NSW What are My Chances of Getting Custody of Children?

[Tony.Walsh]

Hi

I went through a separation last year and have a 2-year-old kid with the other side. Since the separation I have been allow 8 hours a week to see my kid. I am pretty sure that is not sufficient. I have been tthrough mediation and have obtained an s60i certificate. I have a court direction hearing for parenting scheduled as well.

In the meantime, I am trying to get more time with my kid which includes an overnight with me. What are my chances of getting custody of children? Every time I ask through legal letters, the other side responded with "they are considering", "the kid is too small" and "it is for the best interest of the kid". In fact, before separation I have been spending time with the kid weekends and after work. The kid has no problem with me, in fact my kid likes spending time with me. Also any recommendations of how to find an expert to evaluate my kid just so that I could spend more time including over nights with my kid?

Thanks

 

[AllForHer]

I don't think you will need an expert at this point. If the court thinks an expert opinion is required, it will appoint one to conduct a family report.

The Family Law Act 1975 holds that parents have the presumption of equal shared parental responsibility, which means both parents are automatically responsible for long-term decisions about the child and that they're expected to try and reach agreement jointly about those decisions. Such decisions include care arrangements.

That presumption can be rebutted on grounds that it wouldn't be in the child's best interests for both parents to share equally in parental responsibility, which ordinarily requires proof that the child is at risk of harm from abuse, neglect or family violence. It's not common for the court to order sole parental responsibility, these days.

Where the presumption is upheld, the court must first consider if an order for equal time would be in the child's best interests, in accordance with section 60CC of the Family Law Act 1975 and with consideration given to practicality, capacity of the parents to communicate, etc.

If an order for equal time is deemed unsuitable (usually because the parents live too far apart or have significant difficulty communicating), the court will consider if an order for substantial and significant time would be in the best interests of the child. Substantial and significant time is classified as a mix of week days, weekends, holidays and special occasions (Christmas, Easter, etc.). This is probably the most common outcome after trial.

Generally speaking, the court tends to only rule out overnight time if either the non-live-with parent has never spent overnight with the child, or the child is breastfeeding, or there is a risk of family violence. It's a farcical social view, not a legal one, that overnight time for a child under the age of four is not in their best interests. In a recent (albeit rare) case, a child of two years of age was granted week-about time with each parent.

If you've been involved in the child's life since birth, and there have been no complaints of family violence, then prospects of overnight time are actually very good. It's also good that you're acting now, while the child is young, instead of going for another four or five years on this eight-hours-a-fortnight business. As you, yourself, have said, eight hours a fortnight is not enough for the child to develop and maintain a meaningful relationship with you, and as I said, that kind of time is usually reserved for children who are determined to be at risk of family violence, breastfeeding or have limited relationship with the child already. Further, psychologists ordinarily find that a child of under the age of four should only go three or four days without seeing the other parent due to their limited capacity to hold on to memories.

Hope this helps.

 

[Tony.Walsh]

Thanks for the reply.

The other side has been using the excuse of "breastfeeding" to prevent giving me more time than 8 hours a week. When the child is with me, I've been giving him solid food (he's 2 years old) and he likes it. I gave him milk as well (Those mixed from power form). Are there any chance I can object to this? Pretty sure this is being used as an excuse. During the kid's afternoon nap, he doesn't seems to be after breastfeeding as well. All I do is to carry him, pat his back gently, sing some songs and sooth him to sleep.

If I get a custody evaluator to look at the child would that help in my case?
If I get a psychiatrist to evaluate my condition to show that I am really missing my kid and in stress would that help?

Thanks

 

[AllForHer]

The court is not concerned by how you feel or how much you're missing them or how much stress it's causing you. The court is only concerned about what's best for the child. It's very important to separate your feelings and needs from those of the child. I know this is difficult, but you remain you-focused and not child-focused, it will cost you in court. Thus, a psychiatrist is not going to aid your case whereby they deliver a diagnosis of you, rather than the child.

As I said, though, I don't think you need a psychologist for you or the child because the court generally holds at first glance that it's in a child's best interests to have a meaningful relationship with both parents, in accordance with their legal right to do so, and the court is reluctant to exile a parent from a child's life without very good reason for doing so, such as in cases where there is a unacceptable risk of the child being exposed to violence, abuse or neglect. If the mother has not raised these as issues, then the court has no reason not to grant more time provided more time is also reasonably practicable (that is, that you live close enough to each other for it to work and you can fundamentally communicate). With that said, of course, you will still need to argue why more time is in the best interests of the child, for example that more time will enable the child to spend more time with you to ensure they can continue having and building a meaningful relationship with you.

Things between you and your ex don't have to be perfect, or even amicable. The court recognises that parties break up and don't get along, and that a child has a right to continue enjoying a relationship with both parents regardless. What's important in such circumstances is that the conflict doesn't affect the child. For example, doing changeovers at school or in a public place is less likely to lead to the child being exposed to a fight between you and your ex.

What kind of time are you aiming for? Have there been any issues with domestic violence?

 

[Tony.Walsh]

There is no violence involved.

I'm seeking for 50/50 co-parenting for the interim until the court hearing to fight for residency.

What about residency / custody evaluation for the child (payed by myself without court intervention) would that be helpful in the court.

Thanks

 

[AllForHer]

I think that's probably more of an American family law thing than an Australian one.

