NSW Is it legal for my wife to hide out with my 2-yo kid without telling me?

[sammy01]

So as far as AVO's go -all you gotta do is NOT give her any reason to go to the cops and get one. The fact she thumped you 6 months ago is done and dusted. I disagree - you do need to have iminent fear for your safety to get an avo.

I don't think there is a feminist conspiracy out there - with women's groups getting govt funding to screw blokes over.

I also disagree that the avo helps establish a pattern of care where dad doesn't see the kid for 6 months or more that it takes to get to court and that impacts on the final decision on time with kids. Infact I reckon the magistrates see so many cases where one parent claims DV with very little solid evidence and those magistrates are pretty smart - they don't like seeing the legal system used by one parent to get an upper hand. I'd go one step further and suggest avo's are almost irrelevant when it comes to family law.

So what if my ex moves out with the kid and I don't have an avo.... I decide to pick up the kids from school without the ex's consent. She loses her s**t and there are arguments in front of the kids because of all this.AND this happens once or twice a week because I'm not gonna have HER tell me when I can see my kids.. When it goes to court we both look like twits... OR one parent moves out with the kids, the other parent plays the slow strategic game - the game that means not seeing the kids much for a while, but winds up looking good in court because the kids have not been caught up in a hugh dispute....AND all the while the ex looks like crap because she has refused to mediate / or come to an agreement about the kids spending time with dad .

Ol'd mate - send 1 text message a week - Dear ex, I would like to spend some time with XXXXXX at the weekend. Can you please advise me what times suits you. Thanks.

Nice simple - Don't get caught up in a text message war. Ask once. If she agrees GREAT. If she doesn't YOU have established that you're trying to see the kid and she is refusing. She looks bad, you look good.

 

[GlassHalfFull]

Sammy, I have to disagree with a few of the things you said there...

So as far as AVO's go -all you gotta do is NOT give her any reason to go to the cops and get one. The fact she thumped you 6 months ago is done and dusted. I disagree - you do need to have iminent fear for your safety to get an avo. I don't think there is a feminist conspiracy out there - with women's groups getting govt funding to screw blokes over.

Yeah, you kind of do need to have an imminent fear for your safety - that part I agree about. But my point is, the actual last physical altercation doesn't have to be recent at all. You CAN have an imminent fear based on something that happened 6 months ago. In fact, that's exactly what my ex used to get an IVO (Vic). She took a physical altercation that happened almost a year ago (which she twisted to make herself look like the victim instead of the perpetrator) and 'financial violence' (I took some money out of our joint account to pay a retainer to fund a lawyer for an issue she created, meanwhile she was withholding the money that was supposed to go to the joint account for rent - that's a long story, I would hardly call anything I did financial violence, but she made the claim anyway) to justify the IVO. There had been NO threats of imminent violence by me, no incidents had occurred recently. It's hard to say which individual claims gave the magistrate reason to grant the IVO. My ex just gave a laundry list of petty, unsubstantiated complains but there was no indication about which were considered valid or justification for an IVO. I think it was clear my ex simply wanted to take control of our children and used the IVO strategically to achieve that. My lawyer, as soon as I explained what had happened prior, immediately reached that conclusion too. The lawyer my ex uses used to be a lawyer for Women's Legal Service too before creating her own practice btw.

Cmon Sammy, fill in the blanks here. It happens, it happens and there absolutely is a conspiracy (or at least a strong bias) against men. When I turned up for my first IVO hearing, I was waiting to speak to a duty lawyer and someone called me into an office. I thought it was the duty lawyer. Turns out it was an OFFICIAL court 'men's change' activist (there was no womens equivalent, there was only a women's support person for VICTIMS of violence), who wanted to hand me over numerous pamphlets about programs I could enter to change my behaviour and stop being violent to women. Without even ASKING me whether I admitted I had done anything wrong. The assumption/bias from the moment you enter the system is that you are guilty and that men are violent and women are victims. These assumptions are literally BUILT INTO THE SYSTEM and the process only exists to get your confession (or consent without admission), or for you to TRY to prove you did nothing wrong by contesting it (which is subtly discouraged because they keep reminding you that you CAN consent without admission!).

Now, you might say that if true, my story is unfair but not representative of the system as a whole, but the fact that it happened to me means it can happen to anyone.

