WA Should I Go to Family Court?

[AllForHer]

Okay, so in my personal experience, the Court process can be an extraordinary motivator for reaching consent orders. 95% of cases that commence are settled by consent, and usually for better than what the respondent party is arguing.

My husband's case was originally 5/9, then I came along and ex forced it to be 3/11. He started proceedings seeking 7/7, she responded seeking 3/11 continuing. Ten months and $25,000 in her legal fees later with further potential costs of $10,000 if we proceeded to trial, ex ended up agreeing to 7/7, and if didn't cost us anything.

Just a thought.

Regarding the 'offer' of 14 days of holiday time each year, you should reject it. It should be half of all gazetted holiday periods, including the long summer break. That's what the Court orders as a standard except where there are mitigating circumstances such as one party living abroad. There's absolutely no reason to settle for less than that.

 

[sammy01]

Yup - half holidays is a given...

She is trying to keep you below 35%. 5 nights a fortnight plus 2 weeks holiday a year - but based on my math - 5 nights a fortnight plus 2 weeks holiday a year is 38%?

 

[MartyK]

She is trying to keep you below 35%.

This is highly speculative sammy01 and inconsistent with your own calculations. Although I agree with some of the suggestions by other posters, there are two sides to every story.

 

[MartyK]

There are a number of factors that will need to be considered if the matter goes to Court Burgertime. The distance you live to the child/other parent and the child's school is only one of them.

You have been separated for only 6 months and started with 50/50 week about? How long has the current 5/9 arrangement been in place?

For 2 nights per fortnight you will need to balance the advantages of going to court v the cost to you financially, as well as the stress to you and your child. Our system being adversarial by nature can increase tensions and hostility and this can indirectly have an impact on your child. This is your decision and yours alone to make!

Another suggestion (take it or leave it), which may avoid the necessity of Court, would be to accept the 5/9 on the basis that you are given 1/2 school holidays? You have a lawyer so it is best to discuss this with them.

 

[sammy01]

Yep, if you have 5 nights, is it worth potentially spending thousands to get a court to agree?

The court might not agree and leave it at 5, and while it is a bitter pill to swallow, once you get used to it, there some benefits to 5 a fortnight.

 

[Burgertime]

The thing is my daughter never wants to go back and cries every changeover and in fact asked me not to take her out of the car. I live much closer to the school my daughter will go to and is a factor in what we are trying to put forward.

My lawyer is saying that the fact my daughter is still getting upset after the amount of time is a reason I should proceed and needs to be addressed.

The thing is, how do I live with myself if I don't do as much as I can for my daughter?

No, I don't want to go to court but what to do?

 

[MartyK]

No one can make this decision for you Burgertime, you need to do what you think is best.

So all I'll say at this point, is, if it is looking like you will be spending thousands more on out of Court lawyer to lawyer negotiations, but it's likely to end up in a Court anyway, you may as well redirect those funds (and then some) to that.

You will need a 60i before you can file an initiating application.

Almost forgot to add. If you're really struggling with what you should do, or want to be a little more certain before making this decision, a second opinion, from another lawyer, is always a good option.

 

[sammy01]

Yup, the daughter getting upset needs to be dealt with... Is court the way of dealing with it? Nope, . why? Well, even if it is 50/50, the child is still gonna have to go back to mum true? So having 50/50 aint solving the problem.

So maybe a conversation with a child psychologist about how to deal with upset child might be in order to see what you can do to appease the child. Mate different story if you were to be saying mum is neglectful... So hypothetcally - kid cries and says she doesn't wanna go to school.

Do you apply to court so the kid doesn't have to go to school? 'course not - you work on appeasing the child's concerns. I reckon you work on that...

That said - if the ex won't give more than 14 days holiday a year - go to court for that and while you're there ask for more time... But it isn't gonna fix the problem of the upset child. So let's look at better options there... For example, get organised so you drop the kid at pre-school and mum picks her up from there.

 

[MartyK]

Yes, young children (sometimes older children too) can experience adjustment issues after parental separation. Seeking strategies on how to deal with this, and other issues that may arise, is a good idea.

Just keep in mind, that while there are no issues with you seeking advice from a child psychologist, you will need consent from the other parent if you intend for the child to also attend. In fact, taking a child to see a child psychologist, without the consent of the other parent, can sometimes be viewed very negatively by the Court.

 

[sammy01]

Yup, well said MartyK. Look the other thing to remember is, this crap hurts kids, too. Divorce sucks. If you're getting on well enough with the ex to discuss this without all the other crap causing conflict then that might be a good start...

Yep I know - probably un-likely... I know my ex loved watching the kids cry about coming to dad... But after a few weeks the tables got turned and my 2-year-old had a great tanty about having to leave dad - Mum was not pleased...

Oops, ranting. Mate, try and solve the problem without court - because really the only way a court could solve it would be to remove one of the parent from the situation and it is just as likely to be you.