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WA Moving Forward After Separation - Increasing Children's Visitation with Ex?

Discussion in 'Family Law Forum' started by Silentnight, 15 September 2015.

  1. Silentnight

    Silentnight Member

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    separated from my children's father for three years - separation was very very nasty and there is no chance of us ever being able to communicate effectively (due to death of child) and his actions ....

    We have no family court orders and only a parenting plan. Our children are 5 and 7...he wants more time with them. Currently, I have 12 nights out of 14... The children are happy with current arrangement as they live with myself and an older sibling in a secure home with my new husband. We live 45 minutes apart from my ex.... He wants 50/50 custody of children but my children are emotionally unsettled, nightmares, attachment issues, etc (ascertained by school)... So I am not overly looking to increase time though am thinking of increasing it to Friday school pick up to Monday school drop off (so extra night), to avoid contact between ex and I.... I am currently involved with the domestic violence police department, as ex sends harassing/abusive texts/calls and police presence has been required on 4 occasions in last three months due to my ex's behaviour....

    Ex was also investigated by cps and police after a report was made against him by a step-child... Was concluded accidental but said step child was removed from his and his partner's (the mum) care for 6 weeks until a conclusion was reached.... Another report has since been made by a younger step-child but again inconclusive ...

    My ex has anger management issues and will not let my children speak to me when they are in his care (they ask too) I cannot afford legal representation and do not qualify for legal aid... I have been given conflicting free legal advice on what to do re the safety of my children in his care....

    Do I think they are in a good safe environment? No. Do I think he could hurt them? I cannot 100% say no or yes. I am unsure due to knowing him, his violent history, plus these reports etc

    I am unsure whether it is in my children's best interests to increase their time in his care... They are manipulated by him and I am obviously very concerned... We have been to mediation before and got nowhere .....

    Is increasing weekend time a good way to move forward?
     
  2. DadonaMission

    DadonaMission Well-Known Member

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    In my opinion it is a good compromise and means you don't need to see your ex. I presume he's reliable and able to be on time to pick them up from school? Make a plan to see how it goes over time?
    Contact family relationship centre if you don't want to go to court.
     
  3. AllForHer

    AllForHer Well-Known Member

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    Sorry you're going through this - parenting matters after separation are very challenging at the best of times, so I commend you for seeking some guidance from the forum. I'll give you an idea of what the court would consider if it was asked to determine care arrangements for you and your ex in these circumstances, as in my experience, clients who have a realistic idea of what the court would do tend to be reasonable enough to avoid court proceedings in future.

    The overarching principle in parenting disputes before the court is that the children's best interests are paramount, and you can have a look at section 60CC of the Family Law Act 1975 if you're looking for a better idea of what the court would consider in terms of children's best interests.

    Reports to CPS and police by the father's step-children would have minimal weight in court. They were determined accidental or inconclusive and really, who knows what is going on in those stepkids' lives? Those reports might have been genuine, or they might have been the result of hostile biological father who told the kids to fabricate reports to CPS to advance his own parenting case. That would be for the court to make judgement on in their case, rather than yours.

    The argument that the kids are experiencing separation issues as a result of seeing the father is a subjective opinion, at this stage, rather than fact. It won't be considered fact until you have evidence from an expert witness who has spoken to all parties involved, namely a family consultant as part of a family report. It may be that those issues are genuine, or it may be that your anxiety about them spending time with their father is being mirrored on to them, or it may be that the level of conflict and tension between you and the father at changeover is causing them anxiety, or it may be that the kids simply don't like leaving their dad knowing it will be a long time (at least to their young minds) before they will see him again. It's impossible to know without expert consideration.

    The same concept applies in regards to the kids' happiness about the current care arrangement, and the father's anger management issues - they're subjective opinions, but it would take an expert witness to establish them as fact.

    The issue of phone calls with the child is probably going to be a fairly non-issue. Most non-resident parents in these situations only get two or three phone calls a week, so it's usually at least two days between communication times. Given they only spend two nights a fortnight with their dad, it's reasonable to expect that phone calls between the children and you are unnecessary while the care arrangements are what they are. If they spent five nights a fortnight with their dad, certainly a phone call might be warranted, but as a result of spending 12 nights a fortnight with you, their relationship with you should be secure enough that phone calls during a two-day separation are inconsequential. There is even a risk the court could take the position that phone calls are an attempt to disrupt the kids' time with their father and as such, demonstrate an unwillingness to support the kids' relationship with their dad. I'm not saying that'll be the outcome, of course, just that it's a risk and has happened before.

