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QLD Family Law - Chances of Wife Getting Back Custody of Children?

Discussion in 'Family Law Forum' started by Dwayne082, 1 May 2016.

  1. Dwayne082

    Dwayne082 Member

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    My ex-wife and I have been divorced for over a year. We have two children together, boys 11 and 6. She had custody of children a majority of the time as we had an on and off relationship for many years. Generally, I would have the boys every second weekend Friday to Sunday and, if my roster permitted, every other weekend too. There are no family court orders or parenting plans. I have always paid child support plus more when she asked.

    I am now in a loving relationship with my new partner who is expecting our first baby on June 27th. I had constant access with the children staying with us every second weekend still.

    My ex-wife was in and out of many relationships, but her last relationship was physically violent and abusive, which the children were witness to. She now has a Domestic Violence Order against her ex but I'll go into that a little later.

    She lives approximately 1 hour away from me.

    Over a period of approximately 6 or 7 months as a guest, I had become aware of the violent/abusive relationship that she was in. It was an on-off relationship. She advised me of this herself. I consistently requested that she take necessary steps to stop the children being witness to this violence and abuse. I warned her that if it was to continue I would remove the children from her care. It continued by her own admission.

    On the 17th of July 2015, when I was meeting my ex to pick up the children for the weekend, she informed me that she had kicked her boyfriend out because he had been physically violent with her again, spitting and pushing her around. She told me that she left him at a train station.
    On the 19th of July 2015, which was a Sunday I received another text from the ex advising me that she had allowed him to move back in and that everything was just a misunderstanding and all was okay. It was then that I told her to enjoy her relationship with her boyfriend. And that I was keeping the children due to the domestic violence and abuse in her home that the kids witnessed. She was obviously angry.

    I immediately informed the children's school that they had been attending, and advised that they wouldn't be back and asked also to be emailed an attendance record. After receiving the record, I became aware that the ex-wife had not been taking the boys to school. By July 2015, both children had missed 55 days of school . It was my youngest son's first year of prep and eldest was in grade 5. After further investigations, I found that the previous year when my eldest son was in grade 4, he had missed 75 days of school. Both boys are severally behind at school.

    I enrolled the children into a new school to which they are still attending to this date, my partner and I have done the best we can as both full-time working parents (I am an officer in prisons on shift work, my partner is an educator in a daycare centre) to provide the children with stability and routine within the household, making sure that they attending school everyday etc..

    My ex-wife is 30 years old and has never worked.

    After a few months of the children living with us and I eventually started receiving Family Tax benefit and Child Care rebate as she informed Centrelink that I had custody of children.

    During this time, the children didn't have much contact with their mother due to her not calling them or taking calls. But we did have the occasional discussion, there was communication using her mother as mediator eg. I'd speak to my ex's mother and she would pass on the message. I allowed some weekend access but she had to have the children at her mother's house where I knew they were safe with her mothers 'reassurance.

    Eventually, she broke up with her boyfriend and moved into a room at her sister's house. After some long discussions with her, I allowed her to have weekend access at her sister's house as I never wanted to stop the boys seeing their mum.

    On this particular weekend in November 15, the boys 'grandmother arrived at my house to take them to their mother's for the weekend. When the children arrived, there was no sign of their mother. She had eloped and disappeared for over a month. In that time, she had zero contact with the children due to her not contacting them or taking calls from me. After a month had passed, I became aware via her mother that she was back on the scene. I was able to contact the ex and she advised me that her bf who she had run away with had severely beat her. she sent me the photographic proof of her black eyes and busted lips.

    She begged that I allow her to have contact with the children again as she wanted to spend Christmas with them. She also advised me that she had taken a Domestic Violence Order against her ex and the children were safe. He was apparently arrested by police she said.

    Over Christmas, she had the boys for a period of 3 weeks on their holiday, and every second weekend after that. Over the Easter Holidays 2016, she had the boys for 2 weeks but I had to pay her $150 because she didn't have enough money to support them being on unemployment benefits.

    She and her sister have now moved houses, still living within the same suburb. She lives under the house in a bedroom beside that garage which has been turned into a lounge room. She shares a bed with one of the boys and folds out another bed for the other to sleep on when she has them for the weekend.

    During mid-March she advised me that she was 19 weeks pregnant and that the ex was definitely the father. She also advised me that she was not going to tell him about this baby as she feared for her safety.

    On approximately the 25th of April, my ex enquired as to whether I would be interested in meeting with her and her mother to discuss care arrangements of the children. She told me she wants the children back in her care full time but didn't want them back until at least December 2016, because her baby would be a bit older and she could afford to get her own house, due to being back on a single mothers pension. She also said she wanted to wait till then because the eldest would be changing schools to attend high school and the youngest would only be in grade 2, so the change wouldn't affect them much in her opinion. I also never mention that while the children were in her care the attend 5 different primary schools with her moving around a lot.

    all this correspondence was via text message, I definitely declined this and said I would think that a shared care arrangement with her moving closer to where the children live would benefit them more. So they could stay in their current schools and remain with their friends. She agreed that this would benefit us all this arrangement I suggested.

    On the 29th of April, she advised me that she would not be moving closer to the boys to have a shared care arrangement because she would be living an hour from her mum and sister and would have no support to raise the kids and new baby (they live an hour or so away). She thinks the kids should be back with her because she's their mother and she raised them on her own.

