering he has had NO contact with either of the children for the last 3 years, so if the children/child was to relocate this would not be seen as a great loss to the father. What I am doing is exercising my RESPONSIBILITY to my child to provide him with any means of medical help that is available even if relocation is the only way to get this help.
Between the severity of the child's condition and the fact that the father has shown no interest in his children for 3 years, I would think you might have a reasonable case. You say the father will try to fight it if you spply to the courts, but realistically, his attempt to fight it will seem fairly shallow if he is not seeking to spend time with the kids. I mean, it sounds as if he's not interested in a relationship, so if he were to disagree for the sake of disagreeing, that doesn't look so good. And if he were to suddenly develop an interest in a relationship with the kids just because of this, it would look pretty fickle.

You don't necessarily have to apply for SPR to get permission for this. Sometimes you can apply for specific medical issues orders, meaning you only want the right to make decisions around this issue, or your child's autism in general. But either way, SPR would not give you the right to passports without his signature, so you may need to specifically request to relocate to Israel for a set period of time. This way you will also look less like you're intending to leave for good.

If you can demonstrate that you've suggested to the ex that he take the child, and you'd be happy for that to occur, I think that will also help to prove your intentions. This could be a costly excercise, but you can always self-represent if you are confident, just be prepared to put in a lot of hard work and reseach. I have to assume you have some done some fairly intensive research into this institute, and will be able to demonstrate that it is miles above anything here. If you can find an expert witness in the field of autism who'd be willing to attest to the reputation of the institute, that may be helpful.

I'm interested to see what others think about this case.  
Hi rabbit - you've definitely raised my confidence - thanks. I am pretty confident, as I am only doing what I believe is in the best interests of my son.
Considering the father is currently unemployed and is an Israeli citizen himself, and the fact that I have even offered to pay for his travel expenses for him to take the child to Israel - I find it very strange that he has refused.

I honestly believe that he is being unreasonable, spiteful and vindictive and is not acting in the best interest of the child.

I especially don't think that one can be reasonable towards a 6yo child who he had only seen 4-5 times. I don't believe one can have genuine true carring feelings towards this child. I also think one can not be asked for an opinion or consent - as he has no clue to this child's needs.

Personally, I believe the family law in Australia should be changed, specifically for cases such as mine, where a sick child is involved and a father who doesn't even know this child is allowed by law to make decissions in relation to medical/residential and/or future for this child and limitting the mother's ability to really do what is in the best interests for this child.

But, I do plan on taking this to court and I do feel I have a very good chance at winning this case and finally getting my son the help that he needs.

We all do what we feel is best for our children, and packing up and moving for what could potentially be 3-4-5 years is not my idea of fun, but I am happy to sacrifice my life to allow my son to have his hopefully a bit more "normal".

Considering the father is currently unemployed and is an Israeli citizen himself, and the fact that I have even offered to pay for his travel expenses for him to take the child to Israel - I find it very strange that he has refused.

I honestly believe that he is being unreasonable, spiteful and vindictive and is not acting in the best interest of the child.

And I believe all this will come across loud and clear when put to a magistrate. Your offers to the husband (which seem even more valid in light of his Israeli citizenship) are a clear indication that you're not just looking to cut and run with the kids. And his refusal to consent to something of such benefit to his child - even when it wouldn't affect him at all - paints an ugly picture of his intentions.

Realistically, it's not that he has any absolute right over the decisions you make for the kids, because the presumption of shared PR is a rebuttable rule. But the laws ensure he will always have an opportunity to present his side of the story and have that taken into account. I'm sure you understand there are many parents out there whose intentions are not so honest, and if they were all taken at face value without the need for a hearing, a lot of children would be unfairly taken from this country by spiteful and vindictive parents. The upside is, you also have the opportunity to present your side of the story, which means the label of "father" doesn't automatically entitle him to any decision making rights. The act clearly states:

(4)  The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests  of the child  for the child's parents  to have equal shared parental responsibility for the child. (section 61DA)

If your ex has no good reason for refusing, he will show he is unwilling to make decisions that are in the child's best interest. When you are attempting to rebutt the presumption of shared PR, the court will also examine the extent to which your ex has taken an interest in the responsibilities of being a parent. This is an area in which he is clearly lacking.  

Just a word of caution though - if he does attempt to fight this, then he will probably come up with a more 'legitimate' reason to refuse, and you've already suggested he may lie and say that you've prevented him from seeing the kids (therefore absolving himself of blame). Your suggestion that HE take the child should hopefully counter it somewhat, but you'll need to be prepared to disprove that claim. Try to think ahead of all angles he could use to justify his non-consent. If there are any institutes in Australia that could provide a similar standard of care, if there are safety issues or unrest in the region you're looking at, if the schools in the area are inadequate or substandard, or if your other children will be somehow disadvantaged by the move, these things will be pointed out. You'll need really compelling evidence if to show the Israeli institute is better, and why. You should create a detailed plan of where you will live, where the kids will be schooled, how you will support yourselves, etc. The more prepared and researched you are, the more weight you add to the "best interests" aspect. Good luck!  
He has already agreed for the child to travel and has signed an Australian passport for the child, but he is refusing to sign Israeli citizenship for the child and consent for the child to enter Israel on a residency status (this is what the Israeli consulate requires).