I also disagree that the avo helps establish a pattern of care where dad doesn't see the kid for 6 months or more that it takes to get to court and that impacts on the final decision on time with kids. Infact I reckon the magistrates see so many cases where one parent claims DV with very little solid evidence and those magistrates are pretty smart - they don't like seeing the legal system used by one parent to get an upper hand. I'd go one step further and suggest avo's are almost irrelevant when it comes to family law.

Yeah, but almost no matter what finding the family court judge (you keep referring to family law judges as magistrates, I've noticed, which confuses the matter a bit? Magistrates are only called that in the state courts I believe) makes about the allegations of violence etc, unless it's very serious on-going violence that the children are likely to be involved in, it simply won't matter much IMO. If one party has been looking after the children for 12+ months and the children are happy and settled in that arrangement, it's very unlikely the judge is going to reverse it and give it to the other parent, even if that parent had previously had the children. From the judge's child-centric point of view, they actually don't much CARE which parent has the children (although I would guess with a subconscious bias for the mother to be the primary carer), they just want to minimise disruption to the children. And if the father (or mother) has become established due to an AVO that turns out to be fabricated, that's the arrangement that will likely remain. You say "they don't like seeing the legal system used by one parent to get an upper hand". Yes that may be true, but they have no jurisdiction over the state courts, and if there is still an active case (due to the extreme delays in the state courts currently due to domestic violence cases) that has not reached a conclusion, they cannot interfere with it. They can create orders that override the interim AVO (giving a parent access to the child despite the AVO saying no contact), but they cannot make a finding about the AVO. As such, they have to respect the state court's processes.

And also, lets not forget that there are also extreme delays in the family law system too. To get to a trial where major final decisions are made takes 12+ months too. Yes, interim decisions can be made about the children, but it's unlikely that it would be established that one parent is using the legal system to get the upper hand at the interim stage because no affidavits or evidence have been tested in a trial yet. At best, the family court will have Family Reports and reports from other expert witnesses to guide interim decisions, but as for whether one parent is trying to get the upper hand using the legal system that's the kind of thing that only really reveals itself by the trial stage IMO, and like I said, by then primary care by one parent is already established by then and it would take something pretty extreme (ongoing violence, mental illness, parental neglect etc) for the care arrangement to be reversed by a judge IMO.

Anyway, sorry if this is a bit long, but there were a few things I had to bang on about to really explain my point.

 

[sammy01]

hey I think we mostly agree.
BTW I have no doubts that some individual case workers in govt departments over step their professional responsibilities and do feed clients intelligence on how to kick their partner out of the house. Been there done that. Was appalled to think I had an avo against me.... Sure it happens. But the government doesn't print brochures about how to get the man of your life out of your life.

So hypothetical time line from separation to interim hearing 6-8 months. Mediation 6 -12 weeks - FAILED ex wont agree for little timmy to spend time with the other parent. Two or three letters from solicitors to broker an agreement - still no luck? application to court, and serving the other parent 3 months? If after all that the ex is gonna refuse access to little Timmy - well the judge wont be impressed. But it isn't the system that has failed it is an ex that has failed to understand that little timmy deserves to have a meaningful relationship with both parents

 

[GlassHalfFull]

The government may not print brochures about 'how to get the man of your life out of your life' but they do print gender-biased brochures on family violence and give far more support to women and women's based family violence charities than they do to non-gender biased family violence charities. And I hear the arguments about why that's the case already... "Women experience more family violence than men". That may be true and I'm not going to dispute it, but from what I've read it's about 2/3 women and 1/3 men as victims. That is a significant difference, but it's not like 95% women which probably would justify gender-targeting. I think BOTH genders experience enough violence that campaigns should focus on the unacceptability of the violence rather than the gender. The 1/3 victims who are male must end up feeling very isolated from support where male-oriented groups are all about how you should change YOUR behaviour when in fact you were the VICTIM. If that's not systemic victim blaming in 1/3 of family violence cases, I don't know what is.

