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Shared Custody - Mutually Agreement (no standing court order)

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Lets consider this scenarios:

- A parent have a shared custody arrangement of their 3-year old son which was based on mutual agreement but was not agreed in contract.
- This arrangement granted both parents 50/50 shared custody over the child and had been very effective and amicable resolution.
- Recently, the mother of the child decided to further her education to enable her to provide more effectively to the growing needs to the child and she had made her university commitments around the existing shared custody timeframe (I.e. she attends classes only on days when the child is with his father).
- Similarly, at the same time, the child's father has accepted an alternate employment appointment and this required him to work on the days he had originally agreed to have custody of the child.
- This resulted in the Child's father seeking for an amendment to the custody timetable, which will now conflicts with the mother's university commitments.
- Because the child's mother has prearrangement her education commitments around the existing custody timetable, agreeing to the proposal by the child's father would conflict with her commitments.
- It is on this basis, that conflict in the arrangement had surfaced and the father of the child now wants full custody because he is not willing to work out the arrangement with the child's mother.

Can anyone please provide some information on:

1. Advice for such situations (I.e. whether it is within reason for the child's father to seek sole custody based on the described circumstances and whether the child's father is within reason to 'breach' the agreed timetable?)
2. Mediators/councillors that could assist/facilitate a joint discussion in a neutral environment towards an amicable resolution (i.e. council both parent towards a solution that can maintain 50/50 custody while enabling both parents to pursue their commitments)

Appreciate any feedback.
Mr Justice

A few things that stick out to me. 

1. You say the father accepted alternate employment that necessitated changing the current arrangement and swapping days.  In my opinion this is the crux of the problem.  The father should  not have accepted this employment until he had negotiated/discussed the possible future change with the mother and got her agreement.  If someone wishes to change current arrangements, whether there are orders are not, it is their responsibility to discuss those changes and get agreement before doing something as drastic as accepting a new job (and presumably resigning from the old one).

2. If the father is now going for full custody, he would have to make arrangements for care of the child on the days he will now be working anyway. Why can he not make the same arrangements for his change of days.  It is not the mother's problem if he has changed his working days and not sought her agreement.  If orders were in place the father would have had to get agreement or go back to court.  Having the child minded on the days the father now works is not an ideal solution but at least it allows both the mother and father to continue with the arrangements they have both made.

3.  What does the father mean by 'full custody'.  Is he saying that the mother is not to spend time with the child at all?

It seems that this family had amicably and civilly worked out a 50/50 arrangement and it is the father's change of arrangements that have brought the conflict.  Presumably the conflict now means the previous amicable relationship has ended and talking this out and trying to come to a compromise or be flexible is no longer an option without help from mediators.

If discussion and compromise won't work, either the mother or father can apply for mediation and in fact need to before starting court proceedings anyway (I am not sure in regards to urgent applications though).  Mediation will also be offered as part of the court proceedings.  What are the parents going to do in the meantime?  Alternatively an urgent application for interim orders would need to be made so that there is some decision and arrangements made for the child because presumably when the father starts his new job and the mother starts uni then neither can look after the son.  I would say that until something is agreed or the courts make an interim decision the father will have to make arrangements for someone to care for the son on the days he would normally have looked after him.

A messy situation that unfortunately seems to have soured a previously satisfactory working arrangement.

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 don't think it's reasonable to go for sole custody just because you can't negotiate with other parent. I don't believe it would be in the best interests of the child if they are going well in current situation. Both parties need to negotiate a timetable that is the least disruptive to the child and I believe that if father does breach, then mother could get a recovery order despite not having orders
larissap said
Mr Justice

A few things that stick out to me. 

1. You say the father accepted alternate employment that necessitated changing the current arrangement and swapping days.  In my opinion this is the crux of the problem.  The father should  not have accepted this employment until he had negotiated/discussed the possible future change with the mother and got her agreement.  If someone wishes to change current arrangements, whether there are orders are not, it is their responsibility to discuss those changes and get agreement before doing something as drastic as accepting a new job (and presumably resigning from the old one).
Up to a point I agree, but I can't see how someone's part-time study is more important than someone else's career. Apparently the mother and the father both made arrangements at the same time. On the whole, study is a lot more flexible than work, with alternative units available and most lecturers are sympathetic to the issues that arise due to parenting. I'm also not sure you've considered the implications of demanding that separated parents must discuss career choices with each other. We haven't been told what the motivation for the change might be and whether Mum may have stopped working when she decided to attend uni, raising the child support payable by dad. If so, should she also have discussed this choice with himbefore doing so?

larissap said
2. If the father is now going for full custody, he would have to make arrangements for care of the child on the days he will now be working anyway. Why can he not make the same arrangements for his change of days.  It is not the mother's problem if he has changed his working days and not sought her agreement.  If orders were in place the father would have had to get agreement or go back to court.  Having the child minded on the days the father now works is not an ideal solution but at least it allows both the mother and father to continue with the arrangements they have both made.
Presumably this would mean he doesn't get to spend time with the child at all. How is this in his or the child's interest? Further,why must he be the one to make that choice? Why not mum doing so?

larissap said
It seems that this family had amicably and civilly worked out a 50/50 arrangement and it is the father's change of arrangements that have brought the conflict.
No,they've both changed their arrangements.She has chosen to undertake study and he has taken on a new job. 

