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Problem with ex & her de facto.

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Unsure whether I can withold children from access interstate until Police investigation completed.

I know this is quite a lengthy post, but I have written a brief overview of my situation.

 In January 2009, my (then) wife took our 2 sons, now aged 4 & 12, from Central Victoria to Adelaide without my knowledge, or the Courts permission.
 Subsequently, a Recovery Order was issued by the Federal Magistrates Court and both children were located, and returned to me, at the end of March 2009.
 Since then there has been a custody case, which I won. The ex was proven to have told many lies on her affidavits, and to the Family Report writer. The Federal Magistrate mentioned that she was a very unreliable witness in her reasons for her decision.
 The ex then lodged an appeal, as the Federal Magistrate had ordered her to move back to within 40kms of our older sons School. She won the appeal.
 I then won the second custody case as well.

 The children have NEVER missed an access visit. I have to take them over to SA, and collect them, on all school holidays. The ex has 2 weeks access with the 4 yo every school term until he begins Primary School next year. She must collect him & return him to Victoria on these visits. She can also have both boys for 2 weekends each term, but she has never taken up this option.
 She also has unlimited phone & Skype access. She phones once a week, with most calls lasting between 4 and 15 minutes each.
Since mid-2010, my 12 yo son has been complaining that his Mothers de-facto has been taking him on drives while drinking cans of Bourbon at the same time. I mentioned it to his Mother, but she likened it to drinking coffee and said there was nothing wrong with drinking while driving because he would not over the limit. 3 cans during a 20 km trip would certainly place me over the limit.
 The complaints have continued and it was mentioned during a phone mediation session 3 weeks ago. The Mother had the same attitude, but the mediator got of her neutral stance and told the Mother that even having one sip of alcohol while driving was not acceptable.
 She said she would tell her de-facto not to do it, but was in tears when she promised to do it.
2 weeks ago my 4 yo son returned home from his 2 week mid-term access with his Mother in South Australia. While drying him after his shower, I noticed a dark bruise between his buttock & hip. I asked him how it happened, and he told me that my exs de-facto boyfriend pulled his pants down and smacked him with a wooden spoon.

 I called a friend who is a member of Victoria police, who said to get a doctor to look at it, take lots of photos over a few days, and to contact the Mother to find out what she knew about it. He said if the explanation was not satisfactory, I should report it to the authorities & Police SOCA Unit.
 I emailed the Mother, and she denied there being any bruise, and then accused me of trying to attack her so she doesnt get to see the boys.
 I then told her about the accusation, and she said her boyfriend would never touch a child and, once again, accused me of causing trouble.
 On the following night, my 12 yo son also saw the bruise and asked how it happened. He got the same answer. He also told the 12 yo that the de facto touched him on his penis. That has been the only mention of that.

 Since then, there has been a doctors report made, I have made reports to both DHS & SA Child Abuse, and both my son, and I have given statements to the Victoria Police. The detective was not hopeful of getting enough from my son due to his age, but during the video statement (I was watching from another room) he made the same accusation about the same person. The detective said that he passed the criteria for the statement, and that she was convinced that the accused had hit him.

 However, due to the alleged assault happening in South Australia, the statements & evidence have been sent to the SA Police.
 I have heard from them, and they will be looking through the information tomorrow, and they will be interviewing the de facto within the next 2-3 weeks. He obviously lives with my ex, and they have a new baby, 2 months old.

 My problem is regarding upcoming access this school holidays. Do I take them over, or do I err on the side of caution by stopping access until the investigation, and possible court case, have ended?

 The Mothers attitude towards these issues has left a lot to be desired, and I do not believe she is taking them seriously at all. I hold great fears for their safety while they are over there at the moment. Also, it is quite possible that the alleged assault was in retaliation for being told not to drink & drive.

