VIC Initiating Application for Custody of Children and Property Settlement?

[Danstar]

That makes a lot of sense. As I am a little afraid that there might come a day when she "cracks" and decides to try and take the kids away and who knows what she is capable of after that. I didn't put in a notice of risk when I initially applied for my orders, as there has been no actual risk. But there is a thought in me that if a mother can abandon her kids so easily, she can one day come back and do something just as horrendous.

The last 2 weeks, she has missed 3 out of her 6 phone calls agreed upon by the court order made by the judge. And I do see this trend continuing, especially after the court case is over (if ever). I wish the judge could see this (which I will be making a documented calendar of all days she has called/missed) and do what is in the best interest of the kids. And I'm not getting on my high horse here, I do have their best interest at the forefront of my mind and actions.

 

[Danstar]

So it has been just as I expected.

In the last 5 weeks, there has been 13 scheduled times she was meant to call. She has not called 10 times. Called past her scheduled time twice and only called once as per the court order. I have made a calendar with all this information. Should I forward this via the portal before the court date, or just take it with me on the day? She also hasn't sent me any documents in regards to what she wants.

I'm guessing she will either attend court and ask for extra time, or have something written up and expect me to decide on the day. Or ask to use the duty lawyer on the day again.

 

[AllForHer]

So, some clarification about the way orders work and why I think that bringing this information to court will look worse for you than it will for her.

You're the residential parent, which means that in respect of the orders, the obligations are on you to make the children available to accept the phone calls or spend time with the mother in accordance with the orders. There's no obligation on her to actually make the calls or spend time with them at those specified times. The Court can't force a parent to be a part of the kids' lives, it can only give that parent the opportunity to do so, so whether the mother calls or spends time with the kids when she has the opportunity to do is essentially not your concern, especially since at this stage, the mother isn't yet seeking any specific orders in regard to parenting.

If, on the other hand, the mother was seeking specific orders in regard to parenting, then yes, you could certainly indicate they will be a pointless exercise because she has failed to maintain contact with the kids as encouraged by the orders, even when given the opportunity to do so. But since she has not yet indicated what parenting orders she's seeking, there's no point arguing about it.

If you complain about the mother's lack of participation in circumstances where she's not even seeking orders to actually participate, you're going to look like you just want to complain about the mother, which suggests to the Court that you have a lot of contempt toward her, which suggests that you're not supportive of her having a relationship with the kids. If you follow this path, and the mother suddenly makes the case for the kids to live with her, the Court might have grounds to consider changing residency arrangements on grounds it will perceive that she is possibly more capable than you of ensuring the kids have a relationship with both parents.

So, my suggestion is that until the mother actually presents a minute of orders that she's seeking from the Court proceedings, you should leave out the complaints about the phone calls. At this stage, unless she actually starts seeking parenting orders for herself, it's essentially proceeding undefended, so no point arguing against her orders if she's not even seeking them yet.

If the mother presents consent orders on the day, that's fine, even encouraged, but if you're displeased with anything that appears in them, you don't have to sign, or you can negotiate alternatives. If she requests an adjournment, so be it. These things take a long time anyway, what's another two months or so the timeline?

 

[Danstar]

Thank you for the well thought out response AllForHer.

I actually do want her to be part of the kids lives. In a proper and routine manner. I knew this would happen when the judge gave orders for her to be able to call every Monday, Wednesday and Fridays between 6-7pm, where she would start to drop off almost completely. As you are probably aware, it's hard to tell a 7-year-old child why their mother isn't calling them, especially after 2 years she finally starts to get involved (ever so slightly), but then goes missing again. And I do have a lot of contempt for her.

The mother of my children has 0% input in their lives. Like you said, no one can make an adult be part of someone's lives. It breaks my heart every day that I cannot fix this for my kids. I have tried above and beyond what most people would do to assist my ex in being in the kids lives, to come up with nothing. I never talk badly about her to my kids and make excuses for her, so they don't feel bad when she doesn't call. Or what I hear other kids at school ask my kids where their mother is. I will hold onto this document for the court date as I'm sure the judge will inquire about the orders her set out.

And another month or two is a big deal for me, as I don't want this situation with her lingering over my head. I want to be able to have control over the house I live in. Feel safe that orders have been formally made that the kids live with me, as I do have a slight fear that one day she may 'crack' and do something stupid. I want to be able to get passports for my kids and go on overseas holidays.

