NSW Partner's Ex Refusing Visitation until Consent Orders are in Place?

[speck1]

My last mediation was meant to be this week. I was asked by the mediation place if we could change location, have it close to the mother of the child's residency, so I had said yes.

Got a phone call last week saying it now will be 10 weeks away because the new location is backlogged.
I got into a huge argument with the company and told them to shove it up their you know what.

 

[Hpflstpmum]

Oh no! That's horrible. I'm sorry to hear that. I would have been so upset too.

 

[Hpflstpmum]

To those who may be following our story - since my last post we have been to QLD to visit our families and have come back home. In that time, we were denied access to my partner's daughter once again without any reason other than "no".

To say we are feeling deflated would be an understatement as we have tried so very hard to play her way and tippy toe without agitating her but at the same time showing her we mean business in regards to having the court order now mailed to her. She received it nearly two months ago and has only now said two days ago that she has left it with her lawyer. She has never had representation and our lawyers have not been given any correspondence that someone is acting on her behalf. Fair enough the ex wants some advice as the order will probably seem like gobbledegook to her and she has told us she is not eligible for legal aid so does not want to go to court.

I'm finding this whole thing so discouraging and infuriating at the same time as she has consistently shown she does not want my partner to have a relationship with his daughter and yet the ex will text him saying his parents haven't shown any interest in seeing his daughter in two years, plus she is saying she doesn't want his money from child support but needs it as she can barely afford food and to survive and she's trying to get her life on track, etc, etc. She is just so all over the shop. Whatever hatred she has for my partner is rotting away inside her and she just comes out with all this anger and these random feelings she has whenever she's irritated.

Anyway, we've asked our lawyer how long they think we should wait before we try to get the ex to hurry up without being too intensely on her case. We are waiting for a response currently.

The long and short of it is, my partner is still struggling with finances as he hasn't had a job until the last two weeks where he's casual so he can keep us afloat and we would ideally just love to say to the ex stuff you and we'll see you in court because she clearly doesn't care!

The problem is money. We want to discuss how we would sway the judge with primary residency too because after reading all the other threads here and how the ex has a very distasteful attitude and very much does not co-operate as well as deters a relationship, we feel it is in the best interests of my partner's daughter to live in an environment where she's not likely to be denied access to the other parent, where she can talk to her mother whenever she likes and the mother can talk to her when she likes too, holidays will be fairly split, communication will always be civil, she'll finally be able to build a bond with her brother who she is still yet to meet and he will be turning one in a couple of months, she can always speak to her sister (her mother's daughter from a different relationship to the one she's in now), a stable household where her parents aren't breaking up and leaving and then getting back together. The list goes on! Some I can't prove happens, I know, and it will be a long shot but we need to try what we feel is best eventually.

The order we're hoping and praying for her to sign at the moment is pretty much exactly what she wants and not what we want but we just want to see my partner's daughter, and it she doesn't sign soon, we will scrap it and she will have to beg for what she wants in court.

Sigh! Sorry for the essay but it's been rough! It's coming up a year and 3 months since we've seen my partner's daughter and 3 months since my partner has had a brief conversation with her.

 

[AllForHer]

I'm sorry to hear about the lack of progress. Honestly, you may need to accept that court will be the only option.

I would not start your application seeking primary residency. Just start out by requesting reasonable time with the child and then wait and see how the mother handles it. It's important to give the perception that you want to co-parent with the other party, even if they refuse to do so. If she ignores court orders or tries to frustrate the time the child spends with your partner, then you might have a viable case for residency. The court has become surprisingly obliging of the 'friendly parent' doctrine, quite often ordering residency to the parent most capable of supporting the child's relationship with both parties. However, you need to prove the mother is not the friendly parent over a long period of time, and the best way to do this is to observe how the interim orders are played out.

If the current proposal has been pending for two months with no response, then it's clear she has no intention of responding and it's time to take the next step, which is an initiating application. Filing an initiating application is a big step for you, but it's often a very intimidating step for the other parent, too. They will undoubtedly get legal advice, and 99% of lawyers are very honest about how family law proceedings go - it's unpredictable, withholding is not good for a case, and the child will likely be granted time with the other parent.