    The issue of harassing phone calls/texts/etc. may also be fairly irrelevant if those communications are centred mostly on attempts to spend more time with the kids. The court has at time held that text messages are not harassing as argued, but simply reasonable and frustrated attempts to be a part of their child's life. If they're outright attacks on your character, however, or threatening in a way that causes you fear (e.g. a threat to burn your house down would be considered more serious than a threat to take you to court for more time with the kids), that's a different story.

    While it may be well to say that you don't feel the environment with the father is safe, the provided facts probably wouldn't substantiate your concerns such that the court would refuse to accept it's in the best interests of the children to spend additional time with their dad.

    As a matter of interest, both you and the father share equally in parental responsibility, which requires that both parents make a genuine attempt to jointly reach agreement about major long-term decisions affecting the children's care, which includes care arrangements. Shared parental responsibility cannot be changed unless by order the court, and it's very difficult (and very costly and a very long process) to have parental responsibility revoked from one of the parents where there's evidence that both parents want to be involved in the kids' lives. Summarily, an acrimonious relationship between the parents may not be enough to warrant an order for sole parental responsibility, and it seems the main issue for the kids not spending more time with the father is the conflict between their parents.

    So, assuming the presumption of parental responsibility would be upheld, the court must then consider if an order for equal time care arrangements would meet the best interests of the children. If it's not deemed suitable, then the court would consider whether it's in the children's best interests to spend 'substantial and significant time' with the non-resident parent. Substantial and significant time is a mix of weekends, weekdays, school holidays and special occasions (such as Christmas, birthdays, etc.). An order for alternate weekends is very, very rare these days, except where the distance between the parents makes the arrangement impractical. A 45-minute drive is unlikely to fall into this category if he's able to facilitate those drop-offs and collections.

    I guess what I'm saying is that if this matter was to go to court, there's a fairly decent chance the father would get significantly more than three nights a fortnight, and a solicitor would likely tell him the same thing, which might compel him to file for proceedings through the court, rather than persist in negotiations with you. It's best if this can be avoided because it can take up to two or three years to reach an outcome, cost at least $20,000 and both parties will be subject to unpleasantness in affidavits that will only serve to exacerbate the conflict.

    In summary, moving to three nights a fortnight is definitely a great way to move forward, but if the conflict is mostly centred on how little time the children spend with their dad, then you could consider negotiating toward more balanced care arrangements to relieve that conflict, and the impact it has on the children.

    Hope this helps.
     
    DadonaMission likes this.
  4. Silentnight

    Silentnight Member

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    Thank you so much for your detailed reply - a lot of information there which is good to consider.

    It wasn't the step-children who reported my ex it was school and hospital as the physical injuries sustained were significant....hence the long drawn out investigation but given age of child and story changes nothing was conclusive...

    I never request to speak to my children but they request to speak to me :( I find it sad that they are not allowed too as I never stop them calling their dad... They have been recorded by school counsellor (when I was not present) saying they are scared of their dad

    I'mnlt looking for sole responsibility just looking for a way to keep my children safe and having a permanent home- my personal and professional preferences (social worker) do not support 50/50 physical care due to my circumstances (can't go into much detail so it's hard) plus I want my children to continue to have a solid relationship with their sibling.

    I forgot to mention I already share school holidays and significant days (birthdays/fathers day/christmas) with my ex...

    The harassment is not for more time with children but is against me personally calling me a b***h etc and therefore not relevant to our children obviously...

    And they don't experience separation issues from him... Just from going from me to him... Which is why I thought using school as a collection point might benefit the children too

    I know however that my ex will struggle to get them to school in the mornings and has suggested dropping to our home (2 minutes from school)however I do not want the children to be dropped to me as I believe spending half hour at home will only make it harder for them to go to school (we have battles every second monday to get them to attend school as they feel they have missed time at home) by battles I mean hiding under the bed etc etc
     

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