Affidavit of Mother Seeking Less Ambitious Interim Order Than Father
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Affidavit of mother seeking less ambitious interim order than father
Introduction
1. I am the [Applicant/Respondent] seeking interim parenting orders in relation to the [c hild/children] of my [marriage/unmarried relationship] with [insert full name of other p arty] (“[short name]”) (in this sample affidavit referred to as “X”).
2. We [were married/began living together] at [place] on [date].
3. Our [child is/children are]:
(a) [full name of child] (“[insert first name]”) born [date]. [He/She] is [insert] years of age.
(b) [full name of child] (“[insert first name]”) born [date]. [He/She] is [insert] years of age.
Note – in this sample referred to as “Y” and “Z”.
4. X and I separated on [date].
5. Since separation, the [child has/children have] continued to live with me in our home and by an arrangement between X and me spend/s [specify in detail the extent of time the child/children have spent with X since separation].
6. I work as a [occupation], employed [full-time/part-time/casually] at [employer's name] on [insert work hours and any scope for flexibility] [OR] I am unemployed [specifying any prospect of work in foreseeable future].
7. X works as a [occupation], employed [full-time/part-time/casually] at [employer's name].
8. The [child/children] are [in good health/poor health - give details].
9. The [child/children] have been attending the following [day care centre(s)/ school(s)] during these hours [specify and state which parent delivers & collects, including after school activities].
10. During our marriage/relationship, my role was that of full-time mother and X’s that of [ full-time/part-time] bread winner. X did support us/was away from the home out of his working hours, and I cared for the [child/children] every day, with only occasional help from X due to his working hours away from the home.
11. Since their birth, I was a daily part of our [child's life/children's lives].
(a) Before our separation the time I spent with the children was virtually continuous [summarise the average day’s duties from morning to night] and X’s involvement was limited to [specify]. (b) X and I did make most of the major decisions about [[OR] X did not help me with the major decisions about] [our child's/the children's] welfare such as making and keeping appointments with the health clinic, doctor, hospital, dentist, vaccinations, school enrolment, enrolling in or attendance at after- school and sports activities.
[If mother is the respondent, the following section should come next. If not, omit this heading and its two paragraphs.]
My reply to X’s affidavit
12. I have read X’s affidavit filed on [date of filing]. Paragraphs [specify para numbers that are undisputed] of X’s affidavit are correct, except numbers [specify].
13. I dispute paragraph [specify para number]. I deny X’s allegation that I [specify]. [In separate paragraphs, give a SHORT reply to each disputed paragraph, stating your client’s own evidence on the matters raised. When doing so, try to get your client’s point across, so that you don’t find yourself in the position of simply being responsive to the initiative of the applicant.]
[Whether mother is applicant or respondent, use the next few headings to summarise your client’s case]
My concern to protect our child from further conflict [Omit this heading and its paragraphs if not applicable]
14. Our [marriage/relationship] was marked by X’s violence towards me and his neglect/abuse of our [child/children].
15. [If applicable] Annexed to this affidavit is a true copy of [an/a] [apprehended violence order/domestic violence order - specify] made against X in the [specify] Court on [dat e] after a contested hearing.
16. [Summarise any police or other action against X, giving the date, place and circumstances]
17. Since our separation, X’s behaviour has not really been much better. [Specify, in separate paragraphs, his violence, neglect, threats, intimidation, controlling behaviour – stating which were witnessed by the child/children – or child abuse since separation – giving dates, times, places, the circumstances.]
18. Not helped by his excessive drinking/incessant marihuana use, I have tried to get X to commit to having the children regularly instead of when the mood takes him, but this has led to continuous arguments whenever [specify circumstances of conflict].
19. [Describe any incidents of conflict during changeovers or other times since separation.]
20. [If applicable] The changeovers I propose would eliminate contact with X, and therefore any chance of conflict between us. OR I am worried about the risk to our [child/children] of further aggression by X, and would feel more comfortable if the protective orders and orders as to time with our [child/children]/[OR] supervised time I have sought are made. 21. [If seeking an order for the other party’s time with the child/children to be supervised at a contact centre, specify the Centre’s name and address and what time and other arrangements it is able to make available. If a private supervisor is being proposed, give the name of that person, and specify whether the person is a family counsellor or relative and they have given their consent.]
22. [Now explain in detail why your time-sharing proposal is likely to work best for the child/children. Start by setting out the child’s/children’s weekly routine; then explain in detail how your proposal for X spending time with them is the most workable; and how X’s proposal will interfere with their school week and impose too much strain on the child/children.]
Parental responsibility
[If alleging parental irresponsibility by X]
23. [Where you have previously written to X or his lawyer to complain about his behaviour] Annexed to this affidavit is a true copy of my lawyer’s letter to [X / X's la wyer] dated [date], and a true copy of [his/their] reply/[OR] to which there was no reply.
24. [If applicable] X failed/refused to attend family counselling with me, or compulsory family dispute resolution, before these proceedings were issued. [Specify any words of refusal used by X.]
