NSW Consent Orders - Primary Caregiver not Available for Return of Children

[Graeme66]

I have consent orders in place which was mutually agreed with my ex-wife for times my children spend with me as the non-primary parent (every second weekend, certain key dates, and half the school holidays). However, my wife is often not available to receive the children back at the specified time. which can in some cases cause significant disruption to me both regards my plans and financial circumstances. This is potentially of particular significance regards school holidays.

As some relevant background, my wife and I separated shortly after I became bankrupt, and I have extremely limited financial resources currently and am living with a relative as can not yet afford my own place, whilst she is quite well off living in a top suburb with her new defacto partner who is also financially well off. We recently agreed consent orders for custody of children and property settlement (of which there was little/none given my recent financial position).

My understanding regards consent agreements is that it ensures my right to access, however does not create an obligation for me to have the children at these times, and also does not deal with any financial obligations on either party (this would require a separate support/maintenance order regards children and/or spouse ?).

Whilst I would like to have the children during the holidays, and where possible intend to do so, for the moment my circumstances and financial position unfortunately do not accommodate this, as (i) I currently obtain limited casual contract work hence must be available to do this when required, possibly at short notice, and could not afford external care for the children if required to work those days as it would largely defeat the purpose then of working, and (ii) I do not have my own residence and the person whose house I am staying at is quite old and has indicated that whilst they are fine for the children to visit every second weekend (as per the consent order) they are not happy to have them there for an extended period during the school holidays.

The problem is that my ex-wife's view is that I am obliged to have the children during the holiday period as per the consent order, and also her view that if have other commitments during that period then it is my problem financially to pay for external care etc. Regardless of whether her view is right or wrong, my concern is that when I have the children on one of my weekends during the holidays and am due to return them that she will simply be "unavailable" for me to return them and I will effectively then be stuck with them for an extended period causing me significant hardship.

To me this would seem logically to be "abandonment" by the primary parent, however it is possibly grey in that it is a period I am entitled to spend with the children under the agreement, but am not (yet) in a position to take up ...

I would really appreciate any help, as I looked up the Family Law act but it seems to only deal with ensuring access by each parent, and does not seem to make any reference to any reverse situation where the primary parent effectively abandons their children to the non-primary ...

 

[AllForHer]

I don't feel that your question is one of legal nature, but more of moral nature, so I'm going to address it as such.

What you have agreed to do is take parental responsibility for your kids.

This is an agreement to help care for your kids, not a glorified babysitting roster that assigns full-time care duties to the mother and gives you 'access' when it's convenient for you.

It's true that you are not obliged to see the kids at times stipulated in your consent orders, and neither is your ex-wife, but your ex-wife's view about your 'obligations' to spend time with the kids is not the problem - your perception about parenthood and what you owe to your children is.

Insofar as I can tell, you have framed your matter to be one about your best interests, not about your kids, and as you've read the Family Law Act 1975, I imagine you would have learned swiftly that the kids' best interests are of paramount concern to the court. This means having a meaningful relationship with both parents by *spending time* and *communicating* with them on a regular basis - and you don't need to have anything more than a roof over your head and food in your pantry in order to *spend time* and *communicate* with your kids.

I understand that the financial impact of kids is significant and that you may not be as well equipped as your ex-wife to care for them full-time, but realistically, if you can't afford to feed and shelter your kids for holiday time, and can only afford to feed and shelter them for one or two nights a fortnight, then you should consider consent orders that reflect that, instead of consent orders that just, you know, give you the option to spend time with your kids when it's convenient or affordable for you.

Just remember that you will still have to financially support your kids, even if you can holiday time. The less time your kids spend with you, the more child support you will have to pay.

Again, apologies if this is blunt. I just hope I have given you some perspective.

 

[AllForHer]

Also, you don't have a right to access. You don't have any rights as a parent. Only your child has rights under the Family Law Act 1975.