 My 12 yo hates both his Mother (she told him the break-up was his fault) and her de-facto. I dont want him to hate his Mother and he is seeing a counsellor to help him.
 The 4 yo loves his Mother but is scared of her de-facto.
 I dont want the boys to miss seeing their Mother, but I do not want them over there while there is a Police investigation happening, or while there is a chance that either of them may get harmed again, or even worse. And that scenario is quite possible while drinking bourbon while driving through the Adelaide Hills at night. And it would not take a lot to seriously injure a 4 yo. Especially since the de-facto is about 510, and very obese.

 I know that if I do not take them over, the ex will take me to Court for breaking the Order, but surely a Magistrate would see that keeping them away during the investigation would be in the best interests of the children. Then again

 The solicitor I used during the custody cases said that I would need something in writing from the Police stating that there is some substance in the accusation. I have asked the police whether I could get such a letter, but have been told that they cannot supply that, but would be willing to talk to my solicitor. However, because I used Legal Aid, and dont have funding happening at the moment, my ex-solicitor will not do that.

 I really would appreciate some advice on this matter, as I have less than a week before I decide. I am 95% certain that I will not be taking them on access. What could happen to me if I dont take them? Could I lose custody of the children?
This is a very difficult case and I am please to see coming through it that you are supportive of the children having a good relationship with the mother.

It seems to me that you are aware of the options you have and that it really does come down to what you think is going to be best for the children.

As you have said the Vic Police can not provide anything to you, as they are only the collectors of evidence in this case. If the SA Police have concerns this is a different matter and they can support or recommend some kind of action pursuant to family violence legislation, as can DHS(but good luck with them).

As with all Family Law matters you must be seen to be doing what is best for the children and any action you take will need to be justified (an objective test will apply, not subjective).
So you are the only one who can decide your actions, having full knowledge of all issues and events. If it can be justified then a court would be unlikely to take any punitive action.

"When there is no enemy within, the enemies outside can not hurt you"

Executive of SRL-Resources
Hi

I am currently in court with my ex because of a contravention and I am self represented so I have learnt a fair bit about contraventions.

If you do not send your children then you will be in breach of orders.  Your ex wife will then have to file a contravention application if she wants to do something about it. She will be given a date for court and at that first date you may well be asked to attend mediation to try and sort it out.  Once you have done that you will get further court dates.  My contravention is complicated because my ex is also seeking to amend our orders.

When (if) it gets to court you have to either plead guilty to the contravention or not.  If you plead guilty you are able to present your case that you had a reasonable excuse.  One of the allowed reasonable excuses is if you believe the safety of the children is at risk (dont remember exact wording).  Of course in this case this is exactly why you arent sending them.  So in my opinion you have a very strong case. By starting a court case, if your ex does, you are bringing all of this to court and it will be looked at.

So in my  opinion it is exactly the right thing to do not to send the kids. Then your ex will ahve to decide if she is going to pursue it.  It will cost her legal fees or she will have to self represent.  There is a lot of information on contravention applications and cases that you can read on the internet.  Get informed so you can be prepared for what might eventuate.

Good luck

God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.
I appreciate the advice I have been given so much.
I have got an appointment with a different solicitor and have made an appointment with them for tomorrow morning. We are looking at trying to get an urgent listing so we can attempt to get a temporary stop on access visits until the investigation, and any legal consequences, have been completed.
Then depending whether the de facto is charged and convicted or not, there may have to be some drastic changes with regards to access details.
I will post any progress that is made on this thread.
I would still appreciate the call if possible, thanks Krystal.
I don't think you should send them for access. File w the federal mag ct for a variation of access orders that state the mother must be present during the drinking and travel period u mentioned, and that the mother and no other shall discipline the children if they must be disciplined, during all access visits. You see, the vic police were interested enough to have a closer look. however the situation is differentin sth aust. The personell there are low quality-guaranteed. Docs might take the kids and refuse to return them as they have done to others-they also tell people that the family court has no juris over docs in sth aust. In sth aust recently, police claim they don't get involved in child welfare and leave it all to docs.  Don't place your sons safety in their hands.

If I was u, don't send them.If the mother cares that much, she will get on a plane and travel over and visit w u at your place.

Last edit: by Patronus

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