There is a saying that Court action is the most expensive form of therapy.
I would simply let it go, focus on the future not the past and hope that when the boys come looking for you, you will be a happy person for them to meet. There is nothing you can achieve in the court, it wont give vindication, or sympathy or retribution. What you say is simply the day to day situations they face.
Another useful quote I like is this, that the best revenge is a happy life. If you live yourlife looking forward, being happy and having friends it will drive the other person mad. She needs your attention, she needs your focus on her but simply deny it. Refuse to communicate with ehr, dont answer SMS's or letters no moatter ho wrong or abusive she gets. if she wont let it go, seek legal action regarding harassment by her against you. That is a more likely outcome
But good luck mate with whatever you choose to do.
Best Interests of the Child, Effect of Contact on Mother:
there was a dummy spit with the Single Expert suddenly discovering a new personality disorder to prevent contact for 7 years. This personality disorder had not been discovered in his previous tests nor any expert test since.
'Personality Disorders' are not considered a 'mental illness' and 'Personality Disorders' don't just 'appear' or 'disappear' overnight. Who had the 'personality disorder'? The child or the mother?
Sorry for no response to this, for some reasons I am not getting notices when responses. The expert said that I had the personality disorder and this mean that I should not see the children until they were 14. His previous test and others completed failed to find any trace of this nor did the Psychetrist I was seeing find any evidence of this condiiton, however he insists it exists.
Just remember that if your offer of settlement (property) is rejected by the other party and then goes to court and the settlement is very similiar or the same as what you offered initially you can claim for costs, costs for an SRL is minimal but can still be claimed. This is a two edged sword, the other party can claim the same.
It is always prudent to consider what the other party is offering because if it is rejected and then the court comes up with the same or similiar as what was offered prior to going to court it can come back to bite people for waisting the courts and both parties time and resources.
Food for thought
So the lesson is, "Do unto others as you would have them do unto you but do it first"
First thing is that if you can do it amicably between yourself please do so. I have seen cases where he gets his lawyer, she gets hers and his lawyer gets half the house and her lawyer gets the other house. Look for mediation services if you can. It is far easier and cheaper to sit down and work out a deal together than use lawyers whose fees chew up what extra additional benefit you may have gotten. It is better that the money the two parents earned and worked for (and often went without for) is spent on the kids or themselves rather than the lawyers new car or girlfriend. (apologies to lawyers, I am being tongue in cheek).
Property settlements in my experience are tricky. I am not up to date on the arrangements with shared care but here where the mother had the children, it would be typically 70% to the mother and then there would be a percentage added for spousal maintenance. If the other party lived interstate or country and could not provide assistance to the primary care provider typically the mother or was unemployed and not likely to contribute to the care of the children, it could be 90% or greater.
Each case is different and there are so many influences. How long have they been married and what did they bring in, did the mother stop working to look after the children, what is their future earning capacities, is spousal maintenance a possibility. If you do get 50/50 care and all other things being equal, then you may have a chance at 50/50 but do expect that as a male things often work against you even if she is a employed at twice your salary. I applied for spousal maintenance against my wife when we separated and I was not capable of working and was told that I couldn't because it was intended as a mechanism to address the imbalance that occurs in women generally not doing as well finacially after marriage separation as men.
With respect to legal resources, the above have some excellent advice. I used Legal Aid lawyers who charge a set rate for a set time period or community legal services/citizens advice bureau which offer a discounted rate for their own lawyer or the services of a volunteer lawyer after hours. You will need to prepare your papers yourself however they will help with the layout and draft. The court is also very helpful with procedural advice, be very clear on the difference. They can tell you how to do things or what actions are available but the ultimate decision is yours.
Also there are a few groups around that will help with the emotional support, they are very useful and often have dint this before. One trap to also be careful of is to be aware of what actually is and what should in an ideal world be there. it is sometimes easy to get confused.
I agree with the earlier posts that you need a lawyer even the legal aid lawyer available on the day and you must show contrition.
Have references from friends, employees, and people who know nyou especially if you do any volunteer work or have people who do. Things to show that you have been a good memeber of the community and there is little chance of you reoffending. One from your husband would help. Make sure your lawyer highlights your past unnblemished past and the effect this will have on the furture and that it would be unfortuantely if your future was blighted by one silly mistake. The system is supposed to be about rehabilitation not retribution and it is better for the court to take an action that will produce a model contributing citizen than one who is unemployable and hostile. Also take the advice about getting councelling or some action for the abuse. You may have a chance with this occasion but if a second occurs it will be far worse.
Clarification of terms used with respect to an Appeal
Greetings Peoples and thanks for the excellent reference to cases with respect to appealing a decision of a judge. I have read it and I am still trying to get my head around a lot of it. Can yon help me with some clarification
As I understand it m an appeal of a Judges decision can really only be on two grounds
a) That the discretion applied was incorrect, unjust or unfair or that is clearly? wrong
b) That the judge made an error in law
Can I ask for some clarification for this using as a hypothetical example, say that a report was issued or a comment was made by a creditable expert that raised some concern for the child of harm occuring to that child
a) If the judge made note of this concern and chose to ignore it, that an exercise of the judges discretion.
b) If the judge did not make note or discussion of it in the reasons for Judgement, this is could be argued as an error in law because the judge is required to act in the best interests of the child etc
Is this correct?
