NSW Mother Refusing Father Access Despite Family Court Orders?

[Jess11]

I have a friend, a father of a yound boy. His estranged ex has decided to cut contact and not allow him to see his son when he began a new relationship. Any contact he tries to make with his son, the ex calls the police and to stop him claiming to be harassed.

The initial cost of the divorce has put him in great financial strain and is desperate to find affordable help to keep this woman to the family court orders.

Can anyone provide some help on who he can speak to or what he could do in this situation?

 

[AllForHer]

First port of call is Legal Aid. At the very least, they can provide legal advice for free on up to three occasions for a single matter, but they can also organise family dispute resolution, which is the first step toward getting the matter resolved, be it by way of agreement between the parties, or by way of Court. The father may also be eligible for Legal Aid funding for representation in Court.

Alternatively, in the event that agreement can't be reached between the parties and he does decide to pursue the matter at Court, he can consider self-representing. There are many invaluable resources available online, including LawAnswers.com.au, which can help your friend through this process.

About family dispute resolution...

It's mandatory that parties attempt to resolve their dispute between themselves before they are permitted to seek arbitration by the Court. A family dispute resolution conference is the best opportunity for this to happen, as it's overseen by a neutral third party whose goal is to keep the parents on point and keep things civil. It's common for parents to seek legal advice before a family dispute resolution conference takes place; it's also common for parents to have a lawyer each present during the conference.

The benefit of your friend's ex actually getting legal advice is that she will learn very quickly that withholding a child from an involved parent is a huge no-no in the view of the Court. Unlike State Courts, the Family Court is significantly less tolerant of claims of 'harassment', especially when such harassment has been only in regard to the child. However, the last thing your friend wants is the ex to go pursuing a malicious restraining order against him, because it creates an unnecessary obstacle that will result in more proceedings than is absolutely necessary.

As such, so it would be wise to minimise contact with the ex, and instead follow the more formal avenues of resolution, namely contacting Legal Aid or Relationships Australia for a family dispute resolution conference. Both Legal Aid and Relationships Australia will do all of the legwork for organising the conference, including contacting your ex. If the ex refuses to participate, your friend will receive a s 60I certificate, which paves the way for him to file an initiating application with the Court for parenting orders.

If I may, what were the care arrangements like before his time was obstructed by the ex?

 

[Jess11]

They were never able to settle on anything. She refuses any options he presents. At the initial separation he has joint custody but when he began a new relationship shes straight out refused to allow him to see the kid and anytime he tries to contact her she calls the police claiming harassment. So there's been no upheld agreement at all.

 

[AllForHer]

So the child simply hasn't seen his father since separation? Or has the time been sporadic?

 

[sammy01]

So are there court orders / consent orders outlining when the child should spend time with dad? If so, what do they say? How old are the orders? When did they last do mediation?

I'd be contacting legal aid. But I'd also be contacting Relationships Australia and asking them to contact her to organise mediation. When he gets to mediation he can tell the ex that he will go to court and he will ask for the care arrangements to be reversed so he is the primary carer... That might scare her into playing nice

 

[Jess11]

There was about a 2 month period at the beginning of the separation where he was seeing his son fairly regularly. Since then there has been no contact with the son.

He has contacted legal aid, they have advised that they can't represent as he earns too much.
Family dispute resolution we have also done, the first through relationships Australia and the second a privately paid one recommended by our lawyer.

We have a 60i certificate that was issued a while ago and we are now being advised that before court proceedings they would likely ask us to try mediation again. The mother will do it, if we asked, however her stance has not changed and she will not agree to anything unless her "terms" are met. Which are that the son cannot have any contact with the fathers new fiancee.

The father called about a month ago and were advised he would likely need another meditation session given the 60i was issued some time ago. The next appointment was in 8 weeks and the same process was advised which took him close to 12 months last time...

The process seems to be a never ending circle... We are so frustrated and have been on this emotional roller coaster for over a year now.

To answer the question, before he and the new fiancee were in a relationship, the mother was great about visitation. She became a different person once he moved in was in the picture. Mind you, that was only about 2 months into their separation.

 

[Jess11]

so are there court orders / consent orders outlining when the child should spend time with dad? IF so what do they say?

Unfortunately they never made it that far. The agreement was made in mediation I believer

 

[sammy01]

Ok, so agree to her stupidity. Get it written down as a parenting plan. Why?

1. It gets him to see his kid
2. You then have a piece of paper that shows that she is an idiot.

I would also suggest that he ask that the parenting plan state that he has accepted her terms reluctantly and that he wants it reviewed in 6 months. He can make some guff about about how the ex might have a point about the kid not needed to meet new people when there is all this other stuff going on.

Look I have to tell you, my ex is up to her third 'new daddy'. It is none of my business, but the kids get to like these blokes then they realise she is a twit and move on....

I'd also suggest that she agree the in the event she form a relationship she will not introduce the new bloke to the kid without mutual agreement. Now all these things are just suggestions. You can ask her to agree but if she refuses well at least you're not sitting on your hands.

Look it is all stupid. But you know that. So play the game but don't be walked over, if she insists on something, then he can say he agrees but would like her to also agree to something. But getting a written agreement that shows that he is a trying to be reasonable and she is a twit will help if this winds up in court. So let's try and avoid that. But if it happens lets make sure you have some good paperwork to show the magistrate.

One more question - How long since they broke up?

 

[Jess11]

It's been over 2 years since they separated, I'd say. I guess the big issue with trying to sort it out outside of court is that the ex won't agree to a conversation. Anytime he tries to contact her to come to an agreement, she calls the cops saying he's harassing her.

I would have thought the cops would have had words with her about abusing their help but I guess not.

Does anyone know if self-representation in court is adequate for a fair hearing? Would he likely get messed with for not having legal representation?

 

[sammy01]

I'd strongly encourage self-representation. And while you might not get a fair hearing, you will get a cheap hearing in comparison to paying a solicitor. But you will still get access to your kid