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Hi.

I am having trouble gaining access to my daughter my x-wife and I have been seperated for 2 years and just recently divorced.

We never had an aggreement in place but i was always allowed to see my (5 yo) daughter and lately my x will not let me have contact.

I have been to see a solicitor but i cannot get legal aid as my x wife has already used them in the past.

Any information would be greatly appreciated as i am going to try and do this my self as there is no way i can afford a lawyer (they do not have insurancefor this sort of thing) just a little humor as they have it for everything else these days.
Smurf.

I think your best option is to consider joining the SRL-Resource (Click on Community at the top and then on SRL-Resource to the left). It is very unlikely that the courts would allow continuance of the denial of the child's humane right to know and be cared for by the child's parents. The first step would be to arrange mediation at a Family Relationship Centre. Here's a link that may assist you Family Relationships Online.

I would suggest considering the level of care that you can provide considering commitments such as work and going into mediation armed with a reasonable and practicable parenting plan (do a search on parenting plan, or ask for things to consider such as special days, school holidays etc. and perhaps the extended family).

You should also try to gain as much evidence of contact that you had; a diary is considered as evidence.
You can do this yourself quite easily. It's not rocket science.

Spend some time observing family court matters in your local magistrates or family court and you will see many other people representing themselves with success. The words 'access' and 'contact' are no longer used as they have do not describe the sort of relationship you should be having with your daughter. With no order or agreements in place you actually have shared parental responsibility so you can do what you like in terms of caring for your daughter.

I suggest you get heavily involved in her schooling so you have a reason to be involved in her life more than every second weekend and half of school holidays. Good luck.

Last edit: by Secretary SPCA

Smurf said
Hi.

I am having trouble gaining access to my daughter my x-wife and I have been seperated for 2 years and just recently divorced.

We never had an aggreement in place but i was always allowed to see my (5 yo) daughter and lately my x will not let me have contact.

I have been to see a solicitor but i cannot get legal aid as my x wife has already used them in the past.

Any information would be greatly appreciated as i am going to try and do this my self as there is no way i can afford a lawyer (they do not have insurancefor this sort of thing) just a little humor as they have it for everything else these days.
Smurf, your first port of call is to set up mediation through an FRC as you cannot enter the system unless you have a 60i certificate issued by an FRC (or other approved provider)
You should note that if both parties are applying for Legal Aid there is a strong chance that LA will generally force you both into a LA conciliation conference. Because of funding restrictions in many States LA will not pay the left and right hand to fight each other.
Fairgo said
You can do this yourself quite easily.
For many people it is not easy, being confronted with a system that is radically different from Criminal or other Civil Law with an entirely new language of legal terms and Court procedures can be very daunting.
There is a great deal of information on this site about self representation.
Fairgo said
Spend some time observing family court matters in your local magistrates or family court …
Unless you and the ex are going to make agreements in a Local Court observing FAMLAW matters is a local Magistrates Court is a waste of time because the procedures are quite different and very few dockets represent Family Law matters.
In all States except WA if you are in dispute you are very likely to be entering the FMC (Federal Magistrates Court) or perhaps the Family Court. At first instance you should be observing cases in an FMC or the FCoA as these Courts are 'Family Law' Courts.


SRL-Resources. the Family Law People on this site (look for the Avatars) www.srl-resources.org  Non gender Professional and peer support for SRLs. Closed site, no public forums, no search engines, no lurkers, guests or the other side and their Lawyer and Friends.
Where or not your ex has used legal aid in the past is irrelevant. You should still be able to get funding.

4MYDAUGHTER
Ring solicitors and ask if they do legal aid family law work. When you find one who does go and see them and ask them to apply to legal aid on your behalf. You can not go directly to a legal aid office as your partner did this, but you can go to a private solicitor who works for legal aid as long as your income is within legal aid parameters.
kalimnadancer said
Ring solicitors and ask if they do legal aid family law work. When you find one who does go and see them and ask them to apply to legal aid on your behalf. You can not go directly to a legal aid office as your partner did this, but you can go to a private solicitor who works for legal aid as long as your income is within legal aid parameters.

Exactly! Legal Aid cannot represent you because of conflict of interest considerations. But Legal Aid can fund you to obtain the services of a private solicitor.

And - as suggested above - find a legal aid solicitor and get them to put the application in on your behalf. They can get it processed sooner and articulate your argument better.

However, you get what you pay for. Legal Aid only pays $180 per hours, rather than the $390 odd family lawyers usually charge. Find a solicitor who will take legal aid but will provide a guarantee to work as hard as if they were earning $390 per hour. Good luck with that!!!

The only other issue with private solicitors on legal aid is that interim applications can be a problem because they require additional and separate Legal Aid applications.

