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:

WA Family Law and Separation - Where to Start?

Discussion in 'Family Law Forum' started by babyfirst, 26 March 2016.

  1. babyfirst

    babyfirst Well-Known Member

    Joined:
    25 March 2016
    Messages:
    21
    Likes Received:
    1
    Hi all,

    Any help really appreciated. I'll try to summarize the situation.

    I am middle aged male. Partner and I met 2009. Child born 2010 (She is 3 now).

    My partner has a chronic prescription drug problem. 400 valium, 100 oxycodone, 100 serepax, 50 lorazepam, and many others each month. She has done many acts of self-harm, threats of suicide and has an inability to carry out day to day activities. She had a history of drug abuse when she was younger but had been able to manage it when we first met. Following childbirth, she fell into a full blown addiction. I have rock solid proof of all of this.

    I'm not the primary carer, but I've literally been the sole carer of our daughter since she was born. All bottles, all nappies, etc. Nowadays all baths, all clothes washing, all dinners, all bedtimes - not just most - all.

    My daughter is extremely attached to me and becomes distressed if I try to leave and leave her alone with her Mum, even for short periods. I don't think my partner would or has intentionally harmed her. I think it's just how she acts. The yelling, when she is really messy, on drugs, my daughter doesn't want to be around her. My partner does love her - it's just that she is very unwell and hopelessly addicted to opiates and benzodiazepines.

    When our daughter was first born, it became evident very quickly my partner couldn't care for her. We tried but she would leave her screaming in the cot and call me at work. I came home many times and had to take days off.

    Within a month, I employed private in-home carers for first 2 years of my daughter's life. I now use daycare and drop my daughter off on the way to work in the morning and pick her up on the way home.

    I tried getting my partner into rehabs etc., but she checks out within a day. I need out and get a separation before the stress kills me. Looking after a 3-year-old on my own is hard enough but with an active addict in the house also spending all the money, yelling, screaming, etc. in front of our daughter, it is unbearable.

    I can't get her out of the house. I'm genuinely scared of her. The house is in my name. I was thinking of moving out and taking our daughter then filing for some sort of interim parental orders for daughter to live with me - initially supervised access from mum until she sorts herself out.

    I've seen lawyers and still have no clear direction how this would work.

    Ok, here is the scenario I came up with myself. I get rental quietly and get it set up to move into. Hypothetically, one day I leave with my daughter and move into the rental. I wouldn't be able to tell my partner as I wouldn't be safe and would put both my daughter and myself at risk. We would just have to leave.

    I can't go to work or take daughter to daycare until parental orders are in place. I would still be paying the mortgage on house and rent- something I couldn't afford so I would need to somehow get her out of house eventually even if I would just sell it and settle with her.

    Any form of negotiation is out of the question - she goes ballistic.

    Can someone walk me through the family law process? Is it a form1 initially (I'm in WA) and putting forward urgent due to the situation. Or a form 4? The risk of abuse or neglect to a child.

    I don't think my partner would intentionally hurt our child but neglect is certain. She can't stay awake through the day and I had frequently had to drag her to bed. Literally unconscious.

    I'm at wits end and can't go on like this.

    An example of stuff going on in the last week: Got home and I found my partner asleep everyday, mess everywhere, food all over the place, the stove left on, the hose left running out back, valium pills left on floor, Sometimes she gets up through night and crashes about, sometimes tries to wake our daughter at 3 am for no reason as she doesn't realise the time. Today she didn't know it was the weekend - thought it was the middle of the week.

    Please help.
     
  2. AllForHer

    AllForHer Well-Known Member

    Joined:
    23 July 2014
    Messages:
    2,319
    Likes Received:
    423
    Born 2010 would make your daughter six or close thereto, not 3. I also note that you've described yourself as the sole carer. The court would disagree - if you worked and the mother was at home caring for the child, you would not be considered the sole carer.

    If this person's actions cause you fear and distress, you should consider pursuing a violence restraining order. A VRO will restrict her access to your house and you can name your daughter on the order as well. You can find more information here: Violence restraining orders - information

    In terms of parenting, you should wait until you have clarified the separation before acting on a parenting matter. If you are concerned about the child's welfare if left in the mother's care, you should take the child with you as there is nothing stopping you from doing so as you don't yet have parenting orders, and it is harder to recover care of the child down the track once a status quo has been set.

    Before you or the mother can pursue court, you will have to attend family dispute resolution, even if it doesn't result in agreement. It's mandatory before filing for orders in court. If there is a risk of domestic violence, you can forego it, but the court will likely order you both to attend at a later date anyway. You can organise this through Legal Aid or Relationships Australia. It's run by a neutral third party, so less chance of a party going ballistic.

    This isn't legal advice, just my view of the situation.
     
    babyfirst likes this.
  3. sammy01

    sammy01 Well-Known Member

    Joined:
    27 September 2015
    Messages:
    1,065
    Likes Received:
    126
    I think you should look into getting an AVO. I'm going to say something a little controversial - I think it is easier to get the police to help with an AVO if you're female. So you're gonna have to work harder to get it. Mate, I went to the cops a few years back, told them my story, I felt belittled by the cops. Apparently, a woman hitting a bloke and throwing coffee cups at my head was not violence.

