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VIC Apply for Full Custody of Children?

Discussion in 'Family Law Forum' started by crissym, 6 August 2016.

  1. crissym

    crissym Member

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    Hi there,

    I am a single mum of 4 kids and separated from my partner due to verbal and physical abuse. I have a full intervention order against him, with both myself and the kids on it.

    Since the birth of my kids, I have pretty much done everything for the kids and my ex has done hardly anything. Now my ex wants to go to mediation to try and get joint custody of children. Will the family court allow this as I believe in the best interest of the kids?

    I would like sole physical and legal custody as I can provide for them a stable, safe and comfortable environment and they are used to me always being there for them for everything. Unfortunately, my ex has an aggressive behaviour, as well as a drinking and gambling problem.

    I am happy to allow fortnightly supervised visits with the kids. He has also threatened that if he gets the kids alone, I will never see them again.
     
  2. sammy01

    sammy01 Well-Known Member

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    You're not gonna like this....

    So when you write "I am happy to allow fortnightly supervised visits with the kids. He has also threatened that if he gets the kids alone, I will never see them again", isn't that what you're doing to him? He can only see his kids under your rules...

    So mediation is reasonable. It is also reasonable that after mediation you have an agreement and he can see his kids. The only reason for supervised visits is if you fear for their safety. Now if there are no Docs reports about him being abusive towards the kids, then you have no evidence to support your fears.

    With a court order, he can see his kids. The legislation states where practical a magistrate must consider 50/50 shared care...

    Will a court order you sole parental responsibility and sole physical care? Not unless he is a paedophile with criminal convictions... Shared parental responsibility is a presumption under family law...

    My thoughts - go to mediation. Agree for him to have the kids every second weekend, agree for him to pick them up from school one day a week and return them to you by 6.30pm...

    BTW, how old are the kids?

    Final thought - if this goes to court and he hasn't seen his kids for months because that is how long it will take, the magistrate is unlikely to be sympathetic to you in my opinion.
     
  3. crissym

    crissym Member

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    I have a full intervention order due to him being aggressive and abusive to me. He was very aggressive to my oldest child who was 3 at the time, telling him he will beat him up to be a man and call him a pathetic piece of sh*t of a son, which upset upset.

    I am not keeping kids from him as I am still arranging fortnightly supervised visits during the week as he works on weekends. My kids are 4, 3 and nearly 2.

    Why would I not get sole physical custody, he has barely been around when we were together and the kids' home is with me where they feel safe?

    He also has a drinking and gambling problem. I also have people who have seen him get very aggressive towards my son and myself.

    I have never been apart from these kids except for when I was in the hospital. How could the court take the kids away from their mum once a fortnight when I was the one who raised them and was the one who has made all the decisions relating to the kids as he has not wanted to do this?

    He has also not paid a cent in child support. He also has a daughter in QLD he hasn't bothered to see and has avoided for years and years not to pay child support.

    He is also seeing the kids every 2nd Thursday, supervised but sometimes, he cancels on me and might not see them for a month. I keep trying to organise the fortnightly Thursday visits.
     
  4. sammy01

    sammy01 Well-Known Member

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    So this is a law forum. The opinions expressed here are based on punters' understanding of the law. Basically, we're wanna-be solicitors or folk with experience within the system. So the emotion is removed, so no he said - she said.

    You're doing the right thing by trying to organise visits... If he doesn't attend that looks bad on him, but can I ask how did you reach the point of getting supervised visits?

    Why won't you get sole parental responsibility? Because the legislation states that it ain't going happen. Maybe if he was in jail or was convicted of abusing the kids...That is why.

    Why won't you get full custody? Well, because the legal system realises that some parents will use that sort of power in a really s**t way.

    Story time...I had an AVO against me. After 6 months, the ex told me that she was happy for me to have more time with the kids. However, it was dependent on two things:

    1. I don't tell the Child Support Agency, so she doesn't lose money... (Fair? Not in your life)
    2. I be co-operative.

    What she meant was that I be a good boy and accept every demand she made of me. (Fair? Not in your life).

    So, nope the courts are not going to give you full custody because they realise how unfair that is...

    Ok, so he works weekends. Then let him have overnight care on his days off....

    Now as for child support. IF he pays tax or has an employer who collects tax then child support is really easy to get. Have you called child support agency call 131 272

    So help us out here. Do you have a parenting plan? have you done mediation? How long since separation? Have you sorted out asset division?
     
  5. crissym

    crissym Member

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    There is no parenting plan in place and heading to mediation next week. the intervention was put in place as he was physically abusive towards me while holding my baby. The police were called and an intervention order was suggested and then he kept breaching it and it was extended.

    I did this for safety, not to be a b***h. We were also never married, just de facto. Unfortunately, I would not trust him with overnight care and my two youngest are very dependent on myself but I can give him the fortnightly visits.

    I just want the kids to be safe and in a stable environment.