In terms of money, I would argue you won't need to engage a solicitor unless it reaches final hearing. Interim hearings are very easy to navigate as a self-represented litigant, and it seems to me that you have a reasonably good grasp of the legislation, so I would hope your partner has enjoyed the benefit of your research, as well. As an FYI, my partner self-represented on my knowledge of family law for three interim hearings, then the other party sought settlement two weeks before the final hearing date. The consent orders very largely reflected what my husband was seeking if it were heard at trial.

As you have highlighted, you also are not the only party looking at a money struggle. In our case, the other parent had already spent $10,000 on a lawyer, an additional $4,000 trying to negotiate consent orders in the two weeks before the hearing date, and was told it would cost an additional $8000 if they went to trial. That's an enormous amount of money for a single parent working part-time. In contrast, our total expense, from beginning to end, was $2000, so it was the other parent (well, her solicitor, actually) pushing to settle in the end, even on things she was unhappy about. Self-representing can be challenging, but if you're willing to put in the time and effort to articulate your case, it can be very worthwhile, especially if the other party has been unreasonable such that their case is weak.

Forgive me for forgetting, but have you already attempted family dispute resolution?

 

[Hpflstpmum]

Thanks once again @AllForHer for your always fantastic responses.

I am extremely nervous about the prospect of self-representing and either missing something which ends up being damaging to our case or creating a very time poor environment for us where we already have little to no time (or so it feels) having our son, haha. The main points holding me back are that we may not get everything we possibly can out of the hearings because of my/our lack of knowledge, and by us doing it alone it will push us back further when we're already so far behind.

You certainly don't need to remember it all! Haha. We did do the mediation and it led us to a parenting plan which the ex and my partner agreed would be used in court as a consent order and that was the only way she would allow us to see his daughter. She later said she didn't agree to it anymore and started making her demands on what she saw fit to be in her best interests. That's what has led up to now where we have been going back and forth with her and she's finally agreed but now she has the paperwork she's not doing anything about it.

She's openly complained by email to our lawyers during correspondence with her in the past that my partner apparently took so long getting the consent order drafted but she has absolutely no grasp of how financially hard it was for us as well as emotionally hard knowing how long it would take before we could see his daughter because of having to save up to pay the lawyers. Now the ball is in her court and she's taking her time. She doesn't have an excuse that is valid, I'm sure.

 

[speck1]

Hpflstpmum - I feel your pain.

Finance is a problem in our situation too, more or less identical to yours. We ended up just sending another parenting agreement to be made into consent orders offer to her lawyer. Waiting to hear back after last week.

The comment you made about her complaining about his parents showing no interest is the same here. She wants support off my parents, who do not want to see my ex-wife out of fear they will abuse her for denying access for the year.

They see my daughter once a month for half a day, and someone else drops her off to them.

 

[Hpflstpmum]

@speck1 it's a difficult situation to be in, isn't it?

The problem we have is that she has said to our lawyers that she has the paperwork sitting with her lawyers but our lawyers have received no correspondence in the entire time we have been battling this to say that anyone is representing her. We all believe she is just trying to prolong it for as long as she possibly can.

Yeah, there seems to be a lot of things building up in her mind that have caused her some sort of anguish but they're all pretty much completely irrelevant to the consent orders. In a rare phone conversation she had with my partner, she stated that his parents could see their daughter any time but how would they do that anyway? Their daughter has asked my partner multiple times to see her grandparents and so my partner has given her their number and each time nothing has come of it.

At that stage, the ex was refusing to speak to my partner at all unless it was through text, and it seemed no matter what he said or did she would get pissed off with him and, therefore, restrict contact between him and their daughter so we were constantly trying not to piss her off. Why would we want to damage that by throwing a visitation with his parents into the mix? Damned if you do, damned if you don't.

