NSW A Mixed Case of Family Law and Criminal Law?

Discussion in 'Family Law Forum' started by Lost&naive, 26 February 2019.

  1. Lost&naive

    Lost&naive Member

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    I want to try and keep this is as simple as possible and cross my fingers that someone can read through the mess and hopefully make sense of my predicaments. I have two problems, one family law related, the other criminal law related, but it’s a story with sharp corners so I’ll just pour my heart out (in point form) and see what happens.

    - I came out to my ex as gay after 6 years together. We have 2 children. He found out about my being unfaithful at a point in our relationship and effectively kicked me out of our shared home.

    - Ex disallowed me from seeing my children. In his eyes, my lies proved me to be a terrible role model. I went to stay with my sister after the first night when he let me sleep in the car outside the house.

    - A few days of begging to see my children later, he agrees. Gives me a time to come to his mother’s house. I go. I’m ambushed by him, his mother, his friend, and my sister. Turns out she was the one who told him about my disloyalty, as well as laying a lot of lies thickly on top too. She had been comforting me for days while building to this climax.

    - I was screamed at, locked inside the house, accused of many things while my kids looked on. When I went to leave, visibly shook, my sister proceeded to block me and yell in my face. I barged past her while begging my ex to let me out, which he finally did.

    - I was homeless now. I went to a hotel room. I recieved a call that evening from the police asking me to come in. I was confused, but I went. I was arrested for common assault and presented with an AVO. My sister claimed I grabbed her arms, dug my nails in and pushed her in the stomach violently. Her and my ex’s friend both made statements. The statements completely contradict each other.

    - My ex seemed shocked, stating to me that he had no idea what they were going to do and this is all getting out of hand, and he never wanted this. Him and his bother declined to give police statements.

    - In the time between then and now, while waiting for court dates on the criminal matter, I have been living alone with my children for almost 3 months now. I got them back after 3 weeks in hotel rooms. I secured a rental for us, saw legal aid a hundred times and put in many hours of effort to organise our benefits and preschool arrangements. I did this all on my own.

    - My ex, despite saying consistently to me and to others that I am basically an unfit mother and he is concerned for the kids around me, conveniently welcomed me back into their lives a couple of days before he was due to start a new job.

    - Since acquiring his new job and new girlfriend, he has had the children only twice overnight. The second time he took them, he brought them back early because he had a date. He then tells me that he wants to swap the weekends that he has them. He wants to pick them up on Saturday evenings after work and bring them back on Sunday afternoons. He works 11 day fortnights. I made it clear that this was not okay. He only sees them once a fortnight, and he wants to couple them up with work to free up his alternate weekend. And so, because nobody has budged on that point, it has now been a month since he has seen the children.

    - I picked up my police brief just a couple of days ago in preparation for upcoming court dates, and it states there that my ex was present at the police station when the bogus complaints were made against to me. This leads me to believe that it was all initially an ugly conspiracy to keep me from my children.

    - Some miscellaneous points: he only started paying child support a few weeks ago after I went through the actual agency to force him to do it. He has been dragging my name through the mud to everyone I know, rendering me completely cut off from my prior support network.

    Every time he is pressed about the reason he is so adamant that he wants the kids on his work weekend, not the other, his reasoning is that it doesn’t leave him any time for himself if he’s working one weekend and looking after them on the other. In this interim, I have been consistently seeking legal advice. I have appointments up to my ears but it is just such a slow process.

    So- I guess these are my questions.

    Do I have a right to withhold the children from him while I get legal answers when I believe his offer of custody is not in their best interest?

    I have texts from him around the time of my arrest telling me lies like my sister wants to withdraw the charges and he doesn’t believe anything warranted the police in the matter- will that help me?

    I have screenshots of messages that my sister has been sending to my friends, slandering me, telling lies- will that help me prove her intent in court?

    If you have made it to the end of this and are able to help me, please, please do. Please.
     
  2. Tremaine

    Tremaine Well-Known Member

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    Can you withhold the children from him? While there's no parenting orders in place, sure. Should you? Well, I wouldn't.

    You have criminal charges pending against you, so if convicted, you're already facing a bit of a tight spot in terms of demonstrating yourself as a parent who presents no risk of harm to the kids. Withholding the kids on no grounds other than 'I don't agree with his proposal' (mm, what about what dad wants? Why do you get to decide?) kind of says that you're also willing to risk emotional harm to the kids by severing their relationship with their dad because you're not getting your way. Courts don't like parents who use their kids' time and parental relationships as bargaining chips, and honestly, it's alarming that more parents don't know this, considering how often it has led to reversal of residency, especially in more recent years (kind of feel like some lawyers really drop the ball on this front, actually).

    The better path is to be the reasonable parent who wants to negotiate, rather than control. If dad wants to see the kids on the alternate weekends to what he is now, let him. What difference does it make? How he spends the time that his kids are in his care isn't for you to decide. Lots of parents work even with kids, so the fact that he does work when he has the kids doesn't really indicate that he poses a risk of harm to the kids such that he shouldn't see them at all, yeah?

