NSW Mother Refusing Access - What Next?

[ChrisC]

Hi All,

My partner has 3 children aged 10,8,7. He and his ex split up late 2014. Since then, she has been really high conflict and controlled all access to the kids.

Child support and Centrelink are her primary motivation for refusing to put a parenting plan on paper or agree to consent orders despite my partner making so many requests that they work that out. There has never been any agreement in place.

My partner has attempted mediation twice, Once she refused to attend, the second time she did attend but it was unsuccessful and a certificate stating this was issued in April 2016. My partner rang them in late 2016 and asked if they could attend again but was told that court is his best option.

Since last year we have had the kids stay over 3 days a fortnight (pick up Friday-drop at school Monday) plus my partner takes them out to dinner once a week. We have also had the kids for half of each school holidays.

The ex has been agreeable to this as my partner was still paying her child support as if she had 100% care. He wanted to build up a pattern of having the children with regular care and have it all documented which he has done with text messages and a diary etc and then make an application for parenting orders.

Last week my partner rang CSA and told them about the regular care, they have contacted her and now there is dramas. CSA have told her that going forward her rate will be reduced if the kids Dad has 3 overnights a fortnight. She has told CSA he is lying and hasn't had the kids at all. We aren't concerned about proving that as we have a fair amount of evidence and we will supply CSA with what they need.

We contacted a lawyer on Monday who is drafting her a letter stating that partner wants to formalize the current pattern of care with consent orders or he will proceed to court. The ex doesn't yet know this is happening.

But last night she sent my partner a message stating that she has "full legal responsibility and custody of the children" and she will not release them into his care until they attend mediation and a parenting plan is agreed on. She has no intention of attending mediation, she thinks she is "showing" she is being reasonable by suggesting it but the reality is if it is arranged she will either refuse to attend or say she is too mentally ill to attend. It is in her interests to stall as long as she can so she gets paid 100% child support and single parent pension.

She is hoping that my partner backs down and gives her the money as he has always backed down when she threatens to withhold the kids.

We haven't responded to her message as engaging with her can lead to chaos. We only engage to say "we are picking up the kids" and direct information like that. We know that she is only doing this so she receives the full rate of child support and Centrelink. She doesn't work aside from a cash business she runs so this is important to her.

We knew that by calling CSA that she would withhold the kids so its not unexpected. I think that she is hoping that by withholding the kids my partner will back down and tell CSA she has the kids 100% so she doesn't lose money. In the past she has held the kids to ransom for different sums of money which my partner always paid.

But that won't happen this time, we are standing firm and we want orders in place so she cannot keep controlling access to the children.

My questions are as follows

-Given the mediation certificate expired in April 2017 do we have to attempt mediation again or at the very least get issued with a new certificate?

-Does she really have "legal responsibility and custody" of the kids? Can he pick them up from school for his usual weekend and drop them back as usual despite her not wanting this to happen?

-Does anyone have any tips or support?

Thank you all so much

 

[AllForHer]

Given the mediation certificate expired in April 2017 do we have to attempt mediation again or at the very least get issued with a new certificate?

Unfortunately, yes, you do have to attempt mediation again so that you can file an initiating application with a valid s 60I certificate.

Does she really have "legal responsibility and custody" of the kids?

No, she does not have legal responsibility and custody of the kids. As a matter of fact, those terms aren't even used in Australian family law anymore.

There's a presumption (that is, a default position) in family law that states parents share equally in parental responsibility. Equal shared parental responsibility can only be removed by order of the Court, so if she doesn't have an order for sole parental responsibility in her favour, then she's sharing it with the kids' father.

Custody, or the 'time spent with' arrangements, is a little more tricky and brings me to your next question.

Can he pick them up from school for his usual weekend and drop them back as usual despite her not wanting this to happen?

If there's no parenting orders in place, then each parent is free to do as they so choose, so technically, yes, he can pick them up and drop them as per usual, regardless of how the ex feels about this.

However, there are probably better ways you can deal with this situation without triggering a nuclear meltdown from mum.

For example, your partner could advise his ex that he's not agreeable to her proposed change in care arrangements and therefore intends to collect the children as usual. She's either going to agree, disagree or ignore. If she agrees, great, go get the kids as per usual. If she ignores, great, go get the kids as per usual. If she disagrees, great, advise her again that you're not agreeable to the change in care arrangements and will be pursuing the matter further, call Relationships Australia and start mediation again, then file an initiating application seeking parenting orders for 50/50.

However you choose to handle the situation, your partner needs to do his utmost to ensure the kids aren't exposed to the conflict. If mum is the kind of person who will show up at school with unsuspecting police officers on the day your partner is meant to collect them, then it may be best to just advise her that you're not agreeable, but you're not willing to expose the kids to parental conflict, so you'll allow the current arrangement temporarily while it's resolved in a more formal manner.

Does anyone have any tips or support?

My husband and I enrolled in and completed a voluntary parenting orders program through Relationships Australia while we were in Court with his ex-wife about their daughter. I highly recommend doing the same for two reasons.

First, it will demonstrate to the Court that you're willing to co-parent with the ex, so if that doesn't happen, it's more likely that she is the problem, not you.

Second, you may actually take a few coping mechanisms away from it, like learning about assertive communication and how to rule with your head, not with your heart.

 

[Time101]

Hi ChrisC

Just read your post. Best option is to file an application in the family court of Western Australia.

Go for 50/50 custody.

I'm sure you'll get it.

As for CSA ..... Yes her payment will reduce and so will her Centrelink. She just has to deal with it.

As for her messages best way is to not respond negative. Cause she can you that text against you in court.

I wish you the best and I hope it all works out.

Best regards.

 

[Time101]

Sorry.
NSW family court

Not WA.