The Israeli law states that if I have minor children, they must all become citizens once the mother applies for citizenship - they don't necessarily need to travel to Israel.

The only issue that he raised to me in regards to this matter is that he doesn't want the children to have Israeli passports, as he doesn't have any guarantee that I will not remove the older child out of the country also, on an Israeli passport - which of course never even entered my mind and wouldn't be something that I would want to do, as I don't believe that relocating the older child to Israel is in her best interests.

To this I suggested that we produce the older child's passport to the court to keep or to the solicitor to be placed in trust, making sure I couldn't remove her from the country - this was also refused.

I just feel that he is doing so much to display his "rights" compared to so little, in actual fact none, responsibility.

What kind of order may I seek from the court that will allow him to keep his contact/visitation rights, yet take away everything else?

I know this sounds like a horrible thing to do - but I feel the children shouldn't be suffering because of his spiteful and vindictive behaviour and his lack of interest and responsibility, which clearly inteferes with his ability to make fair and logical decissions.

Are you planning on separating sibblings for what you say could be up to 5 years and which child will you have in your care? You can not be in 2 countrys at once.
The siblings have been separated now for 1.5 years, with the older child living full time with my parents, being very well cared for. She is very happy to remain with her grand parents and is very happy there.

The reason the children were separated was due to the younger child's escalating violence and aggression asociated with his condition.

The father originally refused to take the older child into his care when offered bsed on the reasons mentioned - as he had said that he can not take care of her due to work and other personal issues, including that he had lived with his mother at the time and had no room for the child.
What a terrible position to be in to have to seperate your kids for their own safety. My heart goes out to you, but it sounds like you've got great support in your parents, and if both children are loved and cared for, that's what counts. Sounds like you could use some help from dad - pity he's so disconnected.

Unless you apply for a "no contact" order (which is fairly rare and usually based on abuse or something equally serious), he will always have an opportunity to apply to the courts (or negotiate with you) to spend time with the kids. The first thing to get your head around in Family Law is that the parents have NO RIGHTS. Neither you nor he have any rights over the kids in the eyes of the law. You have parental duties, powers and responsibilities, but not rights. The children have all the rights, and first and foremost is the right to know and be cared for by both parents. But a parent cannot be compelled to take advantage of this, and therefore your ex has to want to spend time with the kids before this becomes relevant. If he doesn't want to take responsibility for his kids, that obviously brings into question his concern for and understanding of what is in their best interests.

So as far as orders, I think you are on the right track looking for sole parental responsibility, and you have some very valid arguments for that. SPR will not negate the children's right to have both parents in their lives, so this means that if the ex 'comes around' so to speak, and decides he wants a relationship with his kids, he will still have the same opportunity to negotiate with you or apply to the court to spend time with them. So the only "rights" he loses are the rights to be consulted on those important long term decisions (schooling, medical, religion etc). But this may not solve your citizenship dilemma, so you may specifically need to request SPR, and also ask that the court order him to sign for citizenship. If he's truly concerned about the older child, you can work this into the proposal (ie, propose that the father be ordered to sign papers allowing Israeli citizenship, but the mother be permitted to relocate with the youngest child only). Neither situation will result in any changes to the father's opportunity to spend time with the kids in the longrun.  

If you'll be self representing (or even just to be well prepared), get onto the Australian Legal Information Institute website and search the family court database for other cases involving changes to citizenship and international relocation. That way you'll get an idea of the kind of proposal/wording you're looking for, and also what the magistrates will take into account. You should also look up parental responsibility/family law act, so you can understand the legislation that will be the foundation of your case. If you know what rules the courts are working with, you're better equipped to shape your case around them. Australasian Legal Information Institute (AustLII)
Hi rabbit, thanks so much for your responses, they are very educational and are of great help to me.

At this stage I am not sure if I will get a lawyer (probably should for a successful outcome).

The thing is that the father, prior to the 3 years of no contact, had a history of seeing the children whenever he felt like it and never according to the original order. At times he would just disappear for 3-4 months and then re=appear and demand contact. This is evidential as there are numerous solicitor correspondence from myself to him asking what was going on.

So, based on the above and the severity the younger child's condition and the impact this irregularity has on his development I intend to ask for a "no contact" order for the younger child, as well as an order for him to obtain Israeli citizenship and relocate to the state of Israel.

I also intend to ask the court for sole parental order for the older child, as well as order to obtain citizenship. I think it is in the child's best interest to remain in full care of her grandparents - where she has resided for 1.5 years and where she is very well taken care of. However, I will ask for order to obtain Aus passport for older child and ability for her to travel with grandparents to Israel once a year during school holidays to visit.

I am also going to suggest that the father has supervised visits with the older child for an amount of time until their relationship can be re-established.

In my view this is a fair and reasonable request - and I am just hoping that the court will agree.
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