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NSW Dispute with Ex Over School of Son?

Discussion in 'Family Law Forum' started by Kyl, 25 July 2016.

  1. Kyl

    Kyl Well-Known Member

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    Hi,

    My ex husband has refused to return my 8-year-old son to me. Basically this is the situation:

    Ex took kids and all property on separation. Family court gave interim orders for kids to live with the dad but the 8-year-old to spend equal time with me. Other kids are teenagers and remain allianated from me due to our divorce, etc.

    The 8-year-old remains in his school after the divorce, has been there 3 years. Due to being thrown out of the family home, I took the first available rental about 20 mins away from the kid's school. I just made arrangements for transport regardless.

    A house came available 700m from my son's school so I moved back in October 2015. All is going well.

    On November 2015, the father moves out of the area around 30 mins away. He tried to breach family court orders and enrol my son into a school local to him. Not successful as the school would not break the orders.

    On January, the father won't arrange to transport my son to school on his week, blaming me and saying my son should be moving school as thd order say 'live with the father'. The father makes no effort to transport to school, etc., so my son has been living with me since, seeing his father every second weekend. I maintained fully that I wanted my son to be 50/50 and the father needs to be responsible.

    My son has a behaviour disability. It was going really well all year, next to no issues. The dad insists on a change of care, wanting an extra two days. I suggested a split of 2 days each week as my son was now in a pattern and this might be better to start with. The ex refuses and won't negotiate.

    On the 2nd occupancy of this change, my son has an aggressive meltdown at school, hurts the principal, police were called for assistance. The principal attempted some form of restraint. My ex-husband makes accusations of abuse against the Principal and refuses to meet with the department of ed to resolve issues

    My son was suspended, due to return to school day one term 3. The father is claiming my son is not to return to his school, and will be enrolled in the local school near him. The local school still won't break court orders. The father refuses to return my son, claiming he can't trust me not to return my son to his school.

    The ex, in writing several times, tells me my son will remain in his care until I agree to sign my son into the local school near him, on account that the ex says the Principal abused my son. I agree with director of education to keep T home for a couple of days until another meeting is held to sort things out. The father refuses to meet and still refuses to return my son.

    My son begins calling the Principal names as the father did that are abusive. I begin working with the director of education to seek the possibility of changing my son's school as he is now fixated on an anti-Principal attitude. One school is conducive for both his father and I to transport to but after a lot of discussion and director meetings would not take my son.

    I began researching another school. The director felt would really meet my son's needs, we located 2 schools still within the area willing to take my son. I found a solution for transport for both the father and I, it requires a change of bus at the local highschool where my son's siblings would meet him and travel home to the fathers with him on his day.

    The department offering to taxi my son from highschool in the morning to school for the father, at no cost. Before and after school care exists at both these schools, should the father prefer to access this. But at the local school near the father, it's only through a preschool who would be unlikely to meet my sons needs.

    The father refuses the director's offer on the basis he wants the local school to him and it shouldn't be about making it work for 'the mother'. He says this can all be over if I sign for the school he wants. He says to cooperate with me. I can drop my son to him mornings and pick him up from there afternoons, however, this relies on the father sticking to his word and nog deciding after the fact to rebut this, along with his residence which is now 50 minutes from where I work.

    I changed jobs this year so I was closer to my son's school and work only 15 minutes away. Including suspension days and school holidays, my son has not been to school for 6 weeks and remains at his father's.

    Our family court orders state that neither party can enrol the children in another school without the others prior written consent. The is ICL-appointed, who has never contacted me after an initial meet and greet at the court one day.

    My questions:

    I am applying for an application in a case for recovery of my son; How could I word it so it is considered urgent?

    Should I include all this type of detail? Am I likely to get my son back soon?

    What direction is a court likely to take in relation to a change of schools?

    I only agreed to consider it in order to get my son back and create some peace with the father as he sends me almost daily messages telling me a whole array of nasty things that I am not! How great a weight will the court place on the father's claim that the Principal abused my son? (There was no real evidence, just my son's recount after his father had made his own impression known).

    How long can this process take to be seen by a judge? Is there anything else I could consider in relation to this?
     
  2. AllForHer

    AllForHer Well-Known Member

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    So the most recent court orders you have are for 50/50?
     
  3. Kyl

    Kyl Well-Known Member

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    Hi,

    Yes, the orders say:

    "Live with the father and spend time with the mother 50/50".

    We are meant to go week about. We also have equal shared parental responsibility.
     
  4. AllForHer

    AllForHer Well-Known Member

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    In that case, I think a recovery order is going to be a huge expense with very little gain.

    Whatever agreement you and the father had in place of the orders is not legally enforceable because neither of you sought to get the current arrangement formalised into orders. The current orders is what the Court can enforce, nothing else, so you would essentially be asking the Court to recover for a week of time and then it's back to dad's.

    The avenue you could consider instead is a contravention order for each of the occasions on which the father has not facilitated the child's time with you in accordance with the orders.

    Regarding the issue of schooling, an application in a case seeking interim orders that the child be enrolled at the school of your choice is your best option, but bear in mind the Court is probably going to receive a response from the father seeking interim orders that the child be enrolled in the school of his choice, and like you, he's probably going to have valid reasons for doing so. Thus, it will be up to the Court to decide which school is best for the child.

