VIC Ex-partner has Gone into Hiding - Family Court?

Discussion in 'Family Law Forum' started by mhz, 19 September 2017.

  1. mhz

    mhz Active Member

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    Hoping to get some help here.

    My partner separated from me earlier this year and sent Child Support after me for money. That's all been setup now and I am paying her on a monthly basis. Recently we started the mediation process however after the second session where she elected to be in separate rooms, I believe she is trying to drag out the process so as not allow me access to our son.

    She recently moved her belongings out of our family home that we jointly own and into a flat, but she refuses to let me know the address and has refused me access to my son. She has also blocked my number from her phone and has cut off all contact from me.

    Child support are useless, they say I must continue to pay child support even though I get no access to my son. Mediation can't do anything about it either really. They told me it would cost between $50-60k to go to family court with around a 12mth waiting period.

    I don't have the money to fight her in court and she knows this.

    What can I do? What are my rights? Everything seems to be tipped in her favour.
     
  2. AllForHer

    AllForHer Well-Known Member

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    Okay, so this isn't legal advice. You'll need to speak to a lawyer directly for legal advice. This is just some information to get you on the right path.

    In terms of what you can do, while ever there are no Court orders in place, both you and mum are basically free to do whatever you want. Since mum has the child and her idea of doing whatever she wants is to withhold said child, then it's in the child's best interests that you get some parenting orders in place as soon as possible.

    You've done mediation, that's the first step. From here, you'll receive a s60I certificate that will enable you to file an initiating application for parenting orders through the Court.

    If you don't qualify for Legal Aid and hire a really expensive private lawyer instead, it can cost a limb, though probably more in the vicinity of $20-30k, rather than $50-60k. If that's above and beyond your allowance (which, let's be frank, it usually is), then you can consider self-representation as an affordable alternative.

    Why should you consider representing yourself, aside from it being significantly cheaper for you?

    Well, first, because the legislation and therefore, the Court, supports shared care.

    Under section 60B of the Family Law Act, children have legislated rights to know, spend time and communicate with both parents on a regular basis, regardless of the status of the relationship between said parents, and insofar as the best interests of the children can be met. The entire Act pertaining to parenting orders is based on this right, so if your son is not spending time and communicating with you at present, then it's the Court duty to uphold his right to do so, provided it in the child's best interests.

    Next, there's the presumption of shared parental responsibility. The legislation holds that the Court must presume it is in a child's best interests for both parents to retain equal, shared parental responsibility, which means that the Court must accept that it's best for the child if both parents are involved in major, long-term decisions affecting the child's care, welfare and development, in circumstances where the presumption has not been rebutted.

    If shared parental responsibility is upheld, then the Court must consider whether equal care arrangements are in the child's best interests, and failing that, it must consider whether substantial and significant time with the non-resident parent is the next best option. Substantial and significant time is defined as a combination of weekdays, weekends, holiday time and special occasions (which is generally accepted to be more than the archaic every-other-weekend arrangement that Courts favoured before the 2006 amendments to the Family Law Act).

    Whatever orders the Court makes, however, the children's best interests must be paramount. When determining what's in the best interests of a child, the Court is guided by s 60CC of the Family Law Act, which is a composition of two primary considerations, and about 12 secondary considerations. The primary considerations are the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from harm caused by abuse, neglect or family violence. The need to protect the child takes priority over the benefit of having a meaningful relationship with both parents.

    So, what does all this mean for you?

    In short, the legislation favours your son spending time with you, so if there have never been any issues of abuse, neglect or family violence, then the Court really has no reason not to make parenting orders accordingly, in most circumstances for five or more nights a fortnight.

    The biggest hurdle parents face in getting such an outcome, however, is being drawn into conflict with the other parent. Any parent who can behave amicably and remain child-focused, even when the other parent can't, stands an exceptional chance of getting parenting orders in their favour.

    As an added note, unless there have been issues of domestic violence or similar in the past, then the Court doesn't look highly at all on parents who withhold their kids from the other parent and who refuse to include the other parent in parenting decisions after separation. Such behaviour is rarely considered to be in the best interests of a child.

    In short, you should consider filing an initiating application with the Court. About 95% of cases initiated in Court actually end up settling by consent, so the likelihood of you having to go to trial is actually fairly minuscule, and just as you can't afford a lawyer, it's very likely that neither can mum, so she's probably going to be more open to negotiating an agreement with you in order to avoid a looming Court date. Even as a self-represented litigant, you have a very good prospect for success, provided there are no issues with domestic violence or similar.

    In my experience, fathers always get a better outcome once the Court gets involved than if all they do is try to negotiate an agreement with their ex....
     
