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NSW Am I Following the Right Family Court Process?

Discussion in 'Family Law Forum' started by ChrisC, 12 July 2016.

  1. ChrisC

    ChrisC Member

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    Hi all,

    I have a question re parenting orders and access for a father. I apologize for the length of the post

    I have 3 children under 10 with my ex-partner. When we were together, I was the primary carer of the kids as well as the working parent. I was the parent who was involved with the school, took the kids to sports and cared for them. The school would confirm this if needed. My ex hasn't worked for 10 years and is a very disinterested parent.

    We split up almost two years ago and for about a year, she gave me access to the kids 3 evenings a week, one weekend day and an overnight stay every second weekend. I would have liked to have the kids stay with me more but as I start work at 5am, it wasn't possible and at the time, the one overnight a week is all my ex would allow. I stupidly didn't ask for consent orders as the arrangement was working well and my ex is extremely volatile and I thought that rocking the boat would cause problems.

    I pay the required amount of child support a week and have never missed a payment. I also pay for excursions, school uniforms, buy the kids clothes and anything else they need. I am only mentioning this to note that she won't be able to say I haven't met my financial obligations

    Fast forward a year and I am only able to see the children 2-3 afternoons a week and not allowed to have them stay with me.This has been the state of play since Jan. She flipped out over something small and I am only able to see them if she feels like letting me. The reason for her doing this is she found her Centrelink payments were reduced (by a tiny amount) when I had the kids stay over.

    I offered mediation to resolve this and have consent orders drawn up. I attended all my appointments. Just before we were due to have our joint session, they rang me and said they were issuing me a certificate as they were unable to proceed any further as she was refusing to attend the joint session. Since then, I have asked her so many times via email to work with me to prepare consent orders. Since I have had no response, I decided that I need to take the next step in asking the family court to decide on orders.

    After doing some research, I sent her a notice of claim by email and post advising her that I am planning to file for parenting orders, outlining what access I will be applying for (the same schedule as before) but telling her that I wanted to avoid court if possible and would like to work with her to come to an agreement. I gave a timeframe for her to reply. Since that letter, I have received a couple of abusive messages and phone calls but have not received any offer to negotiate and the 21-day timeframe is up.

    My main question is, have I followed the right steps so far? If I receive no response, can I start my application? Do I need to notify her again that I am filing?

    I really appreciate any help.
     
  2. sammy01

    sammy01 Well-Known Member

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  3. sammy01

    sammy01 Well-Known Member

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    One or two more things.

    Read this: Family Matters - Issue 88 - Shared care time | Australian Institute of Family Studies

    In particular, read the bit about court data. Good news for you. Now I'd suggest you give her one more go. Something like this.

    Dear ex,

    Having sought advice, I'd like to offer you one more opportunity to find a reasonable compromise. If however, I'm forced to apply to court, I will be applying for orders that provide 50/50 shared care.

    Kind regards, etc, etc.

    She won't agree, but you're upping the ante. Once you file for court you'll have to have the court orders served on her. That might be a time when she compromises, if not the first thing the magistrate will do is force you back to mediation - maybe then she'll agree. But she isn't going to agree until she feels pressured into it.

    Is there any way you could tweak work so you do Friday arvo til Mon morning one fortnight and an overnight mid-week visit? That and half holidays gives you 40% care... You will likely receive enough family tax benefit that you could afford some child care. Just worth you thinking about.
     
  4. AllForHer

    AllForHer Well-Known Member

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    The paperwork you need to file is a s 60I certificate issued as a result of the failed family dispute resolution conference, together with an initiating application for parenting orders and an affidavit of supporting evidence to show why the orders you're seeking are in the best interests of the children. Bear in mind that a s 60I certificate is valid only for a year.

    The most challenging part is writing up what orders you want, and showing in your affidavit why they're in the best interests of the kids. Make your argument relevant in terms of what is stated in s 60CC of the Family Law Act, which outlines the pathway the Court must follow when decided what's best for the children: FAMILY LAW ACT 1975 - SECT 60CCHow a court determines what is in a child's best interests

    Don't make your affidavit into a document of complaints about how terrible the mother is. The Court wants to see parents attempting to work together, but parents who can't get past their personal difference for their kids. Keep it factual, as well - opinions and speculation are not facts. 'The mother was drunk' is speculation. 'The mother was swaying, slurring her words and I smelled alcohol on her person' is statement of fact.

