NSW What to Expect Out of Family Court?

[Mia.Mia]

Hello.

Mediation is not working for my ex and I to achieve a suitable parenting plan. He is very abusive and won't be flexible. We have done a few sessions now and we are not getting anywhere.

If we go to family court, what happens? Do I get to bring up past incidents (as I can't in mediation)? Does a judge look at all the facts? Does a judge listen to why I'm asking for certain things that my ex would not agree on and possibly take that into account?

Roughly, what can you expect going to family court would cost? I'm on a single pension as the relationship broke down a week after I had the second child. I know I can apply for Legal Aid but I'm unsure as some people will tell me as I'm living with my parents that it may be expected that they would have to pay for some or all off my legal costs. Unfortunately, my parents are not in a position to do that. Others will say that my ex will have to pay my side of the legal fees as well as his own? So I just don't understand.

I'm happy to pay my own fees if a firm would allow me to pay them off, that's not a problem. I'd just like an idea what to expect out of court costs or if I'm better off just stamping my foot down and telling my ex that we need to take a break for a month or so. You see the kids on these days, end of story, and we try mediation again after we have had time to cool off?

Thanks so much for any help.

 

[AllForHer]

Basic run down of Court:

1. Child has legal right to have a meaningful relationship with both parents.
2. If you go to Court, the Court will decide what time the child spends with each parent based on what it determines is in the best interests of the child.
3. Section 60CC of the Family Law Act 1975 denotes the pathway the Court must follow when deciding what's in the best interests of the child - read it here: FAMILY LAW ACT 1975 - SECT 60CCHow a court determines what is in a child's best interests
4. Judge will make his/her decision based on the evidence presented (read: the opinion of the parents is immaterial; they're interested only in the facts).

The application works like this: You file a minute of orders sought into the application and you show in an accompanying affidavit of evidence why those orders are what's best for the child.

So, your questions.

Do you get to bring up past incidents? There's nothing stopping you from doing so, but you need to make sure those incidents are relevant or risk looking like the begrudging parent who can't get past your own feelings in order to support and encourage the child's relationship with the father. Keep it relevant, keep a good view on perspective, and don't make your complaints about a difference in parenting styles. Just because dad doesn't parent the way you do, doesn't mean he's an unfit father who should see his child less.

Does the judge look at all the facts? The judge only looks at the facts, and only at the facts that are relevant. It doesn't entertain opinion, hear-say evidence or issues that are separate to the matter at hand.

Does the judge listen to certain things? Yes, but he will also listen to your former spouse with the exact same degree of interest as he listens to you. Once you walk into the Courtroom, you're on equal footing with your former spouse, so while your case might seem compelling to you, the father's case is probably just as persuasive.

Realistically, though, the Judge isn't interested in how you feel or how the father feels. He is only interested in what's best for the child. Your version of what's best for the child needs to be backed up with evidence showing why it's what's best for the child. If the father's version of what's best is more persuasive in the evidence, then the father will likely get the orders he's seeking.

Will the father have to pay half your costs? Highly, highly, highly unlikely. The Family Law Act expects parents to fund their own respective proceedings, and orders against a party to pay the legal costs of the other are attained only in rare circumstances, like where one party is seen to unnecessarily delay and frustrate proceedings. It's not often the Court will make an order for costs, though.

You can approach a few firms for quotes, ask about fixed fees or payment plans. But also apply for Legal Aid funding, even if there's a risk you won't get the grant. It's better to have a parenting order in place than no order at all, because simply put, if there are no orders, there's nothing stopping the other parent from picking the child up from day care without warning and taking him to live across the country.