WA Family Court - Getting Equal Time with Kids?

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thetruthisoutthere

Active Member
26 June 2017
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Hi there,

I am married with 3 kids and I moved out when my wife called the police around about 10 months ago, because I tried to move her away from my child's bed (she refused after I asked her a few times to let them sleep and stop escalating and causing drama). In hindsight, this was not the best approach on my part, she was not harmed in any way but she called the police to get a report on me and has since been using a whole lot of language around 'safety' around the kids and our email conversations making out that I am a violent person when I am quite the opposite.

She drinks and is often emotionally abusive towards me and the kids. She is alienating the kids against me behind closed doors.

After reading the reviews on google about the WA family court, I am afraid I am going to get creamed by all her manipulation. I can't afford a high-end lawyer, and my sense is if I go into this without one, I will get smashed and lose access to my kids when I am a good father, am not violent and have the capacity to raise them in a 50% custody situation.

She is a psychologist and I believe will be using psych reports about the kids, which she herself has lead, and kept private, to strengthen her case. How to do I go into this, with faith that the legal system will find the truth in our situation? Am I being totally naive to think that this will happen, or do I need to adopt the same vindictive and highly manipulative approach to counter what she is likely to dish out? I.e. Should I calmly state the facts as I see them, or should I be adopting a more military style approach for the sake of my kids?

Any help would be much appreciated.
 

AllForHer

Well-Known Member
23 July 2014
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Reviews about any Family Court is going to garner a lot of dissent. It's Court - someone is always a winner and someone is always a loser, and it's usually the loser who has something to say about the process. Don't put too much weight on reviews from an adversarial system.

First question, how old are the kids? Are there any AVOs in place?
 

thetruthisoutthere

Active Member
26 June 2017
6
0
31
No AVO's , just the 24hr one at the time of the 'incident'. Kids are 8, 12 and 14

I tried for mediation but she delayed the process and then after her initial session with the mediator, the mediator ruled that we were not suitable for mediation and issued the certificate for compulsory FDR.
 

thetruthisoutthere

Active Member
26 June 2017
6
0
31
Reviews about any Family Court is going to garner a lot of dissent. It's Court - someone is always a winner and someone is always a loser, and it's usually the loser who has something to say about the process. Don't put too much weight on reviews from an adversarial system.

First question, how old are the kids? Are there any AVOs in place?
Thanks for your perspective allforher, and that makes sense and is helpful. The kids are 8, 12 and 14 and does that make a difference?
 

sammy01

Well-Known Member
27 September 2015
4,856
690
2,894
So what is happening atm? Are you still living with her?

Yep, you have to be manipulative... Kinda... So family law is a stupid game of manipulations. Everyone does it. But you have to be really smart. So I hate the system and in my opinion it disadvantages males...

But doesn't mean you can't win... So my suggestion...Be nice as pie...

Ok so one of the main causes for concern in family law is kids being exposed to violence / conflict. High conflict parenting hurts kids. So the best thing a primary carer can do is cause lots of conflict. It is truly tragic to read court cases where the magistrate has reluctantly accepted that one parent has manipulated the kids to a point where they genuinely think the other parent is evil...

These kids have been so traumatised by the primary carer to believe that the other parent is a danger that the courts are stuffed. They realise that the primary carer has created a false reality for the kids but the court also realises that to try and put the kids in contact with the person they are petrified of would be detrimental to the kids' well-being. The end result being to allow the manipulator sole care.

So lesson learnt - be nice as pie. Do not provide her with any 'evidence' to try and make the case that there is high conflict...

Look I do mostly, have confidence in the system. But you need to learn how to play it...
 

teflongirl

Well-Known Member
29 January 2016
39
1
124
Very similar situation to me. Family court is never about truth. Don't spend money on a low end lawyer, they're into commercial interests only. If you can afford it, get a loan out for say 30/40k get a good lawyer. Ask to go to trial you can ask for that whenever you want. Have you been assigned an ICL yet?
 

AllForHer

Well-Known Member
23 July 2014
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Generally, I agree with @sammy01. I, too, have confidence in the system. While in dire need of reform in some areas, certainly, it is still currently structured to favour shared parenting, so provided that you are also in favour of shared parenting - in actions, I mean, not just in words - then you will usually find the Court to be a firm, but fair, arena.

So, some information for you to consider.

First, the best interests of the child/ren is paramount, meaning every order that is made must reflect the best interests of the kids.

Second, the legislation seeks to uphold the rights of your children, which is to know, spend time and communicate with both parents on a regular basis, insofar as their best interests can be met, and regardless of the statue of relationship between their parents.

Third, the Family Law Act 1975 applies a presumption of shared parental responsibility, meaning that both parents will retain a say in the long-term decisions that affect their kids' lives, unless one parent can successfully prove that shared parental responsibility is not in the child's best interest. Unless there's persuasive evidence to show that shared parental responsibility isn't in the best interests of the kids (which usually requires proof of abuse, neglect or family violence), then the presumption will be upheld. It's extremely difficult to rebut shared parental responsibility, but I will say that insurmountable conflict between the parents is probably the most common reason the Court refuses to uphold shared parental responsibility.

