TAS Will Ex on Drugs have Custody of Children?

[Jo-Hannah]

I have 2 young children 1 and 3. Their father and I split almost a year ago. He has 2 other children who he does not get to see because of the same reasons I want to stop him from seeing the 2 we had together.

I was in a non-physical domestic violent relationship with him which had me on medication for 6 months after I finally stood up for myself and told him to get out of my house and never come back.

He has been drug addicted for 5-6 years or more; he also sells it. After our first child was born, we struggled with money. His money was his money, but my money was also his. He lives off Centrelink benefits and refuses to get a job. He has not had a job while both kids have been around. He won't because his mind is set on the drugs. His money all goes to drugs and always has. All his mates are on drugs; people I never wanted to be around as I'm anti-drug.

He is the type of person who can not function with them. He has a dog, who he cannot look after, and instead would lock her in a shed & beat her. Why would I ever want my children to be used the same way? I could never leave the kids with him because he couldn't deal with them, in fact, he tried forcing me to abort both kids when I was pregnant because he did not want them.

He has a girlfriend, she lives with him, also on drugs and also has kids of her own, but she had them taken off her from a drug-related incident that I would rather not state as it is sickening to my stomach just thinking about the situation. I asked him to keep her away from the kids when he was to come see them but has broken the rule several times.

We have no family court orders as yet. I've tried limiting his time with them to certain days but he still shows up here whenever he pleases. He also has a record with the police such a crime related incidents, theft, drug possession & driving offences.

I find it hard to type these types of things and hope I have gone through everything. I just want to know if he has any chance of trying to get some custody of children, and want to know what his rights are if anyone can help.

My children don't need someone like that in their lives. I want the best future possible for them. I don't ever want them to feel miserable because their dad doesn't want to spend time with them and would rather have possession of them instead. They deserve so much better.

 

[AllForHer]

Have the police charged the father at any time for these alleged offences? Has he been convicted? What's the nature of the violence you've mentioned? Did you get a restraining order of some description against the other parent at any point?

 

[Jo-Hannah]

He has been charged several times within the past 5-6 years. He's never been convicted, the only things he got done for while we were together were driving offences. He's only 22, so he hardly got a thing for everything else, just a slap on the wrist because he was underaged! And sorry, I don't get the nature part, I find it hard to understand things.

And no restraining order, I have extreme anxiety. I can't even book myself with appointments or speak to someone I know on the phone without having an anxiety attack, so getting a restraining order put in place is extreme for me to do.

 

[AllForHer]

Okay, so bear in mind that this isn't legal advice. It's just my observation about what I think the Court would do if it were asked to consider your parenting matter. Unfortunately, I don't think you will like my answer, but less than 50% of parties that do pursue family law proceedings do end up with the outcome they are okay with.

First, the overarching thing to consider is that children have a legal right to know, spend time and communicate with both parents on a regular basis. The Court takes these rights very seriously - it won't make an order that a child spend time no time with a parent unless there is a proven risk of harm to the children if they were to spend time with the parent in question. Persuading the Court that the children are at such a risk is a task nearing on impossible. Unless there is evidence to show the children are at risk due to violence, neglect or abuse, it simply won't happen.

When I talk about 'evidence', I don't mean just the he-said-she-said stuff that appears in affidavits. I mean tangible evidence that is supported by a third party - police reports/charges/convictions; family reports; reports from DOCS; an AVO made at trial; an AVO breached by the respondent; evidence provided by expert witnesses; etc.

At the moment, I don't think you have enough of this kind of evidence to support a case for no contact between the father and the kids.

While there are police reports for drug use, there are no associated convictions, and even so, the Court tends to deal with this kind of risk by making an order that neither party consume alcohol or drugs before or during the children's time with them. I can't actually think of a single case where the use of drugs has resulted in a no-contact parenting order. In fact, in O'Neill & Hayley, Judge Harman pointedly stated that his main concern about one mother's use of drugs was that it exposed her and the kids to an impoverishment or other disadvantage, rather than that it made her an unfit parent. Try and remember, as well, that this alleged drug addiction preceded your decision to have two kids with him by at least three years.

Traffic offences aren't going to have much weight, either (except, perhaps, if it was DUI while the kids were in the car). If everyone who got a traffic fine was deemed and unfit parent, there number of kids growing up without parents would probably far exceed the number of kids growing up with parents.

The allegations of 'non-physical violence' will also probably go reasonably unnoticed because there has been no subsequent action to affect this allegation, such as a restraining order of some kind; likewise, treatment of the dog doesn't necessarily reflect treatment of the kids. I don't think the Court will see this as a genuine concern.

Regarding the girlfriend, the Court might order that the father not bring the children into contact with her, but still, you're unlikely to end up with a no-contact order against him, too.

Now, what is paramount to the Court when making parenting orders is the best interests of the kids, and the pathway it follows is outline in s 60CC of the Family Law Act 1975 (read here: FAMILY LAW ACT 1975 - SECT 60CCHow a court determines what is in a child's best interests The primary consideration in section 60CC is the benefit to the kids of having a meaningful relationship with both parents, and in the extremely large majority of cases, it's assumed that children will benefit from a meaningful relationship with their parents. What the Court has also made clear, however, is that a parent doesn't need to be a model citizen in order to offer a child the benefit of having a meaningful relationship with them.

The second consideration is the need to protect the child from harm caused by abuse, neglect or violence, but the Court has many ways of achieving this that don't involve making parenting order that a child have no contact with a parent. It might order supervised contact instead, or it might order a restraint by injunction on the consumption of drugs and alcohol while the child is in their care, or it might order the parents conduct changeovers in public places and communicate via written methods so the child isn't exposed to any arguments between the parties.

Making an order for no-contact is very much a last resort, and even getting the Court to consider it can be a three-year, $30,000 venture with very little likelihood of success.

On a final note, I do want to say that unless there are parenting orders in place, the matter of care arrangements is fundamentally free game - if he wants to pick the kids up from kindy one day and not return them, he is within his right to do that. So, my suggestion is to contact Legal Aid and organise a family dispute resolution conference so you can get some kind of agreement on paper. I also suggest getting legal advice, so you're clear about what the prospects are for a no-contact order, at least as a second opinion to the information I've provided above.

Again, I apologise if this isn't what you want to hear, but it really is better to be realistic about this kind of thing than go in head first to Court and have a judge tell you from the bench what he thinks of the situation. They're not terribly kind in the Courtroom, after all.