NSW Equal time parenting (50/50) - no consent orders in place

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KEJ

Active Member
31 October 2018
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Good morning everyone, I've just joined up after finding this forum searching for information that may help with an issue my partner is currently facing regarding his kids.

He has been separated for over three years, divorced for 18 months. He reached financial settlement with his partner 2 years ago however she has always refused to sign any parenting/consent orders relating to the children - hence there are NO orders in place.

His children are aged 14(girl) and 12 (boy). He has an excellent relationship with them both and they currently spend 4 nights per fortnight with him (Thursday-Monday) every second week. At the start of this year, he requested of his ex that he be able to have the children live with him equal time (week on/week off), He is an extremely involved Dad, very caring, pays all school fees plus generous child support (basically pays every expense the kids have) - Basically as a dad, you could say nothing bad about him.The kids supported the notion of having equal time with their dad, however their mother flatly refused to even discuss the issue and told them it wouldn't be happening as "its not what I want".

After getting nowhere with the discussion, and seeing it was having an affect on the kids, he then arranged counseling for himself, his ex and the kids - even after the counselor recommending in her report that his ex wife and her issues (she didn't want the divorce and is carrying some bitterness) was really the only obstacle to a 50/50 arrangement she still refused to budge- again, the only reason she would give is "I don't want 50/50"

He then went and sought the opinion of another counselor, (one of the most prominent family counselors in Sydney)who wanted to meet with both him, his ex and the kids over several sessions to finally work an arrangement out. She refused to attend and even wrote to the counselor in question and expressly forbade her from seeing the children. He has also had a few sessions with counselors from Relationships Australia around parenting issues in the past few years with no issues ever being resolved.

My question is - with kids of this age, who support 50/50 time, and no parenting orders in place, what are his options/rights from here? Obviously he would like to avoid court due to time, expense, and impact on the kids. With no orders, who has the "legal" rights here? His ex wife believes she does as the 4 nights per fortnight arrangement has been in place since they separated - even though at the time, this arrangement was agreed to on the basis it was to be flexible in the future.

Other things to consider - there is no day to day high conflict with the ex apart from her unwillingness to communicate or seek resolution to this issue, they both own their own homes only 4km apart from each other in Sydney (so no issues around schooling, activities, friends etc). If the kids ever leave something his home he happily drops it to them, he has bought them clothes etc to just keep at his house to minimise things they need to bring with them, etc. The kids support equal time with him but are obviously influenced to a high degree by their mother's emotions regarding the divorce.

What is the best way legally to handle a situation like this? Even if he wanted to go to court, he would obviously need to see FDR practitioner first. Is a FDR practitioner going to be able to mediate on this to the extent they will actually tell him and his ex what they believe the outcome should be? Are they able to make that decision based on what they believe the outcome in court would be?

Any help or advice on similar cases or issues would be greatly appreciated!
 

Jake Matherson

Well-Known Member
15 June 2018
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29
659
You can do all of the mediation you want nothing is enforceable besides a court order.

Mediators and counsellors can suggest that it's okay for the kids to do 50/50 and there will be no issues with that but if the mother is unwilling to facilitate it then there is nothing you can do besides go to court.

If you can get mum to agree to a parenting plan (not legally enforceable in any way) then great do that. But it sounds like she is unwilling to compromise.

You are going to waste a lot of time, money and stress on you and the family starting up a family court battle now, do you think it's worth it when it will take like 2 years to finish the court process and the 14 year old will be just about 16 nearing 18 years old anyway?

I know when I was 15-18 I spent as little time at home as possible as I had wayyyy more important things to do.

I would suggest you invest your energy in having the best time you can with the kids and keeping the stress and conflict low and they will want to spend more time with you now and when they're a bit older not living at home they will remember that Dad is awesome go hang out with Dad.

Just my 2c
 

KEJ

Active Member
31 October 2018
6
0
31
Hi Jake, thanks for your reply. I don't disagree with any of it, and its interesting you raise the point that "keep the stress and conflict low and they will want to spend more time with you now...". One thing I am interested to get clarification on is - with the absence of court orders, are the kids free to come and stay here weekly if they want to? Does she have any power to stop them?
 

