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VIC Joint Custody after 9 Years of Indifference?

Discussion in 'Family Law Forum' started by krylek, 25 June 2015.

  1. krylek

    krylek Member

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    Long story short - I broke up with my daughter's father before she was born.
    During the first 3.5 years of her life he saw her about 6 times. I never stopped him, he wasn't interested. When she was 3.5, he asked me to go to mediation, and decided to see her once every 3 months. By the time she was 5 it was every second Sunday, from 9am to 3pm. He would cancel around 30% of the time. There were periods of 3+ months where he didn't see her at all (again, his choice). This has continued until now (my daughter is 9 years old).

    My daughter was diagnosed with high functioning Autism when she was 5. She has a normal IQ and attends a mainstream school with some aided time. She was slow to toilet train (I had her at many specialists and continence clinics), and it wasn't until she was 8 and diagnosed with IBS ( Irritable Bowel Syndrome) that her bowel movements were under control. She also has sleep issues (still doesn't sleep through the night), and medication to get her to sleep. She has a very restricted diet (she sees a dietician), and is gluten and lactose free. She also has a paediatrician. Her father has chosen not to be involved in any of her medical treatments as he doesn't believe she has Autism and says her IBS is in my mind (despite medical evidence to the contrary).

    When she goes to access I need to send her with food (as he doesn't feed her, or feeds her foods that upset her bowel).

    A few weeks ago the Child Support Agency ruled against him, and said he would have to pay off an almost $20,000 debt (he is self employed and has paid only $2,000 in the last 2 years - and has never been up to date).

    The CSA had been in regular contact as he told them he had paid the debt privately (not true). Obviously he could not prove this as it wasn't true. When I rang to ask him what was going on he stated that I "had better agree or you'll be sorry". He's right - I am sorry now. The day after the CSA ruled that his debt must be paid and that they were going to pursue it, he sent me a text message stating he was taking me to court to get joint custody. THE DAY AFTER. He told me he was going to contact the mediation centre to get a certificate to take me straight to court. He said he wanted her overnight (he has moved into a new rental at $550 a week, 2 bedroom, 1 for him and 1 for his teenage son), and that she would be sleeping with him.

    I was horrified - clearly a 9 year old girl should NOT be sleeping with a man, especially one she barely knows. This was the day after his last Sunday access. To be fair, I asked my daughter if she'd like to try a sleep over at her dad's house (because at 9, I think she's old enough to decide), and she was adamant that no, she didn't want to.

    Tonight I received an email stating (in summary) that he no longer feels safe coming to my house (he lets himself in the gate & comes in the back door!), because my parents (who we live with) and myself threaten and abuse him. This simply is not true. I have always had someone present at pickup and drop off because he makes really inappropriate comments if I am alone (sexual nature). I also have many of these types of text messages from them (I ignore them). I have friends as well as family members who all know this isn't true. He is insisting that drop off and pickups be done at a police station (near his home - 30 minutes from mine).

    Basically I am sorry I didn't agree to the child support lie. He's correct - I am sorry.

    My daughter, whom he knows has Autism (even if he doesn't admit it), struggles with change. If I tell her we're doing pickups and drop offs at a police station, I fear for her. I strongly suspect she'll have a melt down and be terrified. I also worry he won't bring her back, we have no parenting plan. I also worry about her food - he doesn't stick to her diet. If you don't tell her to go to the bathroom, she'll have an accident.

    From what I have read, I should not deny him access, but I don't feel that I should be threatened and intimidated by him into an access handover at a police station that will upset my daughter. He's not thinking of her at all.

    Clearly, I need legal advice. I'm just not sure where to start.

    My daughter has an appointment with her psychologist on Saturday, so I can ask her what she thinks about the police station. She is seeing her paediatrician in the school holidays (week after next).

    I'm really not sure where to go, or what to do. Clearly, my daughter having Autism should make a difference? But I don't know if it will.

    How likely is he to get overnight access if he takes me to court for an interim order? I feel that if it's likely I need to start to prepare my daughter as much as possible (with her psychologist's help of course). She's only ever spent a night away from me when she has been with my parents (who we live with and are really like her 2nd and 3rd parents), and even they find her hard to deal with. If you have the wrong sheets on the bed, or do the bed routine in the wrong order, she has a meltdown. Since I do it all the time, it's second nature to me. I hate to think what would happen to her, with a man who says she doesn't have Autism, if she had a meltdown.

    It's been 9 years and he hasn't given a s**t, and the day after the CSA rules against him, he's threatening to get joint custody and making up lies in emails. No thoughts of my daughter, no thoughts about her health and well being.

    I have invited him to talk to her psychologist etc. and he simply ignores it.

    Is a court likely to say he has to follow what the psychologist says? Will it matter at all? My parents and I have worked so hard to try and get my daughter stable and into a good routine, and now this is just going to ruin everything and hurt her.

    Just don't know what to do next.
     
  2. Sophea

    Sophea Well-Known Member

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    Hi Krylek,

    If your ex is intent on bringing an application for custody all you can do is do your best to contest it in court, by submitting evidence of all the circumstances that you have outlined above. It may be a lot of work, but unfortunately you will need to do this for the court to gain a complete and accurate understanding of your child's specific conditions. Ultimately when deciding a child custody matter, the primary consideration is the best interests of the child.

    There is a presumption that it is in the best interests of the child for both parents to have ‘equal shared parental responsibility’, but this may vary depending on the facts of each case. And given your daughter is 9 years of age, it may also take into account what she would prefer. Also the presumption will not apply if there is any history of abuse or violence by one parent.

    The court will consider what is necessary to protect the child from physical or psychological harm, and the benefit of having a meaningful relationship with both parents.

    The court will of course take into account the relative shares each parent has had in making long term decisions for the child, the amount of communication and contact each parent has had with the child and the amount of financial support they have been willing to give. It will also take account of the impact of a change in living arrangements which would be significant and how each parent could meet the specific intellectual and emotional needs of the child.

    Based on what you have stated above, it would appear to me that you have a fair chance of convincing a court, that your ex is simply bringing this application out of spite, and it is not in the best interests of your daughter to change her living arrangements, based on your ex's failure to contribute to her financially, care for her intellectually and emotionally, make medical decisions for her wellbeing and the unnecessary upheaval it would mean for her changing living arrangements. Not to mention it would be her preference to stay with you.

    Having said that, there is always 2 sides to each story and I am not privy to the arguments that your ex may put forth to a court in opposition to your version of events.
     

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