I also understand that simply because another court would have made a different finding cannot be the grounds for an appeal against a judges discretion. However there must be a limitation on how far a Judge can go away from what is normal practice to obtain a finding, there must be some limitation upon the power of a Judge to apply that discretion otherwise we have effectively a tyranny within the court room in which the judge can do whatever they will under the guise of discretion regardless of the scope. (eg use the legal fiction of a family court case and then deal with matters that aren't normally the scope of the family court). If for example, there are 5 cases of dealing with similar matters produced showing these judges all used a similar approach to resolution of the mater and made their respective findings and that the procedure used was that laid out in the Practice Directions, could it be argued that the judge is obliged to follow custom and that to go drastically outside this custom (ie for example not having an application in front of the court or not using a Family Consultant) is an incorrect use of discretion. i.e not challenging that the courts would have made a different finding but that the courts followed the same procedure to reach their particular decisions (regardless of whether the results were similar or note and also with the implication the the procedures used had been determined to be Best Practice of the Best Interests of the Child). Would this also need to have the proviso to it that the use of this discretion result in a lack of justice and fairness to one of the parties of the proceedings as well
Hello I have been in that situation and I did write a response to you but it got chewed up by the machine.
In summary these cases are the hardest to deal with as it is where the theory and practise of what is known scientifically about what is in the best interests of children run aground on the rock of superstition and the idolisation of motherhood. When two parties have been married for a number of years and then separate then it is easy for the court to say the father should have contact. When the parties have not been married and its a new born child, it is harder for the court when a mother says she doesn't want that man to be near her baby and to effectively as it was described to me "rip the baby from the mothers arms". I had a mixture of Judges and magistrates, males were the most traditional, women were the least and more practical. I had a female magistrate make orders for there to be a hearing 2 weeks after the birth so orders could be made for me to see our child with that recommendation on file and the subsequent male magistrate refuse to make contact orders because he said it was too soon and most fathers don't see their children after birth because they work. (still trying to work that one out and delayed it 6 weeks
1) Try to work it out amicably, if you can sort the matter out yourselves far better and don't be afraid to use mediation services etc
2) Expect third party hostility, there is a belief amongst some of the feminist community that women should be allowed to have babies without male involvement (apart from the obvious male initial male participation) as a lifestyle choice and shouldn't be made to hand over their baby to a male.
3) Look after yourself and your son, get help and assistance. There are excellent parent groups out there especially for your son. Its a mixture of emotions at the best of times but stay away from radical groups or bitter groups. The system is unfair but it is the only game in town and there are both men and women working together to solve the problems. Be positive and the ones seeking a resolution and being fair and keep records of this.
4) Protect yourself and your son and especially avoid the "lets just the two of us have a private chat to discuss this" approach. The standard firing shot in this is a AVO/VRO application. If it comes, there is little you can do but at least you can avoid the flow on complications if the magistrate decides to play it safe and with a baby involved, the inclination is to play it very safe. Start keeping a diary for your self and get your son to do the same. Write down at the time the gist of any conversations
5) Start planning and prepare, Have your son attend a parenting course and work around the normal issues with respect to a child. Where is the baby going to sleep, what equipment do you have, frequency of contact (literature suggests for young children that short frequent contact is best), scheduling around breast feeding (it is acceptable for women to express milk to go back to work but the court will not order a woman to produce expressed milk for contact). If you go in there with a well though out plan that is positive and respectful and covers all foreseeable contingencies, you should achieve the best.
If the other party is refusing to cooperate or makes noises about leaving the state, it is possible to bring a matter in front of the family court before the child is born despite advice to the contrary or rather it has been done. I achieved this in my case when the mother threatened to leave the state and not put my name on the birth certificate. The law is remarkably bipolar as to whether a unborn child is actually a child or a person covered by the law. The court doesnt like this as if taken to the obvious conclusion it leaves open when the family court does actually start to have juristicition and what is in the best interests of the child when it is unborn (should the family court have the power to make an order that a pregnant mother doesnt drink or smoke for example). The orders I obtained were carefully restricted in scope, information regarding the progress of the pregnancy, to be informed as to when the child was born (ignored by the mother, found out 3 days later) etc. It at least gave me a head start on the normal lead time it takes to get contact ordered as I saw my beautiful daughter 6 weeks after birht and not 6 months if I had of filed the material immediately after her birth.
If you need this detail contact me and I don't know how or whether my case will translate over to your jurisdiction
I saw a previous post where a member gave some useful advice about that you can access the court file but that the cost of getting photocopies is expensive with the registry charging up to $1.00 per copy.
