VIC Family Law - Can I Get an Interim Parenting Order?

[Jace]

I have filed an Initiating Application with the Federal Circuit Court of Australia, in order to get a Parenting Order so that my ex-girlfriend will be forced to let me see our son. She is currently withholding access because she doesn't like me.

Knowing that a full court hearing could easily take a year, is there such a thing as an Interim Parenting Order under Family Law, that would grant me access to see him during the course of the court case?

 

[sammy01]

Yes - it should not take more than a few months to get interim parenting orders. You've done the right thing to get to court to get it sorted...

 

[Jace]

Okay thanks I've got an appointment with a local legal service here tomorrow evening, so I'll see about getting things sorted to adjust the Initiating Application.

 

[Jace]

I have a parenting order court case coming up on 31st March 2016. As part of the Initiating Application, I have included an interim parenting order, which my advising solicitor has told me I am able to apply for, so I can see my son throughout the duration of the court case, otherwise it could be a year or so before I see him again.

With 31st March 2016 being the initial court date, I'm not sure exactly what the timeline is for things because I haven't been through this before. But I'd like to know - with the interim parenting order that I have included as part of my application, how soon will it be implemented and enforced? Is it something that will be put in place from the first court date, or is there a specific time I have to wait for it to start?

 

[AllForHer]

Usually, you'll get interim orders at first mention, that being 31st March 2016 as your first court date. They take effect immediately, so if your first court date is 31 March 2016, and the orders state something like 'commencing 1 April 2016, that the child spend time with the father on alternate weekends from after school Friday to before school the following Tuesday', then you'll have the child the day after your first court date.

That's in most circumstances, anyway, but it depends on what's presented at first hearing.

Does this help?

 

[sammy01]

It should start pretty soon after. The only reason it won't is if the ex objects to your interim orders and the magistrate finds he has grounds to accept the objections. But I want you to think about the big picture here. If she objects and the magistrate accepts, then down the track when the grounds for the objections is found to be incorrect, the magistrate will start to have concerns about the ex and her conduct. So just sit tight.

 

[Jace]

Thanks for the help, and yes it is helpful.

My ex will object, because her claim is "I'm the mother and my son lives with me, so I have all the rights and you have no rights." This is what she said to me via text message and is one of many pages of evidence to be presented, it clearly shows her character and position on things. She says she doesn't want me to have anything to do with "her son" because she doesn't like me, and our son met my best friend of 26 years after my ex said she won't allow our son to meet any of my friends, "because I've met two of them and didn't like either of them, so clearly all your friends are bad people" (again, direct quote via text message).

But I'm assuming her saying "I don't like you" and "you broke my rules" isn't grounds for the magistrate to deny an interim order.

However, the interim order I am applying for is a duplicate of the final parenting order. It's quite extensive (about 21 clauses and sub-clauses), but that's because it's very specific and leaves no room for confusion, and everything is clarified within. Even to the point of being fair to both parents (showing I'm willing to co-parent, even though she isn't), and putting in clauses including that she has our son for the Mother's Day weekend, even if it's supposed to be a time when he would otherwise be in my care.

I'm hoping the interim & final orders will be acceptable to the magistrate & court. I showed my proposed orders to a Family Law solicitor and said there's nothing he could add to it because I've covered everything, and said it was written very well.

 

[AllForHer]

You haven't said there are any pending AVOs, legitimate or not, so I assume there are no allegations of domestic violence here. Basically, the issue is a high-conflict ex, which is easy enough to deal in terms of court - request orders for the parties to a attend a post-separation parenting course and show you want to parent cooperatively because you think that having both parents in their lives is what's best for your son.

The court knows former spouses argue, and it's very well accustomed to the mum-knows-best attitude many mothers enter the court with, but they also don't tolerate it, anymore, either. In the past two years especially, judges have been more attuned to the 'friendly parent' doctrine, in that it will grant residency to the parent it deems most capable of supporting the children's relationship with both parties.

