NSW Unsubstantiated Abuse and Violence - Interim Parenting and Finance Orders?

[DadonaMission]

Hello,
I have been separated from my wife and 3 children for 3 month. To date I have been an involved and devoted father to my children.

My wife and the children have moved away (quite near) into her parents' house which is very cramped but for some reasons she didn't want to stay in the marital home where I'm staying even though I offered to move and did for a period.

Over the past months she has been gradually cutting ties with me particularly financially by cutting off services etc. She had been working in my company but asked for her letter of separation so she could go onto Centrelink. She applied for child support and I received the call from them stating I needed to pay by some date. Of course in the meantime I had still been sending her money for the children.

I have seen the children for a few hours per week under supervision from her and her family during that time. My wife has refused to answer my calls or emails for months which has been very difficult. I decided on a couple of occasions I couldn't stand the agony of being shut out so I've taken trips away for my own sanity.

This week however I've received an Initiating Application (Family Law) to the Federal Circuit Court for Children and Financial orders. The case is in 1 month.

There are final and interim orders being requested. She is asking for the following in the interim and final:
- supervised visitation of 4 hours per fortnight only and I need to attend anger courses.
- significant spousal support of $800 per week in the interim and $500 per week for 2 years after final order claiming she is only receiving Centrelink family tax benefits in the financial statement. I've since called the child support agency and found out she has cancelled her application presumably because the assessed amount is much less than $800 per week. She is a qualified teacher.
- settlement of 70 % split on the home.

Importantly, she is alleging child abuse and family violence which is weak, twisted or completely fabricated. She has simply made 4 statements of information in support of her allegations to recent incidences she is claiming. The child abuse claims means she also has avoided attending mediation and she has not attempted to do but because of claims of family violence states she is unable to 'participate effectively in family dispute resolution'.

There is absolutely no evidence I can see she has provided to the child abuse claims or family violence. There is only her long winded affidavit but there has never been any involvement of 3rd party agencies or police etc involved in our family life over the 12 years.

My question relates especially to the Interim hearing since this will not involve cross examination and only be held for 2 hours.

Can someone explain the need for evidence for her claims and what forms they must take for her to be successful in making these false accusations? The success of her interim orders would be devastating for me as I will have limited access to the children. I would simply like normal access to the children, then to force her/us to undertake mediation and for her to reapply for child support and for me to pay it.

What will be the process at the interim hearing? Will they throw it out if I disagree with all her claims and she can't prove because there's no proper evidence apart from her affidavit? Will they give me fair unsupervised access to the children including overnight (3,5,11 y.o.)? Will they force us into mediation if she cannot show that she has attempted to organise it? Can I claim costs back from her settlement because this was merely an attempt to control the children and for financial gain?

Thank you.

 

[AllForHer]

This depends heavily on your judge, but interim hearings are usually in-and-out in about two minutes. Everything remains an allegation until the evidence is tested under cross-examination at final hearing, and the court won't ordinarily put any weight on allegations unless backed by third-party evidence - for example, a police report, a doctor's report or a report from DHS.

You do need to file a response, though, including a minute of interim orders sought and an affidavit of supporting evidence as to why the orders you seek are in the best interests of the kids.

In your affidavit, don't waste space defending yourself against the claims of the other party, except for a single paragraph for each allegation stating something like 'In regard to paragraph 24, I disagree with x, y and z. I say that a, b and c happened'. Instead, use the space to demonstrate that the children have a secure bond with you. Explain how you were involved in their care prior to separation, how you have endeavoured to maintain contact as much as possible following separation, how you have established arrangements and routines that enable you to care for the kids (e.g. Your new place has a bedroom each for the kids; your work arrangements mean you can pick them up from school, etc.). Don't use your affidavit to nay-say the mother - doing so only comes across as being unsupportive of the relationship between the mother and the kids. You also want to ensure you do nothing to prove any of the mother's claims right, such as having anger management issues. Remain calm, logical and respectful - people who fabricate stories to advance their claims are always found out in the end.

At interim hearing, and going only by what you've said, I would say what she is asking is ridiculous. Four hours a fortnight is not enough for the kids to maintain a relationship with you, especially if they are very young, and the court rarely orders child support separate to what is indicated by CSA without good reason. That sounds like a pseudo application for spousal maintenance, and if she's a qualified teacher who was recently working, she is unlikely to get that anyway.

The court in your first hearing will probably order you back to mediation anyway, and probably a post-separation parenting course, both of which you should embrace to show yourself to be very willing to co-parent with the mother. If you show you want to co-parent, the court will be more likely to favour your position.

