VIC Mother Wanting Shared Custody - Family Law Help?

[Grey Fox]

My ex and I have been separated for a year now. When we first split, she stayed in the same house for 2 months before moving out. During the 2 months she contributed nothing in the way of food for our kids(3 kids under 15) and emotional support for them. When she did move out she only had 3 phone calls with our kids (instigated by me). Didn't want to see them or spend time with them. Then it was a Saturday or Sunday every fortnight.

I asked for a weeks notice when she wanted to see our kids but it was generally a day or two prior. She had seen then 6 times in 8 months. She saw them for their Birthday for the whole day. She saw them Boxing Day for the day then we heard nothing for 3 weeks. Her excuse was 'the car broke down'. I could have dropped off & picked up our kids had I known.

Now nearly a year since our split, she is adamant that she wants 50/50. Our kids say they would like to sleep overnight but don't want to live with her. They are all very happy and settled into a great routine. They are doing better at school too. I am worried that our kids will be put through hell again just to satisfy her.

Can anyone help with family law?

 

[Rod]

My opinion is you should facilitate extra time with the kids mother. Maybe not what she is asking, but more than now. The kids have asked, so you should seriously consider it. She may want 50/50 to avoid you going after her for child support. Maybe an assurance here would help.

It is hard to say what is best in these situations but talk with your kids and your ex in the first instance. Court should be a last resort.

 

[Grey Fox]

Thanks Rod. I had to get child support to satisfy centrelink. I am our kids primary carer and have 100% care of them. She only has to pay $16:10 a fortnight. I have paid their school fees for last year and this one. When I asked that she pay half she text me ' you were the fool to do it'.

She was/is a very controlling person and a very convincing liar. She isn't that concerned about our kids safety or happiness, only her own. I have thought about giving her every second Saturday night if she can prove that she will be at her place when our kids are there. She usually works Wed-Sun nights.

 

[AllForHer]

If she decides to take you to Court, she’s probably going to get more than just every second Saturday.

 

[Grey Fox]

Why should she get more? Every second Saturday & Sunday (no overnights yet, until she can prove that she will be there the whole time) and for the day when it's one of our kids birthdays or hers. She treats them like dirt, only thinks of them when she feels like it and is more concerned about her own well-being than ours kids feelings.

 

[sammy01]

Why should she get more? She is their parent... Ouch.

The law states that 50/50 shared care must be considered by the magistrate... So if it goes to court, that is (kinda) the starting point.

Do you want to go to court? Hire a solicitor? Nup.

Cool - Mate you've done some hard yards. lt is her have every second weekend, give yourself a break. Based on the info in your first post she seems like a nutter. Something else will come along and she will forget the kids and go back to random contact.

But letting the kids stay with their mum overnight (they have said that they want to do that...) Isn't gonna kill them? True.

 

[AllForHer]

She will get more because under section 60B of the Family Law Act, your children have a right to know, spend time and communicate with her on a regular basis, insofar as their best interests can be met, and regardless of the relationship between you, and it’s your kids’ rights that the Court serves to uphold.

You, on the other hand, do not have any rights as a parent, including the right to place expectations on mum before you’ll let the kids enjoy their right to have a meaningful relationship with her.

If you can’t rebut the presumption of shared parental responsibility (which you probably won’t be able to, based in the information you’ve provided here), then the Court must first consider if equal time is in the best interests of the kids, and if not, then it must consider if substantial and significant time is the next best thing. Substantial and significant time is a combination of weekdays, weekends, special occasions and holidays, so one overnight every second weekend doesn’t fit either of those descriptions, correct?

You need to understand that your opinion of mum as a parent is immaterial. It’s not about you or your wishes. It’s about what’s best for the kids, and even that has parameters in s 60CC of the FLA.

A word of caution - if the Court finds that your distaste for mum aligns with failure on your part to support the kids relationship with her, you may end up losing custody all together.

 

[thatbloke]

why shoud she get more?
The law states that 50/50 shared care must be considered by the magistrate... So if it goes to court, that is (kinda) the starting point.

Can you please point me towards that bit of legislation? As I am almost certain it is not the case. Happy to stand corrected but 60cc does not even mention time only the right of the child to a "meaningful relationship" with both parents.

 

[AllForHer]

Section 65DAA of the Family Law Act 1975 - FAMILY LAW ACT 1975 - SECT 65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

 

[thatbloke]

That is not saying that court has to do it from the very beginning it just gives guidelines if the court is considering doing that. Sorry it is not a primary consideration