QLD Family Law - Sudden Changes in Custody of Children?

[Kell Younger]

My ex-partner has decided after 3 and a half years to quit his current job (military) and move to the town our 2 children and I live in. He wants to go 50/50 custody of children, but in the last 3 years the kids have only seen him a few times on school holidays and if he comes up on a weekend which is not often.

I am glad he wants to be more involved but our eldest has autism and other medical conditions including anxiety disorder. In the past, he has refused to stay with his dad so I have stayed at my ex's house at night so our son feels comfortable.

Our arrangement has only ever been verbal and not in writing. I have always tried to be amicable, there is no history of violence or abuse of any kind. I'm just worried how it will impact on the kids and what rights do I have and them with regard to 50/50 custody of children given such a long history of adhoc visitation.

I am also worried about how finance is worked out as I work part time but caring for our son has meant full-time work has been very hard to keep down with his health needs (I receive a Carers Pension). I have been told that child support ceases and then parenting pension does too. Is there a transition time to give me a chance to look for full-time work?

Any help with family law would be appreciated.

 

[AllForHer]

Kudos to you for being amicable.

At this point, this isn't a family law issue - you can literally enter into any parenting arrangement that you and your ex can agree to. Of course, if things stop being amicable, then it might end up in court, and these days, dad has a very good chance of getting 50/50 because Australian law supports shared parenting. Taking into account cost, time, emotional difficulty, total loss of control over the outcome, and the sundering of what sounds like an otherwise workable parenting relationship, the court is something you should aim to avoid.

So I'll address this as though it's not a family law issue. If 50/50 is workable, then there's no reason it shouldn't be considered, and if it doesn't work - if the kids don't cope with it - you can simply work out a different arrangement that might be more suitable after a trial period.

Alternatively, you might consider implementing 50/50 on a gradual basis - maybe start with one or two nights a week/fortnight, then continue increasing the time every 8 or so weeks until it reaches 50/50. This gives the child time to adjust, it gives dad time to get used to the child's care requirements and it gives you time to adjust and perhaps look at new employment opportunities.

I'm not sure what the situation is with carers pensions, but with child support, moving to 50/50 will impact the amount you receive, but it probably won't result in payments stopping altogether. If your ex and you have the kids equal time, but he is earning more than you, he will still have to pay child support, just a lot less than he probably did previously.

If it did go to court, the pathway kind of works like this:

1. Kids have a right to know, spend time and communicate with both parents on a regular basis, regardless of the nature of the relationship between the parents, and insofar as their best interests can be met.

2. The best interests of the children are paramount in all parenting orders made by the court.

3. The court must consider the elements comprising section 60CC of the Family Law Act 1975 when deciding what's in the best interests of the children.

4. Equal shared parental responsibility is a presumption under family law, which means it can only be removed by court order on a successful rebuttal to show that shared parental responsibility is not in the best interests of the children.

5. Where an order for equal shared parental responsibility is made, the court must consider if an order for equal care time is practical and in the best interests of the kids.

6. In the event that it's not considered practical or in the best interests of the kids, it must consider whether an order for substantial and significant time is best for the kids, comprising weekends, weekdays, holidays and special occasions.

Some notes to consider on the above is that it's extremely likely that shared parental responsibility will be upheld under the presumption in your case because it's very difficult to successfully rebut, these days. It's also an unknown about what time with dad the court might order for your kids, but it could be equal time, it could be six or five or four nights a fortnight.

An order for alternate weekends is very uncommon these days where the parents live close together, so not worth going to court to fight for because it's highly likely the other parent will get a better deal by going to court anyway. The mitigating argument against equal time, I would say, is the special needs of the oldest child, but the court generally prefers to accept that both parents are capable of caring for their own kids.

The main issue though is that once it's in the court's hands, there's no telling what the outcome will be. It's better to try and reach an agreement together, rather than go to court.

I might suggest speaking to Relationships Australia and doing a child consultation. They provide some good information about age-appropriate arrangements for kids and how it might affect them. RA also offers mediation, which might help you and your ex reach an agreement amicably and draw it up into a parenting plan.