WA Should I Go to Family Court?

[Burgertime]

Hi All

Just wondering and would appreciate any help that may be given to help me make a decision on whether I should proceed to Family Court.

I currently have 5 nights per fortnight with my 4-year-old daughter, whom I am extremely close to. My ex-wife walked out on us 6 months ago and we started with a 50/50 arrangement but that was then cancelled by my wife and she came back with a 9/5 fortnight 'offer'. Hence, I got lawyers involved to try and get back the shared arrangement that we started off with but after nearly $10,000 spent in fees, there has been no shift from my wife to try and extend the time.

My lawyer has said that if we did go to family court, I would likely be granted an extra night as I live closer to my daughter's school. She does not want to go back to mummy's and every time I drop her off on the week, where I have her for 2 nights, she cries the whole 20-minute car trip saying she does not want to go back.

I am worried that if we do go to court there is a possibility that my time may be reduced, although my lawyer has said that would be extremely unlikely. There is no history of any violence or drug abuse or even a raised voice really, so no issues there.

Is it worth the stress pursuing this further as I feel I need to do as much as I can to try and have my daughter for more time and I don't want to let her down?

I have agreed a couple for times trial the arrangement we have for 12 months for a review but I feel the longer I leave things, the longer the status quo will be in place and hared to change down the track. My ex has not been easy to deal with and I don't know if I can just hope that she will calm down and grant extra time and take that risk for the next 14 years?

Any help would be appreciated.

 

[Lance]

Hi,

I don't think anyone can answer that for you. From what I've seen and heard, your lawyer sounds right. With the exception of a new claim of abuse or something horrible, they aren't likely to take days off you.

I have 5 kids (3 daughters), so I know that seeing your daughter crying every time you drop her off must rip your heart out. If you think it's worth the stress on the already difficult relationship with your ex, maybe it's worth the time and money, especially because it means a chance at more time with your daughter.

Now that I've given my opinion, I want you to decide what's best for you and your daughter. Good luck.

 

[Burgertime]

Thanks for your reply Lance.

I know it is my decision, just a very big one to make for someone I have loved for 12 years! Anyway, emotions aside, my daughter is the most important right now but I have heard and read that this whole process can be extremely stressful and can damage whatever relationship was left beyond repair.

Having said that, I have tried to be amicable from the get go. It has been the ex who has been so difficult and won't even talk, only communicate through email. It's a sad way to end a 12-year relationship but that is not my decision. This is the most s**t thing I can imagine ever going through!

 

[AllForHer]

What reason did she give for reducing the child's time with you?

For the record, as well, I probably wouldn't go telling the Court that the child begs not to go back to the mother's and cries for 20 minutes before changeover. In most cases, particularly for a four-year-old, such behaviour is found to be more reflective of an alienating parent than a child suffering separation anxiety.

 

[Burgertime]

She has not reduced the time and has no grounds to, just wondering if that ever happens. What do you mean by parental alienation, which parent?

The main point is we are trying to eliminate my daughter getting upset on the change over day which is the main reason this is being put forward.

 

[AllForHer]

You said you had 50/50, then it dropped back to 5/9 in her favour. Did she give a reason for that?

Alienation is where one parent is seen to be recruiting the child against the other parent. I don't think that's happening here, of course, but I'm just saying it's not something you should raise in Court.

Child psychologists generally find that children of young age don't have opinions of their own, but will do what they believe wins them the most favour, such as crying about going back to mum's if your daughter thinks that's what you want to see, or if she thinks that's what wins the most attention.

If you try and argue that your 4-year-old has developed an opinion of her own about the care arrangement, the Court is most likely going to eyeball your influence on that opinion, rather than the possibility that the child doesn't want to go to mum's. This is why the Court doesn't give weight to the views of children under the age of about 12 - they're not considered mature enough or informed enough to have a valid opinion about what care arrangements they deem best for themselves.

