VIC Breach of Final Orders - What to Do Under Family Law?

[Kitkat76]

Hi

My husband has a 14-year-old son. In 2014, final orders were signed providing him 4 overnight stays per fortnight, half school holidays and various holidays/important dates with his son. Mother and father have shared parenting responsibility and custody of children.

The orders provide time together "subject to the wishes of the child".

The mother says most weeks "(son) doesn't want to see you". No explanation is provided and when my husband tries to find out why or what's wrong, he gets no info/is told to "leave us alone".

We feel the son is told not to reply to his father's attempts to see him (attempted pick up at scheduled time, phone, SMS) and the relationship is failing.

What can we do under family law? My husband is hurt and very worried about his son.

Absolutely no history of abuse or violence from my husband. Both parents have re-partnered.

Mother ignores suggestion of counselling.

 

[Kitkat76]

I should add that when son is with us for a weekend his mother texts / calls him constantly and schedules extra activities near her home (eg sport, cultural school, appointments). She doesn't consult my husband before hand, son just says he has to be there.

 

[AllForHer]

Is the four overnights/half holidays/other occasions in addition to 'in accordance with the child's wishes'?

 

[Kitkat76]

It's worded "that subject to the wishes of the child the child spend time with the father as follows"...

 

[AllForHer]

Mm, not the best way those orders could have been worded. That line basically gives the child full capacity to decide when he does or doesn't see his dad, so if the child doesn't wish to spend time with dad, the mother isn't technically breaching the orders.

Surprising the Court would seal such orders, really.

What is happening that shouldn't be happening is that mum seems to be solely responsible for determining what the child's wishes are, rather than the child sharing his wishes with dad directly.

I'm not sure this would be worth another trip to Court - the child's age means his opinion will be given weight, so it may result in similar kinds of orders anyway.

Instead, I think you should contact a family dispute resolution service and organise mediation with the mother. You might like to consider a child-inclusive conference, which is where a professional will determine the child's wishes first and then present them to the parents before they mediate, so both have a third-party understanding of what the child wants.

All you really need to do is change the orders so it says 'That the child spend time with the father as follows' and 'That the child spend additional time with the child in accordance with the child's wishes' and one that says 'Neither parent shall organise activities for the child that interfere with the child's time with the other parent unless by written agreement of both parents'. Simple enough.

In the event mum doesn't play ball, then you can look at filing for Court orders. It's highly likely she would settle on such minor changes by consent anyway.

 

[Kitkat76]

I agree, the wording is painful.

The difficulty is knowing what the child does want.

We've seen lots of text messages to both my husband's sons (elder is 18 so an adult, but 16 at time of orders) saying their father is a liar and "picking on" her.

She says to me my husband only wants to see his son to "get back at her".

This behaviour seems abusive? Over the last 18 months, my husband has invited her to consider mediation or counselling with the son but she says "no" or "it's too late" or "son knows what he wants so respect his wishes".

The son hasn't said anything directly to his father about it and SMS messages come late at night so we don't know who wrote them.

How can my husband have a meaningful relationship with his son in these circumstances?

 

[sammy01]

When did you see the kid last? When do you expect to see him next? By the sounds of things, you are still getting some time with the kid? What arrangements are in place within the orders pertaining to picking up the kid? What arrangements have been happening around actually picking up the kid? Do you reckon (now be honest) that the kid doesn't wanna see dad?

I don't care if you say that yes, but only because of mum... Just yes or no. Sorry for all the questions. but the help I'd suggest is dependent on your answers.

But going to court at this point is probably a hiding to nothing. So let's look at alternatives and mediation is a possibility.

 

[AllForHer]

The magical thing about organising mediation is that you don't need their agreement first. All you do is contact the service you wish to use, they'll do an intake with you, then they'll contact her on your behalf. If she refuses to participate, your husband gets a certificate that enables him to file through the Court.

Of course, the mother's attitude isn't ideal, but the child is 14 years of age - realistically, he can vote with his feet at this point, and the Court is likely to give that vote some weight when it determines what orders are in the child's best interests. The child sounds a little defensive of his mother, which is a marker for a child that's been placed in the middle of a messy divorce, but if he does feel protective of his mother, than I highly doubt he's going to look kindly on another parenting case against her initiated by the father.

Unfortunately, the child may be at an age now where it's time for the father to step back and assume the child's wishes are being communicated accurately by the mother, even if it's quite obvious that they're not. This child is of an age where he has genuine feelings, even if they've been manipulated somewhat, and it's likely he's going to want those feelings respected, regardless of where they have come from. The more dad pushes, the more a 14-year-old boy is going to push back, so rather than exert authority, perhaps advise that if the child that you feel he's old enough to start making some decisions for himself and that if he wishes to see dad, all he has to do is send a text or e-mail and dad will be there with bells on.

This child is going to sort it out for himself, eventually. Dad might just need to have patience.

 

[Kitkat76]

when did you see the kid last? when do you expect to see him next? By the sounds of things you are still getting some time with the kid? What arrangements are in place within the orders pertaining to picking up the kid? What arrangements have been happeneing around actually picking up the kid? Do you reckon (now be honest) that the kid doesn't wanna see dad? I don't care if you say that YES but only because of mum... Just yes OR no. Sorry for all the questions. BUT the advice I'd suggest is dependent on your answers.

But going to court at this point is probably a hiding to nothing. So lets look at alternatives and mediation is a possibility.

It's been three weeks since the last visit. Yes I do think the son wants to see his father. I suspect he wants to decide when.

 

[Kitkat76]

The magical thing about organising mediation is that you don't need their agreement first. All you do is contact the service you wish to use, they'll do an intake with you, then they'll contact her on your behalf. If she refuses to participate, your husband gets a certificate that enables him to file through the Court.

Of course, the mother's attitude isn't ideal, but the child is 14 years of age - realistically, he can vote with his feet at this point, and the Court is likely to give that vote some weight when it determines what orders are in the child's best interests. The child sounds a little defensive of his mother, which is a marker for a child that's been placed in the middle of a messy divorce, but if he does feel protective of his mother, than I highly doubt he's going to look kindly on another parenting case against her initiated by the father.

Unfortunately, the child may be at an age now where it's time for the father to step back and assume the child's wishes are being communicated accurately by the mother, even if it's quite obvious that they're not. This child is of an age where he has genuine feelings, even if they've been manipulated somewhat, and it's likely he's going to want those feelings respected, regardless of where they have come from. The more dad pushes, the more a 14-year-old boy is going to push back, so rather than exert authority, perhaps advise that if the child that you feel he's old enough to start making some decisions for himself and that if he wishes to see dad, all he has to do is send a text or e-mail and dad will be there with bells on.

This child is going to sort it out for himself, eventually. Dad might just need to have patience.

I think mediation sounds like the most reasonable option so I'll suggest it to my husband. I know his lawyer is recommending a contravention application but my husband loves his son and doesn't want him caught up in another legal fight. It's just difficult preparing ourselves for the fact we won't see the son for a while (possibly).