VIC Family Law - Ex Fighting for Custody of Children - What to Do?

[Mummaluv]

Hi, my husband and I separated 18 months ago due to infidelity on his behalf as well as physical and emotional abuse. We were married 6 years & have a 6-year-old child together. I am repartnered and my ex makes weekly attempts to end my relationship.

My ex has ignored requests from my solicitor for financials. He now has received another request and has to pay court costs. He is not happy about releasing his financials and wants me to stop the request and as I am not doing as he tells me I should be doing, he advised that things will get nasty now (I have this in SMS). Now he is requesting 50% care and custody of children. He works full-time (although he won't pay child support ) so would be having his mother and girlfriend ( who by his own advice is "only temporary") care for our child.

So he is seeking 50% care when others will be providing that care and I am available to care for our child? Will the courts take this into consideration?

Our child is quite fond of Dad's girlfriend, too and I am concerned about him establishing his relationship further with someone who is temporary in his life but I understand I cannot protect him from that, and I have no desire to push someone out of his life that he is so fond of.

My ex and his mother speak negatively of myself and my partner and also tell our child "Don't tell Mum" about certain topics, activities or conversations which are generally what I see as manipulation techniques in an effort to have my child resent my partner and want to live with Dad.

My ex's child from a previous relationship recently contacted me after a conversation with my ex in which he made some wild allegations about me in an attempt to end my relationship with the child. When I asked him about this (SMS message), he advised that the child has many mental issues and was twisted way out of proportion (SMS message).

The child's mother then contacted me to advise that the father had contacted the child to reprimand them for repeating the information they discussed as he thought he could trust child. For the above reasons/scenarios, I am so concerned for my child's welfare and the mental manipulation and abuse that he is being subjected to but I am not sure what to do or if there is anything I can do under Family Law.

 

[AllForHer]

If you want to give yourself the best opportunity to attain a favourable outcome in Court in respect of the children's matter, you need to do your utmost to establish and maintain a co-parenting relationship that works. If the father refuses to play ball, then it's his problem, but if you're both seen as being unable to put your personal feelings aside so that you can raise the child together, the Court isn't going to favour either of you.

In respect of the parenting matter, the Court only makes orders that it deems to be in the best interests of the child, in accordance with section 60CC of the Family Law Act 1975 - you should familiarise yourself with its contents here: FAMILY LAW ACT 1975 - SECT 60CCHow a court determines what is in a child's best interests

Some initial things you should know:

1. Section 60B of the Act states that your child has a legal right to have a meaningful relationship with both parents, regardless of the status of relationship between the parents. The parents, by comparison, have no legal rights to their children.
2. Section 61C of the Act holds that you and the father have equal shared parental responsibility for major long-term decisions affecting the child's care, welfare and development. In short, both you and he have equal say about parenting decisions, and that cannot be removed unless by order of the Court on successfully proving that shared parental responsibility is not in the best interests of the children. For the record, sole parental responsibility is rarely ever ordered by the Court.
3. Section 65DAA of the Act holds that where shared parental responsibility is upheld, the Court must consider first whether an order for equal time is in the best interests of the children, and failing that, it must then consider whether an order for substantial and significant time with the non-residential parent is in the best interests of the children. Substantial and significant time entails a mixture of weekends, weekdays, holiday time and special occasions, such as birthdays, Christmas, Easter, etc.

So, how does this affect you?

First, your child has a legal right to have a relationship with both of you, even if both of you don't get along. Rather than focus solely on reducing the child's time with her dad, the Court will consider various other ways to address the level of conflict between the parents to limit the child's exposure to it.

For example, it might order that changeovers take place at a public location, it might order you to communicate via e-mail, rather than in person, and it might order you both to attend a post-separation parenting course to address the communication issues (and the issue you've raised about the father allegedly manipulating the child). It will also make orders that neither party is to denigrate the other, and that both parties must support and encourage the child's relationship with the other party.

If none of the remedies affected actually result in improvement, then you might have grounds to seek orders for the child spending less time with the father, but the allegation of manipulation won't hold any weight unless it's backed up by a family report writer who shares your belief that the child has been coached.

Second, it is extremely rare that the Court will remove shared parental responsibility. You're better off focusing on how to actually make shared parental responsibility work, rather than trying to get it removed all together. If you have to block his phone number and use a communication book that is sent with the child between households, so be it.

Third, the Court is very open to 50/50 care of a child these days, though admittedly, if two parties have to go all the way to a trial, there's a reasonable chance the Court may consider the co-parenting relationship too acrimonious for 50/50 to work. Not always, though.

In our case, the conflict is so bad that we've had two restraining orders taken out against the other party, yet we also have a week-about care arrangement that the child has responded very positively to. Just because there's conflict, doesn't mean 50/50 can't work.

In addition to the above, the Court might take into account the father's full-time roster, but be realistic. Many parents work full-time. Many parents who are still married with young kids work full-time. That doesn't make them unfit parents, and it certainly doesn't warrant the children spending less time with them.

If every parent lost custody of a child because they also worked full-time in order to financially support them, there'd be a lot of miserable foster kids around. The fact that he doesn't pay child support will be an issue with the Court, but it's ambiguous how much weight the Court would give this factor.

In short, there's no telling what the Court would do, but if you want to give yourself the best chance of a positive outcome, you will spend the duration of proceedings trying to co-parent with the father. If he makes it difficult and refuses to engage the conversation, then be it on his head.

As a final suggestion, exit the drama. Don't enter into the bickering between you and the father and the father's other child and the father's other child's mother. It's petty and needs to be put to bed quickly if you want to be seen as the adult more capable of doing what's best for the child.

It doesn't matter how many times you ask the ex to stop speaking negatively of you and your partner to the child, it's not going to stop him from doing so, and you need to understand that you cannot control his actions. Instead, your obligation is only to the child - to be the best role model and parent that you can be, especially since the other parent refuses to do so because that's what your child needs from at least one of their parents.