LawAnswers.com.au - Australia's #1 Legal Community

LawAnswers.com.au is a community of 10,000+ Australians, just like you, helping each other.
Ask a question, respond to a question and better understand the law today!
Join us, it only takes a minute:

VIC Custody of Children - Getting Ex to Allow Time with Daughters?

Discussion in 'Family Law Forum' started by kimbapuppy, 18 July 2016.

  1. kimbapuppy

    kimbapuppy Well-Known Member

    Joined:
    17 January 2016
    Messages:
    18
    Likes Received:
    4
    I am seeking your wisdom on how I can increase the number of nights per fortnights with my 2 daughters (4.5 and 7 years old).

    My ex has refused to allow me to increase my custody of children as she knows she can maximise the child support fees that she can get via the Child Support Agency. Both my daughters want to spend equal share with both their parents, however, I see fear of reprisal in their eyes when the mother is around.

    Initially, she gave me 2 nights a fortnight (alternating weekends), then through mediation, an extra night. One of our close friends negotiated on behalf for me and managed to get a 4th night after finding out that she will still receive the same amount of child support fees if it was 3 or 4 nights (which she later retracted to blackmail me on other matters). We will be attending a 3rd mediation session and discussions collapsed in the 1st and 2nd session and our mediator has voiced frustrations as he is unable to make any progress.

    I have come up with a plan to take care of both my children at 6 nights a fortnight, thanks to the strong support I am getting at work. I am keen to spend more time with my kids that I have cut down from full-time to part-time so that my youngest do not have to go to childcare during my nights and I have applied for "working with children's checks" so I can be at school with my eldest.

    Previously, her PSO brother colluded with her to lie to the police to put an Intervention Order against me - this has since expired without any breaches. The IVO was accepted without admission however I should have contested but didn't understand the process. Other relevant information is that the mother used to have hyperthyroid which was treated 4 years ago (suspect this condition may be back) and the GP described that this condition makes her go "cuckoo" in the head. It's impossible to talk common sense with her and she changes her mind like the "Melbourne weather".

    Are there any other approaches I can take apart from going to Court which I rather not as I would prefer to spend the money on the kids instead.
     
  2. sammy01

    sammy01 Well-Known Member

    Joined:
    27 September 2015
    Messages:
    1,064
    Likes Received:
    126
    I hope you have reasonably good records of the instances that you've had 4 a fortnight. Go to court. The only other way is to make her agree and you can't make someone agree. Simple.

    So go to court. You have nothing to fear from court. The law is on your side. Read this, especially the bit about 'court data'

    So at the next mediation, quote the family law act. Sorry can't find it right now but I can find this that you should read - Shared Care - Equal Shared Parental Responsibility

    Next - realise that only about 5% of cases get decided by a magistrate... So indicate that you'll agree to 6 a fortnight as a compromise but if you go to court you'll go for 50/50... Mate, accept 5 if you can, get a bit of an agreement about a few other things, like maybe a bit of extra holiday time. But make it clear that you feel that you've got a good case for court and it would be unfortunate to have to go to those lengths.

    The first thing court will do is make you mediate again. But just the court application could be enough to motivate a bit more compromise.

    The other option is a limited financial agreement, you continue to pay the same child support for 3 years even though you've got more time with the kids. The problem is she will still lose a big chunk of family tax benefit, but it ain't a bad thing to suggest at mediation, just to show the mediators that you're not motivated by money...

    One more thing - 5 or 6 a fortnight is ok.... Mate my kids worked out it was mum that was stopping 50/50 and they thought it unfair. That alone caused the kids to rebel against her...
     
    kimbapuppy likes this.
  3. AllForHer

    AllForHer Well-Known Member

    Joined:
    23 July 2014
    Messages:
    2,319
    Likes Received:
    423
    Unfortunately, without agreement, Court is the only real option.

    If you're only getting two nights a fortnight at the moment, then you really having nothing to lose - the legislation is heavily in your favour because of the pathway the Court must follow when it's deciding what orders to make.

    First is that the children have a legal right under s 60B of the Family Law Act 1975 to know, spend time and communicate with both parents on a regular basis in order to have a meaningful relationship with them. The Court will do its utmost to uphold this right above all else.

    Second is that all orders made must reflect what the Court determines is in the best interests of the children. Except where there is an unacceptable risk to the children of violence, abuse or neglect, the Court maintains it's in the best interests of the kids to have a meaningful relationship with both parents.

