VIC How to Get Ex to Give Shared Custody of Children?

[T.yph]

Hi All

First post and not a happy one.

I have two beautiful girls, 2 years old and 4 years old.

I had a verbal dispute with my wife 3 nights ago. She called the police and I was asked to leave. When I refused, she left reluctantly. She made false accusations of violence and threats she couldn't prove. She was also drunk so couldn't make a statement at the time.

She returned home the next day. She seemed pleasant enough but then marched up to me and said we are now officially separated but living together. We have argued many times in the past and she has a foul temper, but this reaction was not what I expected.

Later that day, while I was out, she left with the children and has since not returned. She has mostly communicated by text and says she will not return home while I'm in the house. That I need to voluntarily vacate.

I have repeatedly asked to have the children come home by text. She refuses and says she can't be alone in a room with me. She keeps skirting around the question of interim shared custody of children and says it can be discussed once she is in the family home with the children and I am out. She repeatedly refers to me as a "violent" or "abusive" (allegedly toward her, not children) despite any proof.

It's very distressing for me as I miss my children dearly. Typically I cared for them 4 mornings a week from 6am - 2pm and 1 day from 6am - 6pm. That's a lot of time together with only a few hours of kinder and some babysitting by mum.

Anyway, I'm exhausted and can't sleep. I'm emotional and afraid. It feels a lot like a lawyer has been engaged and a case is being constructed. All I want is to see my little girls and spend some time with them. I was offered two timeframes to see them at specific locations (her mums house or her dads house) but always refused the option of seeing them in the family home. My gut is telling me to resist what I have been offered because it doesn't seem fair that she could just get up and leave and now dictate where and when I see my own children.

I just want to know if it is legally possible in family law to obtain some sort of order compelling her to leave the children with me 50/50, 60/40, whatever I can get. Just something which covers the interim and can be put in place immediately.

Thanks.

 

[sammy01]

Don't agree to leave the house. The result will be that you are homeless and still won't be seeing your kids. So all you've achieved is that you've made yourself homeless. If you can work out some temporary measures to secure the house when you're not there so she can't get in.

Do not argue - based on what you've written you're darn close to an AVO. The fact she was drunk when the cops came is probably the only thing that saved you. An AVO will have you out of the house and no access to the kids.

Call Relationships Australia to organise mediation. That is the cheapest way to go.

You could go and see a solicitor and get them to write a letter to her, but all you've heard about solicitors is true that letter will cost about $1000 to get written. Madness.

Look right now, the important thing is to do nothing stupid. The best way to achieve that is to do nothing at all.

Have a look at mensline, they have a forum as well. You're less likely to get any legal opinion like on here, but you'll hear from men who have gone through similar.

Help, Support & Counselling Services For Men | MensLine Australia

 

[sammy01]

Oops, just a few more things: Does she work? Do you have a mortgage? Rent? Who pays the bills?

If you have any savings, put them somewhere she can't access them. Mate, she has demonstrated that she is gonna fight, so don't kid yourself that playing nice will get you very far - play fair, but don't get walked over.

Now as far as your question about court orders to ensure you 50/50. Look, no guarantees about the amount of time but the law states a magistrate must at least consider 50/50.

Have a read of this - in particular the bit about 'court data'
Family Matters - Issue 88 - Shared care time | Australian Institute of Family Studies

Short version is if she won't agree to reasonable child access, then court is your only option. Chances of court giving you something like 50/50? Pretty good. But it is gonna take a few months or more, so for the minute just be patient.

Mate I feel for you - been there, done that. Just to give you some hope - my 3 kids now live with me for about 80% of their time and spend a few weekends and half school holidays with their mum. Now I got lucky, but there is no reason why you shouldn't have something like 50/50 as long as you do nothing stupid in the next few weeks.

 

[T.yph]

oops just a few more things - Does she work? Do you have a mortgage? rent? who pays the bills?
If you have any savings put them somewhere she cant access them - mate she has demonstrated that she is gonna fight - so don't kid yourself that playing nice will get you very far - play fair, but don't get walked over.

Now as far as your question about court orders to ensure you 50/50. Look no guarantees about the amount of time but the law states a magistrate MUST at least consider 50/50.
Have a read of this - in particular the bit about 'court data'
Family Matters - Issue 88 - Shared care time | Australian Institute of Family Studies
Short version is IF she wont agree to reasonable child access then court is your only option - Chances of court giving you something like 50/50??? pretty good. BUT it is gonna take a few months or more - so for the minute just be patient. Mate I feel for you - BEEN THERE done that - just to give you some hope - my 3 kids now live with me for about 80% of their time and spend a few weekends and half school holidays with their mum. Now I got lucky - but there is no reason why you shouldn't have something like 50/50 as long as you do nothing stupid in the next few weeks.

Thank you so much sammy01 - I am half crying right now. I'm so strung out and worried. I've had only 2 hrs sleep.

The house is complicated. We both contribute financially but usually she puts her money directly onto the mortgage and then I pay bills and some other things. We don't have joint accounts. Her mum also owns 25% of the house. The mortgage is in her and her mums name. My name is not on the title but we were married at the time the house was purchased so I guess that's just as good from my understanding.

