QLD Family Court and Divorce- Will Wife be Granted Custody of Children?

[Jane Deer]

My boyfriend is still legally married, but he and the wife have been living separate lives for 3 years now. He is afraid to file for a divorce since she has already expressed hostility towards the idea, threatening to restrict his access to the children (aged 7 and 11), her unofficial reason being, "If I can't have you, nobody else can have you."

He has always provided for his family well and was always a good father. When the marriage started crumbling, however, he was frequently away for work, leaving her with the kids, and he had issues with philandering and drugs at some point. He got clean 2 years ago and is now a very healthy, hands-on father. The children have been living with him since and are having the time of their lives. The wife lives nearby, takes the children once in a while, and seems happy with the setup.

If he files for divorce, how likely is it that the wife will be granted custody of children? I would think the family court would consider the fact that the kids are happily living with him as a significant factor in maintaining status quo after the divorce, but my boyfriend seems to think otherwise.

Can the wife use his troubled past against him in family court? If she is granted custody of children, can she really restrict his access to them? My boyfriend's main concern is she will make it difficult for him to spend time with the kids.

 

[AllForHer]

While there are no orders in place about the kids' care arrangements, anything can happen - there's nothing stopping her from taking the kids, and there's nothing stopping him from keeping them, either, but if you were to go down that long road to court, then the court would make its orders based on what it determines to be in the best interests of the kids.

If the kids have been living with him for two years, that increases the likelihood of him remaining the residential parent if the matter were to be heard by the court, however the court also considers many other issues, such as the capacity of each parent to support the child's relationship with the other parent, the level of involvement of each parent, whether there are any risks involved, etc. The full list forms section 60CC of the Family Law Act 1975.

The point that I catch on is that the father had this history of drug use and then attained care of the kids AFTER becoming clean. It would be hard for her to persuade a court that she considers past dealings a genuine risk when she then agreed to the kids living with him once those past dealings were over with.

However, you have a lot of options and pathways to go through before then. The court should only ever be a last resort, so my suggestion to the father is to write the current arrangements up as a parenting plan and get the mother to sign, then see if the mother will agree to have them sealed by the court as consent orders. Once they are sealed by the court, then the parents will be legally restricted from intervening on the child's time with the other parent. However, a parenting plan will be given consideration in court as well.

I would suggest the father do this by organising a family dispute resolution conference with the mother, which is a mandatory step in any court proceedings anyway.

In summary, I suggest the father formalise the existing arrangements through a parenting plan and hopefully consent orders before applying for a divorce.

 

[sammy01]

Keep everything in writing if you can. Learn to download text messages... Explain to her that if she tries to remove the children, you will take legal action against her, given the children have lived primarily with you for two years.

I completely agree with the last poster. But I'd add one more thing.... So if a property division has not been legally done then any assets you guys collect, any superannuation he earns, etc., she will be entitled to some of it. Property dvision is done at time of settlement, not the time of divorce, or the time of separation.

I'd also write to her via email and communicating that it is your understanding that she has stated that if he initiates divorce, she will restrict his access to the kids and that you feel her purpose is to intimidate, you could also include that you'll be relying on this piece of correspondence as part of any potential future legal proceedings if necessary... Basically, you're putting her on notice and putting the wind up on her.

Just out of interest, is he collecting family tax benefit? Child support?

 

[speck1]

Shocking to hear...be careful.

While separated for two years, my ex and I did 50/50 care. As soon as I met someone else, then filed for a divorce and paid her out, BANG, I can't see your daughter anymore, edited my text messsages somehow and got me on intervention order.

Be careful

 

[Jane Deer]

In summary, I suggest the father formalise the existing arrangements through a parenting plan and hopefully consent orders before applying for a divorce.

Thank you for your comprehensive answer.

What if the mother simply refuses to sign the parenting plan, knowing that it might be a step towards divorce? What options would we have then?

 

[Jane Deer]

Just out of interest, is he collecting family tax benefit? Child support?

Good point about keeping everything in writing.

He is not getting anything from her. He has always been the sole provider of the family. She is practically unemployable. Before they separated, he left her with a business.

 

[sammy01]

Ok, but is he getting family tax benefit? The reason I ask is it helps confirm him as primary carer.

Ok, so here is the thing. If she takes the kids, he can apply for urgent recovery orders....

You can make an independent application for divorce.
Application for Divorce Kit (do it yourself kit) - Family Court of Australia

Do it early January. That way the paperwork will find its way to her late January and the kids will be back with you after any possible school holiday visitations.