VIC Custody and property - divorce

[Jessie84]

Sadly my 10 year marriage is about to become another divorce statistic. We have 2 kids - 6 and 1. To cut to the chase I would like advice on the following:
Custody - I am concerned with kids visiting their father. He isn’t very responsible and cares mostly about hanging with his mates. They drink and smoke. He is happy to just dump them in front of tv and just leave them unsupervised. Anyone could have access to them. If I’m not present who will shield my kids from this? How can I ensure that he can’t have people around when he has the kids ? I just want them to be safe not to keep them from him.
Property - the house is in his name. He had bought the house about 2 years before we got married. We share bills but he pays the mortgage. Mind you I pay all child care fees which is as much as the mortgage. I pay for swimming lessons, clothes for kids, medical for them and 75 percent of food. Given that am I still entitled to any share of the family Home?

Thanks for any advice

 

[AllForHer]

First, this is not legal advice. Nobody here can give legal advice, you should not take it as such.

Second, both parenting arrangements and property settlement can be whatever you and the father agree to. You can attend a family dispute resolution conference (mediation) to negotiate arrangements that suit you both, and you can file the outcome witht the Court as consent orders if you want them to be enforceable, but if you and the father can't agree, you can file for parenting orders and property settlemen from the Court.

1. Custody (which, in Australia, is referred to as parental responsibility/care arrangements).

The children's best interests are paramount to the Court, but Australian family law is strongly geared toward shared care. Shared parental responsibility (the responsibility of the parents to jointly make decisions about the kids' long-term care, welfare and development) is a presumption, meaning it's the default. If that default isn't rebutted, the Court first considers if equal care is best for the kids, and failing that, it considers whether an order for substantial and significant time is the next best option. Substantial and significant care is a combination of weekdays, weekends, holidays and special occasion, so the outdated every-other-weekend regime is not a common outcome except where the parents live a significant distance apart.

The concerns you've raised here are very trivial, the Court wouldn't give them any consideration when determining what's best for the kids, so instead, let's look at the reality of co-parenting after separation (and this rings true in the Courtroom, too) - what dad does with the kids when they're in his care, is his responsibility, and not your business. You have no power to stop him from having other people around the kids, just the same as he has no power to stop you from having other people around the kids. Your time, your responsibility; his time, his responsibility.

If you and dad are still living relatively close to each other, you should expect to share custody. Equal time is good if you an dad can get along. I'd say the average care arrangement these days is fortnightly, nine nights with one parent, five nights with the other. For the one-year-old, it's generally accepted that time with the other parent should be for shorter periods more frequently, however the six-year-old should have no problems staying with dad for five consecutive nights, but it may be best to have both care schedules aligned as soon as possible.

2. Property settlement.

If you ask the Court to determine a property settlement, it will ask four questions:

1. What's the value of the shared asset pool?
2. What are the financial and non-financial contributions of each party?
3. What are the future needs of each party?
4. Is the settlement just and equitable?

The house is considered part of the shared asset pool, but dad's financial contribution might be slightly larger because it was purchased two years prior to marriage. Non-financial contributions include the act of one parent staying home to keep house and raise kids while the other worked - the Court won't disadvantage a stay-at-home parent because they made less financial contribution, basically. Future needs relate to who has care of the kids, whether someone has a disability, who has a better earning capacity, etc.

The short answer to your question, though, is that yes, you will be entitled to include the family home in the property settlement.

Hope this helps.

 

[sammy01]

10 yr marriage - all assets will be considered... How a court would split them? don't know, ask a court. But the fact you're name isn't on the title doesn't matter.

Dad lets the kids watch tv, smokes, drinks beer... BIG DEAL.

 

[Jessie84]

Thanks for your reply. I just wrote it like that to simplify the issues. It’s not that he smokes and drinks beer that’s the issue it’s the fact that he gets shitfaced and passes out. And he brings home random “mates” who I don’t know. So him being passed outs, random mates and unsupervised kids - girls - is my worry. Anyway I’ll just hope we can agree on this in mediation. I just want safe.

 

[Jessie84]

Thanks so much for the reply. You have really been a big help and give me some idea.

 

[sammy01]

what sort of time is dad wanting with the kids? The youngest is a bit of an issue. At one yr old a night a week would be the maximum I'd suggest... Maybe 2.

You're in a tough situation. If you fear for the safety of the kids then you should be refusing access... But your concerns seem on the lower scale of things... It's not like he is hitting them, smoking ice... If there was a history of negligent parenting on his part and Doc's was aware of that would make for a different story.

 

[Jessie84]

Thanks for the reply. At the moment I can’t even get him to talk about divorce , we haven’t yet split so not sure what he would want. Honestly I think the minimum. He isn’t negligent per se , he just needs to think situations through and act in the best interest of the kids rather than himself and that is the challenge for him.