    You don't need to notify her that you're filing, but you do need to serve her with the application after it has been filed. You can get a process server to do this, or you can get someone else to do it who knows who she is. Information about service is here: How do I serve an initiating application? - Family Court of Australia

    Just as a side note, as well, Legal Aid offers three free consultations for a single matter, and they are a god-send when trying to make sure your documents are written in proper format and that you're filing the correct paperwork. Speak to them for legal advice.
     
  5. ChrisC

    ChrisC Member

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    Thank you very much.

    Tweaking work is hard as I am a contractor and I only get paid on the days I work and my job is Mon-Sat . But it is something I will think about.

    I was thinking of sending a letter giving her a last chance to be reasonable and avoid court, although I don't hold out much hope.

    Is there any possible argument she can use to not allow me to have the children for an overnight stay?

    There is no history of any violence whatsoever although recently she has been making comments that she wants to hit me with an AVO so It will look bad in court. Since she has made those threats I always have my Mum with me when I pick up and drop the kids off?
     
  6. sammy01

    sammy01 Well-Known Member

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    No more letters, ignore everything I said. No, no, no... If she is threatening you with an AVO, then one more letter and she can go to the cops and say you've been intimidating her and threatening her with court.

    Go get 'Breaking Up" by a guy called Larkin. Your library will get it for you. If you want to self-represent, that book is a good start.

    Look if you can get her on a happier day, you could discuss a few suggestions.

    1. Private collect child support. Basically, you keep paying but you pay her directly. You tell her that you'll continue paying the same amount regardless of how many nights you have with the kids...
    2. Look, the fact is your payments don't change she has 86% care or more. So a night here or there isn't gonna hurt her money.

    As far as your question about arguments she could raise to not allow overnight care. In court she can argue all she likes but it has to be substantiated. She cant just make stuff up... Look If you wanted / could manage 50/50 you should expect 50/50 or something bloody close like 5 a fortnight

    Now obviously you've got a close relationship with your mum.... Mate can she stay at your place Sunday night and take the kids to school Monday? time to start bouncing around ideas....

    But for the minute the main concern is getting some quality time with the kids and while technically there aint nuffink stopping you from picking them up and not returning them for a night or two, it is a bad idea long term.... She will do the same back and you wont see the kids for weeks.

    BTW stop paying for anything except child support. See how she likes that.... Might make her wanna compromise. BUT sadly, I think you're dealing with someone who wants to dictate, not compromise and that being the case you're better off with a magistrate making the decisions NOT the ex.
     
  7. AllForHer

    AllForHer Well-Known Member

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    She's threatening an AVO? Shocking.

    Cease contact, file your application for parenting orders and get the process started.

    Being in Court makes things very real and the judges do not hesitate to give a good dressing down to a party that they think is in the wrong. She will likely also get legal advice, and if it's from Legal Aid or a decent lawyer, she will learn quickly that the Court doesn't care about how much money she's getting, it cares about time enough for a child to have a meaningful relationship with both parents. You will probably find she is also more willing to negotiate consent orders once she gets legal advice about the likely outcome.

    If the Court decides to retain the presumption of equal shared parental responsibility (which is nearly always does), it has to first consider two options for appropriate care arrangements. The first is equal time, and if that's not workable, then it's substantial and significant time, being a mix of week nights, weekends, holidays and special occasions (Christmas, Easter, etc.). It's not often the Court will order just day hours unless there's a history of violence or the children are very young and have had little to no overnight contact time before.

    Thus, you should aim for at least substantial and significant time if equal time isn't workable. When it comes to Court, don't minimise your time with the kids just to appease the ex. Go for at least five nights if not more.

    Also minimise the changeovers with your ex to reduce the likelihood of the kids being exposed to conflict, and make changeovers at school as often as possible. If you think the kids can cope with three or four or five nights away from mum with phone calls in between (which they should be able to if they're above the age of about four or five with siblings), then seek block time, rather than days in dribs and drabs.

    Also seek an order that all communication is in some written format - email or a communication book or text messages. It'll help you keep file of everything that happens and when.

    And don't agree to pay anything outside of child support unless you can really afford to. You don't have to pay to see your kids.
     

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