QLD Ex Reneging On Agreed Visitation - What To Do?

[dredjesta]

I have 2 sons, 6 and 11, and over the past two years they have been pushed from pillar to post by my ex as she keeps changing her mind on what access arrangements (custody of children) we have. In September 2013, she was having a hard time with life and asked me to take the boys on a full time basis with her having fortnightly visits and part of the holidays. At this time, we both lived in Brisbane and everything was travelling nicely. We both decided that a verbal agreement was all that was needed at this stage.

After a relationship breakdown, she decided that she was moving 4 hours away, so visitation was to change to half the 6 week Christmas holidays and all of the other holidays. When the boys went to their mother's for the mid-year holidays, she decided that they were going to live with her without discussing it with the boys to see whether it was what they wanted. They were only informed that they were staying when I rang to make arrangements to pick them up at the end of the holidays.

The next day I received a letter from Legal Aid stating she had begun family law legal proceedings. After mediation failed, the boys were allowed to visit for the September holidays. During those holidays, the boys requested that they again came to live with me. So I visited my local police station to find out what I can and can't do in this case. I was advised that I do not have to hand the boys over to her and they can't legally remove them from my care unless they are concerned for the boys safety. I got the boys to tell their mother andIi have always made a point of letting them know if they ever want to go back they can.

I then received another letter from Legal Aid QLD stating that although she does not want the boys to live with me while her application was being dealt with, would I agree to a specific set of visitation guidelines which are as follows:

• she gets one weekend per month at my expense i.e. travel to and from
• she get them of half of the school holidays with an agreed halfway meeting point
• with the current school holidays dated specifically she picks them up on the 3rd of Dec 2014 and returns them on the 3rd of jan.

I didn't think this was unreasonable until last Tuesday she stated that the boys no longer want to live with me. I am fine with if it were true, but I am still wanting them to at least spend the last half of the holidays with me as I didn't get to see them at Xmas nor give them their presents. I have had a great deal of difficulty contacting the boys. She either turns her phone off or refuses to answer it.

What is my next move?

 

[AllForHer]

First, the police are right - the authorities are powerless to act in parenting matters without a court order, be it by consent or not, and even then, family matters are federal law, meaning state police have very limited powers and federal police can intervene only if ordered by the court to do so.

My understanding is that the process your ex will be pursuing is a family dispute resolution conference so that arrangements can be made for the kids' care. Ordinarily, a parenting plan will be reached from this action and if you both agree on everything in it, you can make it into consent orders, which gives the court power to intervene if either party contravenes the agreement.

If an agreement can't be reached, I think you may lodge an initiating application for parenting orders. Parenting orders and the provisions impacting parenting orders are outlined in Part VII of the Family Law Act 1975. Parenting orders made by the court are made only to meet the children's best interests, meaning the wants and needs of the parents are generally ignored. Section 60CC of the Act tells you exactly what the court considers when deciding on what the children's best interests are.

Generally, the weight of a child's opinion about who they want to live with is relative - the older they are, the more weight their opinion holds, but as a general rule, a child under the age of 12 is not considered mature or informed enough to make up their own mind about who they want to live with. Instead, it will be considered just one factor among many.

In your current situation, I think it's important to ask yourself if it's in the best interests of your kids to continue living with their mum while parenting matters are sorted out. Kids need stability and routine, and of particular consideration in these circumstances is the change of school for both kids. You might like to consider seeking a recovery order in the form of urgent interim orders through the court, at least until matters are sorted out further.

I do strongly advise seeking legal advice for this. If you have no financial resources, Legal Aid offer free consultations and may even provide funding for the family dispute resolution conference.

I hope this helps in some way.

 

[Sarah J]

Hi dredjesta,

I agree with what @AllForHer has written above. Custody battles are always difficult and you never know if it is the children's own wishes not to see a parent or if it has been coaxed or influenced by the other parent. Best to seek your own legal advice and contact Legal Aid to help provide you the appropriate legal services. I recommend making a diary that records your attempts to contact your ex and/or the children (times, dates, conversation details/summary, successful or not successful) to better support your family matter in the future.