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Divorce and Custody of Children

Discussion in 'Family Law Forum' started by impishbynature, 23 February 2015.

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  1. impishbynature

    23 February 2015
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    Divorce has occurred, all sorted etc etc but now I wonder if the mother is providing a suitable environment for the children and if I need to act. I don't have a family lawyer as during the process it became so protracted and drawn out I got sick of the $500 and $1000 letters that were never replied to, so I ended up self representing with excellent results, despite going up against a barrister.

    The current children's arrangements are the two children M11 and F8 are with their mother 6 nights one week and 3 nights other week, plus I have some holiday time, all adds up to 6 nights a fortnight, I have asked the mother for some time now to go to week about (the children want this too), but the mother does not want this, mainly as she feels it would impact her payments from child support etc. I have avoided asking the question of the court as it is disruptive to everyone concerned, including the children, but I am comfortable engaging with the court if need be as I have a good handle on the process, forms, lodging etc.

    Now the mother has moved to a new rental, after being kicked out of the old one for failing too many inspections, not doing gardens etc and moved into a two bedroom place where the children must share a room - I think not so good as while they are very close siblings, the boy has definitely started puberty. Also it has been some weeks and the children don't have beds as the two single beds won't fit in the room so they need a bunk. They tell me they are sleeping on the floor, or in her bed with her. She says she has no money to buy a bunk, but she gets over $3k a month from me in assorted payments and I could find multiple bunks for sale in the area for $100 or less, and yet she just got herself a new iphone.

    Also, last week had meeting with the teachers at school and they mentioned both children a very tired and I raised the issue of bedding with the teachers. One of them commented the school was affiliated with people that could help with essential furniture etc in cases like this, but I feel the issue is not really financial, given the 3k a month..

    I have a house where they have their own rooms and beds, in the same school zone, etc etc. All the requirements to allow 50/50 according to the Family Law rules are met. Plus a number of times she has asked for me to look after them out of designated times, so she can't argue that she considers my house unsuitable for them.

    There have been other issues in the past, she had no fridge for six months because the other one failed, yet I when I checked I found four fridges for free in the same suburb, just needed pickup. More recently before being kicked out of her previous rental she had no hot water (so the children told me when I was asking them when they last had a shower one time) for some months as she had not paid the gas bill. For some reason I still get emailed copies of her gas bill, so I know this to be correct.

    There are other issues, she is a hoarder and the children tell me they have "clear a path" to get to the toilet etc etc, but hard to know how this could be proved in court unless I ask child services to visit and when I tried this a while ago they seemed somewhat disinterested.

    I am trying to go down the path of minimal disruption/harm to the children, as any court action will unsettle them, they know things are going on and I have seen it previously come out int heir behaviors when the parents are unsettled. Plus I am guessing at their age they would possibly be involved in the proceedings in some way, possible interview with court lawyer/psychologist etc.

    The question is, does this reach the point where I need to act immediately and should go the court and ask to have the children live with me and visit her? If I fail to act now and decide to later, would I be viewed as accepting the current situation?

  2. Victoria S

    Victoria S Well-Known Member

    9 April 2014
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    This is a complicated and personal situation - I couldn't tell you what the court would decide/think, other than you'd need to make genuine efforts at family dispute resolution and it would have to be in the best interests of the children - see the Family Law Courts page If you can’t agree on arrangements

    So do you have court orders in place, or just a parenting plan that you agreed between yourselves?

    My personal opinion is that personalised legal advice is best, but I understand if you want to self represent.
  3. AllForHer

    AllForHer Well-Known Member

    23 July 2014
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    I agree with the above, that this is a personal situation, but I would like to offer some other insight from a legal perspective.

    You already have final orders, and if the parties don't agree to change these through family dispute resolution, then you will first have to convince the court that circumstances have significantly changed and that the current orders no longer meet the best interests of the child, under the principles laid out in Rice & Asplund.

    All of what you have listed here is really just criticism of the mother, but if the kids are healthy, safe and homed, you're going to struggle convincing the court that the circumstances have changed significantly. Sure, they share bedrooms, but so what? Lots of kids do, such is the nature of the beast for many single parents, but is it causing them harm? And if so, can you prove it?

    As for unpaid gas bills, difficulty acquiring a don't know what evidence the mother has in relation to these. Further, the court recognises that people sometimes fall on hard times, but that's not a good enough reason to uproot children from a life and routine they are familiar with.

    What I see as an issue here as well is that you seem to have been questioning the kids about the living arrangements with their mother. This is problematic for two reasons.

    First, asking them such questions when 'they know something is going on' is subliminally forcing them to pick sides in an adult dispute, and if they sense you don't like the mother, they're probably worried they will disappoint you if they don't show they also 'dislike' her by telling you things they think will please you.

    Second, the mother will likely argue that more time with you shouldn't be facilitated because the above behaviour demonstrates you will not support or promote the children's relationship with her.

    So, where I see potential problems is in convincing the court there has been a significant change in circumstances so that the current arrangements no longer meet their best interests, and if you did convince the court of that, the kids may end up with less time with you than current arrangements (because let's be honest, judgements are never in any way predictable!).

    You've already said further proceedings will upset the kids and the court hates parenting cases, so I would strongly suggest considering some other options.

    You should consider a family dispute resolution conference so that your concerns can be heard by the mother. You might also consider a child-inclusive conference, so that any issues the kids have can be heard by both parties. They're at an age where they have a clear opinion about what they want, even if they're not at the age of being able to decide for themselves what's in their best interests, so it might be beneficial for the mother to hear from the kids that they would like to live week-about with each of you.

    I hope this helps, and I really urge you to avoid court. It's not fun for anyone.
  4. sammy01

    sammy01 Well-Known Member

    27 September 2015
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    Ok, hang on a minute - you have the kids 6 nights a fortnight but pay mum $3000 a month. Something doesn't add up... Mate I earn $100 000 and when I had my 3 kids 5 nights a fortnight, I was paying the ex $1000 a month and her taxable income was $0. So why are you paying so much child support?

    Next - what is your relationship with the ex like?

    Given the age of the boy, my opinion is a little bit dangerous. Once a kid turns 12, the courts will consider their perspective. As kids get older, kids give more weight to their perspective... So why not wait a year or so and then do mediation? If the ex won't compromise and the kids are adamant they want more time then just do it.

    If the ex has a problem, she can apply to court... It takes time to get to court, so by the time you get there the boy might be 13...

    If you want to go down the path of least disruption - leave things as they are. But if you feel the status quo is not in the best interest of the kids, then you're gonna have to cause disruption.

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