VIC Mother Wanting Shared Custody - Family Law Help?

[Grey Fox]

Thanks to everyone for their feedback.

My main concern has always been the safety and well-being of our kids.

I have always wanted our kids to spend at least a night at their mums house provided she is there with them. However she is an habitual liar, she says one thing and does the opposite. I just need assurance that they will be OK. She had her eldest son living in the same house (he has a conviction of sexual assault) and was fine with leaving our 3 kids alone for hours with him.

She recently kicked him out because of violence (smashing holes in the walls etc). She started drinking heavily while still living at our place. Our youngest found a full bottle of alcohol hidden between the couch and tried to open it thinking in was soft drink ( I have 2 witnesses), when asked about it she said she wasn't drinking.

Our kids are happier and safer with me. They tell me all the time. I would love them to spend time with their mother but I am very concerned for them as well. When they come home from being with her they are so happy to be back. They tell me every time. Most times they don't want to go. But I tell them that 'they'll have fun' or 'you'll have a good time'. I'm not a liar but doing this to paint her as great is hard.

 

[Nonfiction]

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

@thatbloke - I can see where you are going with this, especially when some people confuse ESPR with Equal Time but Sammy01 did say words to effect of “must be considered”.

Of course, as you correctly point out, s60CC factors will assist the Court in determining if ‘equal time’ or ‘substantial and significant time’ is reasonably practicable, and, is in the best interests of the child.

 

[AllForHer]

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

Nobody ever said it was a primary consideration. The legislation says that where an order for equal shared parental responsibility is to be made (including where the presumption is upheld), the Court must first consider an order for equal time, and failing that, it must then consider an order for substantial and significant time. Note the legislation isn't that it may consider those options, or that is should consider them, it's that it must.

With that said, section 65DAA does not operate exclusive of the rest of the FLA, including s 60CA regarding the children's best interests being paramount, but there's only been a few circumstances that have resulted in an order for equal shared parental responsibility sans an order for either equal time or substantial and significant time. One example is where there is a tyranny of distance.

But don't make the mistake of thinking s 65DAA is 'just giving guidelines'. If the Court doesn't abide it's obligation to consider equal time or substantial and significant time concurrent with an order for equal shared parental responsibility, that's potentially a mistake of law the could give grounds to appeal.

 

[AllForHer]

Thanks to everyone for their feedback.
My main concern has always been the safety and well-being of our kids.
I have always wanted our kids to spend at least a night at their mums house provided she is there with them. However she is an habitual liar, she says one thing and does the opposite. I just need assurance that they will be OK. She had her eldest son living in the same house (he has a conviction of sexual assault) and was fine with leaving our 3 kids alone for hours with him. She recently kicked him out because of violence (smashing holes in the walls etc). She started drinking heavily while still living at our place. Our youngest found a full bottle of alcohol hidden between the couch and tried to open it thinking in was soft drink ( I have 2 witnesses), when asked about it she said she wasn't drinking. Our kids are happier and safer with me. They tell me all the time. I would love them to spend time with their mother but I am very concerned for them as well. When they come home from being with her they are so happy to be back. They tell me every time. Most times they don't want to go. But I tell them that 'they'll have fun' or 'you'll have a good time'. I'm not a liar but doing this to paint her as great is hard.

All of these statements still don't amount to much more than your personal views of your ex. I'm still not convinced that if she took you to Court, she'd only get one night a fortnight.

 

[Nonfiction]

She had her eldest son living in the same house (he has a conviction of sexual assault)... She recently kicked him out because of violence (smashing holes in the walls etc).

This may well be relevant if the matter goes to Court. How much so will depend on the evidence before the Court and the Courts views about risk to the children from being exposed to the step-brother, based on that evidence. An Injunction preventing the mother from leaving the children alone with the step-brother leaps to mind.

She started drinking heavily while still living at our place. Our youngest found a full bottle of alcohol hidden between the couch and tried to open it thinking in was soft drink ( I have 2 witnesses), when asked about it she said she wasn't drinking.

Unless you have evidence mum is an alcoholic and that the children are at risk in her care, an isolated event where mum was drunk (that happened to be some time ago and where you and 2 others were present to ‘watch’ the kids) is unlikely to have any effect on any Court decision.

I do hope you and mum can reach some agreements together rather than having to go to Court...you clearly love your kids but I fear from the information you have provided (although certainly there will be more than stated here) that you may be in for a bit of a shock!

 

[AllForHer]

This may well be relevant if the matter goes to Court. How much so will depend on the evidence before the Court and the Courts views about risk to the children from being exposed to the step-brother, based on that evidence. An Injunction preventing the mother from leaving the children alone with the step-brother leaps to mind.

It seems the concerns have also been somewhat addressed - he was convicted and presumably punished under law, plus the mother has evicted him from her home. An injunction might be possible, but it probably won't have any effect on how often mum sees the kids.

 

[thatbloke]

Nobody ever said it was a primary consideration

Erm, yes they did

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.

"Must" be considered. "The starting point"

Shared care does not have to be considered and it certainly is not the starting point in legislation. It is an optional extra that, once considered has to be considered in a certain way.

There is only one starting point. 60cc, and that is the right for all children to have a meaningful relationship with both parents and that is not defined by time in any way whatsoever. A meaningful relationship could mean a Skype call once a week or 50/50.

 

[AllForHer]

Erm? Really, we are gong to try our hand at being condescending high-school style, now? Fight facts with facts, not the tones and phrases bitchy school kids use to undermine each other.

Again, nobody said it was a primary consideration. Again, if shared parental responsibility is upheld, the Court must consider equal time, then substantial and significant care if equal time is impractical or not in the best interests of the kids. Shared care doesn’t have a definition in the FLA, but using the common interpretation, the parameters in s 65DAA don’t have to be considered if equal shared parental responsibility is rebutted and/or an order for sole parental responsility is made in its place. It’s only an ‘optional extra’ if equal shared parental responsibility isn’t going to be ordered, and whether the Court actually makes orders in line with s 65DAA is at the discretion of the Court (with consideration to 60CC).

Also, children’s rights are s 60B, not s 60CC. Section 60CC covers the benefit to the child of having a meaningful relationship with both parents.

 

[thatbloke]

Erm? Really, we are gong to try our hand at being condescending high-school style, now? Fight facts with facts, not the tones and phrases bitchy school kids use to undermine each other.

No, i will leave that to you. You seem to be quite good at it. I will just continue to help people out in court, with great success... You should try it, it's quite rewarding and helps you to ignore nonsensical insults from someone you do not know. Thanks

 

[AllForHer]

No, i will leave that to you. You seem to be quite good at it. I will just continue to help people out in court, with great success... You should try it, it's quite rewarding and helps you to ignore nonsensical insults from someone you do not know. Thanks

Well, perhaps you’ll have even greater success now that you’ve learned some of the legislation. You’re welcome.