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Need help with Equal shared parental responsibility case

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Hi,

I'll try to keep this as short as possible but believe you need to know a bit of history about the situation to give us any kind of answer that may be helpful:
Husband (is the Father): 2 children aged 7 and 9 to ex partner (currently living with mother and we have fortnightly week-end time spent)
Me (am the step-mother): 3 children aged 10, 18 and 19 to ex husband (Oldest child lives outside the home -previously lived week about, 18yo lives with me - previously lived week about, 10 yo lives week about between father and I)

2006: Children's mother advised the father that she had to change the oldest child's school (oldest was then 5yo and was in pre-school).  She called to say she would be changing school and advised him of one of her choices in the local area & he assumed she would contact him to discuss prior to moving the child into a new school (we all lived approx 15 mins from each other at that stage), however the next he heard was from the 5yo almost 2 weeks later that she had already changed schools and was attending a school more than 40 mins from our home in the opposite direction.  The mother lived approx 25 mins from that school herself and there were several good schools between her house and the school she chose.  Confusing to say the least.

2007:  The children who knew that all of my children (at that time) lived in shared care between their father and I, asked why they couldn't live with us that way.  We left it for several ftnly week-ends before asking the mother but after the children asking time and again, we decided it would be in the children's best interest so we broached the subject with the mother (who was still living only 15 mins from our house) asking if she would take the oldest child out of the current school and enrol her at either a school closer or the school my children attended, either choice would allow us to have weekly shared care.  She refused without any further discussion saying that 'the children are too young and it would be too disruptive'.  Over the next 12 months we asked again on several occasions hoping to change her mind before the youngest child was due to be enrolled in school.  She continually refused.

2008:  The mother moved house relocating locally to the child's school in late 2008 only months prior to the youngest child starting pre-school, and thereby quashing any hopes of changing her mind re a week about living arrangement for the children.  Despite the response we knew were coming, we asked on several more occasions for shared care which she refused saying the children 'didn't want to live week about'.  We also wrote up a parenting plan which she refused, attended a mediation which she requested and then refused to go ahead with, and my husband organised his own mediation which she refused to attend.

2009:  After the mother denied again our time spent with the children for more than 8 weeks this time following an argument between her and the children's father when he put his foot down about something affecting the youngest child's health and well-being, we started proceedings to formalise fortnightly time spent with his children. I am applicant 2 in the proceedings as I needed to do something to stop her denigration and alienation of my time spent with the children.

Over the past several years, there have been many arguments about the mother showing the children texts between the parents and about denigrating the father and myself to the children.  She has made it very obvious that she is jealous of the children's father moving on and has told both myself and the father that there is 'nothing on paper' so she can do as she likes.

2010:  The court ordered all parties and the children to meet with a family consultant so that the family consultant could give testimony and this is where it became interesting and worrying:
The family consultant gave witness in court advising that the children had been subject to witnessing arguments and violence in their mothers home and that their mother was putting them under emotional stress expecting emotional support from them and also was involving them in adult conversations and situations.  She suggested that the mother attend some counselling to understand that she no longer had the relationship with my husband that she wanted and the family consultant also confirmed that the children had told her that they wanted to live week about with with both parties.

The court ordered that all parties attend mediation to try and agree upon the 'smaller' issues.
It was at this time, that my husband and I decided it was time to push for equal shared parental responsibility with week about living arrangements.  We spoke in depth gently to the children to ensure they understood that in order to live a week about, they would have to change schools.  The children both said that this is what they wanted if it meant they could live a week about (also saying it would be 'cool' to go to the same school as their step-brother).  We assured them that we wouldn't be angry if they didn't want to do that and they didn't need to worry about us being upset about it because we wouldn't be.  They still said they wanted to change schools and live week about.
We wrote formally to the mothers legal representation, advising of our request for week about care, and asking to advise his client that this is something that would be discussed at the court ordered mediation.  We got to mediation and the mother would not agree to our request for shared care and nothing was accomplished.
We then filed an amended application agreeing to all of the smaller matters the mother had requested, but stating our request that the children live week about between both parties.

This was discussed at court, the mother refused to budge, and the judge stated that we would have to do a lot of talking to make him believe changing the childrens school was in their best interests.  He did however indicate that he would accept week about if we could get the children to and from the current school they attend.  We knew this would  not be possible and requested a court ordered family report which was accepted.

We are hoping that this will help our case, but are concerned that the children's ages will take what they say they want, out of the equation.  If there is anyone that knows how we can help our case, it would be greatly appreciated as we are self-representing and have exhausted our legal knowledge… we are concerned that we may not be able to get equal shared care as we cannot facilitate this if the children stay at their current school.

Thanks in advance for your help..
In the cases that I have read or seen, if you can show that your family can provide greater emotional support than the ex to the children, then you might get somewhere. You would need to focus on the relationships between yours and his children.

The issue of schooling or changing schools is not really an issue. The court only has to assess that each parent is responsible enough to provide an adequate education for their children.

The court also has to decide on a care arrangement that is most practical to all parties and the party that is deemed to provide the best family or parenting environment will probably win.
You have an advantage if your family is bigger.
In saying this the court has already mentioned to you that if you were to support the current school then a more favourable decision would result.

Regardless of the above, if the ex has re-partnered and is also a step-mother or having more children then your chances of success would be greatly reduced. Also if the mother is on parenting payment and not working your chances of success are also reduced.

This is not a very nice situation to be in but if you want to have a chance of winning you will have to continue to find faults with the mother's ability to parent through her lack of ability to provide emotional support to her children. From what you have written it looks like you are on the right track.
Thanks for the input Fairgo.  Our biggest concern is changing the children's school as that is what the judge focused on as a negative point in our request for equal shared care.  The family consultant that gave witness was the person that mentioned that the mother has an inappropriate idea of her relationship with the father, and that she is looking to the children to offer her emotional support and is not being the parent who offers the children emotional support.  She was very favourable in her testimony regarding the father and I though, stating that the children don't see arguing or violence in our home and that we are very supportive of the children.  The mother had re-partnered and did have a child out of wedlock with the man however they separated prior to the court hearing and this relationship was the reason the children saw arguing and violence in their mothers home.  The points we are trying to make is that the mother is not a good parental role as a sole parent at present, and that the school the children attend does not provide the best education for the children, and that the children will have to change schools when they reach high school anyway. The school we have chosen has better educational and extra curricular studies, and is a school that teaches pre-school to year 12, so the children would not have to change schools again, and the half brother who is not at school yet could also attend the same school which means all of the children including step, would be attending the same school if the mother agreed.  I am hoping someone could give some legal advice on what else we can use in support of our case.  Does anyone know if we can get the first family consultant as a witness to our case? whether we subpoena her or how we go about doing this?  Thank you
The points that I have made - care arrangements must be practical, ability of parents to provide adequate education (not which is the better school etc…) and who can provide greater emotional support, come directly from the legislation.

If the mother is caring for another young child then I can't see the court taking majority care of the older two away from her as she will suffer losses in family benefits and will struggle financially. The behaviour from her you describe is not always given much weight. This is why we have a generation of children who believe they do not need to respect authority and think they can do what they like. Sorry to be so negative but I think your best bet is to move closer to get 50/50 care.
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