If you're looking to alleviate her distress at changeover, a change of care can be argued against as the best answer. Fixing the changeover, rather than the care arrangement, is a perfectly viable option - why not make changeovers take place at the child's day care, where one parent drops her off and the other picks her up in the afternoon?

I'm not pointing this out to stir the pot. Personally, I think 50/50 is very viable, particularly if it's been done before, and I would almost be inclined to wonder if the 5/9 arrangement was motivated by money - its 35%, which is the threshold for a significant increase to family tax benefits. The moment you hit 36% care or above, her entitlement to family tax benefits drop dramatically.

What I am pointing out is that you need to show that 50/50 is what's best for the child, rather than why the current 5/9 arrangement isn't what's best for the child. Complaining that she shows distress at changeover warrants a change to changeovers, not a change to how much time she spends with you (and I'll add that to link that distress to the care percentage is speculative - her distress could be linked to any number of problems).

What you're better off showing is that 50/50 can work - you and the mother can communicate well enough about major decisions, you can provide a safe home for the child, you can get her to school every day, etc.

Basically, show there's no reason that 50/50 can't work.

See what I'm getting at?

 

[sammy01]

Ok my thoughts - save your money...

Why?

Look, you'll possibly get more time. It is unlikely you'll get less time, but is it worth the stress / money etc.? I reckon nope. Why?

Well, you'll still have to drop the kid off to mum and she will get upset - that won't change.

So just checking - when you say 5 a fortnight - what about holiday time?

The reason I ask is that 35% is a golden number when it comes to child support / family tax benefit. 5 a fortnight and half school holidays is about 40%. But 5 a fortnight year round would only be about 20%..

If it were me, I'd see if you can get the ex to agree to 5 a fortnight and half holidays and get it as consent orders so they are legally enforceable.

Now, not legal advice, just life experience:

5 a fortnight is good. It makes dad's house the fun place - the break away from mum. My ex did the same thing. But soon she realised that the kids didn't think it was fair, because to a kid fair is 50/50. So they quickly saw mum was to blame. Oh well. So without any effort on my part, the kids were making decisions about their situation and they decided they were not happy and it was mum's fault. Oh well...

One last bit of psychology. When dropping off kid - talk about what fun you've had. Talk about what you have planned for next time. Keep it positive. Because no matter what the kid is going to be bouncing from this house to that - 50/50 - 5/9 or what ever other version you have.

So unless you choose never to see the kid so that the situation of returning her to mum doesn't have to happen then (and let's face it - you're not gonna do that). So sadly, it is something the kid is just gonna have to accept and going to court ain't gonna fix it.

 

[Burgertime]

Well, that is interesting. I did not know about the child care support % which seems like it could be a motivating factor for her not to give me the extra night.

We started with a parenting plan in the month of August but due to my naivety in these matters, the plan expired and she came back with her best offer which was 9/5. No explanation was given as to why she changed to less time as 50-50 was working fine. Even when I asked, she could not give me a convincing answer just that a child needs a primary parent?

I suppose having now found this out about the child care payments, I would end up paying more anyway if I don't go to court? Stupid, isn't it?

My reasoning for having my daughter the extra night is because it is a pointless changeover. We could avoid all the stress, she would have less travel to go to school the next day it just seems like a no brainer? Even my 4-year-old asks already why she get 2 nights at daddy's and 5 nights at Mummy's? To which she will say 'not fair is it, Daddy?'

I am a positive parent and do not say anything negative about the ex in front of my daughter and never have, she had tried to withhold my daughter from me twice which shows her true self I guess.

Thanks for taking the time to reply by the way!

 

[Burgertime]

Also when you say 35% is the golden number for child support and family tax benefit is that in my favour or hers?

Her lawyers have offered me 14 days a year holidays to be taken in the school holidays.

 

[SamanthaJay]

That's to your ex's favour when it comes to CS and FTB - if you have 36% or above care, then her FTB would drop and you would pay less CS.