VIC Parenting Plan - What to Do if Mediation is Unsuccessful?

Discussion in 'Family Law Forum' started by NineM, 13 August 2019.

  1. NineM

    NineM Active Member

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    Hi,

    My partner and I decided to separate in May 2019. Currently, we are still in the same roof. We have two lovely children 6 and 3(soon to be 4 in Sept).

    At first, it was very amicable where we started drafting parenting schedules in excel and were working together on what expenses would look like once we separated. We saw a marriage counsellor to keep communication open. During our marriage, once the mortgage was paid off, I continued to pay 100% of all expenses while she saved her money. My salary is considerably greater than hers and I work 9-5, 5 days a week. She works part-time 4 days a week with Wed off. She tailored her schedule for pickups and drop-offs. I would do drop-offs once a week.

    She then started talking to a lawyer and suddenly put on the table a 5-day /2-day arrangement with the kids, the latter being the time the kids spend with me. This through me off and we are now in mediation trying to come to an agreement. In mediation, the mediator offered a trial 5 day / 2 day and if kids are happy, review again and change to 4-day/ 3-day. I accepted this but she needed more time to think about it.

    Mediation to be continued this week, in the meantime I continue to pay for all family and household expenses - including mediation. I have told her I will not move out until we have a parenting plan.

    In case this goes further than mediation i.e Court:

    If both parents are willing and able, no history of abuse/violence, is it reasonable to expect kids have equal access to both parents? My work encourages flexible working arrangements and I can tailor my work based on the outcomes of the parenting plan.

    How successful would she be in obtaining a 5-day / 2-day arrangement if this were to go to court?

    Happy to provide updates on how this goes if it helps others in this situation.

    Regards
     
  2. Atticus

    Atticus Well-Known Member

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    If it were to go to court, the family law act states that if an order is to provide equal shared parental responsibility the the court must consider whether

    (a) the child spending equal time with each of the parents would be in the best interests of the child; and

    (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

    (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

    That said, it will be a long time before orders are made if it goes to court, so at mediation I would be seeking a parenting plan that sets out incremental increases in time leading to equal care if that is what you want & it's practical to do so.... Practical in this sense means you are able to accommodate that with work, & that you live close enough to mum so that the kids can attend the same school without undue travel time etc..

    A parenting plan is not legally enforceable like a court order is, BUT, if you can get a plan that sets out incremental time culminating in equal care, then a court must take that into account if it were to ever go that far
     
  3. Rod

    Rod Lawyer
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    I would expect property settlement negotiations to start going the same way - ie ex becoming more unreasonable in their demands.

    If you can do 50/50 now, why not do 50/50?

    I suspect the more you give now, the harder it becomes when your ex keeps asking for more and more.

    If you can't talk the ex back to being reasonable, be prepared to fight for what you want. It will involve lots of time if you opt for the DIY path against a lawyer, or some time and money if you lawyer up.
     
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  4. sammy01

    sammy01 Well-Known Member

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    The answer is 35...

    Yep, 35%.

    why? Well, 4 a fortnight and half-holidays is less than 35% care. That is huge when it comes to family tax benefit and child support. Don't agree. Once you 'agree' as a trial you are against the ropes when it comes time to negotiate for more time... And once 4 a fortnight becomes established and she refuses to agree, then the only avenue is court and that is best avoided.
     
  5. NineM

    NineM Active Member

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    Thank you for your response Atticus.

    Mediation is tomorrow so what I am seeking is 4 days with her, 3 days with me to start. Once my youngest (4) starts Primary school, change to a 4 day / 3 day one week then 3 day / 4 day arrangement the next week - equaling 50/50.

    In terms of practicality, I will move out to my parents place which is only a 10 minute drive. Once the dust settles, rent/buy a place depending on the resultant finances.

    With work, I can tailor my hours to suit the kids needs without sacrificing income.

    I want to be involved in my children's life as much as I can.
     
  6. NineM

    NineM Active Member

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    Thanks, Rod

    I can do 50/50 now and want 50/50. But if neither of us will budge, it will get messy and expensive.
    I tell her that we need to work together in this and not communicate through mediator or lawyers.
    If I can get 4 days with her / 3 days with me through mediation with an increase to 50/50 when my youngest is of primary school age, all the time and money saved is to the benefit of our kids.

    Plus there is a path forward for both of us to remain amicable for our children.

    But I won't be doing this myself, I have spoken with a lawyer as an initial consult. Her advice is similar to the responses here already.
     
  7. NineM

    NineM Active Member

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    Thanks, Sammy.

    I don't plan on agreeing to the trial if there is no guarantee of increasing the number of days if the children are happy to stay longer with me. I am very close to both children and both come running when I come home (hopefully this lasts).

    I am new to mediation.

    Can the parenting plan developed by the mediator stipulate conditions of an increase of days?
    I.e 4 week trial of 5 / 2, If there are no negative effects to the children, children adjust well with the time spent away from their mother and their needs are satisfied - change to 4 / 3.
    (In writing the sentence above, it does look very one-sided in why do I have to be measured for the kids to gain more time with me. Why not the other way around?)

    And if she fails to comply and this goes to court - can this parenting plan be used to support my arguments for equal care?
     
  8. sammy01

    sammy01 Well-Known Member

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    " If there are no negative effects to the children".

    I hate if... What if you say the kids are well adjusted and can handle the change? But what if the ex says they can't handle it?

    Parenting plans are useful in court, but not hugely. The courts will look at what has been going on as far as a parenting roster. The law states a magistrate must consider 50/50. Doesn't mean they must grant it, but they need to consider it. So your position should be 50/50 but willing to accept 5 a fortnight.
     
  9. Atticus

    Atticus Well-Known Member

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    I agree... Avoid like the plague words like if & trial...

    A parenting plan, like an order, needs to be as clear & unambiguous as possible... Words like if leave huge holes for a parent that wants to look for wriggle room & an out clause... Similarly the word trial... Who decides that the trial is not working?

    For example, not unusual for a kid to get distressed at a changeover on occasion, is that going to be the opportunity that one parent grabs hold of to decide the 'trial' is not working?

    The plan needs to set out as precisely as possible times, days & dates... Then clearly state that this is the wishes & intention of both parents. A plan will work if both parents are committed to making it work... Also, a good idea to include in the plan the process to be used for resolving disputes about the terms or operation of the plan should they arise...

    If it does go belly up & finish up in court at some point, that plan needs to set out the clear intention of the parents to 50/50 care if that is your aim...
     
  10. Jimbo!

    Jimbo! Well-Known Member

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    I wonder if people consider how hard single parenting is. I am a Dad with my kids 50/50, week with kids is great, but hard work. My ex feels the same. It's rewarding, but we are both in bed by 8.30 when we have the kids. Something your ex should maybe consider. I really don't think 2 days is enough.

    Also if you are doing 5/2 doesn't this mean she gets them Mon - Fri and you have them every weekend? Leaving no free weekends to yourself and no school stuff for you? Note my kids are thriving in the 50/50 arrangement.
     
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