NSW Charged by Police with Assault - Will I Lose Custody of Children?

[devastated Mum]

Hello everyone,


A bit long with my story, thanks for your patience.

I am a devastated mother with an Asian background, who is now facing assault charges and most likely family proceedings where I could possibly lose custody of children.

I have been in an abusive relationship with my children’s father for about 11 years. His father and extended family had physically bashed/strangled me at Christmas 2010, in front of our then three-year-old son, where police were called but didn’t do much as we quickly left the scene after the incident.

This weak, narcissistic husband of mine then clearly chose his side through years of manipulation and stone-walling towards me, aiming to bend me to curtail to his biological family’s requirements and wishes. As a woman with tertiary education and own judgement, I stood strong against his and his family’s manipulation and accusations. Yet to keep the family in tact for our kids, as I don’t want them to go through what I have been through (as a kid from a single parent family), I have been trying to keep the marriage together.

About four-five years ago, my in-laws sold their rural acreage due to development zoning and got about two or three millions cash in their bank. That is the first time in their lives to have this much cash. Ever since then, their and my ex’s attitude towards me changed from bad to worse.

My ex has since then pushed really hard for divorce while I was still trying to make it work for our two boys. In 2016, I went overseas for a while and came back to find he had consulted a family lawyer regarding separation, divorce and custody of children. He started to lobby me into accepting that he has the sole custody of two boys, etc which I declined saying there is no way I will give up custody of my kids.

In June 2017, my then father-in-law drove to our house and punched me again (since 2010) in my face. My ex told the police he didn’t see his father’s fist connect my face, despite that my cheek was swollen and red. An AVO was taken out against his father protecting me.

Ex then pushed hard since June for his parents to see our kids which I rejected saying I don’t feel comfortable for that for a short while, given what happened in June. I further requested my ex to leave as he told lies to police in an effort to save his father. I felt mutual trust is gone completely.

My ex insisted on staying to make our relationship work. I was suspicious but allowed him chance. Between June and November there had been almost no effort from him to repair the relationship and my suspicion as in his motive of staying increased in volume.

One day in November he executed his plan by causing an argument with me where he started recording the conversation between me and our oldest son. While I was attempting to turn off his phone, he grabbed my throat forcing me to defend myself by leaving two scratches on his arm.

He then picked up our two and a half years old, jumped into the car, raced to the police station and cried victim.

I called 000 as he raced off as I don’t drive.

Now I was charged for common assault against my ex as well as assaulting police(as they came to our house to arrest me and taken me away in front of our ten-year-old son) as well as resisting arrest.

I haven’t been with my two kids since the nightmare took place about mid-November 2017. Ex took both of our kids and ran to his parents about two hours drive away. Now my oldest son has been kept out of school for almost two months. My two and a half has since then been put into a local childcare five days a week.

As a devastated mother I cry everyday to be with my kids. Yet all I could have is a supervised visit every week in the public. I want to toilet train my youngest as he is already thirty three months old and ex has no intention of starting that soon!(given that he never toilet trained the first child!) I want to supervise my oldest study as he has been excellent academically until his dad took him out of a State famous school and was about to put him into a local under-average school.

If convicted I would have no chance of getting sole custody of my children, yes?

I just know I have to fight especially the ex has been such a calculating schemer.

Thanks for your patience and help.

 

[AllForHer]

The shortest answer to your question is that nobody can predict what the Court will do, but trends would suggest that no, you probably don't have much chance of getting sole custody of your kids.

In fact, even if you aren't convicted, you probably still have no chance of getting sole custody of your kids, because Australian family law very heavily supports shared care, and the only circumstances in which sole custody is granted is where one parent is found to pose an unacceptable risk of harm to their children by way of violence, neglect or abuse.

At present, you don't have any evidence that your ex is violent other than your word. Your ex, on the other hand, has very substantial evidence that you are violent, namely pending charges against you for common assault, assaulting a police officer and resisting arrest...

 

[devastated Mum]

Thanks for replying. Well I forgot to include there were scratches on my right arm (photo) during the altercation between me and ex. With his choking me - there is triple 0 recording indicating I rang police re his taking away our youngest kid and choking me.

And if I may, I am seeking for both kids to live with me as I am living in a much better school catchment than ex. I don’t have too many issues as in kids spending weekends and part of holidays with him- as long as his alcoholic mother and violent father stay clear of my kids

 

[Hoang Trang]

And if I may, I am seeking for both kids to live with me as I am living in a much better school catchment than ex. I don’t have too many issues as in kids spending weekends and part of holidays with him- as long as his alcoholic mother and violent father stay clear of my kids

Why is your catchment area better then your ex's?

