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

[Hpflstpmum]

We have consent orders and have been following them to a "t". One section stipulates that all communication be by text message unless it's an accident or emergency, and that any conversations via text are to be specific, respectful and simple. That's what my partner has done the entire time. The ex often name calls or is very aggressive toward my partner. Then there's of course way her boyfriend treats my partner.

Having this behaviour in front of their daughter, plus threats of violence to my partner and his dad are really worrying. We want to avoid complications but they're making it extremely difficult to have any confidence in the safety of my partner's daughter whenever my partner is involved. It seems they can't control themselves.

 

[sammy01]

Look I think there is some stuff where you need a shrink rather than legal advice. I've learnt not to play into the dramas and stupidity...

Just hang in there and hope that when the kid turns 12 she says 'I wanna live with dad'

Get back to us when that happens. Or get back to us if her partner actually hurts one of you. Then it is time to look at reversing where the kid lives...

 

[Hpflstpmum]

Haha ok. Fair enough.

Yes let's hope she does that, or we fight to have her before then.

 

[Hpflstpmum]

So we've continued to play nice and the ex and her boyfriend are now interfering with phone calls and video calls more. They're coaching the daughter to say she doesn't want to talk (we can hear them say it to her). The boyfriend is taking control too since that abusive text and saying it's his rules and the daughter is calling him "Dad". She sounds so sad and defeated when she has answered the phone.

We received a letter from Legal Aid saying the ex has initiated mediation. We were hoping that as the consent orders are less than 12 months old, we could bypass mediation and take her to court for the contraventions.

We would also like to seriously consider a change in residency. It is becoming clear that so long as the daughter is in the ex's care, the ex and her boyfriend will not help the daughter to maintain a healthy relationship with both parents. We see us only ending up back where we are now in another few months time. We also see the ex not sending the daughter down these holidays, which will only worsen her case of course.

I'm hoping someone could answer this question for me - if the ex had initiated mediation but we want to go to court for the contraventions, can we decline the mediation and do the filing of contraventions? Or will it look bad for my partner? Should we do mediation first and say in that session we would like a change in residency?

The letter from legal aid says we should have our lawyer present so we would hopefully have it all worded properly. Looks like the ex is now eligible for legal aid too as up until now she has had no representation.

 

[AllForHer]

Why not attend mediation and file the contraventions? You can do both. Mediation won't work anyway.

Legal Aid, FYI, won't usually follow a matter through to trial. They'll usually either have their client consent or withdraw funding.

 

[Hpflstpmum]

That's a good point. We will do that! There are so many to do, it's overwhelming. At least we have obvious evidence to show that the ex isn't complying with the orders. Does a magistrate ever consider change in residency when contraventions are filed? Or would we have to take the ex to court separately for that? Would we mention in mediation that we would like to look at a change in residency?

 

[AllForHer]

It's very unlikely contravention proceedings alone will result in a change of residency, particularly where the orders are by consent. When orders are by consent, the Court hasn't really had an opportunity to observe the situation and see if those orders really are what's best for the child. It won't take such a step without very good reason for doing so, but that's not to say it hasn't ordered a change of residency before. It just won't be done via contravention proceedings, only by an initiating application for parenting orders, and it can take some time to reach that point (though repeated contraventions certainly help the Court decide).

I do think it's important you give the other parent an opportunity to change tact first though, which is why I think you should attend mediation.

When you're at mediation, you can certainly indicate intention to pursue a reversal of residency if the situation continues tracking downhill, and then provide suggestions for how the situation might improve before you take that step. Insist on privacy during phone calls, for a start, insist on a no denigration clause and insist on agreement that no person other than the parents shall be referred to as 'mum' or 'dad'. Also insist on a post-separation parenting course, and ensure the other parent is aware of their obligations in regards to the orders, giving particular attention to the documents attached to the consent orders, which explicitly state parents are to actively follow the orders which means encouraging and supporting the child in doing so.

Is dad in touch with the school for report cards and parent-teacher interviews?

If I get time this weekend, I'll find some cases for you about change in residency. You might find them useful.

 

[sammy01]

Yep, be pro-active. Go to mediation - enjoy it. Request discussing the phone calls and all that stupidity. But realise nothing will change until you force it. Stay strong.

 

[Hpflstpmum]

Thanks @AllForHer . I hope that we will be in the minority where the magistrate is hard on the ex for the contraventions as I've heard a lot of cases where there is more or less just a slap on the wrist and a "don't do it again" attitude. I hope for the daughter's sake that the ex and her boyfriend change their attitude quick smart because they're showing absolutely no regard whatsoever to the orders at all, and are pretty much acting like they're invincible to the rules we have to follow.

We will be hoping to go into mediation showing clearly what our intentions are, and hopefully by then the ex will know we have filed the contraventions too so she might play a little smarter. We'll voice our concerns that a healthy relationship isn't being maintained between both parents while the daughter is in the ex's care, and maybe the legal aid lawyer of hers will tell her to grow up a bit and stick to it.

We don't think the ex will facilitate the holiday period coming up either, based purely on her "don't care" attitude and how she is coercing the daughter to not talk to my partner. I guess that will be yet another contravention but we will do that ASAP if that happens.

My partner is in touch with the school. They have been very kind with him, and have been quite open about their concerns with the daughter and her mental health. In not so many words they have expressed that the current living situation for her might need to change as they can see she is a really well behaved and lovely girl whenever my partner has spoken to her the previous night before school and also after coming back from school holidays last time. They only believe he is a positive influence on her and the polar opposite with her mum.

Thank you. That would be great. I've used the site where all the cases are to search but any you have would be great to read. I am dedicating as much time as I can this weekend to drafting up the contraventions for filing.

Thanks @sammy01. That's the hardest part - knowing nothing will change. Mediation has only been initiated by the ex, so she obviously has something she wants to talk about and it can't be her limiting contact with my partner otherwise she wouldn't keep doing it now. I have a feeling it has to do with possibly having the daughter not see him at all but surely her legal aid lawyer will tell her that's not likely to happen. Either way, I think we'll walk out of there with the s60i certificate and then we can just take her to court.

 

[sammy01]

I'd wait before filing the contravention.

If you don't see the kid in the holidays, then file. As far as the phone calls go...maybe write to the ex and explain that you feel that their conduct is crazy and that you want it to stop. See how that goes.

Might be better off giving up on the phone calls if it is gonna distress the kid.