WA No Parenting Orders - Custody of Children Issues with Father

[Marysue]

Hi,

Just wondering if anybody can help with my situation.

I care for my 3 young children full time. I have no formal arrangement with the ex regarding custody of children. He messages me when he wants the kids and if they are free, I say no worries.

He hasn't seen them for 7 weeks (partly his work, partly because he doesn't have a room for them to sleep in and who knows why else). He wants to see them for a day and says that I must drive them to him, and he will drop them home. I am refusing to drive them as I feel that after 7 weeks absence and with everything I do for the kids every day, the least he can do is pick his kids up.

He saw them last on the 16th January and before that it was Mid-November. He does not attend the children's school sporting activities, did not see them Christmas day even though I asked if he would like to spend some hours with them.

Am I in the wrong here?

Any help would be greatly appreciated.

 

[teflongirl]

Get parenting orders! Formalise everything. Otherwise anything goes just like now. So your nose is put out of joint and you don't want to drive there. Have you driven before?

If you don't like whats happening you go to court and formalise it. Contact family relationships Centre or your local Legal Centre they will be able to help out. Every parent in life does the best that they can for what ever reason and no parent is a saint. If you feel taken advantage of get it written down and agreed to. Down the track you'll be in the same spot you are now if you don't change this situation.

 

[Marysue]

Yes I will do that although the ex has stated he does not want to get a parenting plan arranged.

I am more interested in knowing if there is an actual law that states that I should be driving them to him when he tells me to.

I have said many times "you can have the kids whenever you like (as long as they have no prior commitments). You are welcome to pick them up and take them", but he is saying because I refuse to drive them to him I am stopping him from seeing the kids. He has a car and lives 20kms away.

 

[teflongirl]

There is nothing written down so you can do whatever you want (and so can he, unfortunately). Later, if he goes to court he might say you didn't let him see them but magistrates see through that bulls**t. No there is no law that says you have to drive them to him. The court looks at access if you are open to access and how agreeable you've been that's where they look.

Get a plan. He doesn't want one because he's scared he'll have to provide more I assure you!

 

[AllForHer]

While there are no parenting orders in place, either parent can do as they please in regard to their kids, but in the wider scope of things, this is a fairly trivial dispute and it can probably be solved with some negotiation, rather than with costly and time-consuming court intervention.

Looking at this long-term, an ordinary agreement between parents would see each parent collect the children from the other household at the commencement of the children's time with that parent. So, it's standard for Dad to collect the kids from Mum's when it's their time with him, and then Mum collects the kids from Dad's when it's their time with her.

This is reasoned because parenting orders impose an obligation on each parent to make the child available to spend time with the other parent at the times specified in the orders. It's not an obligation on each parent, however, to take the kids during that time. Thus, it would be unreasonable to drive the children to the other parent's house, only to find that the other parent doesn't want to take the kids during their specified time with them.

I'm not saying this is a rule the court must follow, but it's fairly common for when the court is determining the kids' transport between houses. It might seem a much-of-a-muchness situation, but it makes more sense than you dropping them off to spend time with dad, and then dad dropping them back at the end.

So I would suggest pitching to the father a reversal of roles - he picks them up at the commencement of their time with him, you pick them up at the conclusion of their time with him. If you want a parenting plan, then go a step further and organise a family dispute resolution conference through Legal Aid or Relationships Australia, or wait until he does - he can't go to court without first attempting family dispute resolution anyway.

Just bear in mind that the court will likely make the travel arrangements reasonably equal. It probably won't order that he do all the driving.

Alternatively, of course, you both could go to court and place the decision into the judge's hand, but court outcomes are entirely unpredictable, and the proceedings take up to three years to determine, cost upward of $20,000 in fees, and stand an extremely high chance of sundering any semblance of an amicable co-parenting relationship that you might have had before, or might have been able to develop. Nobody wins in court. Try every avenue for settling disputes between you both first, rather than go straight to court.

 

[Marysue]

Thanks.

I am happy to share the transport but if he hasn't seen them for 7 weeks and only wants to spend a day with them I just don't think I should have to...

He doesn't share any parenting duties with me. Surely the courts are not going to order someone to share transport when the other person has between 5-10% custody a year?

 

[AllForHer]

If the court makes orders on this matter, it's extremely likely he'll be seeing them a lot more than 5-10% of the year. 5-10% is also an average of 1.5 nights a month - are you saying he's only seen them for one to two overnights a month? If so, why is seven weeks of no time that much more significant than four weeks with no time?

 

[AllForHer]

I also note the distance between you and the father is 20km. That's trivial by court standards - 20 minutes in a car, even less if it's highway driving. The likelihood of the court ordering the father to do all the driving over such a short distance is next to none.

 

[Marysue]

The distance between us is minimal hence why I am annoyed he won't drive it to pick the kids up. I don't mind dropping the kids off to him (or picking them up whichever) if he made a regular arrangement and had them overnight or something, but he messages the day before and says "I can have the kids tomorrow. Drop them off at 9 am.

Despite working 3 weeks on 3 weeks off the roster last year, he had them for a total of 30 days. This includes 2x 1-week stays during school holidays and the rest was a mix of sleepovers and single days. I would love for him to have more contact and think that a 4-week absence is just as bad as a 7-week absence.

I do all the after school activities driving. He won't have them on a Friday night when they have Saturday sports because he refuses to take them. He won't take them to any prearranged activities when he has them either. I know taking them 20 minutes in a car is a stupid argument, but he calls them once a week, sees them hardly ever, pays minimal child support now and still expects me to be catering to his needs.

 

[AllForHer]

I understand your position, but I urge you to keep things in perspective.

You're looking at what the court would rule, but to get to that point, you're looking at costs of upwards of $20,000, three years of yours and your kids lives, and an extraordinary emotional challenge for everyone.

Further to that, parents tend to go into court with ill-placed optimism. Judges are harsh, they don't pretty anything up and they hate hearing parenting matters because the extreme majority of cases could be resolved with logic and compromise, instead of taking the matter to an already poorly-resourced adversarial court.

A judge - any judge - will berate you and the father for fighting in court over a driving distance of 20km, and on this particular issue, I don't think you would win. I think the court would order you to drive one way, and the father the other, and I dare say the father would seek other orders as well, like having the kids more often just because he would be angry about going to court over something as petty as changeover travel.

That's just my view, though, based on my knowledge and experience in this particular field, so if you want to be sure, perhaps you should speak to Legal Aid for legal advice.