Yeah, if after 6-8 months the ex has refused to allow the other parent to see the child/children, that isn't going to look good. But (using my personal experience as a template) what if the ex HAS allowed the other parent to see the child but only under very strict professional supervision (despite no actual evidence of that parent doing anything wrong to the children). What if, because of the serious allegations made, the judge thinks it is reasonable for supervision to remain until various professional reports are submitted back to court? Another 3-4 months go by waiting for those. What if, after having read the reports which essentially say the father has likely done nothing wrong and the supervision should be removed and normal contact shyould resume, the judge concurs and takes the supervision away but does not punish the parent since they were merely acting 'protectively' in light of their concerns?

There are numerous situations in which a parent can argue that they were acting protectively while in actual fact were mainly just trying to exclude the other parent as much as possible by exaggerating and or fabricating allegations. Until such time as a trial comes along, these allegations are not fully tested and the judge mainly relies on the reports which make interim recommendations. Only if the judge comes down so hard on the parent for outright fabricating allegations would they ever take the children off that parent from what I understand, and that would only happen if it were very obvious that there was a pattern of lies and the parent's story fell apart during cross examination. If there were some 'genuine' grounds for the parent being concerned that were over time found to be untrue (a parents' paranoia and inability to think reasonably isn't the same as outright lying, after all), I think judges tend to 'tut tut' the parent for failing to support a co-parenting arrangement to the children but it's rare that they actually punish the parent for it by changing their access to their children. In fact, I've read of family court cases where the mother ends up with sole parental responsibility for the children and the father has very limited access to the children, not because it was found that he did ANYTHING wrong, but because the mother's conflict towards and suspicion of the father was so severe that she would essentially be poisoning the children's minds and causing them distress if she were forced to share custody with him. That's a pretty extreme example, but I think it shows that the judges tend to put the children's exposure to conflict (even if the conflict comes 100% from the parent with primary care) as a higher concern than punishing that parent for failing to act in the children's best interests.

 

[smallcat]

The system is so broken that only protecting the children from conflict or fear, but not concerning the justice, fairness, respect, dignity and virtues.

This is how a loser can be raised up in this society.

 

[sammy01]

glasshalffull - start your own thread if you wanna whinge about how broke system is... None of what you're doing is gonna help smallcat...
Smallcat - the system isn't broken. IT is flawed and the flaw is humans that wanna find every scam they can. Sure some parents use the system and some get away with it because the other parent gives up. That is a terrible reality... But all you can do is try your best. So lets focus on that.

 

[GlassHalfFull]

I think another punter's perspective, giving not only his personal experience but also his understanding of the family law system IS likely to help him on some level. It might not be specific tailored advice on what he should do (I've already given my thoughts on that), but it's still valuable information about how the system works. Either way, surely he should be the one to tell me I'm not being helpful, not you?

And sure, I could start my own thread, but these conversations (not whinges) tend to evolve naturally out of discussion of other's situations. We just happen to have slightly different perspectives/experiences/understandings of family law and domestic violence policy. I don't really see the problem?

 

[smallcat]

Thanks GlassHalfFull and Sammy. Both of you are very helpful. And let me think about my case in different perspectives.

I talked to legal center lawyer and mediator. I got more insights and ideas now. I will share their suggestions here, after I meet my partner and my kid in this weekend. (hopefully she won't stand me up)

 

[GlassHalfFull]

Good luck. My only further advice is try to remain calm and fair and reasonable. It is difficult in these circumstances but hopefully you will look like the good guy. At mediation, nobody can force your ex to behave reasonably and anything that is discussed can't be directly used in court, but at least you can say you tried. If mediation fails because of her inability to be reasonable, then the stakes are raised and you may need to fight harder. Good luck again. Let us know how it goes.

 

[smallcat]

Good luck. My only further advice is try to remain calm and fair and reasonable. It is difficult in these circumstances but hopefully you will look like the good guy. At mediation, nobody can force your ex to behave reasonably and anything that is discussed can't be directly used in court, but at least you can say you tried. If mediation fails because of her inability to be reasonable, then the stakes are raised and you may need to fight harder. Good luck again. Let us know how it goes.

The lawyer suggested me to skip mediation and go straight to Federal Circuit Court and get an interim order for asking my partner to pay mortgage, and hand back the child to me. (all because of the DV involvement)

Mediation is just a mandatory process for those without DV and being "reasonably greedy". If both of you are not greedy and want to steal from your ex, you two really can negotiate everything by yourselves.