 

[devastated Mum]

This is based on Myschool official website NAPLAN results as well as how multicultural that school is.

 

[devastated Mum]

And ex just sent through his lawyer a minute of consent proposing that he is to have sole custody of both children...so the logic line is: he pushed really hard to get that out of me via normal channel(trying to gain my consent), it didn’t happen, hence he set me up to achieve it via posing himself as a victim...

 

[AllForHer]

I'm sorry, I don't think you quite understand the precariousness of your situation.

Photos of scratched skin and bruises together with just your word does not adequately prove that your ex is responsible for causing you those injuries, and stating things like 'he is posing himself as the victim' is wildly speculative, rather than reflective of actual evidence.

Granted, it's not necessary to prove to the Court that he has been violent toward you, but you at least need the Court to believe, on the balance of probabilities, that he poses an unacceptable risk of harm to the children such that sole custody in your favour is in the best interests of the children, which is not an easy threshold to surpass.

All your ex has to do is deny your allegations in the first instance, and then it is up to you to substantiate your allegations with more persuasive evidence. What other evidence do you have? Just your word and a few random photos of various injuries that you can't prove were actually caused by him? Or is there something else, such as an AVO against him, breaches of an AVO, or criminal convictions for violent crimes?

Insofar as I can tell, all you seem to have is your word.

Your ex, on the other hand, can subpoena your police records to show that you've been charged with a variety of violent crimes, including one against him directly.

On that alone, he stands a significantly better chance than you do of proving to the Court that you pose an unacceptable risk of harm to the children through family violence, which is the threshold at least one of you needs to reach in order to gain a parenting order for sole parental responsibility.

Wanting sole custody so the kids can attend the public school that you like better than the public school in your ex's area seems extraordinarily trivial when there are criminal charges for violent crimes pending against you, don't you think? And wouldn't you agree that it's plainly very naive to want the kids to stay away from their grandparents when neither one of them has been charged with a violent crime, but you have?

Frankly, I think you really need to take a broader perspective here, think less about your own alleged victimhood and reflect more closely on what the actual evidence says about you to the Court.

 

[devastated Mum]

I appreciate your reply. However please note I stated that I want my children to live with me especially the little one is only two and a half. I will not have huge issues as in shared parenting as long as his alcoholic mother and violent father（who I have an AVO against) stay clear of our children.

As far as probabilities are concerned, his alleged assault by me is only his words with a scratch on his arm. Unfortunately police took side of him just because he drove to the police station first. I would have done that if I have a drivers license. But I don’t drive!

 

[devastated Mum]

I certainly understood that a lot of dads have been falsely accused of assault by their partners in an effort to gain custody of children or assets or both. Just because I am not one of those women and bad luck enough to have such a vindictive scheming partner, it means I deserve to loose both of our children for whom I have been a primary carer for the last ten years?! No woman hater please

 

[AllForHer]

Well, I am a woman, so perhaps you could refrain from inferring I'm a 'woman hater' and actually focus on the facts of your case instead.

As I said earlier, state police aren't known to invest public resources into charging a person unless they have evidence they believe will support a conviction at trial. The standard of proof in criminal matters is beyond reasonable doubt, meaning the prosecution has to persuade the Court beyond reasonable doubt that you committed the crimes for which you have been charged. Successfully prosecuting a crime at trial is no easy feat, so I would say it's folly to believe the police are pressing charges against you with no evidence other than your ex's word 'because he got to the police first'.

The fact that you have been charged with violent crimes at all does not bode well for your parenting matter, and indeed, given that your ex is currently the resident parent and not subject to any criminal proceedings, he essentially has the upper hand - it's really him who needs to have 'no huge issues with shared parenting', rather than you.

The conditions you've placed on your willingness to engage in shared parenting are also optimistic at best. Whatever your former father-in-law did, it obviously didn't represent a risk to the children, otherwise they would be named as protected parties on your AVO, as well, correct? But they aren't. On top of that, they aren't subject to criminal proceedings, while you are - I'm sure you can appreciate the irony of wanting to protect the children from their grandparents, when the only one actually charged with violent crimes is you, and I can assure you that irony won't be lost on the Court, either.

But, with that said, it sounds like the father is trying to resolve things outside of Court and it doesn't sound proceedings for parenting orders are actually on foot yet, so anything Court-related is basically irrelevant at this point. While there are no parenting orders in place, you and your ex are at liberty to do as you see fit in regard to the children, but perhaps your best course of action right now is to organise a consultation with Legal Aid to get legal advice - they offer free consultations for parenting matters and may be able to represent you for same.

Best of luck.