NSW Chances of Getting More Care in Family Court?

[Oskar10]

Any help would be much appreciated!

I currently have my 3.5yr old 4 nights a fortnight. No family court orders in place. Current arrangements were sent to me by ex’s solicitors and I haven’t agreed to them. Although I assume that in following them for several months we have an implicit agreement?

We had a parenting plan that had the 4 nights plus some additional day contact, but the ex now denies we had a plan (although I have text records where she confirms it exists). She is now trying to reduce overnights. Mediation went nowhere. I was always heavily involved in all aspects of care prior to the separation and it is really obvious that changes have upset the 3.5yr old. Also have a mounting list of events where she is interfering with our child’s time with me.

Do I have a good chance of getting more time if I head to court? Even if the days step up over time?

I am also worried that she may seek an IVO based on some text messages. Not in any way aggressive (have never been aggressive) and only about our child’s behaviour and asking her if she wanted the child to call her while in my care, but she has mentioned harassment before and the solicitor letter said only practicalities to be discussed over text and she didn’t respond to messages. Would an IVO application on these grounds be possible as it would seem incredibly frivolous to me?

 

[AllForHer]

Well, even if you did have an agreement, it's unenforceable unless it's got a Court seal on it, so we'll focus on the future prospects, rather than dwell on past issues.

Do you have a good chance of more time if you head to Court? Well, it's impossible to predict an outcome when the Court has to decide, but the legislation does stipulate various care arrangements that the Court must consider when deciding a parenting matter.

Section 65DAA of the Family Law Act 1975 holds that where the presumption of equal shared parental responsibility is upheld (which it almost always is), the Court must consider if an order for equal time with each parent is in the best interests of the child, and failing that, if an order for substantial and significant time is the next best thing.

Substantial and significant time is a combination of weekdays, weekends, holidays and special occasions, so the old every-other-weekend-dad regime is an uncommon outcome in ordinary parenting matters unless they're being influenced by elements such as excessive distance between the parents' respective residences.

In summary, if you don't get equal time, you stand a very good chance of getting substantial and significant time instead, and as a general (but speculative) trend, a lot of parents end up with parenting orders for at least five nights a fortnight to reflect the definition of substantial and significant time, provided that's what the Court determines is in the best interests of the child.

Legislation and Court trends aside, my personal experience has been that fathers tend to get a better outcome from initiating proceedings for parenting orders than they do from trying to negotiate a parenting arrangement with their ex. Mothers acting alone tend to take on the 'predominant parent' persona supported by social rhetoric when it comes to sharing care of their children, but the legislation is heavily in favour of shared care (though I imagine some here will beg to differ), and most good lawyers make that pretty clear to their clients from the beginning.

I suppose the question everyone should ask themselves before initiating Court proceedings is whether or not it's worth it. Let's say you're seeking one extra night a fortnight - is it worth the time, stress and money for one extra night? Maybe not. But if mum is seeking to reduce the current arrangement from four nights a fortnight to two nights a fortnight, and you want to try and get 50/50, then yes, maybe it is worth it. It's up to you to make that assessment.

You may also find that initiating proceedings may motivate mum to be a bit more lenient with the arrangements she wants because of the cost of Court proceedings in general. Around 95% of parenting matters initiated in Court end up being resolved by consent, meaning the parties agree on the arrangements in the end and they don't need to be heard at trial. Resolving a parenting matter by consent is what everyone should aim for, but unfortunately, some people need a resource-poor Court to advise of such.

Just for interest's sake, my husband had his daughter four nights a fortnight. When I came into the picture, mum started withholding indefinitely, so he initiated proceedings as a self-represented litigant about a month after mediation, seeking equal care implemented gradually over the course of about a year.

For the duration of proceedings, mum sought that the child only see her dad three nights a fortnight. Two weeks before their trial date, and under the threat of her legal fees nearly doubling just to have her lawyer attend the trial, mum ended up sending through a proposal for consent orders - for equal time. Mind, that was with a cross-application for a domestic violence order on the table, as well.

I hope this gives you some thing to think about, and on a final note, I will say not to worry too much about a possible IVO. Even if she does pursue one, they don't have much impact on parenting matters because they're not criminal matters and, if accepted without admissions, they don't actually prove violence is an issue.

 

[Oskar10]

Thanks so much for that!

I think even one night would be worth it from where I sit. Life at mum's is pretty intense so I think the little one really benefits from some time out at mine.

I guess it is time to see a laywer, don’t think I'm quite up to self-representing. Also don't think money is an issue for her but I can’t imagine her wanting to be cross-examined which I assume happens?

 

[AllForHer]

Cross examinations are conducted at trial, but not at any other point in proceedings for parenting matters. You will have multiple interim hearings before a trial date is set down, and as a guide, it can take upwards of three years for the Court to set a trial and fully resolve a parenting matter with final orders.