My mistake.

 

[ChrisC]

Thank you for your prompt and informative response. I really appreciate it.

Understood that mediation needs to be attempted again my partner has just told me that he has spoken to RA this afternoon and the mediator who looked after the case in the last attempts said that they will contact Mum and if she refuses to attend they will issue a certificate straight away.

In the meantime can we file the initiating application or must we wait until we have the certificate? If we need to wait Is it worth getting the solicitor we have just engaged to send her a letter stating that partner is attempting mediation again and should it be unsuccessful then we will be applying to the court for orders AND that he is only agreeing to the temporary change in custody to minimise conflict on kids?

My partner sent a text an hour ago saying " I would like to pick up the kids from school tomorrow and take them for dinner as I normally do" she responded by resending the message from yesterday about refusing access.
She is the type that would call the police and cause a huge scene. And that is the last thing we want the kids exposed to. So he won't pick them up tomorrow.

My reasoning for getting the lawyer to send a letter is to let her know that this time my partner won't back down and even if mediation doesn't work then he will file an application to court.There have been many stand offs like this in the past and he has backed down every time. It's taken him a long time to see for himself that giving in to her various demands for money or whatever doesn't mean she will be reasonable and it does not benefit the children.

Given the mediation certificate expired in April 2017 do we have to attempt mediation again or at the very least get issued with a new certificate?

Unfortunately, yes, you do have to attempt mediation again so that you can file an initiating application with a valid s 60I certificate.

Does she really have "legal responsibility and custody" of the kids?

No, she does not have legal responsibility and custody of the kids. As a matter of fact, those terms aren't even used in Australian family law anymore.

There's a presumption (that is, a default position) in family law that states parents share equally in parental responsibility. Equal shared parental responsibility can only be removed by order of the Court, so if she doesn't have an order for sole parental responsibility in her favour, then she's sharing it with the kids' father.

Custody, or the 'time spent with' arrangements, is a little more tricky and brings me to your next question.

Can he pick them up from school for his usual weekend and drop them back as usual despite her not wanting this to happen?

If there's no parenting orders in place, then each parent is free to do as they so choose, so technically, yes, he can pick them up and drop them as per usual, regardless of how the ex feels about this.

However, there are probably better ways you can deal with this situation without triggering a nuclear meltdown from mum.

For example, your partner could advise his ex that he's not agreeable to her proposed change in care arrangements and therefore intends to collect the children as usual. She's either going to agree, disagree or ignore. If she agrees, great, go get the kids as per usual. If she ignores, great, go get the kids as per usual. If she disagrees, great, advise her again that you're not agreeable to the change in care arrangements and will be pursuing the matter further, call Relationships Australia and start mediation again, then file an initiating application seeking parenting orders for 50/50.

However you choose to handle the situation, your partner needs to do his utmost to ensure the kids aren't exposed to the conflict. If mum is the kind of person who will show up at school with unsuspecting police officers on the day your partner is meant to collect them, then it may be best to just advise her that you're not agreeable, but you're not willing to expose the kids to parental conflict, so you'll allow the current arrangement temporarily while it's resolved in a more formal manner.

Does anyone have any tips or support?

My husband and I enrolled in and completed a voluntary parenting orders program through Relationships Australia while we were in Court with his ex-wife about their daughter. I highly recommend doing the same for two reasons.

First, it will demonstrate to the Court that you're willing to co-parent with the ex, so if that doesn't happen, it's more likely that she is the problem, not you.

Second, you may actually take a few coping mechanisms away from it, like learning about assertive communication and how to rule with your head, not with your heart.

Thank

 

[AllForHer]

You will have to get a certificate. The application won't be accepted without it.

Regarding lawyers, they do have the handy impact of being quite intimidating, so I think it is perhaps a good thought bubble to have your solicitor send a contrite e-mail to the ex about the current situation with the intention of reverting to the previous arrangement. It may settle this whole thing before mediationor Court even has to start.

 

[Time101]

Do you think she will go to mediation.??

If I was you I would get the solicitor to send her a letter.... You never know she might start to play nice.

Above post states that lawyers can be intimidating....and that scares most people. "I agree with that statement "

Looks as though she's using the kids a lot as leverage. ... That won't stand up in court.
She'll be in for a shock.

I think you should be applying for 50/50.

Most custody agreements are for both parents to see their children equally.
It's hard when one doesn't cooperate.
Kids take it hard when they see that both parents cant communicate or even agree.

I wish you the best and I hope all goes well.

Regards

 

[sammy01]

Maybe, just maybe...Do not communicate with her... Pick the kids up, maybe get to school early and / make an appointment with the principal. Look schools don't like getting involved... But if they have to, best getting them on side.

If it were me, I would not ask to pick up the kids, if that is what has been doing keep doing it. if the ex makes a scene, be the calm one....and if the cops are called and direct you to go away, follow their instructions.

 

[ChrisC]

Maybe, just maybe...Do not communicate with her... Pick the kids up, maybe get to school early and / make an appointment with the principal. Look schools don't like getting involved... But if they have to, best getting them on side.

If it were me, I would not ask to pick up the kids, if that is what has been doing keep doing it. if the ex makes a scene, be the calm one....and if the cops are called and direct you to go away, follow their instructions.

Going forward I think that is what my partner may do. His weekend with the kids is not until next week and I feel that since he collects them from school on Friday afternoon on those weekends that he should probably keep doing that. But he is concerned about inflaming the situation and her causing a scene in front of the kids.

Re the school- without a court order being sighted or on file they have no right to stop him picking up the kids? I suspect the ex will try telling the school to not let him collect the kids.

 

[sammy01]

Yep just pick up the kids...dont make a scene. If she is there stay calm and start learning to to write an affidavit