    She said she wants the boys back full time and is going to do whatever she can to get them back. I said no way. you couldn't look after them properly and get them to school etc how do you expect to do even that with a newborn baby. along with all the responsibilities of homework and getting their grades up to a satisfactory level.

    She has instigated mediation process she advised me. But also said she knew it was a waste of time because neither of us would come to an agreement because all she wants is them back in her full-time care.

    She wants to go to court and that she doesn't care if I have to go broke doing so.

    Under these current circumstances, what are the chances of her getting the boys back in her care? What could I do to further my chances of keeping them under Family Law?

    I would still agree to shared care arrangement if she moved closer to them so we could both play significant roles in raising them.
     
  2. sammy01

    sammy01 Well-Known Member

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    Her chances in court? No idea.. Why? Well, we only have your side of the story.

    What you should do? Tell her that you're only gonna let her have the kids if she agrees to consent orders in the short term. Bluff something about reviewing the consent orders once her new-born is 12 months old. Or do nothing and let her know that she can take you to court.

    My concern is what if she refuses to return the kids to you? Without court orders, there is nothing stopping her from doing exactly that. But if I was to have a bet - if it went to court, based on what you've said, I reckon you're a good chance of maintaining primary care status.

    Let her go to court.

    Who is gonna pay for her solicitor? You? Yep didn't think so. She might be applicable for legal aid but there are restrictions on the amount of support they would provide her, so it ain't really a huge worry...
     
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  3. AllForHer

    AllForHer Well-Known Member

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    Where to begin...

    Okay, first, I'm going to assume everything you have said is fact.

    Chances of her getting residency? Buckley's and none. The enormous volume of missed school days alone will be persuasive evidence against a change to current residency arrangements. 75 days missed in one year and 55 days by midway through the next is just ludicrous. Residency arrangements would now be considered the norm for these kids, too, so it's going to be easier to retain them in your care than it will be for her to argue in favour of a change to residency arrangements. She would basically need to prove the children are at risk of abuse, neglect or family violence if they remained living with you, which doesn't sound like the case at all.

    All the same, you've asked what you can do to increase your chances of retaining the kids in your care.

    I don't feel you need to be told this, but the most important thing you can do is encourage and support the boys' right to have a meaningful relationship with their mother.

    Propose orders that are fair and reasonable. If she lives an hour away, then every other weekend works, plus at least half of school holidays. If you're concerned about Mr Abusive Boyfriend being around the kids, then seek an order that the children at no time be brought into contact with him, and in the event they are brought into contact with him, that the mother's time with the children revert to a specified supervised arrangement until further agreement can be reached. Consider things like transport between households - is she driving? Since she moved, she should pick up half the travel commitment or meet halfway.

    If you end up in court and have to write an affidavit, don't make it a 50-page critique of all the mother's poor life choices. Instead, make it a glowing expose of your parenting. But you might not even end up in court. I know you're thinking 'We definitely will end up in court', but 95% of cases initiated end up settled by consent. If she has the sense to get legal advice before mediation, as well, she'll probably be told fairly quickly that she won't get residency.

    At least, not unless there's something you're not telling us. :)
     
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  4. Dwayne082

    Dwayne082 Member

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    Thank you for your replies.

    Everything I stated in the above post is true. I've possibly left out a few minor details due to typing this up while at work, but its essentially what has occurred in the past year.

    about 4 years ago there was a lot of history between us with DVOs on each other etc.She is a physically abusive person. the kind of girl to get in your face and dare you to punch her. So i am not surprised that eventually she got hit. Her other relationships were violent also with her being tossed about and the kids being witness to it.

    There was one other occasion that she abandoned the children with me for about 4 or 5 months because she ran off with another boyfriend. (Bikie Nomad) Eventually, she came to her senses moved into her mums and convinced me to give them children back. This is recorded as i received family tax benefit then also.

    At the moment, I'm not really worried about her just keeping the boys because she doesn't have suitable accommodation for them, and the kids are pretty full on, possible ADHD in the eldest. So it would be a lot for her while being pregnant to have them back full time on her own.

    I've arranged a private pediatrician appointment on Tuesday so we can get to the bottom of his behavioral issues at school. I was taking him to see a psychologist at the public hospital. The psych seemed to think my eldest son suffered from Chronic Anxiety, which he explained has similar symptoms to ADHD. He had advised us to use a lot of strategies to help him, his behaviour at home greatly improved but at school is another story as I can't be there to be on his case constantly.
    I had informed my ex about taking him to see doctors etc and kept her and her family in the loop with what has been said by psychs etc.

    I've obtained further reports from his current teacher this year and she believed a second opinion wouldn't hurt as he is still extremely distracted and fidgety in class and cannot do his school work causing constant disruptions. But again it could just be a product of the environment he was raised in due to lack of routine/structure etc.

    Am I able to also use this as expert evidence if we do have to goto court ?
     
  5. sammy01

    sammy01 Well-Known Member

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    The court will appoint their own expert witness. But you will be able to discuss all the positive stuff you've done and the stability you've provided.

    I also think you should just take a deep breath in. Stay calm...Only 3% of cases go to court. While she may be entitled to legal aid, generally legal aid won't fund a whole court case - so either she will have to accept their advice or fund her own case or self-represent. And along the way, she'll have lots of people telling her that she doesn't have a strong case.
     
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