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  3. sammy01

    sammy01 Well-Known Member

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    Yep it does all seem tipped in her favour...But stay calm. Call the local police ask them to do a welfare check. They won't tell you where she is but they can at least tell you that the kid is safe. But lets not rush into this right now.

    How old is the child? Do you have any reason to think that the ex has moved interstate? overseas?

    Look you can get to court faster and even the $50 -$60k estimate is a bit over the top. You might be eligible for legal aid? but only if you're on a very low income.

    Ok so you have a house that you jointly own? do you own it outright? Do you have any joint funds? joint bank accounts?

    How long since mediation?

    Yep lots of question but the more info you provide the more precise answers will be...

    Final thing atm. Don't do anything rash. Don't give her any 'evidence' to argue that you're stalking her, or intimidating her.
     
  4. mhz

    mhz Active Member

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    Thanks for your help.

    A few things to note.

    There has been no signs of domestic violence from me, however my ex has shown violence towards our son, myself and has also had a fairly violent incident involving her mother on more than one occasion so I do worry about this. She was seeing a psychologist prior to us separating as I had told her I was not willing to continue with the relationship until she got help.
    She once decided to punish our son for bad behaviour with excessive force and when I questioned her on it later she told me she did it to get back at me.

    I live in Geelong in the family home we only moved into in December 2016 after construction was completed.
    She moved back to Melbourne to live with her Mother at the end of Feb and just recently moved into a flat in Donvale. That is all know about her location from what she has told me.

    The last mediation session was yesterday and it got us nowhere. She brought things such as fighting over our sons toys and his bed. I really only wanted to sort of parental arrangements such as who he would stay with on which days. She refused to compromise with me, even though I was only asking for two nights (3 days) a fortnight (every second weekend basically)
     
  5. AllForHer

    AllForHer Well-Known Member

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    So, you're concerned for your child's safety around the mother?

    Have you filed for a protection order? Filed a police report? Sought a welfare check?

    And if you believe the child is in danger, why are you only seeking two nights a fortnight, and not residency?

    These are the kinds of questions a Court would ask. Credibility as a witness can fall apart quickly if you're claiming domestic violence, but then not really taking any action to protect your son, so you either need to take action, or you need to accept those concerns as non-issues and focus on just getting time with your kid.

    If you commence Court proceedings, there's a good chance mum will seek legal advice, and if it's from Legal Aid, they're mostly likely to advise that withholding a child can backfire in Court. Legal Aid doesn't usually take parenting matters through to trial and prefers to resolve issues by consent, instead, so they'll probably be a voice of reason to tell mum that she needs to be realistic about the future outcomes of this issue.
     
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  6. mhz

    mhz Active Member

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    I am not sure that my son is in danger, well not immediate anyway. Which is why I have not file a police report, and she has recently denied it all to my face anyway when I threatened to have the Police and DHS involved. It would be a hard thing to prove given that there was no one else present during the incidents.

    I would love to seek more access to my son, but the reality is that he has been living with her for so long and attending a child care place he has been in since he was 1 year old.

    I did not want to disrupt his routine any more than I have to and with my job I am unable to provide enough care for him during the week.
     
  7. AllForHer

    AllForHer Well-Known Member

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    Well, what you're asking for is not unreasonable. I once saw a father granted that in interim orders without even appearing at Court.

    Get legal advice from Legal Aid (they offer free consultations on family law matters), then file an initiating application. If you're not seeing your son at the moment, you literally have nothing to lose.
     
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  8. mhz

    mhz Active Member

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    Thanks for all of your help.

    I am wondering what my rights are now with regards to my partners whereabouts. I called into the local Police station to have them do a welfare check on my son, which seems to have done more harm than good. It just further aggravated the situation with my ex.

    Am I legally entitled to know where my ex lives given that my son is living with her? Are there any ways I can find out where she is living, short of having someone follow her home?

    I am consulting with a solicitor at the moment and waiting on lifeworks to issue me with a certificate from the failed mediation sessions.

    It's a very slow process and in the meantime I still can't see my son.
     
  9. sammy01

    sammy01 Well-Known Member

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    What do you mean when you say 'it has just further aggravated the situation with the ex'?

    Nope you don't automatically have a right to know where she lives. (kinda) no-one can go and make her give that information... except a court.

    Get your certificate and file for court.

    Don't follow her home and don't get anyone else to do that for you... More harm than good will come of it. The cops have told you the kid is safe, great. That is about all you can do till court
     
  10. mhz

    mhz Active Member

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    After my visit to the Police station I copped a barrage of abusive text messages from her.
     
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