VIC Child custody for pr holding stay at home mom

[MommyA]

Hi there,

I am currently holding an australian pr, I have been married to a pr holder for aprox 4 years. After marriage and moving to Australia I stopped working and started taking a part time master course. In the meanwhile we had a baby, who is now 15 months old. Now I am a stay at home mom and continue undertaking part time master course. My marriage has been troubleful since our first year. In the begining I though it was only because we are from different countries/cultures/raised up in different families, but since a while ago I have realised something else is wrong with our relationship. After long hours reading, watching videos and listening to audios I could identify myself as victim of emotional and verbal abuse (before I was too naive and to hopeful things would get better to understand what was happening).
My husband have already threatned me he will fight for our baby's custody if we get divorced. However, in daily basis I am the one who does absolutely everything for our baby, my husband doesn't participate much other than few minutes a day having a quick play with the baby. I could make a long list showing examples of my husbands neglect and sefishness towards me, and now our baby. Every time he had opportunity to take care of the baby I have witnessed him putting his needs and wants first than the baby and ending up even not caring for food quality and eating/sleeping time. All this time he has never given a bath in the baby by himself, he also never showed any initative or interest to see when something is needed for the baby and go and get it. He also doesn't help at all with the housekeeping. I am extremely worried that in the event of a divorce my husband gets the custody, I am worried about my baby's wellbeing. Since I have no job and I am a pr holder I am afraid of loosing my baby's custody. Does anyone had similar experience or could guide on that?

 

[AllForHer]

Forgive me, but what you're describing here isn't abuse. In fact, what you've described is the experience of about 90% of first-time parents. I'm sure dad has some pretty persuasive arguments about how you're a stay-at-home parent, yet he still comes home some days to find the house in a state of chaos, dirty nappies on the change table and laundry a mile high needing attention. Frankly, welcome to parenthood.

So why else shouldn't dad have at least equal care?

 

[Clancy]

This is the secret of men that women don't realize when they marry them.... you married a spoiled teenager in a mans body! What you need is, you need him to GROW UP or GET OUT.

It is best for your baby if you can work it out.... Take strength from that knowledge, because it wont be easy to get your man to do marriage counseling and even get him to do a parenting course!

You will have to trust your husband to look after your baby.... that wont necessarily be easy, but it is important. My ex used to train me by going out on the town late with her friends occasionally, and i can remember doing it all on my own and when i had to change a nappy, the sweat would be pouring down my face!!! hahahaha But that was when we were still together, after she ended it, she became a total B.

Failing that and you have to separate..... so first of all, with young children the law is heavily biased towards the maternal parent having pretty close to full custody, but dad is still very important as well.
When you go to mediation (relationships Australia is good) they will offer a 'parenting course' .... the idea being to alleviate some of the anxiety of the maternal parent.

So basically all your concerns are obviously very common and the system is well designed to guide you through if you have to separate.

 

[MommyA]

Thank you for your reply AllforHer. Sorry I might have not been very clear in my first message, but I just mentioned about emotional and verbal abuse and didn't actually described it, however it exists on top of the lack of participation in the parenting. Things such as screaming at me for minor reasons at anytime, including when we are in front of other people, in the street, in his relatives house, in front of my mom; also calling me names, and punching (and damaging) doors, kicking garbage bins. For a while I was feeling ashamed to cross paths with neighbours for what they might have heard from my home... There is even more to that, but I think this is already enough for writing here.
Another thing I want to mention is that I can't agree that his behaviour as I described before with regards of his participation on parenting is normal of 90% of first-time parents. On the contrary, I am aware the hardship is real during this season, but I know dad's are supposed to participate more in all things, even if they are working full time and their relationship with the moms may not be the best, I have plenty of examples of full time working dad's that are much more participative with their wifes in raising their babies. I hope this clarify why I am so concerned about the custody of my baby.

 

[Clancy]

Ok so what you want is to separate but not jeopardize your child by doing so. Sorry to say, but no one here can promise you that.

You have a spoiled child as a father to your baby, the problem is not going to go away, even if you separate, you just have to work with what you got and do the best you can.

