QLD Getting Custody of Children and Mediation - Options?

[Lanna86]

Hi, looking for some help as my partner and I are at a loss.

We have been together for 4 years. We now have a 7-month-old together, he also has 2 children from his previous relationship 5 and 8. His relationship with his ex is amicable and they are able to communicate because of the children.

We have the children every weekend one long, from Friday afternoon to Monday morning and 1 short, Friday afternoon to Saturday afternoon to accommodate their family life. However, we really want to extend the time now to include Thursday's every week as our little one now notices his siblings, when they are there and not, and we want them to have more of a relationship.

The issue is, we have asked for 50/50, we waited till now to ask as his youngest has just started school this year and thought as she is now older and able to understand things, we thought it would be a better time but we were flatly refused and told it was too hard and that was all. We then asked for 1 Thursday and have still been refused. I am going to organise a mediation session or a few but I highly doubt this will change anything.

A little background, we used to have them every 2nd Thursday night and I would drop one at school and have the youngest all day on Friday, but she wanted that time so we changed to Sunday night instead. I am no longer allowed to drop them at school, my partner was not allowed to be there for their first day of school, we pick them up and drop them off every weekend unless there is a specific reason they are heading past.

I have no issue with them at all and we get along fine, no bad words at all and we always encourage the children with their mother no matter how we feel. We have been interrupted on our weekends to have the children taken as she has forgotten they had something planned. We always accommodate whenever she asks to swap nights or wants to take them away. Obviously, we want the best for them and really would like to avoid family court but I'd like to know if we have a shot at getting more custody of children. How long may it take and what's the best way to go about it?

 

[sammy01]

So it is a painful process. Start with mediation, you need the certificate that they provide to show that you tried. Then you can either hire a solicitor or self-represent and make an application to court. The first thing they will do is make you do mediation again, but you've applied pressure to the mum. That might be enough.

So once you have more than 4 nights a fortnight and half holidays mum will see a huge drop in family tax benefit and child support. But that is her problem, not yours. But given they youngest is 5, she is about to get kicked off the single parent payment pretty soon (assuming she is on it) So part of what you're fighting against is her financial imperative. The less you see the kids, the more money she gets...

So what are the chances of getting more time? Good. Have a read: You should especially read the bit about "Court Data"

Family Matters - Issue 88 - Shared care time | Australian Institute of Family Studies

So dads have more success in court when a judge decides than they do when mum gets to decide (which is what mediation allows).

How long could it take? Well, court is hard to pick, I'd be guessing 12-18 months.

Best way to go about it? Well do mediation, then like I said, you can self rep or hire a lawyer. The first thing a solicitor will do is write to her and suggest consent orders. Or go get a book called "Breaking Up" from your library. It is written by a bloke called Larkins. Worth a read....

Now the other thing you should know is that there are a few options. You can play hard or soft. but I reckon it is about playing nice but applying pressure. I'm guessing you don't have any consent orders currently?

So my concern is if you play too hard, she could recoil and tell you that you can't see the kids because you're causing her too much grief. But you could also let her know that if she opposes 50/5, you guys have no problem with being the primary carer and she can have 4 a fortnight, just to let her know how serious you are.

Now the other good news is only about 3% of cases actually get decided by a judge. Most of the time people eventually sort it themselves, but the court application when it arrives in her letter box might motivate her because she'll be confronted with the possibility of having to hire a solicitor etc., and that might scare her into playing nice.

 

[Lanna86]

This information is great. I'm fairly sure we will be headed in the direction of court as the mother is fairly adamant there will be no more time with us or their other sibling.

We will hire a solicitor as the mother already knows someone that is a lawyer and I believe this is the main reason their farther has been worried, she has threatened once before about taking the children (in the heat of an argument about more time with the kids) and its scared him to stay this way as he would prefer a little time as opposed to none.

We will be nice, for us even the pain of being nice is worth the ease for the children and i know she wouldn't hesitate to take the children if the circumstances didn't suit her.

Thank you so much

 

[sammy01]

I'd consider self-representing. And look, even if she has a mate who is a solicitor, it don't mean he'll do it all that much cheaper and it don't mean they will win.

Her having a mate who is a solicitor is a good thing in some ways. Lots of solicitors are happy to continue cases because they're getting paid but a friend would be more inclined to give good advice. And, in my opinion, the good advice would be accept it because the dad will win in court.

Keep us informed how you go.

 

[Lanna86]

I'll update with the progress when it happens, although I think we want to try at least once more for a conversation to see if anything can be sorted. We both doubt it, however it's worth a try!

 

[Lanna86]

Thanks for all your help and information. It's taken the past 8 months for my partner to decide that he can't go through the courts. He has a number of friends that have spent so much time and money and having no change and no more time with the children.

He is too worried about the effects on the kids from going through court plus the repercussions of their mother and what she may put them through. Can't say I'm not disappointed however he is thinking about the kids.

Wish I could have given a better update!