25. [In separate paragraphs, set out evidence of X’s past failures – especially since separation – to fulfil parental responsibilities as set out in s 60CC(3)(c) and (ca), such as your client’s attempts to obtain his co-operation by discussing the children and arriving at joint decisions; and exactly how he has responded, specifying what he has done and said.]
26. I have applied for sole parental responsibility as there has been no sign of X being willing to co-operate with me regarding arrangements for our [child/children].
27. [Where the father does communicate, but ineffectively] X and I never sit down and talk calmly about our [child/children]. Issues arising from our break-up usually come to the surface and we end up with raised voices or X trying to dictate terms [give examples of this].
28. When I try to reason with him, X just gets louder. I have suggested we attend counselling so as to improve how we communicate, but he says he will not go.
[If seeking shared parental responsibility]
29. X and I do discuss our [child/children] and consult each other about arrangements, although we have had differences of opinion about things.
30. [Specify any problems with communication or co-operation regarding child arrangements.]
31. I agree to an order for equal shared parental responsibility. My concern that child’s time with father be reasonably practicable
32. I accept that X should be meaningfully involved in our [child's life / children's lives].
33. I am concerned about [his/her/their] already busy school week, and [if applicable] the young age of Z. [Specify, for each child, their daily school week routine including after-school and weekend activities; the times of each activity; the times and distance of car or other travel; and describe any evidence of the children being tired from what they are already doing.]
34. X’s proposal will mean adding the following arrangements to Y’s and Z’s current routine [specify].
35. The care arrangement I have sought [summarise it e.g. alternate weekends, X to collect from and return to school on the Friday and Monday; plus half the holidays] fits much more easily into [his/her/their] normal pattern without placing too many demands on [him/her/them], particularly as to excessive movement between our two homes [specify], interruption of the school week [specify], extra travel [specify distan ce X lives form school and your client's home] and [specify any other burdensome in convenience].
36. [Give examples of any trouble the child/children already has/have coping with their current routine.]
37. Z is just [specify] years of age and is only used to being in my care. X’s involvement with Z to date has been extremely limited. [He/She] has already been showing signs of not taking the separation well, by frequently disturbed sleep, bed wetting and, whenever I leave [him/her] at day care/my parents for a couple of hours, fretful behaviour such as holding on to me and not letting go.
38. Z has [not/rarely] stayed overnight with his father. When [he/she] has, X has often rung me to say he is unable to stop [him/her] crying [specify any problems with overnight or any other time with Father]
39. Y and Z have always done things together around my home, and are used to each other’s company. My concern is that were Y to spend time with [his/her] father but not Z (due to [his/her] age), neither child may be all that comfortable.
40. Because X and I always seem to argue when trying to discuss our [child/children], a shared care arrangement will increase our [child's/children's] exposure to our conflict, such as through overheard telephone calls between us, changeovers involving them or other witnessed contact between us.
41. I also doubt that X has the time available from his job to be available at the times he gives, as he always told me when we were together that he was not able to take any time off work [give any specific instance of that].
42. [Specify any other evidence causing concern about possible adverse effects on the child/children.]
[Section 60CC factors. Confine your client’s affidavit to those factors that are relevant. However, because the court will usually go through all the factors in their judgments, it may help if you retain all the s 60CC sub-headings, and for those that are not relevant, just say “Not applicable.”] The benefit to child of having a meaningful relationship with both parents
[See ”Is equal time really going to work?” under “equal time” above. Equal or substantial time is unlikely to be considered appropriate by the court if it means overburdening an already busy child, in the sense of that child’s numerous after-school activities that already make for a stressful life for the child: Goode (No. 2). Ryan J in that case also limited the younger child’s time with his father due to his attachment to his mother.]
43. I accept the benefit to Y and Z of having their father meaningfully involved in [his/her/t heir life/lives], but not if the time [he/she/they spends/spend] with him involves them in parental conflict.
44. As said above, I also doubt Y and Z are capable of coping with any further change to our [child's/children's] school week, moving between our two homes and having [his/ her/their] routine further loaded with activity.
45. I have no objection to our [child/children] spending half of each school holiday with [h is/her/their] Father.
The need to protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
46. See above.
Any views expressed by the child
47. [A family report, or evidence from an ICL, should record a child’s wishes, but your client adducing evidence of statements by child/children of sufficient maturity to have a considered view [say 8 – 10 upwards] is worthwhile too e.g. Just yesterday [date], [child’s first name] said to me on the phone before his bedtime “Can’t I live with you, Mum?” or “Can’t we spend more time together than we do?”
Describe the date and circumstances of any overt acts by a child such as running away.]
The nature of child’s relationship with each parent and others
48. See above for my concerns for our youngest child, Z.
49. [Where your client’s proposal will not hinder the child’s/children’s time with their paternal/maternal grandparents, specify and explain.]
Extent to which each parent has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues, spend time with the child and communicate with the child or has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
50. See above for my concerns about our [child/children] being unduly exposed to X’s obvious resentment towards me.
51. I do nothing to undermine our [child's/children's] relationship with [his/her/their] father. I do all I can to encourage that relationship, and would like that to be mutual. 52. [Specify any continuing lack of cooperation by the father as to decision-making or discussing child issues; and any lack of financial support.]
