QLD 50/50 shared care, child not attending school often in mother's care

[JadeGoldCoast]

Hi Sammy, I've looked into parallel parenting and I think we are basically already parenting in this way. We have previously asked the mother to communicate via an app and sent her the request as we liked the idea of using it to communicate, but she refused. If you're meaning its best to accept she just will not follow the orders, that's really frustrating, but I see your point that she is running rings purposefully and we are biting.
We have been focusing on the positives since Friday. Since my partner threatened court the child has been going to school more often than last year (still time off but an improvement), he has been given his own room (not sleeping in her room/her bed with her partner), the mother is even toilet training finally and agreed to speak to the child's pediatrician with us as we are concerned her putting nappies on the 7 year old is confusing him (hasn't worn nappies in a long time in our care and been fully trained and she's aware of this) and last week was the first week the child wasn't made to wear a nappy. These are all really big positives for the child and his development we feel, so i guess in that way it's worth the mother taking her frustration out on my partner if it means the child is reaping the benefits. We just need to remember this!

 

[ATE000Rosemary]

Hi Rosscoe, thank you for your reply. Yes we will be having another meeting with the school before the end of term to discuss the matter again. Unfortunately it has been our experience that they do not like to get involved too much but hopefully if we advise we are considering going back to court in the future they might be more forthcoming?

Unfortunately the mother completely depends on the child for her happiness. The child currently sleeps in the same room as the mother and her partner when in her care, at the start of the year it was in the same bed and so my partner offered to buy the child a bed. The mother of course denied that the child was sleeping in her bed but the child has no reason to make it up and still continues to ask to sleep in our bed regularly. The mother is also keeping the child in nappies at night time even though he is fully trained in our care (he is 7 years of age). She did this with day time nappies also and only stopped when we advised we were applying for court orders in 2017. It is almost as if she wants the child to stay a baby and be dependent on her, but of course we can not prove that.

I am wondering if anyone is aware if we will we need to go through the mediation path and request a 60i certificate to apply for a contravention order? The child hasn't attended school again today. Mother is stating child came home from school unwell on Friday, however his school records show she came into the school to collect him at 10am last Friday (she was not called in due to him being unwell). We will make sure to document all SMS messages from the mother like we did for the last court case. Including a SMS message a few months ago where my partner questioned why the child hadn't been attending school and she replied that she gives him the option to attend (he was 6 at the time).

Hi, I am following. If you can keep update the situation that would be very helpful for me. We have similar situation. My stepsons mother crying through call to make child felt sad while he was in our carer. Now we have court order said change over location is at school on Friday after school. Now mother claim child is sick and not attend to school in order to interfere change over and child told us he not go to school for three days. When we picked him up you can tell he is not sick at all. Game game game...never end

 

[JadeGoldCoast]

Hi all, hoping to pick some brains if possible.

We received our family report last week which has recommended 50/50 shared care continue, but also recommended the following:
- that the mother ensures that the child maintains a high level of school attendance when he is in her care and if he is unable to attend due to illness that she obtains a medical certificate stating the same
- that if the child's school attendance declines significantly (for no evidentiary reason) that consideration be given to the child primarily living with the father and spending alternate and after school times weekends with the mother
- that the mother ensure that the father is aware of all medical or specialist appointments and is invited to attend and vice versa
- that the mother responds to all communication from the father (related to the child) or any professionals (ie. school, medical, psychologist) in a timely manner
- that if the mother withholds the child from spending time with his father without first attempting discussions or mediation with the father that the court considers a change of residence of the child to the father

We were asking for 80% custody and mother asking for 100% custody. Our main concerns were the child not attending school and mother withholding child for the 3rd time (have missed out on 10 months of his life for this reason). While I understand these orders are recommended to alleviate our concerns, I do wonder what would have been recommended if my partner had decided to stop taking the child to school regularly and then withheld him from his mother.

Moving on... the following day we had a court appearance. ICL sent an email recommending orders, father agreed, mother refused stating she needed more time to respond to the report as she didn't think it was fair all of the orders were targeted towards her. Judge asked if my partner was happy to remain at shared care, thinking the judge meant on an interim basis and following the report he said yes if the other recommendations are ordered. The judge asked the mother if she would agree to share care and she said yes on an interim basis. Judge then advised he was meaning on a final basis and would be setting a date for final court, she agreed.

We were a little shocked as we were in court for much longer last time, although we do already hold final orders so it makes sense. Orders have finally come through today which to not mention shared care, only that the final court date is set for half a day and what is required to be filed.

I have a few questions
- With the report recommending shared care, is there any point trying to fight for more?
- We have never been in final court and I am worried how my partner will cope. We are hoping to book a day off next week and attend a final hearing to see how it all works and if we can manage. Any words of advice?
- If shared care is agreed upon, there is still a concern for shared parental responsibility relating to medical. Mum hasn't followed pediatrician advice or medication recommendation, mum hasn't agreed to child completing a cognitive assessment even though it has been recommended by 2 psychologist's and by the report writer, mum is against the vaccine (father tried to bring up in court about child needing his 2nd dose and judge said he didn't have time and will discuss in final court date)
- Any idea how much it would cost a lawyer to represent us for half a day?

Sorry for the long post!

 

[Dpj]

Wow.. you poor thing. I read the 8 pages. What the FRW is basically saying is "I can't confirm all these medical and school attendance allegations so won't recommend a major care change but will put provisions in my recommendations to cover that behaviour".

