NSW Care of Children and Family Law Case - What's Likely to Happen?

[DadonaMission]

Hello,

My wife and I with 3 kids aged 11, 4 and 3 have been separated for only about 3 months. Long painful story short she has filed legal proceedings in the Federal Circuit Court with very weak claims of child abuse and family violence past and future.

There is a preliminary police ADVO (domestic violence retraining order) in court this week where I picked up her phone and left the house to read what she'd been up to because she'd been leading me on. She is now very desperate to win it because it's being used in the Federal Circuit Court case. I am fighting this but may not win because it's so easy for them to get.

Of course by using the claim of child abuse and violence she has bypassed the need for mediation and is making very unreasonable interim and final demands on parenting and property.

A letter from her lawyer says I can receive only supervised visitation for 4 hours per fortnight which is in now way enough to maintain our relationship. My lawyer says don't do it until the first court date in August but because I've been away with work I haven't seen them in 6 weeks.

Last week I called my family law lawyer and asked if I could pop into there childcare to see them and give them a gift I'd bought while overseas. The lawyer said it was fine. So I went with my mum but they weren't there. That same day I get a letter from her lawyer saying they know we went there and that we asked to take the kids out of care which we didn't and I only have a 2 seater car! Another accusation.

So I have been wrongly accused of child abuse and family violence. There is absolutely no evidence and I have been a brilliant and involved dad.

I just want to know what is going to happen and when. I have been doing all the right things but now she is really upsetting me. The kids would be missing me a lot and I have a lot to offer them.

I definitely would like more than every second weekend with them. I am living in and planning to stay in the family home.

I have read that the fact she is being unreasonable (vindictive actually) means the courts will view that we can never communicate for shared care to happen so either way she gets what she wants even when false accusations are disproven.

Can anyone help please?

 

[Inquisitive]

From one dad to another as support:
I really feel or you DadonaMission. It must be heartbreaking but please don't lose hope in the system.
False accusations out of a wife's spite toward her husband has and always will be a fathers worst nightmare. Unfortunately many women choose to go down the erroneous ADVO path and it appears that the more that you try to play a part in your children's lives after the separation, the more that she is waiting for you to put one step out of place and fuel her desire to build a case against you as ammunition for the courts.
Even if the ADVO is unjustified, it is still an ADVO and you must adhere to the terms of it in the meantime. It will be a very difficult time for you now no doubt, but you must be patient as one day soon you will have your day in court.
It is one thing for a husband and wife to fall out of love and despise each other, but it is a completely different matter when the children are used as pawns. The children have a right to love and spend time with both parents fairly. If it goes to court, the courts will rule on what is best for the children with the evidence that they have before them. If the mother is not trying to be amicable, then it will reflect poorly on her in court.
In my own non professional opinion, I sincerely believe that without sufficient evidence to back up her allegations toward you, it will be very difficult for her to justify the current unreasonable restrictions that she is trying to impose on your right to see your own children, and in retrospect, the lost time that your children have missed out on to see their own father for more than just the 4 hours every fortnight post the unsubstantiated separation.
Good luck.

 

[AllForHer]

What you've read about shared care being impossible to get in court is not an accurate statement. I have a feeling I may know where/who that statement came from, too.

About 95% of cases that are initiated with the court are settled by consent of the parties, and the very (very) large majority entail shared care. The reason people tend to think that shared care is impossible at trial is because they can only make that conclusion from the published cases - and cases decided by consent don't get published at all, so there's a discrepancy. It's true that if parenting orders are in that small 5% that must be decided by the judge, then it may be the case that conflict is too high to justify 50/50, but shared care (at least four nights a fortnight and half school holidays) is still within reach, especially where one parent has been found to have lied or exaggerated the truth. But remember, only a very small number of cases are actually decided by a judge. While you may be thinking "my ex will definitely not settle by consent" at the moment, I can assure you that once her solicitor has spent some time observing the behaviours of the parties (and earning a little income), they will be able to determine how much of a chance the mother has of winning. If the chances are low and you've been nothing but a good parent who puts your kids first and tries to reduce their exposure to conflict as much as possible, they'll apply pressure to settle. Remember, her solicitor is probably giving her advice very different to what is actually coming through in the correspondence because at the end of the day, they still have to follow her instructions, even if it's damaging to her case (and let's be honest - parents on a quest for revenge often think they know best!).

It's common for a vindictive parent to commence proceedings with high hopes of getting their way with half-truths and omissions, but remember, there is nothing your ex can say or do that the court hasn't seen before, and it doesn't make judgements on he-said-she-said evidence. If there were issues of violence and the kids were at such high risk that supervised visits are necessary, why are there no police reports or reports to DHS? Why is she still seeking shared parental responsibility if you're such a danger to the kids? Has she even detailed any instances where you were a danger to the kids, or were all acts allegedly against her?

I'm not saying the court gets it right 100% of the time (in my opinion), but the truth certainly comes out 100% of the time. There is literally nothing the mother can say or do that the court has not seen before. It knows parenting cases usually only come about because someone wants revenge. But it is there to uphold your kids rights, which is to know, spend time and communicate with both parents on a regular basis, regardless of the nature of the relationship between the parents. It takes a lot more than just 'he did this' and 'he did that' to convince a court to violate a child's rights.

My advice to you is to remain calm, keep the conflict away from the kids and don't give the court any reason to suspect the mother's allegations may have some truth to them. Yes, you may have to wait at least until interim hearing to spend time with your kids again in order to be seen as minimising the conflict, but it's a matter of enduring short-term loss to attain the long-term gain.

Hope this helps.

 

[DadonaMission]

You guys provide great support and advice. Thank you. In fact this matter is worrying very much the whole my side of the family; that we've lost contact with the children. It appears my ex wife wants us to all disappear and to leave her with everything. Such selfish and destructive behaviour.

I will continue to be patient and I eagerly await the mystery of the system that awaits me at the courts. I trust that it will serve my children well. Thank you.

 

[maxc]

I've been in a similar situation. I would like to give you some advice from my experiences. Document everything no matter how small or trivial you think it might be. Keep a level head, it's very hard especially when you have children And miss them so much. Don't talk to your ex at all. Just focus on your children. Also there is alot of support for men. ie....Dads in distress, men's line. You just have to dig a little harder. Remember your not alone. Concentrate on your job and other things that are stable in your life. Good luck

 

[AllForHer]

I agree with the above, except on severing contact with your ex. Instead, keep any contact only about the kids, and keep it polite and respectful. If you feel yourself getting angry, it's because she is pushing your buttons - stop, breathe, ignore for at least 48 hours, and if it doesn't require a response, don't give one.

 

[maxc]

Sorry I should have been clearer. I mean don't talk to her unless it's only to do with the children