    Third is the presumption of shared parental responsibility. Being a presumption, it's up to the party contesting shared parental responsibility to show why it's not in the best interests of the children for both parents to be involved in decision-making. It's very uncommon to have the presumption successfully rebutted.

    Fourth is that where the presumption of equal shared parental responsibility is upheld, the Court must first consider whether an order for equal time is appropriate, and failing that, it must then consider whether substantial and significant time is the next best thing.

    Substantial and significant time is defined as a combination of weekdays, weekends, holiday time and special occasions (Christmas, etc). It is not just alternate weekends.

    All of the above are determined by the factors provided in s 60CC of the Act, which outlines the factors the Court must consider when deciding what's in the children's best interests.

    The need to protect children from violence is one of the two primary considerations, but an IVO isn't going to be persuasive evidence that you pose an unacceptable risk to the children, especially if the IVO was accepted without admissions, which means there was no finding of fact after testing evidence that violence has actually occurred.

    The Family Court has a significantly higher threshold for what it considers to be an unacceptable risk, and one IVO with no finding of fact behind it and no subsequent breaches of its terms is not going to compel the Court to limit the kids' time with you. This is particularly true if the allegations against you were only in relation to the mother, not the children. If mild enough - and most false allegations are - the Court might address the risk by making orders that you and the mother have limited forms of contact, like via written communication book and changeovers in a public location. Probably not such a bad thing to request anyway.

    So, you've got the support of a statute for more than two nights a fortnight, so what have you got to lose, even if you self-represent?

    Summarily, the mother will need to show why two nights a fortnight is in the best interests of the kids, and you will need to show why six nights a fortnight is in the best interests of the children, and the Court is expected by legislation to consider maximising time if it can. Thus, if six nights is workable and the issue of hostility can be addressed with healthy boundaries between the parents, then quite often, the Court's approach is 'why not?' rather than 'but why?'

    For us, we self-represented against a mother who argued in favour of three nights a fortnight, while we sought 50/50. The mother raised allegations of violence which were brushed off by the Court at first mention because she had agreed already to three overnights a fortnight and had discontinued a DVO when we challenged it rather than accept without admissions. She then changed her argument to state that time with her father would disrupt the child's routine, which was also brushed off at second mention because we live five minutes apart and work the same hours, so routine is nearly the same in both households. The attitude was very much focused on having the mother defend her position of less time, rather than having the father defend his position of more time (but I believe that may come down the judge, and ours was very pro-shared care).

    In the end, the mother negotiated with us because trial was going to cost her $20,000 and us nothing. We ended up with 50/50.

    Again, with only two nights a fortnight, I ask you - what have you got to lose?
     
    kimbapuppy likes this.
  4. sammy01

    sammy01 Well-Known Member

    Joined:
    27 September 2015
    Messages:
    1,064
    Likes Received:
    126
    kimbapuppy likes this.
  5. Emily Anne

    Emily Anne Member

    Joined:
    3 July 2016
    Messages:
    4
    Likes Received:
    1
    All For He, I was just wondering why in your situation, the mother would have had to pay for the trial costs? Is it because she was been so difficult?
     
  6. AllForHer

    AllForHer Well-Known Member

    Joined:
    23 July 2014
    Messages:
    2,319
    Likes Received:
    423
    No, we paid the cost of trial which was $590, but it was just that and the initial filing fee. I guess I exaggerated that it was going to cost us nothing, but it was certainly a pittance compared to what the other parent was set to pay in legal fees. Ironically, we didn't go to trial because it was settled beforehand, but that $590 was non-refundable regardless. It was kind of a small price to pay for what the child got out of it, though.
     
  7. kimbapuppy

    kimbapuppy Well-Known Member

    Joined:
    17 January 2016
    Messages:
    18
    Likes Received:
    4
    Thanks for all the great advice, this gives me the ability to get my fair share of the kids without burning the money earmarked for their future.

    So in a family court, it is possible to self-represent legally?
     
  8. AllForHer

    AllForHer Well-Known Member

    Joined:
    23 July 2014
    Messages:
    2,319
    Likes Received:
    423
    Yes, you can self-represent. Just make sure you prepare yourself for lots of research and make good use of sites like this one. Legal Aid also offers three free consultations in a single matter, so it's a good idea to speak with them if you're confused about paperwork or affidavits, etc.
     

Share This Page

Loading...