    The other thing is that dad's probably going to have a lot of cannon fodder for showing the main reason he hasn't seen the kids for any more than two nights since he changed jobs and repartnered isn't because of anything he's done, but because you've made his time and relationship with the kids conditional on him meeting your standards of expectation (e.g. 'I made it clear that [him seeing the kids on weekends that he works] was not okay'). Maybe that's not the case, but it is how it sounds, and explained the same way that you've explained it, the court may adopt a similar view.

    Doing preschool arrangements on your own could also be something that creates a problem, as well. Education is a shared parental responsibility thing - it's a major long-term decision in which parents have shared parental responsibility, meaning equal say and an expectation they will consult jointly to make such decisions for their kids. Doing that on your own doesn't allude to greater effort on your part in family law, it reads more like unilateral decision-making while undermining the importance of dad's input into the kids' lives. Again, the court frowns on this kind of thing.

    So, playing devil's advocate, there's some points of fact here that I think would do more harm to your case than good. You've got primary carership, so that puts you at an advantage in a lot of ways, but if you misuse your position to stop your kids' from having a relationship with their dad, even temporarily, you may well be putting that primary carer status at risk.

    Probably not what you want to hear, but family law is one of those finnicky fields of law where what society says doesn't necessarily align with what the court will say.

    If it doesn't actually impact you in any formidable fashion, my suggestion would be to let dad see the kids on weekends that he feels work best for him, and get to mediation so you can try and get the care arrangements into an agreement (but also, follow the advice of your lawyer if you have one).

    As to the criminal matter, that's a lot more formulaic, so it's best to speak with a lawyer so your defence is meeting that formula in the best fashion possible. A criminal conviction definitely isn't something that should be guided by information shared on the big ol' internet. :)
     
  3. Lost&naive

    Lost&naive Member

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    Tremaine, thank you for taking the time to reply.

    The whole thing is so frustrating and emotional to me. From my perspective, I don’t see my withholding the children as an issue of control. We had established visitation on every second weekend and then HE suddenly decided he wanted to swap. His alternate offer is worse for the children. Having them on his work weekends means that he won’t have the same energy for them and certainly not the same time. He wouldn’t be able to pick them up til evening time and would return them the following morning/afternoon. How is this okay?

    As for organising preschool, etc. this hasn’t been a choice. He is not involved. Before everything turned ugly, I could barely catch him on the phone. When notified that one of his children was sick on two different occasions, there was no response of care. He simply isn’t available on any level to provide the same level of care.

    And now that I know that he has lied to me for so long about being involved in my criminal matter- the fact that it says to me that he was going out of his way to distance me from my kids- isn’t that of itself a reasonable concern? If he would allow or even direct people to make false statements to benefit his (very temporary) desire to keep me away, how could I possible trust visitation without consent/court orders now?

    I don’t want to be the mum that keeps her kids from their dad. He has put me through enough, and I just want this over with. But I want my kids to have what they deserve. A man that only wants them for a block of hours after work because he has a new life now and doesn’t want to cater to them in any real way outside of child support doesn’t feel like the best for them. Am I really so wrong?
     
  4. Tremaine

    Tremaine Well-Known Member

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    Honestly, family law sucks in so many ways, so I understand why you'd be feeling frustrated and emotional, but this is why some compassion and flexibility is so important if you want to make things better, rather than worse.

    Let's look a bit closer at dad's situation, just for perspective's sake. He works an 11-day fortnight, which isn't that different to the standard 10-day fortnight, so my guess is that he has to work every second Saturday in addition to the ordinary Monday to Friday each week.

    So what reasons might exist for why he would want the kids on the weekends that he works Saturdays, instead of the weekends that that he has both Saturday and Sunday off?

    I can think of a few.

    One is the burden of house maintenance - getting anything done around the house with kids underfoot is a pain in the neck, and getting it done in half a weekend instead of a whole weekend is even worse, so I'd feel better spending a full quality Sunday focusing on the kids, rather than having to juggle that time with house maintenance on the weekends that I'm not working.

    Another is the family situation of his new partner - if she's got primary care of a child with her ex, it makes sense to try and line both of their weekends up so their kids have a chance to get to know each other, too.

    Another is the circumstances of his roster - if I worked night shifts in one week and day shifts the next, for example, I'd probably want to sleep on the weekends that follow a week of night shifts, which leaves little time for the kids anyway.

    Meanwhile, my ex has decided on my behalf that I won't have the correct amount of energy or time to spend with my kids, so he's unilaterally decided the kids won't be seeing me at all. How is this okay?

    As to dad being 'uninvolved' with the preschool prep, etc., again, that's sort of an assessment that you've made without any real compassion lent to the situation at hand. If, after six years of marriage and two kids, I found out that my partner was gay and had an affair, I'd have a lot of mixed emotions about talking to them on the phone, too (but e-mail, I can probably deal with).

    One thing I see a lot in this field is an exponential skyrocketing of co-parent expectations after separation. If my partner sent me a text message saying, 'Hey, kiddo is sick with a fever so I'm collecting her from day care and taking her to the doctor', I probably wouldn't respond outside of a 'kk', not because I don't care, but because he's her dad and he's handling it. That's pretty normal for parents who are parenting cooperatively together.

