NSW What are My Chances if We Go to Family Court?

[Wayne mckay]

Hi,

My ex-wife and I have 2 children, a boy aged 6 and a girl aged 2 nearly 3. We separated in July and we had an agreement through text message that we would do 50/50 shared custody of children. Then in September, we reconciled for approximately 3 weeks til finally our separation on October 4.

We still agreed we would do the 50:50 and that it is the best thing for the kids up until October 22. We were getting along, still trying to work things out. We even went to marriage councelling on 20th of October then on the 22nd she moved a bloke in to her house and wouldn't tell me anything about him. I had the children at the time and returned them to her on 25th of October.

Well, that was the last time I have seen them. A week after that, she changed all her contact details so I can't call them or anything. I went to her house, recorded it and asked if I could have the kids for a weekend and she agreed.

This was on a Tuesday then on the Friday, I went to pick the kids up and she wasn't home. Her mother and father were there with the kids. I asked them and said I have a recording where she said I could have them and they refused me, so I said "can I see them at least?".

When they brought my daughter out, I grabbed her and walked out the front and said well, I am taking her for the weekend and they called the police and told them I was kidnapping the kids. I said I would wait for police to come and stood out front, waiting. Then my ex and her boyfriend turned up and he jumped out of the car and came running at me.

I was still holding my daughter and he threatened to kill me and bash me. I ran and got away. He chased me for about a block then police came. I had to return my daughter.

Well, since then I haven't seen the kids at all or even spoke to kids. We went to mediation on the 9th of Dec and came to an agreement and I am supposed to get the children every Wednesday for 5 hrs and every second weekend but the first Wed, she didn't turn up. Then the weekend came and when she turned up, my 6-year-old son was so scared of me and keeps telling me he's afraid that if he comes with me he will never see mum again. He was pretty much hyperventilating, so she says you have done all this in front of kids.

I asked her, "can I have my daughter for weekend to show my son I will return her?"

She denies me, then the next Wednesday, the same thing happens. Then on Christmas Eve, I am supposed to get them from 2pm until 2 pm Christmas Day. She just didn't show up again. I am just wondering, if we go to family court, what are my chances?

I have text messages where she has admitted denigrating me in front of kids. Also her whole family as well. I also have a text message from 10th of October where she says that 50/50 is working for the kids, not for us, but it is best for kids doing it that way.

 

[sammy01]

My opinion- Go to court - you will probably get more time than you're getting now. Well that is stating the obvious... 50/50?

Maybe and if not, then I'd bank of 5 a fortnight and half holidays.

 

[Kyl]

I've just been through a 2.5-year process with a very similar situation.

I lost my 2 older kids - 16 & 13.5. It was proven that the ex had alienated them from me but that they were too old to change at the moment and psychologically forcing them back to me will do as much damage as my ex has done already, so I agreed with heartbreaking courage to wait until they get old enough to be able to understand what he did.

Basically he told them every lie he could, like "your mum abandoned you, you will have nothing now, mum is unsafe, mum is crazy, a b***h". Daily, he said mum is a liar. He also actively finds ways to stop them from seeing me, so months went by with no communication or anything. It's called P.A.S. But beware, the courts rarely recognise it and proving it is extremely hard, I do have sole parent responsibility of my younger son because he was the one who innocently told all and wanted to be with me. My story aside.

You will likely need $50000 if you go to court and it goes all the way to trial. But this is my guess. You'd need a solicitor to outline costs, etc. You need to do everything you can to keep seeing the kids and to try and establish a regular overnight stay pattern with you.

Unless you are abusive or have hurt them or the ex, then keep trying to get time with them. Keep every message and communicate in writing only, do not delete anything, have a witness with you at changeovers.

If you go to court, you need to look at it from the legal system perspective which is not always right or fair. It's a legal system not a justice system! Evidence is key, the court can't make decisions based on he said she said!

You seem to fair better if you do not focus so much on what the ex does but more so on what you do. You need to show that you do as much as you can to be a positive parent. You ring and keep updated with school, go to their sports events, doctor appointments, stay home with them when they are sick, etc.

You try to communicate with ex in a civil way (don't swear at the ex, name call, denigrate, blame or anything no matter how much you might want to) keep your communication directly about the needs of the kids, try to avoid opinions too and stick to facts only. Always present your messages as polite and not demanding.

Regaining your kids' trust is key too. Always be on time, always do what you tell them, do not talk about the ex with them, see any time you have as pieces of gold and do fun things with them. Also do things together with them, avoid being just a 'watching parent'. I have learnt to build things, ride a scooter (sort of), be seen in swimmers and go down water slides that I never thought I'd ever be able to do! But I did things with my son and he loved having mum look 'funny' but join in too.

I did learn that in my case, my divorce was horrific for me but long overdue, but it was even worse for my kids and I had to put myself in a box on the shelf while I did everything I could to help my kids. I'm now off the shelf and living life, as is my son!

If you are an active parent you should get reasonable time with your kids.

If you are thinking of going to court, start now. It can be 12 months before you see the door of the court room and the first time (called a mention) is basically for the judge to look at what direction the case could take. Sometimes you will agree on procedural orders which is nothing to do with time spent with each parent. You will likely do a few of these mentions in the process before you get to interim orders, final orders take a whole lot longer.

If you are thinking of applying for legal assistance, do it sooner rather than later, as only one party in the case can receive it and first in best dressed. Before you do anything though, you need to go to mediation. You can't go to court until you do.

At mediation, you can try and develop a parenting plan. If and I suggest you do, specify that you want any agreed parenting plan made into consent orders, this makes the agreement legally binding. A solicitor can help with this. You go to court but it's not a difficult process at all.

Private mediators cost money but most are solicitors if you can pay for one (up to around $2000), they can be much quicker. Public ones like Family Relationships Australia are good but the process can take months. If mediation fails, you need to ask for a 60I certificate, this is what the court requires to start the process.

If you suspect your kids are at risk, ring community services. Also, if something happens, like the ex partner hurts you in front of your kids, the police can do a welfare check on them. You ring your local police station and explain the situation and request a welfare check. Ring as soon as something has happened, but don't do this just to get at your ex. If you have real immediate safety concerns for your kids ring them.

If you wanted to look at doing some parenting courses (which can help you in court), keeping kids in mind run by catholic care, was really good. They run a few courses that can be helpful.
Places like anglicare do family counselling where you and your ex might be able to resolve some issues.

You may experience a heap of emotion, anxiety and most of all frustration. You have to learn to keep it away from the kids and the ex, vent it elsewhere! This is all based on my personal experience and may or may not be helpful for you.

Good luck.