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VIC Family Law Mediation Agreement - Ex Not Following?

Discussion in 'Family Law Forum' started by clix, 21 March 2015.

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  1. clix

    clix Member

    21 March 2015
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    Hi. 2 years ago I took my ex partner to family law mediation because I was only getting 1 night per fortnight to see my daughter. We then agreed on 2 nights per fortnight, then when child is in grade 1. I also get her for 3 days per every 2 weeks of school holidays.

    She has now come back and told me I won't be getting those extra nights on school holidays now. I work full time but don't earn any where near enough to fight with a lawyer so please where do I stand under family law? How can I fight to see more of my child?

    Thanks in advance for any answers that may be of use thanks
  2. AllForHer

    AllForHer Well-Known Member

    23 July 2014
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    Well, it's always worthwhile applying for legal aid, even if you think you might not get it.

    The other option is to self-represent. Family law works on a less adversarial system, so the rules of evidence are a bit more flexible. For example, you can provide text messages from your phone without having to subpoena your telco as proof that they came from your ex. While self-representing can be daunting, it's perhaps not as challenging as many may believe.

    The Family Law Act 1975 stipulates that any orders made by a court must be in the child's best interests, and what constitutes a child's best interests is outlined in Section 60CC of the Act. The primary considerations are the benefit to the child of having a relationship with both parents, and the need to protect the child from harm. Are there any domestic violence issues? If not, then there is benefit to the child having a relationship with you. There is also a series of secondary considerations, such as whether you've taken the opportunity to spend time with the child since separation, paid child support, etc.

    The principle that underlies the provisions of the Act is that every child has a right to know, spend time and communicate with each of their parents on a regular basis, regardless of the relationship status between their parents, insofar as their best interests are met. The court has a duty to ensure people's rights are upheld - including your child's right to have a relationship with you.

    While the above points about the child's rights and best interests are the most important factors, I also think you'll benefit from understanding parental responsibility as it applies in the eye of the law.

    Parents have the benefit of the presumption that each parent shares in equal parental responsibility, which means you have a say in your child's care arrangements. That say cannot be taken away unless ordered by the court.

    Now, if shared parental responsibility remains the presumption (e.g. Is not revoked by the court), the court is obliged to consider if equal care arrangements would meet the child's best interests. Things like the distance between you and the other parent, ability to communicate and ability to facilitate orders in future will will strengthen or weaken your case, depending on your circumstances.

    If the court deems it's not suitable to order equal care arrangements, they will then consider if it's in the child's best interests to order substantial and significant time with the other parent. Substantial and significant time means weekends, weekdays, holidays and special occasions.

    Basically, if you don't get equal time, you'll probably get once each week, alternate weekends, half holidays and special occasions like Christmas, Easter, Father's Day and birthdays.

    The whole 'every other weekend' routine is generally ordered only if circumstances are particularly volatile or unworkable, such as very high conflict or a large distance between the parties. It's not a common outcome, these days. The court also recognises that one night a fortnight isn't enough, even two nights a fortnight, isn't enough for a child to maintain a meaningful relationship with the non-residential parent, and it's that relationship that the court seeks to protect at all costs.

    I want to add as well that court more often than not acts as a catalyst for consent orders. While everyone goes in with full intention of seeing it through to the end, 95% of all parties who start proceedings settle the matter before, or on the day of trial, by consent, rather than having the court decide.

    It's impossible to predict how the court would rule, of course, because every case is unique, but if the child has a healthy, safe and secure relationship with you, the court will likely order that the child spend at least substantial and significant time with you.

    On self-representation, it can be done with guidance from a solicitor to check affidavits and give you direction on what to aim for and expect, but then leave you to represent yourself in mentions and, if you choose, the final hearing. There are many online resources for self-represented litigants as well, and the court does it's best to support self-represented litigants through the process.

    I hope this helps.

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