 

[AllForHer]

Oh, and be sure to always talk in terms of what's best for the kids. Instead of "I want to see my kids", focus on "because it's in the kids best interests to continue having a meaningful relationship with both parents and more time with me will enable them to continue building and benefitting from the relationship with me". It's important to use terms that are always 'because it's best for the kids', rather than 'because I want'.

Hope this all helps.

 

[DadonaMission]

Thank you so much.

I have received 5 documents from their side:
1. Initiating Application (Family Law) - contains interim and final parenting and financial orders
2. Affidavit - Non-Filing of Family Dispute Resolution Certificate
- Part C Evidence contains 4 statements of allegations with all tick boxes for past and future risk of child abuse and family violence.
- 3 facts for supporting the need for urgency.
- 7 reasons why she has been unable to participate effectively in family dispute resolution. ** I have never been contacted for mediation and I'm more than willing to participate. Although after false accusations of child abuse and family violence I don't know if I should be willing now.
3. Notice of Risk
- Allegations of child abuse and family violence with lots of statements most post separation and none with 3rd party evidence.
4. Financial Statement
5. Affidavit
- Very long document (125 numbered paragraphs) contains sections entitled Background, Relationship before marriage, Relationship after marriage, Recent incidences

Question:
Which of these documents should I be responding to and in what forms?
What documents do I need to produce? I am also wanting to make a counter parenting order.
Based on your previous advice, my Affidavit should contain a response to her very long 125 paragraph affidavit (this seems like a waste of time)? And also and most importantly sections on why it's in the best interests of the children to be involved with me?

Your advice is greatly appreciated.

 

[AllForHer]

I really strongly advise getting legal advice from a solicitor for this matter because they'll be able to look over the mother's affidavit and give you more personalised guidance in what you need to do.

Based on an affidavit of 125 paragraphs, I'm guessing the mother is self-represented?

 

[DadonaMission]

The mother has representation and I am in the process.

I haven't seen the children and it looks like I won't be able to see the children for awhile.

 

[AllForHer]

I think you'll find that interim orders will enable you to spend time with the kids immediately following first hearing. That's what interim orders are for - to ensure court proceedings don't impede on the kids relationship with their parents. Just make sure you ask for reasonable time with the kids in your interim orders. Has the mother sought shared parental responsibility, or sole parental responsibility?

 

[DadonaMission]

The mother has sought shared parenting responsibility. There is the first hearing date scheduled for August but a lawyer told me this may not be the interim hearing and they may not hear the case on the day. Therefore I may go without seeing the kids for longer?
The lawyer suggested sending a letter to her lawyer to get her to change her mind but this seems unlikely to work.

 

[AllForHer]

If she's seeking shared parental responsibility (and you'll want to do the same), then she's clearly not as fearful for kids safety as she says she is, is she?

The reason I say this is because under section 65DAA of the Family Law Act 1975, the court must consider if equal time arrangements are in the best interests of the kids where equal shared parental responsibility is to be ordered, and if it doesn't order equal time, then it must consider orders for substantial and significant time, which is a mix of weekdays, weekends, holidays and special occasions. Generally, this means alternate weeks plus one or two school nights and half school holidays and special occasions (Christmas, birthdays, etc).

If the court were to make orders for supervised visits four hours a fortnight, it wouldn't be ordering equal shared parental responsibility, and the court will be asking how genuine the mother's concerns are if she's still seeking shared parental responsibility.

It's my view that the court will take the earliest opportunity to implement interim orders, but it won't if the case is needlessly complicated. Seek very simple interim orders - shared parental responsibility, four or five nights a fortnight and half school holidays, for example - and also include an interim order that the parents attend a family dispute resolution conference and complete a post-separation parenting course. If you keep it simple, the judge will be more inclined to make interim orders at first hearing. The fact that both parties will be seeking shared parental responsibility makes this more likely, as well.

The court is no stranger to cases and applications like the one your ex-wife is trying to pitch. If you defy the character she has tried to frame you as, then you won't find the court biased against you. Your judge will be on your kids' side in ensuring their right to know, spend time and communicate with their parents on a regular basis is upheld. Remember, as well, not to get caught up in the trap of blaming the system and hating the lawyers. It's important to rise above the pettiness of it all at all times. You must always be the mature parent, because that's what's best for the kids.

 

[DadonaMission]

I cannot thank you enough for your brilliant responses. It's a relief to have such good advice.