    I do think there is urgency in the child having missed what I calculate roughly to be 15-20 days of school so far (you cannot include holidays or suspension days as days missed), so I imagine the Court will want to address that as soon as possible.

    I doubt the Court will put weight on the allegation that the principal abused your son, but what it will probably see is a child who was obviously unsettled and not coping with the school he was enrolled in, and two parents who have turned the child's needs into a fight about school choices. There could be any number of things that led the child to breaking point - maybe the child was being bullied, maybe the child was struggling to keep up with classmates, maybe the child is distressed about the conflict between his parents, maybe the child wants to go back to living with his father.

    Any of these are possible causes, and I wonder if you and the father have discussed the emotional needs of the child at this point (such as counselling), or if you've bypassed the issues your child may be experiencing and gone straight to a dispute about whose choice of school should win.

    An application in a case usually takes about six weeks to be heard, but I would suggest trying to organise mediation in the mean time, and discuss whether the child is experiencing challenges that need to be properly addressed.
     
  5. Kyl

    Kyl Well-Known Member

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    Thank you. I appreciate getting another view.

    I am self-representing, so I feel seeing things from multiple perspectives is important. I will put in the application in a case and hope for a quick outcome.

    My ex has breached orders multiple times on multiple issues. I don't want to waste the courts time but would like him to adhere to the orders so we can at least have some routine for the kids. Is a contravention order likely to be worthwhile?
     
  6. AllForHer

    AllForHer Well-Known Member

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    Just before I respond to that, I've written on the assumption that there are already proceedings afoot, which is why you can file an application in a case. Is that right?
     
  7. Kyl

    Kyl Well-Known Member

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    Yes. We are In the middle of the case.

    My ex won't mediate. Any attempt we have tried has just failed within 30 mins. That's why we are in court. I'm hoping because my son is not in school the court will act swiftly.

    The ex says that because he lives in...then my son should be attending the school there. He doesn't feel that the fact transporting my son to that school from where I live is impossible is important, however, the result for my son would be that he simply would no longer see me as I can't get him to school.

    There are alternate schools that can work if the father chooses to make things work but he is not cooperating at all. In essence, myself and the department of ed are doing whatever is possible to make a school in-between both our homes work for the ex with regard to transport and these schools have principals who are experts in behaviour but the ex won't agree.

    In the meantime, my son isn't at school. I have wondered if my ex can provide all day care for him why can't he drive my son to school in the morning, the schools are only a 15-minute drive from where my ex lives. We are in a semi rural area so the schools are spread out a bit.
    I know this all seems about me and the ex but we need to be practical as well. I just want my son back into school.

    How much will a court consider factors that will make a school work best for my son and the benefits of being conducive to both parents so we can both be involved in his development?
     
  8. AllForHer

    AllForHer Well-Known Member

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    Okay, so in answer to your first response, I will say that the obstruction of time with the other parent tends to be one of the very few contraventions the Court does take seriously, but if proceedings are already afoot, then it tends to happen that contravention proceedings 'go stale' before they're actually dealt with. Most end up discontinued in line with ongoing changes to interim orders, anyway, so you're probably better off filing an application in a case to change current orders, and an affidavit detailing what's happened and why the change is in the best interests of the child.

    In my view, it's beneficial to try and get the child enrolled at either one of the 'middle ground' schools that you researched, rather than the school at which the child was first enrolled. You've obviously gone to great lengths to try and make this work for the father, so I think the Court is going to view those efforts in a positive light. If the father is refusing to negotiate about these, even to bring his own views about the school of his choice to the table, then he runs the risk of being seen by the Court as putting his own needs ahead of the child's.

    What I can't provide much insight on is how the Court will perceive the change to care arrangements that followed the father's relocation. It could go two or more ways. On one hand, the father could argue that he tried to negotiate with you about changing the child's school when he relocated because he was concerned the child was not coping at the other school. He could frame the argument to suggest that you refused to change schools because the convenience to you of retaining the existing school was more important than the child's well-being at the school and the capacity of the father to facilitate the child's attendance. He could potentially also argue that he agreed to allow the child to live with you because he felt that the difficulty he'd experienced changing schools would cause conflict that would not be in the best interests of the child, either.

    Or, it could go another way, whereby he is seen to have been acting unilaterally by relocating and trying to change the child's school without consulting with you first. Or it could simply be seen as meritous of you and your ex's ordinary capacity to communicate about important matters. It's hard to know, but in either case, your responsibility is only to show the Court what you believe is in the best interests of the child. If one of the 'compromise' schools ensures the child benefits from both yours and the father's participation in school routines and events for the child, then that's a good argument to make.
     
  9. Kyl

    Kyl Well-Known Member

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    Thank you so much. This is so helpful. Over the coming days/ weeks I will keep posting hoping you will be able to keep tracking me.
     
  10. Kyl

    Kyl Well-Known Member

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    My case was considered urgent and we have a date in the next 3 weeks to be heard.

    I keep trying with my ex to work with the department but he declined to attend further meetings. Instead he sends lengthy emails about how 'the mother is a liar', which is untrue and has nothing to do with getting my son back to a school that can help him learn best.
     

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