I recommend you speak to someone at Relationships Australia about your situation.

 

[MommyA]

Thank you veey much Clancy for you reply. What you said makes sense, about he being spoiled, I agree with that based on what I saw in his family. It is also good to know that the law is towards maternity custody of very young children.

 

[Clancy]

Thank you veey much Clancy for you reply. What you said makes sense, about he being spoiled, I agree with that based on what I saw in his family. It is also good to know that the law is towards maternity custody of very young children.

He will still get some custody - unavoidable without some serious offense relating to violence etc etc against him.

I would advise speaking with a professional counselor before deciding exactly what course of action your going to take? (try contacting relationships Australia).

 

[AllForHer]

Well, just as an FYI, this is the legal aspect of the thing.

First, the child's best interests are paramount in all decisions made by the Court. When determining what's in the child's best interests, the Court considers the various provisions listed under s 60CC of the Family Law Act 1975. There are two primary considerations and 14 secondary considerations. The primary considerations are the benefit to the child of having a relationship with both parents, and the need to protect the child from harm caused by neglect, abuse or family violence. The benefit to the child of having a meaningful relationship with both parents is a presumption, however the need to protect the child from harm will take priority over the aforementioned.

Second, there is a presumption that both parents have equal shared parental responsibility for the kids. That means that unless there are orders from the Court stating otherwise, both parents have equal say about long-term decisions affecting the children, including care arrangements, education, name changes, relocation, religion and such. The presumption of shared parental responsibility will only be rebutted under two circumstances: that the child is at an unacceptable risk of harm caused by neglect, abuse or family violence, or that an order for shared parental responsibility isn't in the best interests of the child.

Third, unless the presumption of shared parental responsibility is successfully rebutted, the Court must first consider whether an order for equal care arrangements is in the best interests of the child, and failing that, if an order for substantial and significant time is the next best option. Substantial and significant time includes a combination of weekdays, weekends, holidays and special occasions (which is more than the every-other-weekend regime that was popular in the 80s and 90s). On average, I'd say the Court most often determines substantial and significant time to be five nights a fortnight, half all school holidays, and time on Christmas, Easter, Mother's Day, Father's Day and birthdays.

You don't have to put any weight in my opinion. It's not legal advice, after all, just guidance based on my own experience in family law, but of the literal thousands of cases heard where allegations of domestic violence are raised, it's only a very small fraction in which those allegations are substantiated. What you've described in either post above is not at all unlike what I've read in dozens of cases before, and in none of them was the Court persuaded against a shared care arrangement.

 

[MommyA]

Thank you very much for the clarification AllforHer. Based on your experience with family law, do you think you could tell me which parameters the court uses and how exactly they define that the shared parental responsibility isn't in the best interests of the child?

The presumption of shared parental responsibility will only be rebutted under two circumstances: that the child is at an unacceptable risk of harm caused by neglect, abuse or family violence, or that an order for shared parental responsibility isn't in the best interests of the child.

 

[AllForHer]

Look, if you have to make your case fit the parameters for sole parental responsibility, then you don't have a case for sole parental responsibility. Sole parental responsibility is only granted where one parent poses an unacceptable risk of harm to the child, or shared parental responsibility is not in the best interests of the child, so you're going to need evidence above and beyond just your word to successfully rebut shared parental responsibility. Has dad ever been charged with a violent crime? Has DHS ever been called for the child's welfare? Are there police reports? An IVO? Etc?

If the answer is no, then you don't have a case for sole parental responsibility.

As a word of warning, parents who seek sole parental responsibility with nothing other than their word as evidence of risk, can and often have wound up with an order reversing residency of a child.

Just because dad said he will fight for primary care of the kid, does not mean this automatically becomes a fight for parental responsibility. He's going to be told the same thing as you: that unless he can prove you pose a risk to the child, that's he's going to end up with an order for shared parental responsibility.

Children benefit from having both parents in their life, that's a presumption in law, and they benefit even more of their parents can put their issues aside and get along for the sake of their kid.

My suggestion is to contact Relationshops australia for two reasons - first to organise mediation to talk about care arrangements for the kid, second to enrol in a post-separation parenting course.