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

[Hpflstpmum]

Since my last post, we have sadly taken a big step back in our progress. The ex has basically communicated with our lawyers in such a way that she would appear almost to be taken advantage of if we were to get her to sign the consent orders as they are and take them to court as the issues are she is self-represented so has had little to no legal advice and she has made these family violence allegations. So the bad news is even if we were to go to court, we would most likely not be granted the orders due to this.

Now that our section 60I certificate has expired, we have only a few options which include:

Taking the ex to court on our own terms and hoping we will be accepted with an exemption rule of physical distance between my partner and his daughter - this is unlikely to be accepted.

File for mediation again to get the certificate which will take some time in itself, then go through it all over again where the ex has to sign and potentially have her be difficult for another year before we take it all back to court (if it even gets that far) - this is basically as if we're back to literally where we started over a year ago.

Speak with Family Dispute Resolution and hope that they will see it is pointless to go through the process of mediation over again considering our extreme lack of progress over the last year and they give us a certificate so we can go to court on our terms without having to deal with the ex at all

Either way, it's all extremely disappointing. I am hoping that if we take the ex to court, she will finally cave when she sees the letter saying she has to appear and will sign the consent orders we set out. She has stated so many times how she doesn't have the money and can't get legal aid so she doesn't want to go to court.

In my eyes, she is doing this because the power she has over us is dwindling. Once my partner's daughter can visit us, the ex has no power anymore. Therefore, by her delaying and making all these accusations, she is still somehow hold something over us and make my partner's life more than difficult.

We were thinking of having my partner ring his ex and just explain to her that because of what has happened and how the magistrate is now unlikely to accept our proposed consent orders due to the issues mentioned, we will have to take her to court as it's our only chance at seeing their daughter. We thought that might put it in perspective for her and perhaps make her have a change of heart. If that fails, at least, she knows we mean business now and we'll see her in court.

 

[AllForHer]

I'm sorry to hear this, though unfortunately, I can't say it's particularly surprising news.

My opinion is to organise a family dispute resolution conference and let the mediator decide if the matter is suited for mediation. There's a fairly good chance the matter will be deemed unsuitable for mediation and you'll be granted with the section 60I certificate anyway. That's sort of what happened with us - my husband sought mediation with his ex, and she fought so hard with the mediator about our refusal to share with her the issues we wished to discuss before the day of mediation that the mediator just canned it and gave us the certificate anyway. We didn't use it to initiate further proceedings, but we knew she wouldn't be able to initiate any of the further threatened proceedings either - we had the certificate and she didn't, and orders require us to mediate before going back to court.

In the unlikely event that she does attend mediation, take a lawyer with you and get everything that you agree on signed into consent orders on the day of mediation, even if there are some things you can't agree on, and then file an initiating application with the Court for parenting orders for whatever didn't make it into consent orders. Some agreement is better than no agreement in this situations, and I imagine the initiating application will motivate the better than the father ever could.

I wouldn't waste my time calling her. She really needs to get legal advice on her own, and nothing prompts a person to get legal advice like an application filed with the Court naming them as the respondent. She has been calling your partner's bluff for a year without consequence, one phone call isn't going to change her tune.

 

[Hpflstpmum]

Thank you once again @AllForHer for your opinion and sound help. We will make enquiries with FDR and hope that it will be deemed ineffective to participate in mediation so we can just get the certificate and carry on with trying to file an initiating application.

It's a very good point you have about having a lawyer there if it does go to mediation but I wonder how that would work as we are in a different state and so would be participating in a telephone conference instead? I expect we'd get the usual parenting plan anyway and go from there if we can't have the lawyer present. I just hope either way that it doesn't take too long to get an appointment as time is well and truly against us with this matter due to it being severely detrimental to our case when a magistrate sees how long it's been since we've seen his daughter (October 2014).

It certainly isn't surprising considering our history with her to date but we had so hoped she would after all this time, see that we merely want to see his daughter. It's always been about his daughter and somehow the ex had spun it to now make it all about her instead.

