Affidavit of father seeking interim order for equal or substantial time
Introduction
1.I am the [Applicant/Respondent] seeking interim parenting orders in relation to the [child/children] of [marriage/unmarried relationship] with [insert full name of other party] (“[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, Y and Z[has/have] continued living with X in our home and [has/have] been spending the following time with me (specify in detail the extent of time the child/children have spent with your client 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 father and breadwinner and X’s that of mother, caring for the [child/children][full-time/part-time] (if applicable – when she was not working in her part-time/casual job (specify number of hours) hours a week), with some help from me with the children, meals and housework [specify] after getting home from work and more of a share of seeing to the children and domestic chores on weekends.
11.Since their birth, I have been a daily part of our [child's life /children's lives].
(a)Before our separation the time I spent with him/her/them was virtually continuous. I participated daily in [his/her/their][life/lives] and took a keen interest in [his/her/their] development. (summarise the average day’s duties from morning to night).
(b)I accept that X has always been more directly involved with our [child's/children's] everyday routine than me, but my concern is that Y and Z be allowed to have as meaningful a relationship with me as they can now that we are no longer all under the same roof.
(c)I would also like to share parental responsibility for all future major long-term issues equally with X. She and I have always usually discussed things before decisions were made, to do with Y’s or Z’s welfare such as appointments with the health clinic, doctor, hospital, dentist, vaccinations, school enrolment, enrolling in and attending after-school and sports activities, although X (with occasional help from me when I could) was usually the one to take and collect [him/her/them].
[If father 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 father is applicant or respondent, use this next heading to specify the crux of your client’s case.]
Parental responsibility
[If seeking shared parental responsibility]
14.X and I do discuss our [child/children] and consult each other about arrangements, although we have had differences of opinion about things.
15.[Specify any problems with communication or co-operation regarding child arrangements.]
16.I agree to an order for equal shared parental responsibility.
[If alleging parental irresponsibility by X]
17.[Where you have previously written to X or her lawyer to complain about her behaviour] Annexed to this affidavit is a true copy of my lawyer’s letter to [X/X's lawyer] dated [date], and a true copy of [his/her/their] reply /[OR] to which there was no reply.
18.[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]
19.[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 her co-operation by discussing the children and arriving at joint decisions; and exactly how she has responded, specifying what she has done and said]
20.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].
21.[Where the Mother 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].
22.When I try to reason with her, X just gets louder. I have suggested we attend counselling so as to improve how we communicate, but she says she will not go.
My wish for meaningful involvement in my child’s life
Note – The court will be looking here for the extent of your client’s insight into the personality, likes, dislikes and various needs of each child and some examples of how and when they relate with their father.
23.[Specify any conflict, disagreement or obstruction over child/children spending time with his/her/their father since separation e.g.] On [date] I rang X to ask if I could see Y and Z on [dates/proposal]. She said “[insert response]”.
24.On [date] I had to instruct my lawyer to ask that I have the children on [date] and that I pick them up from school. Annexed to this affidavit is a true copy of my lawyer’s letter dated [date]. I received no reply. [OR] Annexed is a true copy of X’s reply through her lawyer.
25.[If other requests for time with the child/children have been obstructed, or any child-related decisions made by X unilaterally, set out that evidence, giving date, time, context and exact wording of statements by X indicative of her attitude. Avoid making too much of this, though, unless X is hardened against your client having time with the child/children or attempting to alienate the child/children. It is best, especially if equal or substantial time is being sought, to emphasise your client’s hope that he and X can talk more about the children and his intention to do all he can to communicate better with X so as to have the arrangements running smoothly.]
26.My work hours allow me to spend a whole lot more time with Y and Z than X is allowing, specifically the following occasions every fortnight: [specify every period of time each week he would be able to see Y and Z. Add, after each time period, the activity that the time would allow e.g.]
(a)Alternate Wednesdays/Thursdays/[specify] after school through to following Monday for start of school – so I can be involved in [his/her/their] school routine, at least for a couple of days (seeing to homework being done; discussing school progress; getting [him/her/them] ready; preparing lunches; taking [him/her/them] and picking [him/her/them] up).
(b)Thursdays in the off week – to pick our [child/children] up from school; take [specify] to hockey practice; home for a meal afterwards; homework and return to Mother.
(c)Every Tuesday – to pick our [child/children] up from school; take [specify] to piano lessons; home for a meal afterwards; homework and return to Mother.
(d)Saturday/Sunday afternoons in the off week – to watch [him/her/them] play [specify], collecting and returning them to mother afterwards.