I want all this without my kids losing out. And they have already lost their mother, I don't want them to lose their home or us being able to lose what we have all because their mother wants a quick money grab. :\

Ps. Sorry for ranting

 

[sammy01]

Mate, rant away - sometimes we need it...

Look the less effort she makes the easier it will be for the magistrate to make orders that suit you., Hopefully, you'll get something about the kids seeing mother by agreement. That will save you worrying about her lifting them...

 

[AllForHer]

I understand where you're coming from, but court proceedings are delicate and unpredictable, so it's important to keep perspective about what's important.

Regarding phone calls, if her failure to call is upsetting the kids, my advice is to stop telling them when she's meant to call. For lack of better expression, if you keep telling them when she's meant to call, knowing that the chances of her actually calling are minimal, then you're as responsible for their disappointment as the mother is, and it's likely the court will perceive that you intentionally operate this way to make the mother lose credibility in the children's minds, which is an outcome that a supportive parent will actively try to avoid.

Another month or two is, quite frankly, very optimistic. Most proceedings take two to three years to finalise, so really, you may just have to suck it up in that regard.

I'm sorry I can't provide more positive prospects. It's just the nature of the beast, unfortunately.

 

[Danstar]

I no longer inform the kids when she is going to call. Haven't done so for the last month. If she calls, I just hand the phone over to my oldest. She actually did call for the first time in a while on Monday. My son (oldest again) gave up asking about when she is going to call. As he was aware of the days she could call, he started making excuses when he asked me what day it is, and when realizing it's another day she could've called. He would just say, she must be busy working, which I always bite my tongue with my response and just agree with him.

Apparently she has now moved to Cairns on a fruit picking farm... *Rolls eyes*

When my son told me, we both couldn't help but laughing, as we were on the dinner table with bananas sitting in front of us and we just started laughing with each other...

 

[Danstar]

OK.

So I got a phone call today, which apparently was my Ex's lawyer. She advised that she will be emailing the judge/courts asking if they can appear on this Fridays court session by telephone and that they have just received notification that they have to send a response to myself. They asked if I would object to that. I said whatever the judge agrees on.

She also asked if I would allow another adjournment so they can have time to prepare. I said she knew about this and the judge gave her 28 days to respond. It's not my fault she's left it for the last minute. So I said I do not agree on an adjournment at this time.

I'm not sure if this was the right move as I was kind of put on the spot when her lawyer called. But as I said to her, I've already made arrangements to have the day off work and have my kids picked up from school should the court proceedings go for longer then attended and I would not be able to make it back home to pick up the kids.

After the phone call, I thought to myself I should've just asked what she wanted and possibly could've settled it then and there....

 

[AllForHer]

I wouldn't have agreed to an adjournment, either. If you always agree to an adjournment, you always lose out on the possibility of claiming a costs order against them.

It's still likely they'll negotiate with you on the day of hearing. Most parties do, and most reach an outcome. So, don't stress yet.

 

[Danstar]

I wouldn't have agreed to an adjournment, either. If you always agree to an adjournment, you always lose out on the possibility of claiming a costs order against them.

It's still likely they'll negotiate with you on the day of hearing. Most parties do, and most reach an outcome. So, don't stress yet.

I'm glad I didn't either when I had time to think about it. I'm not one to play games or be mean, but the date is set and I'm sure the judge won't appreciate on the day if she still does not have anything ready, as this was the case in our first appearance in court.

I've figured out a formula on the top of my head in regards to what she deserves, which I will try to say (even though it sounds silly, but I think it's a simple and easy way to figure out what both parties deserve.)

My ex and I were married while we had our kids for 5 years. (Youngest child was for only 3 years of that 5, but that's getting overly technical). So in the 5 years, we both shared our responsibilities so to speak at 50% each. Or 2.5 years each.

Now it has been almost 2.5 years since we separated and I have had 100% custody, so I've had 2.5 years plus 2.5 years = 5 years. So in my view, my ex deserves nothing from me, or even more so I should get something off her. That is, if the courts are meant to have the best interest of the children, I don't see how they can make me have to pay her anything.

In saying that, if they do come up with a sum, how will that help the children? Anything I have to give her, is money I would have otherwise used on my children or myself, which in turn is also for the children.

Do you think I make a valid point or just plain silly ?