WA Should I Go to Family Court?

OK, so the law says a magistrate must consider 50/50 shared care where practical... So, that is why your solicitor is telling you that you'll likely get more time and not less - but it could also stay at 5, but - is it worth it?

I personally don't think so. If you think about the money you'll spend on solicitors, etc and all the stress and the time... I reckon spending that money taking the kid on some holidays / adventures, etc and saving yourself the stress is a better option. Just my opinion...

Now, I'm assuming you guys broke up recently - like in the last year. Mate, let things settle - hit her up for more time in another year or so. When looking at the financial realities, I figured I was better off avoiding court and possibly even agreeing to pay the ex a bit extra cash just to smooth things over - sadly % of care = money. That sucks and is often a reason (not a good one...) for keeping a kid away from dad.

And yes - half holidays with you half with mum is a given. Refuse to negotiate on that one... But try and get some mediation - or just some communication between you two. Ultimately, you want consent orders that very clearly define what is gonna happen around birthdays, Christmas, etc etc....

If you run your own business - then you can make sure you're the dad at the school assemblies, etc. All that stuff really matters to kids. I'm a high school teacher, so can rarely get away to see my kids primary school stuff. So I reckon even with 5 a fortnight you can still be a very pro-active dad and that matters more than nights per year - true.

So in court you're unlikely to get less time (but stranger things have happened). I have read cases where one parent got really nasty - made the kid fear dad so much that the court had to reluctantly accept that it would traumatise the kid to be put near dad. Heart breaking stuff. But there are also cases where parenting has been reversed because the primary carer has been such a twit... Not likely to happen here on both fronts.

But if you wanna have a bet - I'd say you're a sure thing to keep 5 a fortnight and get half holidays... I'd be willing to put spare $50 on you getting 6 a fortnight and half holidays. I might put a few quid on you getting 50/50... So is it worth the gamble? For me, nope - not when you factor in the costs, both emotionally and financially. But that is just my opinion.

Some rough math.

26 fortnights in a year - if you had 5 a fortnight year round = 130 nights = 35% care

Her proposal - 14 nights in holidays, so there are 11 school holiday weeks a year or 5.5 fortnights.

So, 26 -5.5X5 =103 (nights in school time, plus14 holiday time) = 118 nights a year = 31% care. That is what she is after - keeping you below the 35% threshold for family tax benefit and i think that might be her game.

Now - I've already realised a slight error in my math, but I'm not gonna do it again because the basic premise still applies you will have less than 35% care.

My proposal - if you had half all school holidays (which generally is a given in court if you're gonna have 5 a fortnight in school time)

20 fortnights of school time X 5 a fortnight = 100 nights plus half holidays 6 weeks x 7 nights = 142 nights a year = 38% care.

Your proposal - 50/50 year round - 365 /2 = 182.5 = 50% care

So my thinking goes - ask her to agree to half holidays. If she refuses, then you kind of know it is all about the child support / family tax benefit.

What then? Get a solicitor to write to her saying you'll apply for 50/50 in court unless a compromise can be reached and your compromise is 5 a fortnight and half holidays... Now again, just my way of looking at the world - but even if you get 50/50 in court - the grief / stress and money are not gonna change the fact that your daughter cries when you drop her off. That is something that the legal system cant help with.

BTW there are lots of cases where even after court mum has continued to act like a twat (and dads too) and refused to follow court orders. This leaves a scenario where it is back to court time and time again.

My thinking is, court is best avoided and you giving a little to avoid such circumstances is highly recommended.

OK

Rant over...


Back to the garden - did you say you were a landscape gardener? Dang I'm in NSW...

Nope, too hot in the garden...

So why not apply to court?

Only about 5% of cases actually get decided by a judge. So more often than not the magistrate will order more mediation. This thing will drag on and on. But the pressure of court is often a motivator for compromise. Lots of cases get sorted by consent prior to the magistrate making a ruling...