 

[sammy01]

Your first comment at the top of this page worries me. So what if she thinks it is unfair because you have a solicitor.... Also, any claims of DV or anything else is irrelevant. They are just stalling tactics and you've fallen for it to the point where your 60I is gonna expire.

My thoughts - seriously consider sacking your solicitor - any solicitor who has let this drag on this long is just taking money for jam. Or you have not taken the plunge and directed solicitor to apply to court.

And all these delays- What do you think the ex is gonna say in court? The child hasn't seen dad in months / years. Dad will need 12 months of supervised visits and he will have to do all the travel and he will need to make an effort to travel at least every 5-6 weeks to held child re-acquaint with dad, and dad will need to pay the supervised visits... and all of that will seem pretty reasonable.... Oh and then on the second OR third visit dad will travel only to be told the kid is too sick, sore, happy, sad, busy etc to see dad AND there will be no consequence because this person has learnt to play the system.

My thoughts? Get to court, learn to self-represent because you should expect to be in court lots with different breeches of what ever orders you finally get. But be persistent or just give up...

 

[Hpflstpmum]

Thank you for your suggestions @sammy01

Our lawyers were the ones that warned us that they hold very strong concerns that due to her being a self-represented litigant with little to no legal advice, and her allegations of family violence as well as the way she comes across as if she doesn't agree but says to send it and she'll sign it, as well as her saying that the orders don't deal with or attempt to deal with the allegations that the magistrate won't agree to the orders due to these issues. In addition to the fact that she most likely won't comply even in the rare instance where the order does get approved so we would be dealing with constant breaches.

We have been the ones with rose coloured glasses on, giving her chances and allowing it to go on this long when our lawyers have suggested court numerous times. We've just been so hopeful that the ex would change her mind or come around enough for us to just see his daughter.

Now that we're at this point, I'm hugely concerned that we will not see her at all based on what you've said and the supervised visits will occur instead which is very costly.

We will have to initiate mediation so we can get this certificate and go to court...

 

[Hpflstpmum]

Me again!
I rang up the telephone dispute resolution line to explain our situation, intending to ask what sort of wait time there would be with mediation and obtaining a certificate. After I went through our scenario with the lady, she said she thinks there should be no reason why our consent order wouldn't be accepted as the ex is of sound mind and no-one is coercing her into signing, so why would we need a certificate if we can just get her to sign and have the consent orders made? She said I should call the FDR and ask to speak to someone for independent legal advice to see if what my lawyers told me is really genuine or just being taken for a ride, so I did. Then when I rang the number, I was told the government funded advice lines through lawyers don't give second opinions if you already have hired representation.
So now I'm pretty stumped! I'm concerned our lawyers aren't giving us accurate information and are just wanting more money from us.
Basically, the ex has said she'll sign the orders. So if she has agreed and said to send them out to be signed, regardless of what she has said in her annexure about family violence, would it likely be accepted in court? Or are our lawyers right about it not being accepted because she's self-represented and in their words doesn't in fact agree to the consent orders particularly in circumstances where she states that the orders do not in any way deal with, or attempt to deal with the allegations (of family violence).
I have no idea where to go from here. Do we go against our lawyers advice and tell them to just send out the orders with everything the ex has said to insert and take a chance that the magistrate may accept the orders?

 

[AllForHer]

We were self-represented. We informed the Court of family violence in our affidavits. We later agreed to consent orders for 50/50. They were accepted without question.

My view is that the Judge will likely accept the consent orders. If the kids were in danger, the parties wouldn't have reached agreement about the care arrangements. You should at least try to have them signed and filed. If the Judge rejects them, then you can plot out your next course of action, but at the moment, I would say that's a fairly minimal risk.

 

[Hpflstpmum]

Thank you @AllForHer for getting back to me so quickly. I think we will take the risk. Fingers crossed!

 

[speck1]

Good luck. Family law is so flawed.

All For Her - how long does it take to get consent orders after both parties have signed the draft?

 

[AllForHer]

No more than two or three weeks once they're filed. It's common practice to implement the actual arrangements before they're sealed by the Court, though, since they're essentially a parenting plan before that.