Her father-in-law just called me and said she really wants me to leave the house. Also said something along the lines of her saying she can see us working it out (marriage) and is hopeful. It felt like BS and I'm also surprised she would assume I want to after this.

Father in law has a lot of resources and would back her financially all the way even though he says I'm a good father and he wants to see something fair. Only words. It doesn't hold much weight for me. In terms of steps for them to remove me from the house do you know what that process is?

Also, you mentioned I should secure the house when I'm not there? It is legal for me to just change the locks? Technically still her home too isn't it? Also, she is claiming she'll be fair and reasonable with custody and wants to come to the house tonight with one other person (father in law) and suggested I have another person here too.

The suggestion is we would then talk about me leaving and her committing to a custody sharing scenario. I said I'd get back to them about the meeting. Is that a lousy trade? What could she offer me at this point anyway in terms of a custody set up that is legally binding and immediate.

Lots of questions I know, but just really struggling now. Thanks again.

 

[sammy01]

Ok, so there is a parenting plan - basically any agreement between two people. It can be written on toilet paper because legally that is all it is worth. Kinda handy to have though as in court, it shows there was an intention.

My thoughts - refuse to leave the house. Have the meeting but stay civil. Explain that it is a bit rough to be expected to up and leave on 24 hours notice and that you're happy to live separated under the same roof until more formal proper arrangements are made, but you're not leaving until

1 - you have a place to go
2 - consent orders are in place pertaining to the kids.

Now as a sweetener - I'd suggest that you agree to pay all the costs in relation to getting the consent orders done except for her legal fees. You can get them written up yourself and do all that paperwork for a few hundred dollars or pay a solicitor and it will be maybe a grand or two (might be money well spent) and tell her you'll leave the house as soon as practical after the orders are returned from the court.

Now for that to happen you need her to give some indication about what sorta time you'll have with the kids. Now it is good for you to know that once you have more than 35% care you're child support goes down and you're entitled to some family tax benefit...34% seems to be the number most primary carers try to restrict the other parent to - Purely for financial benefit. But she may not have worked that out yet.

Now as far as locking the house goes, look it is dicey. Nothing illegal about it, just secures your position a little. She could do the same to you and if you break in - technically you have not broken any laws, you're allowed to break your own door, but she will easily get an AVO against you by claiming she was scared - then you're out of the house with no recourse - not fun.

Forget the whole "leave the house and play nice and maybe we can salvage the marriage". That song will end the moment you leave. Look, I actually think you're better off not having the meeting - everyone is a bit exhausted and frail. Makes for a volitile mix...

Stay calm

 

[T.yph]

Thanks again sammy01. Huge help.

 

[Rod]

Agree with Sammy. Once you are out, there is unlikely to be any chance of you getting back in. Homeless is not a good place to be, especially if you want custody of your kids. A court will ask if you have appropriate facilities for the kids staying over. If you say you have none then forget about having the kids overnight.

You negotiate from a position of strength, not weakness. Unreasonable people have no respect and will concede nothing until they are forced to.

Meeting will be OK, only if you have a witness present from your side. Someone you know and trust and will stall calm. They are only there to report on what really happens, though if they can help mediate, defuse tension even better. Sometimes being in a separate room from the ex and have the witnesses communicate works well.

You are going to be an emotional wreck. It is normal so just accept it and don't try to deny it or feel guilty about it. Bad news is that emotionally it is likely to get worse worse. Good news is that you can get through it and come out OK.

Chances are you are still in shock and not able to make good decisions. So don't. Stay put, talk with the mensline to help clear your head. Only talk to mates if they are level headed. Some good friends can make things worse so be careful who you talk to.

And finally - stay in the house. Record all conversations, and say you are recording all conversations with your ex. Start keeping a diary of contacts.

 

[sammy01]

I don't know if recording conversations is a great idea - it is kind of illegal without consent. You don't wanna do anything to cause arguments.

So is it likely she can keep the house without your financial input? While I don't think asset division is high on your priority list right now and while you have a claim on the house, it is gonna be messy. She can sell the thing tomorrow and nothing you can do.

You don't have to sign any paper work. Now you have a claim to a % of the house, but if she doesn't agree to that, then court is the only option.

Look I reckon you take real small steps. Don't be pushed around - agree to leave the house only when stamped consent orders are returned. Have a few lines ready and repeat repeat repeat stuff like - best interests of the kids, want to be fair and equitable, feeling pressured to agree and think things are a bit raw right now and as such it isn't a good time to be expected to make big decisions, I really want to have some time to think about things.

Do not agree to anything unless it relates to you getting good access to kids.

 

[Rod]

It is not illegal to record conversations in Victoria to which you are a party. And you advise the other party to be fair and to be seen to be fair when presenting the evidence in court, especially family court.

Other states have different laws. I think Vic, QLD and NT are the only states that allow secret recordings.

 

[Rod]

Adding to last sentence for clarity:

I think Vic, QLD and NT are the only states that allow secret recordings to which you are a party.