27.I am applying for these arrangements so that I can be more than just a visitor or someone Yand Z come to for weekend and school holiday “fun time” only.
28.The time I am seeking with the [child/children] is workable by fitting easily into [his/her/their] routine without putting [him/her/them] under any strain, such as from any significant interruption of the school week, any significant extra travel, or other such inconvenience.
[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 the child of having a meaningful relationship with both parents
[See under “research studies” above for a discussion of meaningful time with children. Use the equal or substantial time available under s 65DAA to achieve the “meaningful involvement” said by ss 60B and 60CC(2)(a) to be of primary importance, but ensure that the time sought is reasonably practicable and will not overburden the child. See what happened in Goode (No. 2), under “equal time” and “substantial and significant time” above.]
29.Other things I would like to be able to do with Y and Z (and have them benefit from), as well as those activities referred to above, are [specify everyday and, even, mundane things such as being there and taking an interest].
30.[Describe how the child/children has/have adapted easily to any changes in his/her/their school week routine since separation that your client has been able to negotiate with X.]
31.My proposal would mean little adjustment of Y’s and Z’s routine of living with their mother. [He/She/They] will continue to live at home with their mother, and stay with me in just one block of time per fortnight.
32.Change to [his/her/their] school week would be minimal too. Staying with me from Wednesday/Thursday night to the Monday morning would involve little change by commuting between school and my home; by getting collected from and delivered to school by me on just 2-3 days a fortnight (plus the three other days that I propose collecting [him/her/them] from school for piano and hockey practice); Fridays being a wind-down day for students on the eve of a weekend.
33.Our [child/children] would benefit from having a meaningful relationship with both their parents.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
34.Not applicable
Any views expressed by the child
35.[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, Dad?” 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 the child’s relationship with each parent and other persons
36.[This applies in particular to any young child i.e. under 3, as was the case in Goode (No. 2) above, where the court made a different provision for the 2 y.o. child due to his primary attachment to his mother] [although see “overnight contact for young children” under “research studies” above].
I am conscious of the young age of [young child's first name], and [her/his] closeness with [her/his] mother. Although X has, due to my work commitments, been the child’s main carer I have nevertheless participated in regular everyday activities with our [daughter/son] so that I too am a familiar parent in the child’s everyday life and am able to be a comfort to [her/him].
37.Since the child’s birth, I have in my own way taken part in the raising of our child. [Specify the activities your client has undertaken with the child that have developed their relationship since birth.]
38.[Where your client’s proposal will improve the child’s/children’s time with their paternal/maternal grandparents, specify in what way their proposal would do so.]
39.[Where a non-parent is applying, describe in separate paragraphs how the relationship began and developed.]
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 childor has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
40.I do all I can to encourage our [child's/children's] relationship with [his/her/their] mother, as X encourages [his/her/their] relationship with me. [Or specify how your client would like to see X’s attitude improved, and she and him working better together when it comes to the child/children and his/her/their needs]
41.[Give examples of any sharing of decision-making by you or discussions held with the other party about the child/children’s welfare; and specify any child support you pay.]
The likely effect of my proposal on the child (including any separation from the other parent or other child or person)
42.[This factor, which is about whether your client’s proposal will overburden the child/children with having to move between two homes, is likely to be as “pivotal” in most applications for equal or substantial time with a child/children as it was said to be in Goode, see above. In that case, there was also the issue of a young child with a primary attachment to his Mother.]
I have referred above to my consciousness about Y/Z’s young age. I am able to care for a child of [his/her] age, having already undertaken much day to day care of the child since [his/her] infancy.
43.I live just a [specify] minute drive away from X’s home, and we are within easy reach of the other by landline or mobile phone. My home is [specify] kilometres from Y/Z’s [day care centre/pre-school/school - specify] and X’s home is [specify] away.
44.My home is a three bedroom house with all the usual amenities. I occupy one room, and have set up beds for the children in one of the spare rooms. My mother lives with me and she sleeps in the other spare room.
45.The family dog, a familiar figure in the children’s lives, occupies a kennel in the garden.
46.The impact of my proposed care arrangement would be one of minimal change and would be in the best interests of our [child/children].
47.[Where separation of siblings is proposed, see para (d) of “Section 60CC factors” above. The court may allow siblings to be separated if they are not close, but require special circumstances if they are.]
The practical difficulty and expense of a child spending regular time with a parent
48.Not applicable.
Capacity of each parent to provide for child’s emotional, intellectual and other needs
49.The orders I have sought for meaningful involvement with my [child/children] will provide best for my [child's/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
50.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.]
51.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.]
52.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
53.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
54.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.]