    We separated back in October last year. We didn't have any assets or money as he gambled and boozed that away. He avoids doing his taxes and CS told me there is nothing they can do until he does his taxes. Just so stressful
     
  6. AllForHer

    AllForHer Well-Known Member

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    The practising lawyers here will likely tell you that you can apply for sole parental responsibility and a no contact order against the other parent, no problem, and if you want to take that advice, there's nothing stopping you from doing so.

    What they won't tell you at that first consultation is that you're looking at two to three years in Court, upwards of $30,000 to cover their fees, and at the end of it all, a very, very low likelihood of success because the legislation does not favour kids growing up in sole parent families, which means you'll probably end up settling by consent at that point anyway, and you'll be wondering why you wasted all that time and money on a lawyer in the first place.

    What you get from this forum, on the other hand, isn't legal advice. It's guidance on the law and the process from individuals who have knowledge about the law and the process, gained directly from our own experiences in the Courtroom, and on top of that, we also have absolutely nothing to gain from your case.

    A lawyer will tell you what can happen in theory. We will tell you what we think is more likely to happen in reality. It's entirely up to you which view you choose to give weight to.

    So, on that premise, my view.

    Paramount to the Court's concern is the best interests of the kids, and what the Court takes into consideration when determining the best interests of the kids is listed in s 60CC of the Family Law Act. Among those is the benefit to the children of having a meaningful relationship with both parents; and also the need to protect them from harm caused by abuse, neglect or violence.

    At a State law level, abuse is fairly broad in its definition, but the Family Court has a higher threshold for what kind of behaviours it considers to prove an unacceptable risk of harm to the children, such that a no contact order is in their best interests. If there are no police reports, investigations, charges or convictions, no IVOs made after a finding of fact that violence has occurred, no convicted breaches of an IVO, and no reports to DOCS about child abuse, then the only proof you have at this point to show there's an unacceptable risk of harm to the kids if they spend time with their father is your word against his.

    The legislation favours children's rights, which are to know, spend time and communicate with both parents on a regular basis, regardless of whether they are married, separated, divorced, de facto or have never been in a domestic relationship at all. When you ask the Court to make an order for sole parental responsibility, you are asking the Court to make an order that undoes those legislated rights, which is not something the Court takes lightly. Shared parental responsibility is a presumption under law, which means it can only be removed by an order from the Court, after it has been successfully rebutted by showing shared parental responsibility is not in the best interests of the kids. That might sound easy enough, but since shared parental responsibility is a presumption under law, the burden would be upon you to argue why you're right, rather than upon the father to argue why you're wrong.

    As an analogy, imagine having to persuade a liberal to vote labor.

    Orders for what time a child spends with each parent goes largely hand in hand with the legislative preference for shared parental responsibility. If the presumption of shared parental responsibility is not successfully rebutted, the Court must consider if equal care is in the best interests of the kids, and failing that, it must then consider if substantial and significant time is the next best thing. Substantial and significant time is a combination of weekdays, weekends, holiday time and special occasions.

    Of course, consideration for equal time or other doesn't mean the Court must rule either equal time or other, just that it must consider it.

    The final point I want to make is that even though this isn't explicitly legislated anymore, the Court also considers the capacity of each parent to support and encourage the child's relationship with the other parent, under the 'other relevant issues' part of s 60CC. The Court doesn't take well to parents who are unable to put their personal issues aside and recognise that both parents have an important part to play in their kids' lives. More than once, I have seen cases where the Court even reversed residency arrangements because one parent has worked so hard to stop the other from being involved in their kids' lives, contrary to the kids' best interests.

    My view is that the complaints here appear to be fairly low key, as far as violence and abuse goes by Family Court standards. An IVO doesn't have a great deal of weight behind it if there's been no police action on it and it was accepted without admissions. Parents with IVOs have been granted residency before. Gambling and drinking doesn't an unfit parent make, either. At best, the Court might order he consume no alcohol before and during the kids' time with him. The complaint about non-involvement is fairly menial. If dad is still seeing the kids, or even expressing interest in seeing the kids (which one would assume he is, since it sounds like he's commenced action to do so) then the Court is probably going to see it best that the kids spend time with him and benefit from his continued involvement.

    Basically, I don't think you'll get sole parental responsibility and a no contact order in your favour, but nobody can ever predict what the Court will order, so I could be wrong. It's really up to you how you proceed.
     
  7. sammy01

    sammy01 Well-Known Member

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    So what sort of money do you think he is on? I thought CSA would still use his last tax return? Are you telling us he has never done a tax return?

    So go to mediation. Tell him that the first thing you want him to agree to do is his tax for the last financial year. See, now all of a sudden this mediation thing ain't that bad.

    Now if your youngest is younger than 2, then maybe overnight care ain't ok. But the older kids should be given ample opportunity to have a meaningful relationship with their dad.
     

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