You go to court asking for 50/50 she might come back with 6 a fortnight and half holidays and if she did I'd suggest you grab it.... But for the minute, you're kind of at a stalemate aren't you? So you need something to get the ball rolling.

Mate when I was in your situation - I stopped paying the mortgage - she was living in the house and refusing me access to the kids. Refused to talk to me about anything.... I was paying mortgage, rent for my place, a personal loan I had to take so I could buy furniture, her car loan etc etc.

Once I stopped paying her bills all of a sudden, she was all to keen to start talking and compromising around giving me some access to the kids... But until the dynamics of the situation changed she had no reason to want to discuss.... So the lesson for you here is to work out what part of the dynamic to change to motivate her to start playing a bit nicer and go from there.

Oops, just wanted to check something on my maths - when she said you have 14 nights in holidays.... Do you think that means she has all of the rest of the holidays and your normal 5 a fortnight is suspended during that time?

If there's no mention of school holidays, then yes, the care arrangements would continue as normal through the holiday periods.

My husband self-represented with my assistance, but he, like 95% of cases, managed to avoid trial by the skin of his teeth because the other party was facing a huge hike in the legal bill, so she agreed to consent orders that largely reflected what my husband was seeking.

If you have the time to commit to learning family law, self representation can be done, but another option is to run your case yourself until final hearing, then engage your solicitor again. Legal Aid can give legal advice for the process and for filing, and you might like to start reading a few family law cases on AustLII so you know what you need to argue. It helps to look at cases that your judge has presided over so you know what he/she is like in the courtroom.

sammy01 said:

So in court you're unlikely to get less time (but stranger things have happened). I have read cases where one parent got really nasty - made the kid fear dad so much that the court had to reluctantly accept that it would traumatise the kid to be put near dad. Heart breaking stuff. But there are also cases where parenting has been reversed because the primary carer has been such a twit... Not likely to happen here on both fronts.

But if you wanna have a bet - I'd say you're a sure thing to keep 5 a fortnight and get half holidays... I'd be willing to put spare $50 on you getting 6 a fortnight and half holidays. I might put a few quid on you getting 50/50... So is it worth the gamble? For me, nope - not when you factor in the costs, both emotionally and financially. But that is just my opinion.

Some rough math.

26 fortnights in a year - if you had 5 a fortnight year round = 130 nights = 35% care

Her proposal - 14 nights in holidays, so there are 11 school holiday weeks a year or 5.5 fortnights.

So, 26 -5.5X5 =103 (nights in school time, plus14 holiday time) = 118 nights a year = 31% care. That is what she is after - keeping you below the 35% threshold for family tax benefit and i think that might be her game.

Now - I've already realised a slight error in my math, but I'm not gonna do it again because the basic premise still applies you will have less than 35% care.

My proposal - if you had half all school holidays (which generally is a given in court if you're gonna have 5 a fortnight in school time)

20 fortnights of school time X 5 a fortnight = 100 nights plus half holidays 6 weeks x 7 nights = 142 nights a year = 38% care.

Your proposal - 50/50 year round - 365 /2 = 182.5 = 50% care

So my thinking goes - ask her to agree to half holidays. If she refuses, then you kind of know it is all about the child support / family tax benefit.

What then? Get a solicitor to write to her saying you'll apply for 50/50 in court unless a compromise can be reached and your compromise is 5 a fortnight and half holidays... Now again, just my way of looking at the world - but even if you get 50/50 in court - the grief / stress and money are not gonna change the fact that your daughter cries when you drop her off. That is something that the legal system cant help with.

BTW there are lots of cases where even after court mum has continued to act like a twat (and dads too) and refused to follow court orders. This leaves a scenario where it is back to court time and time again.

My thinking is, court is best avoided and you giving a little to avoid such circumstances is highly recommended.

OK

Rant over...


Back to the garden - did you say you were a landscape gardener? Dang I'm in NSW...

Click to expand...

If I'm the primary carer (5 nights a week) then I shouldn't be paying child support to my ex?