ACT Family Court - Ex Refusing Overnight Contact with Children?

[Joe Black]

Hi,

This has been a 14 month long, painful and costly experience. In short, ex and I separated in Jan 2018. She made allegations of domestic violence and I was found not guilty. She then applied for AVO. The condition of the AVO were not breached.

Then in Jan 2019, she applied to have the children placed on the avo. I have not had contact with the children despite many many efforts of lawyers, mediation, etc.

I was advised to just accept the AVO with out admission due to the cost of fighting it. She did not make any allegations of child abuse and no evidence was requested. I have been able now to negotiate, thanks to the family court, day access to the children but the ex has refused any form of over night stay until there has been more mediation (next due end of june for a child report).
Like I said there has been no abuse towards the children at all.

So the question is, what can I do to try and get overnight contact? I have considered an application in a case to request such contact.

I think she does not want me to have any overnight contact due to her losing child support payments.

 

[Tremaine]

How old are the kids?

 

[Joe Black]

How old are the kids?

8 and 5

 

[Tremaine]

Well and truly old enough to cope with overnights, then.

Obviously, we don't know mum's side of the story, but if there's never been any conviction for violence, there's just an AVO with no breaches and no kids currently named (is that application on foot, or did you end up consenting without admissions?), then there's not many persuasive reasons why overnight time shouldn't be allowed.

What I would do is file an application in a case seeking an amendment to the interim orders for the children to spend time with you at least every second weekend, from after school Friday to before school Monday. You do need to file an affidavit with it, explaining why what you're seeking is in the best interests of the kids, but in my personal and limited experience, we found the judge to be more interested in mum’s explanation of why not, rather than dad’s explanation of why.

Regardless, what should you put in your affidavit?

Don’t include suspicions of mum’s greed for child support. It’s probably valid, but it’s also speculation.

Do include how that extra time will better enable the kids to better benefit from a meaningful relationship with you:
- More opportunity to enjoy the routines and experiences that are unique to you and your household
- More opportunity of your involvement in their school or extra-curricular activities like weekend sports, etc.
- More opportunities for the kids to spend time with your family
- More opportunity for their inclusion in activities like short holidays, leisure experiences, etc. etc.

It also pays to clarify that there are no apparent circumstances which allude to any reasonable grounds for more time not being granted, ie no recorded breaches of the AVO, etc.

Be warned, lots of judges are reluctant to change interim orders - ours refused to return my partner’s kid to the ‘status quo’ care arrangement in an application in a case because my partner had previously agreed to a parenting plan for less time after many many weeks of not seeing his kid at all - but there is really no harm in at least trying.

 

[Joe Black]

OK thanks. I have submitted a good affidavit based on case law although I have not directly quoted the case law.

The current order is by consent and I have not ratified the minutes yet. The next court date for the application in case is April.

Basically the current consent order gives increasing time with the children starting with four hours per week at a weekend then increasing over the weeks to 8 hours sat and 8 on Sunday.
Then its every other weekend from 3 pm sat to 12 pm Sun. to me this is a step back as it is less hours.

I am asking for 50/50, ie 7 nights per fortnight.

The co-parent cannot give a reason why she will not allow overnight leave and will not agree to it.

Nor will she agree to me being involved in school activities etc.

I have asked her lawyer what the rationale is and he simply said it was his client's instructions.

Any thoughts?

 

[sammy01]

do you have a solicitor or are you self representing?

 

[LovingDad1973]

OK thanks. I have submitted a good affidavit based on case law although I have not directly quoted the case law.

The current order is by consent and I have not ratified the minutes yet. The next court date for the application in case is April.

Basically the current consent order gives increasing time with the children starting with four hours per week at a weekend then increasing over the weeks to 8 hours sat and 8 on Sunday.
Then its every other weekend from 3 pm sat to 12 pm Sun. to me this is a step back as it is less hours.

I am asking for 50/50, ie 7 nights per fortnight.

The co-parent cannot give a reason why she will not allow overnight leave and will not agree to it.

Nor will she agree to me being involved in school activities etc.

I have asked her lawyer what the rationale is and he simply said it was his client's instructions.

Any thoughts?

My experience is that you will struggle to get 50/50. I had to go all the way to full trial (almost three years fighting it in Family Court) to get 5 nights per fortnight plus 'week about' on the school holidays. My ex signed the court orders by consent as we sat waiting for trial to begin. Your ex sounds like she is going to drag you to hell and back so be prepared for a long fight