Did he know about her decision to attend uni (and possibly leave work)? Did she know about his intent to look for a new career opportunity (and possibly make more money)? There is a lot not being said, I feel. I do agree that seeking full custody is simply not tenable and what needs to happen is for both of them to discuss things sensibly and come to a reasonable agreement.
As I see it, the mother made arrangements around the already in place agreement. The father did not. Now lets take gender out of it. Parent F should have spoken to Parent M and discussed suitable arrangements. This did not happen and therfore we have the now problem. What ever Parent M and F are doing is irrelevant. It is the assumption of one parent that the other will change that has soured this situation.
OP - I am so sorry that this situation ahs occured. I do hope that it can be resolved quickly and amicably.

"When we long for life without difficulties, remind us that oaks grow strong in contrary winds and diamonds are made under pressure"
 The OP states Similarly, at the same time, the child's father has accepted an alternate employment appointment. How do we know if he had much choice in changing jobs? We don't, people just seem to be jumping to conclusions.

For what ever reason, sounds like at the same time, both parents made new arrangements to improve their own lives. Perhaps, instead of laying blame, it would be best to encourage them to re-negotiate to see if there is any way that each parties new circumstances can accommodate a new arrangement that suites and is fair to both of them.

I don't see why either would need sole custody, perhaps 50/50 won't work any longer but maybe something like 40/60. Maybe the one studying could have less eg 40% during the week, but make up and extra 10% of time in the holidays, as uni's have way more holidays and flexibility then the average job. Maybe it could work the other way around, hard to guess with out knowing both parties schedules.

As they share care, so must live near each other, is it possible the child attend day care, say, two days a week to help each partie reach their new work/study goals? Perhaps the child could spend one day in child care when with the working parent & another day in day care while in the care of the studying parent? If the parent studying is getting government support, daycare is not much if they are studying. At 3 most children could benefit with a small amount of socialization with other kids. Does the uni have child care center, many do?

1. Advice for such situations (I.e. whether it is within reason for the child's father to seek sole custody based on the described circumstances and whether the child's father is within reason to 'breach' the agreed timetable?
I can't see why the father or the mother for that matter need sole custody, in fact there is really no such thing. The court would likley order some form of shared care, unless there is abuse (which by the sounds of it there is not).

2. Mediators/councillors that could assist/facilitate a joint discussion in a neutral environment towards an amicable resolution (i.e. council both parent towards a solution that can maintain 50/50 custody while enabling both parents to pursue their commitments)
Mediation would be a good way to negotiate new arrangements. Better to try and work out a solution for yourselves as a judge may not give either of you an arrangement that you will like.   
I would love to have seen the replies the OP would have got if it were the father who made arrangements according to the current regime and the mother who now wants to change them and is claiming full custody.  I can just imagine the sorts of responses it would have got. Rather different from those now I think.  I agree with Gecko, let's take gender and assumptions out of this and look at the actual situation as desribed.

Craigo said
 someone's part-time study is more important than someone else's career
Where has ANYONE said that part time study is more important than a career?  We are not discussing the merits and importance of study over career. We are discussing a person who has made arrangements according to the current share custody timetable as opposed to someone who has made arrangements outside of the current timetable and when it doesn't suit the other parent is claiming full custody.  In many other threads a lot of people complain that their ex can not get a job or does not want to work so if this person's part time study is to further their career surely this is a GOOD THING!  But that in fact is totally irrelevant.  What a person does in their own time when they don't have their child is not the other parent's business.

Craigo said
On the whole, study is a lot more flexible than work, with alternative units available and most lecturers are sympathetic to the issues that arise due to parenting. I'm also not sure you've considered the implications of demanding that separated parents must discuss career choices with each other. We haven't been told what the motivation for the change might be and whether Mum may have stopped working when she decided to attend uni, raising the child support payable by dad. If so, should she also have discussed this choice with himbefore doing so?
 
Assumption after assumption with no idea what actually happened and is irrelevant.  Cleary whatever has gone on before there is now conflict and disagreement and the problem is that one person has made arrangements (whether voluntarily or with no choice) that affect the shared care regime and is threatening to take the child away from the other parent in the form of 'full custody'.

As others have posted there are a number of possible solutions to this problem but they require negotiation, compromise and flexibility.  It would be a shame if a good arrangement has fallen through because one or both parents will not negotiate or compromise.  But it boils down to one parent did in good faith make arrangements that would not affect the shared care regime and the other is wanting to change the regime because they either voluntarily or were forced to change work pattern.  It is clear that if orders were in place it would be the parent wishing or needing to change the current regime that would need to get the other parents agreement, make alternative arrangements or go to court to change the orders. It is just in this case there are no orders in place.  A knee jerk reaction of claiming full custody will not help the situation at all.