The likely effect of my proposal on child (including any separation from other parent, child or person)
53. See above for my concerns for our [child's/children's] ability to cope with further disruption to [his/her/their] school week routine; and my special concerns for our youngest child, Z.
54. I live at [address], where our [child/children] have always lived. X lives at [address], which is about a [specify] minute drive from me and a [specify] drive from [day care/s chool].
55. My home is a three bedroom house with all the amenities, each child having their own room.
56. Our [child/children] [is/are] doing well at school/[is/are] happy in my care.
57. See above for my concerns about X’s time-sharing proposal. My proposal [specify] will allow our [child/children] regular time with [his/her/their] father that [he/she/they] (and X) should be able to cope with and will keep their exposure to any parental conflict to a minimum.
58. Their father will also be able after the end of his working day to attend any of Y’s or Z ’s after-school activities; and attend parent-teacher interviews, school sport and other functions on weekends.
The practical difficulty and expense of child spending regular time with a parent
59. [Specify the practical difficulties of X’s time proposal, such as extra strain on child/children, extra travel, etc. Where one parent lives some distance away e.g. on a farm in a remote location, outline the impracticability of X’s proposal.]
Capacity of each parent to provide for child’s emotional, intellectual and other needs
60. The orders I have sought will provide best for our [child/children]’s needs. [In the rare case of a parent being incapacitated by, say, a stress disorder or other mental condition, specify the relevant observable instances of behaviour and neglect of the child’s needs. You will usually in such a case arrange for the party concerned to be examined by a psychologist so that corroboration may be filed.]
Child’s maturity, sex, lifestyle, background, culture and traditions
61. Not applicable. [OR homosexuality of a parent, but only where it involves some adverse effect on the child/children. In such a case, specify all instances of concern for the welfare of such children.]
62. Not applicable. [OR religious differences, but only where that involves some adverse effect on the child/children. In such a case, specify all instances of concern for the welfare of such children.] 63. Not applicable. [OR cultural differences if that involves some adverse effect on the child/children. In such a case, specify all instances of concern for the welfare of such children.]
Child’s right to enjoy their Aboriginal or Torres Strait Islander culture
64. Not applicable. [OR specify all instances where an indigenous/non-indigenous conflict involves adverse effects on a child’s well-being, such as the likely loss of contact with an indigenous parent’s background; lesser discrimination; and easier assimilation.]
Evidence of parents’ attitude to child and responsibilities of parenthood
65. We are both responsible parents. [OR specify any alienation of the child/children from you by the other party or other instances of parental irresponsibility on their part. Detail any refusals to attend counselling or FDR.]
Any family violence
66. Not applicable. [OR see above.]
Any relevant inferences to be drawn from past or present family violence order
67. Not applicable. [OR see above.]
Whether an order least likely to lead to further proceedings is preferable
68. [Not applicable OR Specify any statements or actions by the other party indicating relentless behaviour, such as continual litigation, or an unrelenting attitude of getting their own way over the child/children regardless of court outcome.]
Any other relevant fact or circumstance
69. [Where disagreement over choice/change of school] [If a party is going back on their pre-separation agreement for child/children to attend a particular school, or type of school e.g. private, specify the date and content of the agreement; refer to the parties’ reasoning behind that earlier decision and confirm that that reasoning e.g. jointly perceived likelihood of a better/more religiously suitable/more affordable education/more convenient location/financial capacity for payment of the school’s fees, still applies. Note – A prior agreement will not carry much weight if the family’s circumstances have changed significantly.]
[Where no prior agreement, describe the different school routines being compared, including which would be likely to best meet the children’s educational, extra- curricular, peer group needs and practical aspects such as comparable time of travel to each school and any other inconveniences [and why]. An affidavit showing insight into a child’s needs is likely to be considered carefully. Add any other aspects relevant to the best interests of the children.]
70. [Any proposed or unilateral change of child’s name] [Where the name has already been changed without consent, specify the evidence of the child being given another name, and the content of any discussions between the parties beforehand or afterwards about it, including the content of any request to reinstate child’s correct name and of any refusal to do so. The person objecting should specify the extent of their continuous contact with the child/children in terms of the amount of time regularly spent with them; give evidence of any problems being caused to the child due to the name change; and explain why use of the former name would be in the child’s best interests, such as a child’s right to be able to identify by name with that parent, and any evidence that the child already identifies with the former name.
Specify instances of any increasing conflict between the parties over the name change dispute, being conflict that would be resolved by the old name being restored. Note – A parent who has had little contact with a child may not be able to resist change of name where the primary parent has re-partnered and begun a new family unit.
If hyphenation is proposed as a compromise, set out the proposal and the reasons for it.]
71. [Specify any other evidence relevant to your client’s application. Also, add in separate paragraphs the evidence in support of any interim financial orders being sought at the same time as the above orders.]
72. All the above facts are within my own knowledge except those which are deposed to from information only, my means of knowledge and sources of information for which appear in this affidavit.
Note – Briefing counsel to settle your draft is advisable.