So, imo, what you should do in court is set out your requested orders to include school and medical. You need to be very strategic with your requested orders. Covering school, extra curricular, medical and consequences (if that's allowed, ask lawyer). If the mother is already missing 50 days a year of school and then after orders misses 45, then there technically hasn't been a decline. You want to set the orders so that if the mother continues to behave like she has in the past then she will contravene/breach the orders. Then you bring in FRW recommendations to have a changed in custody (or, if possible, have the change in custody if orders aren't followed put into the orders). Then you need to take action on those breaches and if it happens regularly force the court to make the custody change in your favour. I saw a case where a party kept filing contraventions. The judge was annoyed at the filing party but each time a contravention was deemed to have occurred. Eventually that person (5 years later) got sole parental responsibility and 100% custody. It feels like you will need to learn how to apply and argue breaches. You need to prove categorically a breach occurred and your ex needs to try and claim that breach was allowed under the law (ie, misunderstanding orders, risk to the child, etc). My barrister told me to do a 3 warning system as that will show judge you tried. Letscssy ex didn't drop kid to you. 1st time) Ask ex to drop child off (always I writing) and that order XYZ is being breached. 2nd time) advise that the orders are being breached and ask ex to provide a reason why orders are being breached. Ask for orders to be followed and for child to be dropped off.. if reason ex gives is invalid (ie, silence)... 3rd time) advise if the child isn't dropped off then you will file a contravention of the orders (or

 

[Dpj]

Wow.. you poor thing. I read the 8 pages. What the FRW is basically saying is "I can't confirm all these medical and school attendance allegations so won't recommend a major care change but will put provisions in my recommendations to cover that behaviour".

So, imo, what you should do in court is set out your requested orders to include school and medical. You need to be very strategic with your requested orders. Covering school, extra curricular, medical and consequences (if that's allowed, ask lawyer). If the mother is already missing 50 days a year of school and then after orders misses 45, then there technically hasn't been a decline. You want to set the orders so that if the mother continues to behave like she has in the past then she will contravene/breach the orders. Then you bring in FRW recommendations to have a changed in custody (or, if possible, have the change in custody if orders aren't followed put into the orders). Then you need to take action on those breaches and if it happens regularly force the court to make the custody change in your favour. I saw a case where a party kept filing contraventions. The judge was annoyed at the filing party but each time a contravention was deemed to have occurred. Eventually that person (5 years later) got sole parental responsibility and 100% custody. It feels like you will need to learn how to apply and argue breaches. You need to prove categorically a breach occurred and your ex needs to try and claim that breach was allowed under the law (ie, misunderstanding orders, risk to the child, etc). My barrister told me to do a 3 warning system as that will show judge you tried. Letscssy ex didn't drop kid to you. 1st time) Ask ex to drop child off (always I writing) and that order XYZ is being breached. 2nd time) advise that the orders are being breached and ask ex to provide a reason why orders are being breached. Ask for orders to be followed and for child to be dropped off.. if reason ex gives is invalid (ie, silence)... 3rd time) advise if the child isn't dropped off then you will file a contravention of the orders (or

. Then don't mention it again to ex.. gather a few of these examples then file with the court. Likely nothing will happen but if you keep lodging contraventions that are lefif then judge will be forced to make custody changes.

You need to extremely methodical with your record keeping. Always have things in writing. Always ask for medical proof, etc. When it refused, and if that contravenes an order, do the 3 step process. Don't get frustrated. Just use the law to force a change.

 

[JadeGoldCoast]

Hi Dpj, thanks so much for your response! Sorry I missed it somehow.

Were going to be as specific as we can with our final order request and hope the judge will agree.
The child's school attendance has significantly improved, only 3 days off in term 3 and 4 in 2021, so we are going to aim for no more than 10 days away from school in the mother's care per year, or that if the pattern returns of the child missing school regularly in only the other's care due to 'illness', that the change of residency occur. It is super easy these days to call and get a medical certificate over the phone, I don't think a medical certificate alone will stop her from keeping the child home unfortunately.

I like the 3 step method you have suggested and to keep advising that she is breaching the orders if and when she does. If you file a contravention, can you ask to amend orders at the same time? Or does a contravention hearing only address the broken order and ways to rectify it?

 

[Dpj]

Hi Dpj, thanks so much for your response! Sorry I missed it somehow.

Were going to be as specific as we can with our final order request and hope the judge will agree.
The child's school attendance has significantly improved, only 3 days off in term 3 and 4 in 2021, so we are going to aim for no more than 10 days away from school in the mother's care per year, or that if the pattern returns of the child missing school regularly in only the other's care due to 'illness', that the change of residency occur. It is super easy these days to call and get a medical certificate over the phone, I don't think a medical certificate alone will stop her from keeping the child home unfortunately.

I like the 3 step method you have suggested and to keep advising that she is breaching the orders if and when she does. If you file a contravention, can you ask to amend orders at the same time? Or does a contravention hearing only address the broken order and ways to rectify it?

A judge can change orders in a contravention hearing. I wouldn't image this is done lightly. Ie, first time you lodge a contravention maybe go light and request an 'enforcement of orders'. Basically saying 'judge, I don't to punishment the other party, I just want them to follow orders'. This will show you are not vindictive and just want due process followed as that is what the court deemed best for the child.

If breaches continue, then lodge a contravention and either request a fine or make up time (or other solution). Basically, a punishment for the other parent. 'Judge, we have been here before and orders were enforced. The other parent continues to breach orders).

May be after a few of the above, then file a request for custodial change. You will need to rely on the FRW so the wording of what they said in the report is extremely important. 'Judge, the other party continues to breach orders. They disregarded the courts enforcement of the orders and fines/etc don't seem to make a difference. The FRW stated 'xyz' and as such I am requesting a change in custody for the best outcome for the child'