    So I reckon you should ask to speak to a domestic violence officer or whatever the relevant term is in your state. Do not hold back. If you fear for your safety, say so. If you fear for the child, say so. Do not understate your concerns.

    Now I can only speak about NSW because that is where I live and AVO's are a state by state business. Anyways, in NSW, you can have yourself and your kid covered by an avo as protected persons. So you can request an interim AVO that will stop her from coming to the house, to the kid's schools, from approaching you or the child etc, etc.

    That gets her out of the house without you having to do all the crazy stuff you mentioned about getting a rental place.

    Just checking - how old is the child?
     
    babyfirst likes this.
  4. babyfirst

    babyfirst Well-Known Member

    Joined:
    25 March 2016
    Messages:
    21
    Likes Received:
    1
    Thanks for help. 2010 is a typo, I meant *2012.

    I meant sole carer outside of daycare and private carers in the first 2 years, both of which I facilitate.

    Is sole carer wrong word to use ? What would be the best term to describe to the courts. I don't want to come across as dishonest or exaggerating situation.

    I've shown a time line of events to a few lawyers now and they say we can get an exemption from mediation.

    I'm still not sure if that's best route.

    My partner on a good day may negotiate if third parties are present. Or the worst case, of she goes ballistic which is highly possible that could highlight how unstable she is.

    I'm just throwing around ideas.
     
  5. babyfirst

    babyfirst Well-Known Member

    Joined:
    25 March 2016
    Messages:
    21
    Likes Received:
    1
    Thanks for the help. Child is 3 1/2. She was born in 2012. *2010 was a typo.

    I've looked into AVO's

    There has only been 2 occasions that she had assaulted me and they were minor. Few threats to kill. 2 lawyers told me that it unlikely any WA magistrate would grant an AVO.

    Funny thing a female AVO officer from WA police told me to just say there has been numerous assaults and she is drug addict.

    I'm not prepared to lie on anything as if I get caught out they won't believe any of the story.

    P.S. I've read grounds for AVO and self-harm in front of the child is one of them. I think there are grounds for an AVO but after talking to lawyers, WA magistrates won't uphold them if contestant by responding in this situation, especially when it's against a small woman versus very large 120kg male
     
    #5 babyfirst, 26 March 2016
    Last edited by a moderator: 26 March 2016
  6. babyfirst

    babyfirst Well-Known Member

    Joined:
    25 March 2016
    Messages:
    21
    Likes Received:
    1
    The other situation isn't me at work and the mother caring for child at home. I never leave our daughter with her mother.

    I drop our daughter to daycare everyday on way to work and pick her up on way home.

    My partner had never dropped her off or picked her up, ever. Most days she isn't safe to drive.

    The daycare have seen my partner twice and said they wouldn't let her pick up our daughter if she arrived intoxicated.
     
  7. babyfirst

    babyfirst Well-Known Member

    Joined:
    25 March 2016
    Messages:
    21
    Likes Received:
    1
    Any help is appreciated.

    Could anyone recommend a good WA family lawyer for custody of children issues where the child is exposed to neglect and psychological harm from one parent?

    Thanks.
     
  8. sammy01

    sammy01 Well-Known Member

    Joined:
    27 September 2015
    Messages:
    1,065
    Likes Received:
    126
    I would still consider the AVO option. I'd also kinda sort of go with the female copper's opinion - Yep don't lie but explain in detail...

    Plan B - Go for a nice weekend away. Just you, her and the kid. While you're gone, get a locksmith in to change the locks then when it is time to come home - forget to pack mum. Simple.
     
  9. Hope this helps

    Hope this helps Well-Known Member

    Joined:
    26 March 2016
    Messages:
    116
    Likes Received:
    13

    Go to her doctor by yourself and tell them about her behaviourisms, what's occurring, how it affects your child, yourself, the traumatic existence, safety and risks, the issues of child and yourself and hers. Express the urgency of the situation!

    The doctor has a Duty of Care and is responsible for her care and has the power to order your partner to go to the hospital under the guidance of a pain management team or mental health facilities which includes specialists to get to the core of why she is on such medication, ween her off the medication and the team includes psychiatrists, psychologists, physiotherapists, social workers, etc.

    Your partner won't be able to leave until the team deems her stabled and is neither self-harming nor harming to others which is exactly what you have indicated.

    Should her doctor not do this, they can be reported, as all medications are addictive and they are well aware of this, hence their Duty of Care in supplying. Should her doctor do nothing, seek another doctor. Express your concerns and the situation, take along the medical records, meds, length of use, etc. Call the police and ambulance to your home when your partner is out of control, is abusive, aggressive, threatening self-harm or is self-harming herself.

