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Can I take my son back to Australia?

  • zosiub
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30 Jun 12 #340045 by zosiub
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Here we go..

My husband and I have been together 5 years and got married after 2 when we found out I was pregnant. We have had a very tumultuous relationship to say the least. I am Australian and he is Polish but we live in London, I have left him 3 times in the last 3 years due to his excessive partying and aggressive behaviour, and returned with our son who is now 3, to Australia. After certain promises I foolishly went back to him but now we are at the point of no return.

I would like to return to Australia permanently as I have no reason to stay in London, no family etc. He is self employed and we have ran a business together for many years however he is now claiming I have not helped at all and basically everything is his. I asked him to leave the house and he is now living elsewhere and I can not afford the rent here on my own and although he has agreed to pay it for the time being it comes with many catches and conditions I am not prepared to accept. I am therefore not left with much of a choice. Eveything is in his name and he is still controlling everything as the money we made togather was never shared with me and I now have to basically beg for things that are rightly mine. I have only a very small amount of money in my Australian bank account that is now almost gone. We had an agreement last month that he would pay for my flight and belongings to be shipped if I would stay for our sons birthday which has just passed and possibly to Christmas if he would help me financially until I got back on my feet. However everytime we see eachother it is very clear that even being civil for the sake of our son is not going to be an option and it is only damaging him further. I would like to leave in the next 3 weeks as my mother is currently visiting and she can help me pack everything up, however after yesterdays row he is now claiming he will not help me at all and intends to seek legal advice to stop me from leaving the country.

We are not divorced yet (we got married in Australia) and have no official custody agreement so I would like to know what my rights are. The reason we have seperated is due to like I said his partying lasting days at a time, his aggression and infidelity. I feel as though he made the desision to destroy our marriage and walk away from his family and now I am being made to stay in a country I dont belong with no help, no finances or job prospects. I recently received my visa that allows me to be here for a further 5 years, however what ever money I received working would go to childcare and sharing custody is not an option as he living in essentially a office building squat that is obviously not the right environment for a little boy.

So my questions are - Can he prevent me from leaving or claim I kidnapped his son? Can he seek custody and make me stay here forever? Am I able to return to my home country with our son and how would visitation work? How do I seek child support? How can I claim a share of the money we made togather as he constantly takes it back to Poland and is very secretive and sneeky in this way. Please help..

  • happyagain
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30 Jun 12 #340054 by happyagain
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This is difficult and I understand your desire to want to go home. However it may not be that easy.
To start with, in answer to your questions:
1. Yes, he can stop you from leaving if he gets a prohibited steps order granted.
2. He can seek custody and may get it if the argument is that your child would suffer less upheaval by remaining in the country of his birth.
3. If he gets the above, you would be allowed to visit Australia but not reside there.
4. Contact the child support agency about getting child maintenance. They will contact your ex about money and assess his income.
5. Request details of his income via a form E. if you feel he is being untruthful then you can challenge him.

The problem for you is that your son is British and the courts may not be happy for you to remove him to another country. In addition is the fact that both parents must give their consent for a child to be taken abroad.
Financially, you are in a much stronger position. You will be entitled to at least 50% of the marital assets, and maybe more if you are the main carer. It does not matter how much or little you contributed to the business, in law it is a joint asset.

  • livinginhope
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30 Jun 12 #340077 by livinginhope
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If you got married in Australia was your child also born there?

  • zosiub
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30 Jun 12 #340171 by zosiub
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The problem is he has hidden his assets and will claim I have not contributed and he makes nothing and can/will not give me anything.. My son is not british despite the fact he was born here. He has Australian and Polish passports..

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30 Jun 12 #340172 by zosiub
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My son was born in London but holds Australian and Polish passports (although his Polish one is now expired as his father did not bother to renew it after 1 year..)

  • Lostboy67
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30 Jun 12 #340179 by Lostboy67
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Hi
As HappyAgain said he can try and stop you from leaving, there is no certainty he would get it though.
In terms of the divorce I am fairly sure you can divorce in this country as you are both living here. The problem you may have with CSA and indeed financial settlement is that he is self employed and apparently there are ways and means to avoid CSA, if he has been moving money abroad you would potentially be chasing windmills, unless he has left a paper trail. I don''t know the nature of your business but if it was one where payments were often cash in hand it reduces the possibility of there being a paper trail to follow.

If you did move back to Australia what contact arangments would be put in place ?

As a father if my s2bx suggested moving them even within the EU I would me moved to get a PSO and not allow the move.

LB

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01 Jul 12 #340215 by Fiona
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In the UK the terms "custody" and "access" were replaced some years with "residence" and "contact."

The international convention is that if a child habitually lives in a country the courts in that country have jurisdiction. In the UK it is a criminal offence to relocate a child abroad permanently without consent for all those with PR or permission from the courts. So if you wish to move abroad the first thing would be to ask for written agreement from your husband. If agreement isn''t forthcoming you would then need to apply to court for a Specific Issue Order for permission.

Courts would then give regard to how well thought out, practical and definite arrangements are for accommodation, finances, education, contact and travel. Also relevant is the contact history, in particular compliance with any court order and whether or not the motivation is purely to frustrate contact. The motivation for the other parent opposing the move and whether that is more about parenting issues such as aggressiveness, control or vengeance rather than the interests of children are factors too.

Other considerations are the likely effects of moving on the child, whether the parent wanting to move will have family support and better employment prospects and when there is a history of shared care 50:50 or almost 50:50 whether it would be better for the child to stay in the UK with the other parent so that schooling and relationships with existing friends and extended family aren''t disrupted.

Your husband applying for a Prohibited Steps Order to prevent the move would only be appropriate when there is a flight risk and/or you don''t go through the correct process above.

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