4MYDAUGHTER
What I have discovered thus far in my own Dispute Resolution experience is that the mediation itself is geared for failure if either party, or both, are not willing to negotiate in good faith.
This is why I find the concept of 'rushing things' in terms of actively seeking mediation objectionable because it is axiomatic that the best interests of the child are achieved through both parents' involvement in its life, whatever its age.
As we are all aware, the vetting process during the interviews is comprehensive but however wideranging it is, there are (to my mind at least) inherent problems in the final wash up with the limited options available to the mediators for issuing certificates, namely the reasons given on such. I would suggest that were there more specific details provided on the reasons why mediation failed and these reasons communicated to an 'offending' party, there would have to be a greater impetus on that offending party being more amenable to less adversarial resolutions.
What's discussed in mediation is obviously confidential and can't be used in evidence.

However, should mediation fail, the father's solicitor can seek an explanation from the mother as to why she wasn't prepared to facilitate/accept a reasonable parenting proposal.

The mother's solicitor is obliged to respond giving reasons for not facilitating contact/accepting the parenting proposal.

Dispute Mediation is one element in a range of tactical manoeuvrings operating to get the mother to the point of agreeing to parenting arrangements.

Perhaps the mother needs to be reminded that the current situation by default is that both parents HAVE 'joint parental responsibility' until the court says otherwise.

4MYDAUGHTER
Intersting 4MD that you say what is discussed in medation is confidential and can't be used as evidence. This is exactly what the other side's solicitor put in her affidavit. Oh Well.

As for giving reasons as to why a proposal isn't accepted, well they just sent through something competely different. Oh well.

And as for mediation getting the mother to agree to parenting arrangements. You need both parties to agree, not one party to be the "owner" of the child.

Mediation, is just paying lip service to a flawed system. Unfortunately this is the only system, and mdiation is a required initial step.
Boots said
Interesting 4MD that you say what is discussed in medation is confidential and can't be used as evidence. This is exactly what the other side's solicitor put in her affidavit. Oh Well.
 
Well. In this situation you would object to that material and seek that it be struck out.

4MYDAUGHTER

Eternal Optimist

4mydaughter said
Where or not your ex has used legal aid in the past is irrelevant. You should still be able to get funding.
 This is correct both me and my ex have both obtained legal aid.

I'm in a similar situation where I've been separated for 2 years and battling for visitation ever since. The first 10 months post-separation were spent battling mediation with FRA until they finally issued a 60i certificate. The next 10 months thereafter I battled to get legal aid and finally did just to find myself in another mediation process through RDMwhich not surprisingly failed in exactly the same manner as with FRA.

My issue now is that my ex has agreed to some things but knowingly refused others which in legal aids eyes is sufficient for them to no longer grant me legal aid. Unfortunately my ex's expectation is thatI do a 9 hour round trip to pick-up/drop-off children and not willing to meet half-way and refuses to let me have them for Christmas. It is getting hard for me to fight asI don't have the money (her income is comparable to mine) to go through the court system…

I agree the system is set to fail..! That being said keep battling asI am as a solution will present itself.. I'm currently studying Family Law as hard asI can to represent myself asI cannot see any other option.

Good Luck..!

Last edit: by OneRingRules

Looks like i am screwed in all directions i contacted solicitors and they will not do it on legal aid even though i meet all critera's they just told me it is a waste of time as the mother will always win.
So i might as well put it in the 2 hard basket as i do not know enough about family law to do it myself
Try contacting another solicitor as sometimes they say no as they do not want legal aid work. Before attending ask straight out if the solicitor will work for legal aid as this may save a useless trip.
Good luck
I have been to all four Law Firms in town that handle family law 2 of them are hers from previous marriage the other two are not interested

Reading between the lines

Smurf said
Hi.

I am having trouble gaining access to my daughter my x-wife and I have been seperated for 2 years and just recently divorced.

We never had an aggreement in place but i was always allowed to see my (5 yo) daughter and lately my x will not let me have contact.

I have been to see a solicitor but i cannot get legal aid as my x wife has already used them in the past.

Any information would be greatly appreciated as i am going to try and do this my self as there is no way i can afford a lawyer (they do not have insurancefor this sort of thing) just a little humor as they have it for everything else these days.
 Hi smurf.

Whether the other party have has legal aid in the past should not affect you entitlement to a Grant of Legal Aid. The solicitor you spoke to probably didn't want to represent you so used that as a an excuse. The reality is that in some cases Legal Aid ends up fund both parties and the ICL.

Under the conflict of interest a party cannot use a solicitor (or organisation) which the other party has used in the past. This applies to solicitor supplied by Legal Aid. That does not mean a you cannot use a private solicitor funded by Legal Aid.

The real issues are whether you can find a solicitor who will provide representation under a legal aid grant (they are becoming scarce) and whether you meet Legal Aid's means and merit tests.

Representing yourself is not as onerous as it first seems. Time consuming maybe, but the courts are well versed in assessing people who represent themselves whether by choice or for financial reasons. This site also has some very good resources.

For me - Shared Parenting is a Reality - Maybe it can be for you too!
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