In short, I don't think the objection of the mother will result in the child spending no time with you in the interim. Interim orders may not be exactly what you are currently seeking, but it's very likely the judge will make orders for the child to spend time with you in some capacity.

What kind of time are you seeking?

 

[Jace]

She has a pending intervention order against me, claiming that I verbally, physically and sexually abused her during our relationship that ended in Oct 2011. I never did anything that she is claiming, and I'm not the sort of person that would do things like that. But if she's claiming all those things, I'm not sure why she then suggested in December 2014 that we should get back together (which I denied because I was seeing someone else). Intervention Order mention is on 7th March, being 3 and a half weeks prior to the parenting order case initial hearing.

Also to note - she was served with the court documents on 24th December 2015. On 29th December 2015, she decided to put in for an intervention order against me. To me, along with the false things she is claiming, it just seems like spite and her response to being served with a court application. She is claiming also that I am "mentally and emotionally unstable", and that she fears for the safety of herself and our son.

I'm seeking:

• every weekend from Saturday 6:30 pm until Sunday 6:30 pm (because my ex works on Sundays anyway), or if she stops working on Sundays, then alternating weekends Friday 6:30 pm until Saturday 6:30 pm, and the other weekend Saturday 6:30 pm until Sunday 6:30 pm
• Father's day from Saturday 6:30 pm until Sunday 6:30 pm
• On the Mother's day weekend, from Friday 6:30 pm until Saturday 6:30 pm (to be fair so she gets Mother's day with him)
• The first week of each mid-term school holidays, and alternating week-on-week-off during Christmas holidays
• Half of his birthday if it's not a school day, or 3 hours after school if it is a school day, allocated to the parent who doesn't have him in their care at the time
• Christmas day, from 3:00 pm Christmas Eve until 3:00 pm Christmas day for the parent who doesn't have him in their care at the time
• New Year's Eve, every second year
• and then, on the dates of significant events (my birthday, family's birthdays, etc) from 3:30 pm until 8:00 pm or as otherwise agreed

I've written it in the Initiating Application all properly. Everything above is a simple summary. But I've tried to be fair, to make sure she gets him on Mother's day, I'll also put in to make sure she has him for significant events for her family as well.

I know it's unusual for a court to rule that a non-resident parent would have the child every weekend, and that's why I've put in there that it's as long as she is working every Sunday. Also, I believe that to develop and maintain a good relationship with the child, it should be more than just every second weekend. I believe what I've proposed above is fair and reasonable, yet specific and "water-tight", as I know she'll try to find ways around it.

 

[sammy01]

How old is the child? Is there any reason you're not seeking some mid-week time or better still 50/50?

One more thing... Do you have in your orders that you pick up the kid from school / pre-school? The reason I suggest that is because it is a hell of a lot harder for the nutter (oops, I meant ex) to withhold the kid even after there are orders. Sadly, some folk, just won't play fair, and by the sounds of things you've got one of them... And while court orders are really nice - the fact is little bits of paper can't make a twit stop being a twit...

Mate, I've been pretty harsh on you in the other thread. I hope you've read it. It is bloody hard to stay sane when someone is being really vindictive, but the best advice I have ever been given was to kill her with kindness. And it is true.

In my case, 3 years after it was all sorted, I was contacted by the cops and called in for a chat. The avo had expired and court orders stamped. The cop tells me the ex has a diary and writes down all the times I drive past her house (crazy never happened). She even said that she thought I was breaking into her place because sometimes she can't find her keys. It was madness.

She also claimed that I was abusing her via emails but didn't provide any copies of emails... It was crazy and the cops knew it. But when she mentioned emails, I offered the cops to read all the emails I'd sent her. They are all perfect, they all are incredibly polite, blah, blah - In short I killed her with kindness and as a result, the cops gave me a pat on the back and told me they felt sorry for me....