We wanted to put his parents in the order to be able to frequently see her but thought better of it as not only would it just further complicate things, it would be one more reason the ex may not agree and she had never made any suggestion up until recently that she would allow it.

My partner has texted his ex on Saturday asking what's going on with the paperwork and basically if she is really going to do anything with them at all. No response.

We're at the point now where we're tired of waiting and tired of being patient. Our lawyers have also stated that she's been showing no signs of proper commitment to this and it's been suggested multiple times to just take her to court.

We will send her another text today saying we understand she may need legal advice but she's had ample time to have received this, as well as sign the papers and send them back, as well as ask her if she is ever going to consent otherwise we'll have no choice but to take it to court so we can see his daughter.

She needs to get her butt into gear. All she's ever worried about is how much money she gets from my partner in child support and compares the fairness between how much he pays her to how much he might be spending on our son. So very frustrating.

 

[sammy01]

Just go to court ASAP. This is madness.

Oh, and another reason to go to court is even if you just go yourself one day and watch. Why? Look, even with court orders, some parents think it's great fun to find excuses to withhold kids. Little Timmy has a belly ache, Little Timmy has a temperature. So you're gonna have to work out what happens after you get court orders. Do you let her get away with that sort of crap, or do you make her life hard by doing contravention applications to try and stop the stupidity?

So my thinking, go to court, pay a solicitor, pay attention, so that if the mum chooses to withhold the kids even after court orders are made you'll be in a good position to self-represent in contravention applications because based on the history of this case I reckon even with court orders, the mum is gonna be difficult.

This woman is never gonna agree - so find someone who will and that person is called 'Your Honour".

 

[sammy01]

Sorry.

Look, one more thing. Go to court.

I've just read through bits of this post and while I'm not sure of the age of the kid(s), do you know what mummy is gonna say to the magistrate? "The poor little darlings need their mummy, they suffer from abandonment issues because their daddy left town, it is not in the kiddies' best interest to travel interstate, but mummy would be only too happy to provide supervised visits in her home state until the children re-adjust".

She is playing you and the system. I really do feel for you guys, but sitting around waiting for her to sign is a waste of time. She has demonstrated how insanely unreasonable she is. So either continue wasting money on solicitors to write letters, etc., or take the initiative and self-represent and get to court.

I reckon with aid from a site like this and some clever thinking you can run your own case successfully.

 

[Hpflstpmum]

Thank you @sammy01 I like your frank attitude and no-nonsense approach. Also good to hear from someone who has been through something very similar before.

My partner's daughter is 8 this year. There is only her involved. No more children apart from our son who is 1 this year and the ex's nearly 2-year-old from a "brief encounter" before getting together with her now on again off again partner.

I had actually thought about what the ex will say to the magistrate many times and had hoped that if/when it came to that, the magistrate would see right through her and also our lawyers would put up a good enough fight to avoid that from happening. From reading through many of these threads and other articles relating to battles such as this, it looks like (hopefully) the magistrates have more than enough experience to be able to tell when a parent is just simply making things difficult because of a power trip.

I'm admittedly quite nervous about self-representing because although I've read that it's not a matter of having a lawyer that makes you "win", but as long as you have the child's best interests at heart that you will succeed, that it's worrying to me how we may miss things and jeopardize our case even further or not ask for enough to make it an even playing field. Also, we've invested so much time and effort into these lawyers who are genuinely very helpful, experienced and straight up people that I feel we would be making a mistake by not continuing with them.

I am worried about the costs and how we would be able to afford it, and for how long the case could drag out if we did go down the avenue of using a lawyer but I feel comparing it to how much time I would have to spend researching and getting everything ready, it would probably be more in our best interests.

My partner is unsure how he wants to approach the ex considering he hasn't heard from her since the text he sent on the weekend and has said he thinks perhaps she has been able to get a lawyer and they have said not to speak with him. I said I doubt that very much as that has never been instructed to us by our lawyers and how else could we possibly come to an agreement outside of court otherwise?

Anyway! Why can't parents just bloody get along!? Haha.