A useful loophole or hint I found was that you are allowed to scan the material with a scanner. I had a major catch up to do on the court file and so I bought a $50.00 multifunction printer and took it in and connected it to my laptop and scanned the material directly to the hard drive. I paid back the scanner that day. I have been back several times and now have a direct copy of the court file in my computer. When I get home I can print out the relevant documents on my home printer. I do get a few funny loops by the security people when I put the scanner through the x-ray but it is worth it for convenience
Interestingly I have been told I cannot use the multifunction printer to make direct copies (ie scan to print), apparently the rules are that you can only use the Registry photocopier for making copies. I was also told previous that apparently you are not allowed to use a film camera to take pictures of the court file. I guess technology progresses faster than the court can react.
I think Judges are like the rest of us, they just want problems to go away. God knows I wouldn't like to be sitting up there listening to two people slang away at each other, using the most expensive form of couples therapy there is. I believe fundamentally at the bottom of this is that the mechanism used is plainly wrong, its using a large hammer to break a small nut and that is the adversarial system. You take two people who perhaps can no longer have a marriage partnership but still have a parental relationship and you say to each of them, the amount of time you get with your children eventually depends upon how much time you have now and how bad you make the other person look. They hammer at each for a period of time and at the end, the lawyers walk away shaking each others hands and congratulating each on what a great contest they have had matching wits and the parents are left shattered and with no parenting relationsdhip left and of course no money. Either than or one party bails out on the way leaving the impression the system has worked but an unhealthy or non optimum family situation.
Recent changes have gone part of the way to removing this but at the end of the day, it still is an adversarial process and a body of complicated law. My personal fix would be to establish in the Act, a defacto set of contact arrangements so that people automatically fall into a cooperative arrangement on separation and by the time it reaches any further form of ajustment, there is a history and habit of cooperation. There is no sudden cessation of contact with one parent who has to go to court to get it started. If I speed, there is a fine set out in the Act and if I think there is something exceptional, then I can take it to court. Yes each case is different but experts can agree on one general set of arrangements that would suit the majority of people as a starting point. If someone wants something different to the contact arrangements, for example increasing parental involvement, they go to a tribunal of experts who conduct an inquisitional process with the presumption that up to shared parenting is a reasonable cause unless otherwise recommended. If some one wants the other party to have less contact it goes to the same tribunal however the benchmark for reducing contact is set far higher and must be more strictly justified. These hearing would be informal, no lawyer involvement except in cases of violence and abuse where a suitably trained support worker) would be present (not a lawyer). There are similar models operating with respect to state tribunals and appeal boards that work exceedingly well
One fundamental problem we have with the court is the problem of the child plural and the child singular. Do you work for the best interests of the individual child or that of children as a whole. I am rather ruthless with this to some extent. I see the court as trying to save each individual child from harm and as a result, they are being too conservative. They are saving the one child from possible harm while a a large group of children are suffering as a whole form loss of contact with their non resident parents and families and in some cases, actual harm is occurring is because the first thing an abusive or mentally ill residential parent does is isolate the child from the contact parent and thus the abuse continues in secret. Does the protection of one give right to the harm to the many?. I don't know but the harm to the one is more obvious and "sound byte" worthy to the news. As I say, I believe we have gone too far.
As for the statistics, I have heard quoted from a reputable source that I cant remember that in the wider community, abuse allegations occur with respect to 4% of families but in the Family Court it is 40%.
congratulations on what you have achieved. I remember the shock and shear sickness of having to go through and prove myself innocent, the disbelief and mental anguish of having been accused of those things and the frustration of the court process.
One thing I would advise to all is my experience with respect to making orders by consent. My opponent in the family court kept getting interim VRO's, failing to prosecute, after 6 months they would be dropped and then the next week she would be in making identical complaints and getting a fresh one to start the process all over. The local magistrate refused to act on this because the consequences of discouraging or preventing an order being made when one was needed was catastrophic. Sort of like the "cry wolf" scenario but the magistrate saying you cant ever stop checking because there may be a wolf there one day.
On the 4th application, the magistrate found there were no grounds for a VRO but obviously as sick as I was with the process asked me to accept a misconduct restraining order by consent to keep her happy and hopefully foster a cooperative approach. I was informed this meant there was no admission by me that there were any grounds for an order. I accepted eventually a "Mutual Misconduct restraining order by consent and without admission" which meant we were both restrained against the other and supposedly there was no legal implication
Unfortunately this was not the case and from this point on, she made constant reference in all her affidavits, communications and conversations to her having a restraining order against me. In the complex matters and large amount of paperwork, my rebuttal was often not seen or I did not have a change to see it. There is a saying that over time, a lie said often enough becomes a truth and it crept into reports and other material that she had a violence restraining order against me. The final straw was that in the reasons for judgement of the final hearing, the Judge made mention that she had the benefit of a VRO against me, something that was clearly incorrect. Since that time, I have been told that Judges don't make mistakes and if a reasons for judgement says there is one, then legally for all subsequent considerations one exists. For example, I applied to visit a relative child who was a state ward but was told that I couldn't because of the VRO. I could point out one didn't exist but simply because of the Judgment, they had to act as if one did. The only counter I eventually got was a later judgement where the judger stated that no order existed but the fallout still continues.
So I would suggest, before consenting to anything no matter how tempting or seductively the magistrate or judge frames it, get legal advice and consider it strongly.