SA Ex pursuing consent orders- wants injunction on step children

Discussion in 'Family Law Forum' started by triangle, 14 January 2020.

  1. triangle

    triangle Member

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    Hello,

    Lengthy story, but will try keep it brief.

    My partner and I are both going through separations. Full disclosure, us and our respective partners were all friends, and our relationship started prior to the eventual dissolve of both of our marriages. (many pre-existing issues in both of our marriages, but not really relevant, except to say there is a lot of anger).

    Our 4 children (2 each), were all very close. The older 3 especially. The 4th is younger and opposite gender. All children are aged 10 and under.

    We shared things such as holidays, sports, regular babysitting/sleepovers, I'd look after their children and take them to school every week.
    One of my children child has ASD and ADHD, diagnosed within the last few years, under care of paediatrician, and attends regular various therapies. Partners ex was very aware of this and the challenges my child faced, and supportive of the children's close bond and friendship.

    After separation, we initially had our children at the same weekend. My children are 50/50 with their other parent. Ex has majority time with their children, 10 nights out of 14. Refuses to allow any additional time with us.

    One time we had children together, an incident arose, we dealt with appropriately. However, once partner's children returned to other parent, a different version was told to that parent, who has absolutely flown off handle, and gone to the police. My partner tried to discuss this to explain, however other parent refused to attend at the same time.
    There is absolutely no substance to the ex-partners claims, the children have been manipulated and force fed a story, they are too young to know any different.
    I don't want to put details on here but happy to elaborate for context in private message.
    The next thing was a letter saying the children were not to be handed over to my partner. Ex withheld access until mediation could be arranged (ex delayed this session for several months). The only option was for my partner to agree to our children being separated, or ex refused to allow any handing over of children. Partner had to agree at that time as no other choice was offered to enable time.
    Ex has so far accessed free legal support through a legal service. Works minimum hours, with holds access to children unless on ex's terms. Ex is dragging out property settlement and pursuing 65% plus other various things wanting financial costs for. (it's a small property pool between them, less than 100k)
    My partner is self funding all legal costs, pays all child support and has always done so. Is an excellent parent whom children adore and desperately wish to spend more time with. Income is on par with average Australian, so not huge. There have never been any domestic issues or voilence etc, however many arguments over the years.
    Ex films partner at every exchange of children (at police station) in a concealed manner, however partner has realised this is what is happening.

    So, with that as a background, has proposed consent orders. These appear aimed at minimising my partners time with children, with no allowance for any more than 4 nights per fortnight, but give ex extra time in school holidays, and specifically at removing me from any inclusion in their school life/other aspects. (I have a very good relationship with partner's children, however the youngest comes out with gems such as: you hit my parent, you punched my parent, i'm not allowed to talk to you about X eg birthday party with cousins etc), Parent smacks my bum if I talk about you (me). You and parent aren't allowed to take us camping, I'm not allowed in your car etc because (parent) said so.There are many others, all of which am trying to keep documented. They come out with this all by themselves, as young children do!
    They also request an injunction against any contact ever with my 2 children (the children constantly ask when they can see each other again). My child is 10, certainly has challenging behaviours at times, however these are being addressed, and i have supporting written documentation from treating clinical psychologist explicitly stating separation is not only unnecessary and unwarranted, but also damaging to all of their children, especially given their pre-exisiting relationship. Said psychologist is happy to testify in court if needed.
    Ex has now enrolled children in a private school and is requesting via consent orders partner pay 50% of all fees and costs/uniforms etc, despite being told in mediation this is not financially an option. My partner was not consulted on change of schools at any stage, in fact has not been formally notified in any communications except to receive paperwork for after school care.

    I guess I have many questions, we have a meeting coming up with lawyer to address. I honestly don't see there being an agreement reached amicably, the ex has said and communicated very clearly to various parties their aim is that my partner and I, not be involved or have any more than bare minimum involvement with kids, as punishment. Even to the yelled statement at police station 'you cheated on me you will never get your kids'.
    The consent orders proposed are 4-5 pages of what come across as petty, however upon reading the handbook I see many tend to follow a similar format. I really feel that given it very unlikely ex will ever agree to anything proposed my my partner (ex loses too much in child support/centrelink payments to allow any increase in shared time). Is my partner better off proceeding to court in the very first instance, however funds are extremely limited and tight, already spent thousands, and Ex has free legal support and funding. it's not practical for us to build a happy and supportive environment for our children when they are prevented from seeing each other. We all had unhappy marriages and are very keen to provide a safe and happy environment for all the kids. As a child of divorced parents I'm acutely aware of what kids are exposed to, we are very conscious of this around all 4 children to make sure we don't expose them or use them as pawns in this situation.
    Just don;t know if judge is likely to agree to an injunction against my children. I work in a field where I am a mandated reporter, there is no criminal or abuse or violence issues or anything like that involved. Just a very angry party, using children as a power and control and revenge tool.
     
    #1 triangle, 14 January 2020
    Last edited: 14 January 2020
  2. Match

    Match Active Member

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    Hi there @triangle, if you have a certificate from mediation already, then proceed to court.

    I'm the new partner, filed

    How much time has passed?
    How are things with the ex on your side? Do you have consent orders with your ex? Are there issues with your ex or are the
     
  3. triangle

    triangle Member

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    It’s been over 18 months since separation for both of us.