    Both the ambulance and the police have to respond to her mental health condition to be seen, in which she will be held for no less than 72 hours for assessment, but longer should you give them background then it's up to the medical team. But she will be seen and helped and a police report made. The police will advise taking an AVO or restraining order.

    Fill in a 'Stat Dec' stating behaviour and the risk involved regarding your daughter, yourself re: mother and her refusal to obtain rehab or mental health assessment, etc., but do not sign it, as this must be done in front of the J.P.

    Stress the urgency to the Justice of the Peace. A JP has the power to have your partner held for 72 hours by a mental health facility for assessment. The Justice of the Peace can be located on the Internet. Your partner is not using illegal drugs but prescribed meds by her doctor who should be held accountable, but the above ways will obtain medical help for your partner plus the records, evidence, reports, stating your child is constantly traumatised, at risk of harm and abuse in a lot of ways, not just physical, due to the behaviour of partner.

    As for yourself who is traumatized, stressed, anxious (and more so your child) obtain therapy, counselling for yourself and your child.

    From here, the medical team, pain management team which I have already explained to you will advise you, especially the social worker, of what to do, for the best of your child, yourself, your partner including, putting into place support systems for you, your daughter and your partner. Obtain Therapy will give you techniques, skills and tools to see objectively, subjectively rationally, avoid making same mistakes, handle things better and help yourself, help your daughter and become the best healthy version of yourself for your sake and your daughter.

    Obtain therapy for your child who is traumatised by all this. If you still want to separate, therapy will also prepare you to go through the court process. The court takes the child's interest to be first priority in family courts. Doing the above things will be viewed as your responsibility and will be seen as you doing everything possible by the courts and all the above is known as 'professional witnesses' and evidence for your case should you wish to go down this pathway.

    So start getting medical help from the authorities for your partner. Obtain therapy for yourself and for your child. See a doctor, go to community centres/services who offer free counselling for domestic violence help via phone. They will give you a lot of names, numbers, to assist in free therapy, court docs., any necessary action, support and advice of every kind.

    As I said, doctors do not give these meds out lightly nor are they suppose to be used for prolonged use. Your partner's behaviour is a result of the meds and, therefore, I have suggested a few ways whereby she will not be able to refuse treatment.

    There are free legal advice in your state. Ring Men's Line, Domestic Violence Lines, 1800RESPECT. Free counselling, social help, solicitors who will do Pro Bono work - you just have to ring around a little and you will soon obtain names of solicitors who do Pro Bono work. Many offer the first 20 mins-60 mins free whereby you can ask these questions.

    All solicitors must hear will do a year of Pro Bono work whether it's for an individual or working at a community centre, legal aid, Church, organisation, all is free and excellent. They will assist you in filling out docs., give advice, and assistance.

    No need to get a rental as your partner will spend time in hospital. You may be advised to obtain a restraining order and / or AVO with your child's name on it. You will only obtain a Temp AVO till you go to court and the Judge decides whether it becomes permanent. Having family court orders over rules any AVO's.
     
    babyfirst likes this.
  10. sammy01

    sammy01 Well-Known Member

    Joined:
    27 September 2015
    Messages:
    1,065
    Likes Received:
    126
    Or you could just tell her that it is over - she is a junky and get out. Or tell her that she is going to rehab and while she is there, change the locks and refuse her entry.

    If you leave the house you're effectively giving her all the household items. They will be valued as part of the property settlement at 'garage sale prices' so four-fifths of stuff all. And you're locking into a protracted legal fight. Once you leave the house and she is still there, why the hell would she move? She gets a free roof over her head and while she is there she might as well kick in the walls for fun; after all, you have taken her kid right?

    I'd kick in the walls and I'm not even a junky. She'll agree to move out but on her terms. Now that sounds like fun.

    1. Kick her out
    2. change the locks
    3. Put the kid into a different pre-school for a while
    4. You're not gonna get an urgent court hearing, you're not gonna get anywhere near a court until you've tried mediation.

    I still like the idea of telling her that you're going for a nice weekend away and then forget to put her back in the car. That is what I would do.

    Plan B - Sell the house. Tell her some rubbish about not being able to afford it. Once the house sells, get the removalist to take your stuff to a rental place and put baby in the car and leave, but leave the junky at the front door

    Final thought - Sorry for being blunt - you're hoping that the courts / Doc's or someone else can help you fix this mess you've got yourself into. I also see how you're trying to help yourself, but I reckon you're best and cheapest way is to be assertive - you don't owe her a roof over her head and you're gonna cost yourself a s**t load more money by leaving her in your house. So kick her out.

    Now I'm willing to bet that there isn't even a relative, mum, dad, sibling, aunt any who you can call and ask them to come collect her. Why? Well, they all washed there hand of her years ago. They want nothing to do with her either. Right? Well what does that tell you?

    Nope - one more thought. Do what is best for the kid. Is it good for the kid to have to change schools / house etc, etc? Nope. Some stuff you will have to change like the school. But you don't have to change the kids house so don't...
     

Share This Page

Loading...