Mediation seems to be the first step and there are a number of ways to go about it.  The only problem is free mediation has a long waiting list and the OP and the other parent obviously need to sort something out in the interim.

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.
mrjustice said
Lets consider this scenarios:

- A parent have a shared custody arrangement of their 3-year old son which was based on mutual agreement but was not agreed in contract.
- This arrangement granted both parents 50/50 shared custody over the child and had been very effective and amicable resolution.
- Recently, the mother of the child decided to further her education to enable her to provide more effectively to the growing needs to the child and she had made her university commitments around the existing shared custody timeframe (I.e. she attends classes only on days when the child is with his father)………..Appreciate any feedback.
Feedback - YES - stop using the word custody unless you are a Police officer or Prison Officer and have the children in a lock up. The Australian Family Courts have not used it for 10 years, which means you are living in the dark ages or cannot be bothered to understand what is happening in 2012.
The only 'contract' arrangement about children you can make is via a set of FCoA or FMC Court stamped Consent orders. Parenting plans are informal agreements.
Yes get mediation and be prepared to be more reasonable than father wanting sole parental responsibility as if they go to court he will lose!!
Both parents must be able to work through these issues rationally.

Contact can be afforded to both and University has full day care and the father should be able to work out day care near work OR both parents have the child in a day care near their respective residences or work with other family that can be called on to assist arrangements.  There are probably days when either can manage the child so the other has flexibility. These sorts of issues are every day events that happen and are not hard issues to resolve where everyone wants to accommodate the child's best interests. It is clear that the parents are not communicating the major work related issues and they need to do so. Surely there must have been some indication that the father was seeking a new job or that the mother was seeking a University education.Parental Responsibility mandates you work out the big issues. Although not specifically prescribed as one of the issues under the presumption, it is certainly something that must be worked out through mediation and an open mind.

There are many ways this could be resolved and all credit to mum here for going that extra mile to get a better qualification so she can better enter the workforce and create a better life for her and obviously the child. EVEN THOUGH certain arrangements had been agreed I believe this sort of activity comes up from time to time that cannot be foreseen and needs flexibility. Sure it is non compliance of a previously agreed plan and should have been discussed previously. Where to now though?

Free FRC based mediation will take too long so private mediation may be the best answer. It should be investigated.

The father will not get 100 % of the time so forget it … Work it out. Intact families do so why can't separated families.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Thanks all for your feedback and responses. It is very refreshing, certainly to hear both sides of a story.

Certainly it is not a question of whether studies is more important than career. I feel that the principle is around making adjustments according to the already agreed timetable.

Lets analyse this a little further:
1. Is there any legal standing for the father (in this instance) to seek sole parental rights? (I.e. would the family court grant such request given that the alternate career opportunity is technically the cause of this conflict?)
2. Is there any legal mechanism that can protect the mother's interest or does the law view career of a higher importance than studies (since it can 'provide' for the child's needs)
3. Is there any organizations in Australia that offer counselling services to aid in resolving such conflict?

mrjustice said
Thanks all for your feedback and responses. It is very refreshing, certainly to hear both sides of a story.

Certainly it is not a question of whether studies is more important than career. I feel that the principle is around making adjustments according to the already agreed timetable.

Lets analyse this a little further:
1. Is there any legal standing for the father (in this instance) to seek sole parental rights? (I.e. would the family court grant such request given that the alternate career opportunity is technically the cause of this conflict?)
2. Is there any legal mechanism that can protect the mother's interest or does the law view career of a higher importance than studies (since it can 'provide' for the child's needs)
3. Is there any organizations in Australia that offer counselling services to aid in resolving such conflict?


 
No,Dad won't get sole care.
I don't know enough to answer your second question, but I suspect that the only implication would be if she has left work to study, in which case the CSA might be interested. Perhaps one of the legal practitioners might have a view.
Mediation is provided by Relationships Australia among others. I've found them to be helpful.

I'd also say that flexibility is the key. Entrenching positions through legal action will only lead to problems.

Best of luck.
mrjustice said
2. Is there any legal mechanism that can protect the mother's interest or does the law view career of a higher importance than studies (since it can 'provide' for the child's needs)
The Courts in Australia protect the children's interests not the parents. What are you exactly asking?
Mr Justice

Can you be a bit clearer about what you are asking.

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas. 
As a parent you have no parental rights. Only the children have the rights to have a relationship with both parents. As you have not been the major carer of the children your chances of becoming a major carer are NIL. The only way you would achieve this is if the mother was to become unfit to care for the children. Even if this became the situation another significant person (for example mother's mother) in the lives of the children could get major care over the father under certain circumstances.

The court will protect the mother's interest such as maintaining her eligibility for sole parent benefits so she can maintain herself and her child - she will need 51% care to do so. She will need 66% care to get 100% of family benefits. The court will also consider the increased future earning capacity she will have after completing her studies. What you do has little importance to the court.

Others have mentioned Family Relationship Centre. You could also try Googling for family law mediators as well.
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