Jake Matherson

Well-Known Member
15 June 2018
223
29
659
No court orders, No DVO's then either parent can pretty much do whatever they want.

Hypothetically if you were to retain the children on your weekend as they wanted to stay with you then there is nothing the mother can do to have them returned.
Police will just about hang up the phone on her when she say there are no court orders or DVO's in place.
(police assisted my ex to remove the child from a daycare she was not on the paperwork for. As there were no court orders in place the police told the daycare she is the biological mother you can release the child into her care. She then kept the child from me for 4 months)

Now I'm not suggesting you do that. But in the real world that's what happens. Obviously doing something like this would immediately create conflict where there currently is none and would be used against you in her paperwork if it got to court.

But in absence of orders and any safety concerns for the children you/kids can do as you please.
 

KEJ

Active Member
31 October 2018
6
0
31
Definitely no orders or DVOs. I was under the impression that yes, the kids could do that if they wished and we were even advised by a counselor to discuss that option with them, however obviously it was the first wish to resolve amicably with the ex and come to an agreement.

Their dad actually raised with the ex that due to the absence of orders, they technically have the same rights to the kids and in fact SHE would need to start court proceedings herself if she wanted to "legally" retain her current arrangement. Her response " its my legal right to have the days I have now and you'd have to take me to court to change to what you want". But absence of orders says otherwise. Who is right?
 

Jake Matherson

Well-Known Member
15 June 2018
223
29
659
Easiest way to think about it.
Parents have no rights to time with the children.

The children have a right to have a meaningful relationship with both parents. Does not mean equal time. It could mean every second Thursday + phone calls. But dad is currently getting more than that. SWEET!!!!

Under the Family Law Act 1975 there is a presumption that both parents will have an equal parental responsibility—that is, they will both have a role in making decisions about major long-term issues such as where a child goes to school or major health issues.

Shared parental responsibility is not the same as equal time. Parents will spend equal time with a child only where:
  • they can agree to this arrangement (parenting plan you two work out together not legally enforceable you could agree to it today and mum not follow it tomorrow)
    or
  • a court finds that equal time is in the best interests of the child and is the most suitable arrangement. (go to court)
Neither of you have rights. My kid is just a baby so it's worth it for me to go through court now.

But the question for dad is can he live with the current arrangement until the kids vote with their feet and walk out of mums house and come to dads on their own free will to avoid the drama with mum?
(I stayed with dad after mum left when I was 15. I lasted about a year before I walked out of dads house and went to mum due to conflict with him)
 

KEJ

Active Member
31 October 2018
6
0
31
Totally understand that only the children have "rights" in these scenarios. Just trying to ascertain if we would be breaking the law to instruct the kids to stay here more time if they wish due to absence of orders. We don't want to give the kids false information.
 

sammy01

Well-Known Member
27 September 2015
4,097
584
2,894
Apply to court. Learn how. Use this site. Go on dare ya.
So theoretically with no orders there are no rules. But, it could get messy. Let me give you worst case scenario. He tells the mum via text message that he is keeping the kids. She gets mad (sounds plausible so far.) Arguments happen (not good for the kids to be involved in that sort of thing even if dad does his best to be sweet.)

BTW why 4 a fortnight? Because it keeps him below 34% care. Once his care goes about 35% she loses lots of family tax benefit.

Mum goes to the cops, she tells them she is being harassed and intimidated and manages to convince to cops to make an interim avo and wants the kids protected too.. All of a sudden he can't pick up the kids from school as that is a breach of the avo. All of a sudden he can only see the kids when she says so...
OH beyond reasonable doubt? innocent until proven guilty?
NOPE - on the balance of probabilities. WTF Oh and it isn't even is it probable that your partner harassed. It is worse. Is it probable (more likely than not) that mum fears the dad...
Don't believe me... Have a read
The decision

Option 2. Stop paying.... He should do this anyways. Question... You go to a restaurant, the waitress smokes a ciggie will serving you, ashes in the soup. Do you leave a tip? So why is he forking out extra $? What is he getting for the $$$. A ciggie Butt in his soup?