In Australia, family consultants are used to deliver family reports that the court can rely on when determining what's in the best interests of the child. If there's no violence and the child has a good relationship with you, and the mother doesn't contest those facts, then the court might not see any reason to order a family report be completed. On top of that, any independent assessment conducted at your behest will hold little credibility if it only assess your circumstances and not the mother's, and the court also tends to frown upon parents who take children to psychologists and the like without any consultation with the other parent. It would be a waste of time and money to have a family report completed to canvas issues that might not even actually be issues in the first place.

You're focusing on trying to persuade the court that you're a good father, but you don't need to do that. Provided you don't pose any risk of violence, abuse or neglect to the child, the court doesn't care what kind of father you are because the child has a right to have a relationship with you regardless.

You don't need to sell yourself to the court. You need to sell your ideas about what's best for your child.

I don't think you'll get residency. The court is reluctant to uproot a child from their familiar home on a permanent basis unless the child is at risk of violence, abuse or neglect in the current home. Since there's no issue with these, I think seeking residency is going to damage your case because you won't appear to be child-focused. The court will question whether you have insight about the child's emotional needs if you think a nicer home or a more relaxed working schedule is more important than the distress and upheaval the child would experience in being removed from their mother's care. The court will also question how supportive you will be of the child's right to have a relationship with the mother, if you can so easily dismiss their existing relationship under current circumstances.

I think you should aim for 50/50 on a permanent basis, if it's workable. 50/50 is a good outcome, and significantly more attainable than a change of residency.

 

[Tony.Walsh]

Thanks for the reply.

The kid was taken from me without my consent in the very first place. I was there with the kid until the "taken away" happened. This abrupt and sudden change is surely not in the best interest of the kid. Is this useable in the court? I'm just wondering why is my kid taken away is acceptable and my fight for residency is not. I know as a male I am automatically in the losing scale. I experienced this during court organized mediation, where you can see immediately the mediator favouring the other side, that's just a fact that I need to accept.

The 50/50 on a permanent basis, does that includes overnights? Whenever overnight is suggested every opposing parties just stood up and frown against me as if I am a convicted murder. The other side is claiming the kid is still breastfeeding and hence not suitable for overnight. The mediator immediately question the validity overnight. Any chance of getting this? I have been with the kid from his birth.

Thanks

 

[AllForHer]

While there are no parenting orders in place, consent about anything parenting-related is immaterial. The Family Law Act 1975 governs how the court decides parenting matters. It doesn't govern how parents choose to parent.

I agree that it was likely not in the child's best interests to be removed from your care so abruptly, but it's in the past and the court is more concerned about it can do what's best for the child in the future. Your case will inevitably run better if you genuinely recognise the importance of the child having a relationship with both you and the mother, regardless of your opinion about her and her poor choices.

The reason I say this is because parents - most often mothers, believe it or not - are having their time with a child restricted by the court more often because they are found to not support the child's relationship with the other parent or recognise the value to the child of having the other parent participate equally in their upbringing.

I can't agree the court is gender biased against fathers, these days, and I think that is a social rhetoric pushed by a feminist society, much of which has never experienced the Australian family court as it exists today. Women often enter using the victim card to garner revenge or feel like they've won, and the court just doesn't tolerate it like it used to. What places you on the 'losing scale' is the fact that other parent now has primary care of the child, and so she would likely feel she is in a position to call all the shots.

If you change your attitude a bit and recognise that the child loves both you and the mother, and support the child's right to do so, the court is not going to see any reason not to grant more time. From what you've said of the mother's case, her argument against more time is weak, and eight hours a fortnight won't cut it in terms of the child's best interests because it's not enough time for your daughter to have and build a meaningful relationship with you. Her lawyer would know it, but he still has to follow her instructions, even if those instructions are against his legal advice. He also probably stands to make a pretty penny if you file for court.

Suggest a gradual increase in the time the child spends with you, and a post-separation parenting course for both you and the mother to teach you both how to communicate better. Let go of the past, focus on the child and maybe speak to Relationships Australia about doing a child consultation so you can talk to a psychologist about suitable care arrangements for a child of your daughter's age.

 

[sammy01]

My understanding goes like this: after the age of 2, an incremental increase to overnight care is appropriate. My version goes like this: a night a week for each year of the child's life. So 2 nights a week at 2, 3 nights a week at 3, but this escalates faster as the kid turns 4 or 6, then depending on the situation and how well the parents get along, then it's 50/50....

The problem you've got goes like this: you are gonna have to always be super nice. Your ex can have a huge win by showing there are light levels of conflict and it don't really matter if she is causing the conflict. So your job is to be nice.

Ok, one more thing as far as getting a child psychologist or report written. The courts will initiate that, no need for you to do it, and if you did, you'd be wise to get the ex to agree and since that ain't gonna happen just forget about it.

Yes, it is a long painful process but for you to have any chance of getting a good result you need to play by the rules and play nice...

Cheers

 

[Tony.Walsh]

Thanks for the reply Sammi.

Why would it be only 50/50 after age 4 or 6, when s60CC says that each parent should have 50/50. The are no alcohol, violence and negligence involved. I have been with the child since birth. When the other side took away the child the other side is violating s60cc (subsection b and d). 2 wrongs do not make 1 right. I am suggesting a transition of residency which includes overnight gradually over a period of time.

Can you also explain why a conflict shown by the other side would cause me huge lost? It doesn't make sense to me. This is the kind of feminism favouritism that I predict still exists in Australian system (not in the American system). I've heard a lot about the father facing an uphill battle just because of being male.