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VIC Unfit Mother - Grounds under Family Law for Custody of Children?

Discussion in 'Family Law Forum' started by Leecods, 14 July 2015.

  1. Leecods

    Leecods Member

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    I have 3 beautiful children, 8 7 and 2 years old. My wife and I split about 3 months ago and I can't stand the filth she has my kids living in. Every time I have the kids she goes to the pub and gets trashed, leaves her car there then relies on others to get the car back the next day, but because she's hungover she swears and can't be bothered with the kids. Bottom line is, I think she's a bad mother and want custody of children.

    Just wondering if her cheating on me in our bed, in our home is grounds for being an unfit mother or faking getting a permanent contraceptive rod put in her arm so that I would stop using protection and have another kid or even putting pins through my condoms to get pregnant is grounds in family law for being an unfit mother.
     
  2. Leecods

    Leecods Member

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    Also, our house is in both our names but the personal loan, interest free and the Toyota finance is only in my name, do the debts count towards her? We have been together 9years and got all the debts in this time. She's using the car from the Toyota finance and is using all the furniture from the interest free and some of the personal loan was used to fix our house and the other half is my Ute. She lives in the house and I've moved out, I couldn't live with such a filthy person anymore but hate the fact that the kids still haveto put up with it
     
  3. AllForHer

    AllForHer Well-Known Member

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    These kinds of questions really highlight the need for reform in family law, namely that a post-separation parenting course should be a mandatory part of the pre-procedure process, as well as family dispute resolution.

    First, I am sorry for your current situation - the breakdown of a marriage is immensely difficult and emotionally draining, particularly when the bonds of trust have been broken.

    However, what you've listed as reasons to remove the mother from the children's lives are reflective of your emotional needs, rather than what's best for the children. I would even argue on the above post that you would be at greater risk of being removed from the children's lives than the mother because it seems you don't recognise any value behind the attachment your children have with her, which poses a risk of emotional harm to them.

    The children have a legal right under s 60B of the Family Law Act 1975 to know, spend time and communicate with both parents on a regular basis, regardless of the status of relationship between said parents. Contrary to popular belief, parents don't actually have any rights at all over their children. What the means is that the court is not there to act on your opinion, but rather, it is there to uphold your kids' rights, which is to have a relationship with both you and their mother.

    The court determines parenting orders based on the children's best interests, which is outlined in s 60CC of the Family Law Act 1975. The primary considerations are the benefit to the children of having a relationship with each of their parents, and the need to protect the children from harm, and there are a series of secondary considerations, such as the capacity of each party to meet the children's emotional needs.

    On the information you've provided, none of it has anything to do with the kids, let alone what's in their best interests or whether they're at risk of harm in the mother's care.

    To put things into perspective, how is the mother an unfit parent for going out when she doesn't even have the children in her care? I would argue that's the responsible thing to do, because isn't it better that she's not leaving them when they're supposed to be spending time with her? Further, what court will agree that an unfit parent finds an alternative to driving themselves home after a night out drinking at the pub? That would be more responsible than driving herself home drunk, wouldn't it? And finally, what the mother does with her time really has nothing to do with you, and the court would be inclined to question if you demonstrate the same level of hostility toward the mother while in hearing range of the children, thus posing a risk to their emotional well-being.

    Additionally, while it's certainly unfortunate that the mother cheated on you and broke your trust by misleading you about contraception and doesn't live in an immaculate house, those issues make her a person of questionable character, but they definitely do not make her an unfit mother.

    If you choose not to support your children's relationship with their mother by denigrating her in front of the kids and trying to exile her from their lives, it will backfire on you in court and it will be more likely that you are removed from the picture for failing to recognise and meet your children's needs. Your children don't just have a right to have a relationship with their mother, they have a fundamental, emotional need to do so, just the same as they have that need with you.

    What I suggest to you is speaking to Relationships Australia about counselling on how to deal with separation and divorce, as well as your children's needs and organising a family dispute resolution conference to negotiate care arrangements for the kids.

    This may not be what you want to hear, but I find many parents enter the family law system with a very misguided notion about the reality of the situation. Parents are parents in equal measure, and I would truly, truly hate to see your kids grow up without you in their lives because you let your marriage breakdown and your difficult relationship with the mother get the better of you.

    I hope this is in some way helps.
     
    Black Rabbit likes this.
  4. Leecods

    Leecods Member

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    Thanks for your reply it's very informative. First of all I never speak down about my wife to the children, it's just not good for them I know that. The reason I talk about her going to the pub is when I drop them off she's hungover and can't be bothered with them and gas a very very short fuse before swearing straight at them and degrading them to their face, but most of all she has alot of bills atm and she has no money in the bank and proceeds to book up all her drinks down the pub because they know her, therefore having no money to spend on important things like school fees and just basic food. To the filth factor, the place is so filthy that I'm very concerned that it's bad for my children's health. I know she loves the kids and don't want to take them away from her completely but I'm very worried about the well-being of my kids
     
  5. AllForHer

    AllForHer Well-Known Member

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    I understand why it's frustrating to stand by and observe the mother making poor choices about her finances and lifestyle, but that is not your responsibility and again, doesn't make her an unfit parent. These are issues that require communication between the parents to discuss and improve parenting styles, not a two-year court case costing both parties upwards of $30,000 and doing little but to damage the co-parenting relationship and the kids.

    Again, I suggest counselling, rather than court. You have a long way to go before requiring the court to intervene, and I sincerely hope you don't reach the point of needing the court to intervene.
     
  6. Leecods

    Leecods Member

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    Yeah I totally agree that I will try my hardest to keep this out of the courts, that can only be worse for all involved especially the kids which are my number 1 priority. And again I will try to speak with her about her parenting but I need to tread lightly atm so I think I just need to be patient which for me is hard but possible for the sake of the kids
     
  7. AllForHer

    AllForHer Well-Known Member

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    Give Relationships Australia a call. They offer a range of counselling services, some of them free, to help parents communicate better following separation, and from personal experience, I can testify to their effectiveness. They also offer mediation, where the parties can discuss issues with the guidance of an objective third party who will help keep both you and your ex child-focused. Mediation is a good forum for discussing parenting issues, but I recommend completing a post-separation parenting course first because they teach assertive communication, in place of aggressive and passive communication styles, which is often a significant problem for separated parents.

    I hope this helps.
     

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