Fourth, where the presumption is upheld, the Court must first consider if equal time is in the best interests of the kids, and failing that, it must then consider if substantial and significant time with the non-resident parent is the next best thing. Substantial and significant time comprises a combination of weekdays, weekends, holidays and special occasions. The old 'every-other-weekend' arrangement doesn't really constitute substantial and significant time, these days, except where the parents are living a fair distance apart. I would say that five nights or more a fortnight is the most common outcome in this space. Equal time is rarely awarded following trial, perhaps because if parents have to get the Court to make such major decisions about their kids, then it's going to be difficult to uphold the level of amicability that's required for communication that makes a 50/50 care arrangement work.

That's a really, really simple version of what is actually very complex and lengthy legislation, but I hope it at least provides you with some confidence that you, as a father, are considered important to your kids, according to the law.

When the Court considers what's in the best interests of the children, it refers to section 60CC of the Family Law Act, which lists two primary considerations and I think fourteen secondary considerations. The primary two are the benefit to the kids having a relationship with both parents, and the need to protect the kids from an unacceptable risk of harm from family violence, abuse or neglect. The secondary considerations are perhaps best reviewed by you directly, but one that will be very pertinent in your case is any views expressed by the children.

The two older kids will be considered old enough to have significant weight given to their views, and by association, it's likely the youngest will be affected by this, as well. However, in order to ascertain the kids' views, the Court will order you, your ex and the kids to undertake a family report, in which the children will speak to a specialist, who will then write a report to advise the Court on the views of the kids, their observations as a family report writer, and their recommendations for appropriate care arrangements.

The Court doesn't give much weight, if any at all, to the assessment of a psychologist that is obviously biased toward one party. Your ex-wife won't be able to give evidence a psychologist about her own kids, and neither would a counsellor who hasn't spoken to both parents. This, ironically, is exactly why the Court assigns its own experts to speak to the kids - it's to avoid any bias in favour of one party.

Now, since you're very early in proceedings here, I strongly suggest a lot of patience moving forward. This process is very slow, and if it ends up in Court, both you and your ex will likely be looking for any trivial dispute to bring before the Court as evidence against the other party. Play nice. Be business-like in your communication with your ex, keep it focused on the kids, and don't provoke her in any way, because it's very easy for women to get an AVO that while fairly trivial, can complicate the parenting matter unnecessarily.

Being nice is how you 'manipulate' the situation to your advantage. If you never give her any ammunition to complain about, the Court has no reason to suspect her concerns are founded, and therefore, no reason not to make orders for the kids to spend time with you.
 

Patience

Well-Known Member
17 June 2017
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Hey mate, just wondering how you got on with this one? I'm going through a very similar situation and looking highly likely things will end up in court.
 

Been2Trial

Well-Known Member
12 July 2017
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Hey mate just wondering how you got on with this one? I'm going through a very similar situation and looking highly likely things will end up in court.


Hey mate,

Just joined to give you a reply to your question above - I've just been through this entire process (which luckily for me started and finished within 1.5yrs), with the same kind of claims being thrown at me (ex claiming she was scared of me, tried to get AVO at one point but it was denied by the police immediately so went nowhere, pushing the "safety" language all the way through her case from day 1 and when all else failed, fell back on good old "emotional abuse" as her argument).

The short bit of suggestion I can give you in this circumstance is to avoid any kind of conflict or "flashpoint" as they referred to it in my trial. Basically its in the ex's best interests as the custodial parent at that point (after interim orders were made and before trial for final orders occurs) to create and maintain as much conflict as possible, because ironically that conflict will strengthen their case and weaken yours.

They will turn any kind of disagreement you have into a case in point of why you are volatile and it seems as if they almost totally ignore the fact that these incidents are clearly being set up by the other party, to bait a response.

I am still waiting on the final orders to be issued from the trial, so I will update on what the result was

- I'm the father of a 2.5yo girl currently with (interim orders) one overnight and two 6hr days per week

- I'm seeking 3 nights and 4 days per week, progressing to block time of 6-7 nights a fortnight week on week off. then 50/50 from the start of school.

Avoid conflict, avoid arguments, don't bite back, be passive at all times and keep detailed diaries of every day you see your child (what you did that day, what you all had to eat, any incidents with the child and keep it honest and positive). Keep a detailed diary of every single communication or interaction you have with your ex and write then email yourself these diary entries on the same day the interactions occur, that way they are contemporaneous in nature (emailing it to yourself on the day of writing will electronically time/date stamp it and prove it was written in real time of events and not in hindsight) and will be given significant weight when presented to the courts.

Again, because I can't be clear enough on this - Avoid conflict, avoid arguments, don't bite back, be passive at all times and keep detailed diaries
 
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Patience

Well-Known Member
17 June 2017
20
0
126
Hey mate, thank you so much for your reply. Sounds exactly like my current situation. I'm definitely taking the avoid conflict at all costs route and documenting everything. Glad to hear things are finally working out for you!