    My partner has a 60i certificate from several failed mediation attempts with the ex (if I correctly remember what it’s called).

    My ex and I don’t have any consent orders in place. We have a current verbal arrangement which we are both ok with for the most part. There has been some anger initially and some differences (they existed pre divorce) but things are settling somewhat. At least mostly civil and generally in agreement in regards to my children.
    However, initially after separation my ex and partners ex were in contact in regards to both sets of children. My ex doesn’t want our children around my new partner now due to how our relationship came about, but has resigned to not having any say in this I guess, pointed out to my ex in our mediation that, and the same applies in reverse when my ex has children in their care. I trust they are kept safe and have no reason to not think my ex would do that.
     
  4. sammy01

    sammy01 Well-Known Member

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    Wow. Apply to court. Self represent.
    There is no way your partners ex will get an injunction around your kids.

    Apply to court. Have some guy/girl in a funny wig and gown make the decisions not the nutter/ex
     
  5. Match

    Match Active Member

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    (Sorry about my oddly structured reply - I was trying to draft a response on my phone and it got away from me!)

    I'm in a vaguely similar situation, in that I'm the new partner and the ex has gone a little mad. I was initially the favourite reason to withhold contact (although recently there's been a flip and I've now received an acknowledgement and even a thank you for my friendship with kid... all as part of a critique of my partner's parenting of course). New reason to withhold contact is money - not happy with child support assessment, not happy with partner's refusal to pay another year of private school fees (a financially ludicrous decision for either of them) - so no more seeing kid for us apparently! There'll always be something. So off to court we go (and probably - hopefully - a parenting orders program to learn how to get along)!

    My partner (today) filed an initiating application for parenting orders only (interim and final) with the Family Court of WA. The application fee alone was $470 (the costs of not getting along are eye-watering... kudos to yourself and your ex for acknowledging it's a sad situation and still making it work for the kids). With your partner's ex, it sounds like hurt feelings are going to prevent them from agreeing to anything you come up with, reasonable or not (this is why I said "proceed to court" - much more bluntly than I'd intended to as I dropped my phone on my face...). This has certainly been the case for me and a few others on this forum.

    So, where to from here? On the advice of @sammy01, I paid $17 for the eBook version of Robert Larkins, Breaking Up: A Self-Help Guide to the Courts and the Law. It was short, easy to read, and gave practical examples (it also explained the different courts - helpful for me with our same-same-but-different court to the rest of the country).

    I'd also recommend jumping down that rabbit hole that is austlii.edu.au. I did a little search and thought the following cases might be of interest to you:
    • Parnell & Parnell [2011]
    • Blair & Blair [2007]
    • Galbraith & Galbraith (No 2) [2015]
    • Bass & Bass [2012]
    Personally, I'm always reassured by how measured and reasonable the judges are - they're not easily taken by theatrics. If the ex will communicate via email, it certainly makes it easier to reference when it comes to preparing an affidavit.

    Good luck getting started! It can seem overwhelming but like someone said on a thread on here, self-representing was actually the most empowering part of the whole thing. (Although if you can do the legwork yourselves and afford a lawyer for court - that seems to be the general recommendation.)
     
  6. sammy01

    sammy01 Well-Known Member

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    Good advice match... get that book and Google search the name Robert Larkin and ABC radio. He has been interviewed a few times on ABC.

    I'm using my thumbs so can't be as thorough as if I had a keyboard.

    Play hard but fair.

    Little about myself.... male accused of DV etc. Kids now live with me 90% of the time. I'm currently sitting in the shitty motel I found. Why? Well the ex was 4 hours late dropping the kids off and I couldn't face 4 more hours in the car to get home..
    Oh family law- the stupid game that fcuks up everyone who plays...
     
  7. triangle

    triangle Member

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    Thank you for the replies.

    I get the Ex is hurt, I genuinely do... but the kids are (and always have been, hence their dysfunctional terrible marriage) a method of executing power and control and punishment.
    Ex knows my partner's only vulnerability is the kids. My partner is so ready for the Ex to be gone from any part of life, except for in regards to the kids. There will never be co-parenting between them... they will be parents of shared children but I see no way for the Ex to move beyond their all consuming feelings of anger.

    Thank you for the suggestions of those cases, I'm reading the first one now and the judgement and it's very interesting.

    Honestly, my partner is wonderful and skilled in many ways, but self-representing in court would not likely be successful. I could do it, I have enough book smarts I guess, and can handle myself well in stressful situations and argue and debate logically and calmly til the cows come home, my partner however would struggle with this, especially when the Ex started behaviour like we've experienced throughout this whole process.

    Not everything has been rosy or easy going with my ex either, I probably made it sound rosier than it has been. I can say with honesty though I haven't used my children against my ex or as a tool of power or control. The issues we have mostly surround my ex being not being on same page around my asd child's needs. being involved in therapy, adhering to medication regimes, following paediatrician advice. In fairness though, the head in sand attitude existed about the diagnosis while we were married, and still does to an extent, but I've now gone from a position of being primary care giver for their whole lives, doing all of the mountain of work that comes with a special needs child/household/career etc, to having to share that responsibility now 50/50 with someone who up until we separated, took a back seat in all aspects of parenting and engagement with their children. BUT all that aside, we are managing with the kids day to day, the bigger stuff still is tricky but hopefully we can meet my kids needs without needing court to be involved.
     
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