    But when parents separate and stop parenting cooperatively together, suddenly not attending every doctor's appointment or fawning over every scraped knee is a sign the other parent doesn't care about their kids. It's like they suddenly expect more involvement from their ex, even though it's emotionally reasonable for that ex to want less involvement with their ex.

    In family law, the judges who oversee these cases don't hold parents to such high expectations, so let's talk about how the court would view the current scenario.

    The care arrangement currently in place is in effect a parenting order for no contact, so in the circumstances, let's consider whether the court would actually a no contact order like what's in place, given the circumstances you've described.

    Generally speaking, the court only considers it to be in the best interests of the children to make a no contact order in circumstances where one parent poses a serious risk of harm to the children through neglect, abuse or family violence. Your complaint is basically that dad wants to swap weekends, and your reason for deciding no contact is best for the kids is because you don't think dad will have the right amount of time or energy for the kids on the weekends that he wants to see them. Does that sound like a serious risk of harm to the children through neglect, abuse or family violence to you? Not really, huh?

    So, then, how will the court look at the current arrangements? With the reasons you've provided to back your position, it's probably just going to see a mum withholding the kids from their dad without good reason for doing so. I've seen some cases where that presents as emotional abuse (which is a key word in that no contact orders and 'serious risk of harm to the children' commentary above...). Not what you want to hear, of course, but I really am just trying to be realistic so you can make decisions already informed of the potential risks.

    Now, I understand your feelings (of maybe betrayal, mistrust, etc.) about dad's involvement in the criminal matter, and in that context, I get why you would draw the conclusion that it shows he is trying to distance you from the kids, but such a conclusion isn't available to the FamCA/FCCA because it's based on speculation, not fact. It's a bit of stretch to say that dad's presence at the police station while his sister gave a statement about an alleged assault is somehow indicative of malicious intent to distance you from the kids - I mean, it's his sister's statement for a start, not his, he didn't even give a statement of his own, and he agreed to the kids living with you after the alleged assault occurred, so if he's trying to alienate you, he's not doing a very good job, is he? Add to that the fact that you are now withholding the kids from him, and I'd say that whole assertion is pretty well dead in the water.

    Final note, this isn't about what you think your kids deserve. This is about your kids' legal rights. Under the FLA, your kids have the right to know, spend time and communicate with both parents on a regular basis, insofar as their best interests can be met, and regardless of the extant relationship between said parents. At the moment, you are violating that right. Without parenting orders, there's nothing stopping you from doing that, but if dad decides to involve the court because you're not letting your kids enjoy their right to spend time with him, your actions could potentially do more harm than good.

    Again, I know none of this is what you want to hear, but I really am just trying to warn you about the risks so you can informed decisions. There's nothing worse than watching a parent lose their kids because they didn't know or accept that withholding them from the other parent for fickle reasons could do so much damage to their own case. :(
     
  5. kevin586

    kevin586 Well-Known Member

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    Do I have a right to withhold the children from him while I get legal answers when I believe his offer of custody is not in their best interest?

    Strangely this may not be a good idea. Suggest you might have a better chance of sorting things out by keeping things as they are and building on them.

    "I have texts from him around the time of my arrest telling me lies like my sister wants to withdraw the charges and he doesn't believe anything warranted the police in the matter- will that help me?"

    Don't act on anything he says he could change his story at any time. Go back to legal aid or a community law centre and talk to them about what options you have regarding custody and support payments. Go to Centrelink and ask about payments and accommodation allowances.

    Stop feeling guilty about coming out as gay. If he is not big enough to accept it that's his problem. Don't feel guilty about how offended he is. He needs to grow up and get a life and stop acting like a 2-year-old
     
  6. Adam1user

    Adam1user Well-Known Member

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    I read your comment and read Kevin's too, I am not able to answer your questions and I am not taking sides (to you or your spouse). The fact that you did not come out and inform your spouse about being gay and cheat on him is a bad thing to do, it has put him in a bad situation. I am not a father nor have a gf/wife/partner, I would not like to go through this situation at all. It is hell to find out that the spouse is gay.

    I am sure that if you opened up between you both beforehand, I think most properly it would have a better outcome than this, I'm not saying it will be a bed of roses but not as this.

    People take actions and then they try to be a victim, sorry this does not go with me. I am not saying you deserve this at all. I have no feelings towards your situation. My concern is your children, I hope that the outcome will be to their best interest.
     
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  7. Hanna jaye

    Hanna jaye Active Member

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    The biggest thing standing out to me here is that you if not in the wrong NOT consent to the courts ADVO orders. As i can guarantee that will cost you in relation to your wanted FLC orders.

    Instead go through the evidence acts legislation & see how best to have all allegations thrown out.

    In cases of an unacceptable risk id say yes you have grounds to stop visits etc. However it doesn’t appear to be the factors, rather instead if he puts forward your unwilling to maintain a relationship with the children & Father that’s meaningful a d substantial... High chance of residency change especially if the ADVO goes through
     
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