SA Ex Went Interstate with Son - Breaching Mediation Agreement - What to Do?

[franklin9]

Hello, all.

I am new to this so will keep it short. I want to know if anyone has advice regarding my situation.

My partner's ex took his child (5-year-old) about 12 months ago interstate. While he did not give express permission she could leave, he also did not stop it as he was led to believe by her that he had no choice or say in the matter.

Since leaving, she has not allowed him to have his son visit with him and he has only been allowed to visit once for one week. Communication between them has broken down and mediation was no help whatsoever, the agreements between them made in their sessions has not been adhered to (on her part). For example, they agreed my partner could have his son stay for a week or two over easter and once mediation ceased she has gone back on her word.

She is constantly abusive and d would stalk both our social media and will not listen to reason. She will often not answer calls to let my partner speak with his son for days on end. Often we have no idea where his child actually is in regards to her family home, her partner's house or even in the state still.

Any attempt to build a better relationship with her or to gain better communication with the child and she resorts to abusive messages and threats and often will turn her phone off for a day or so. We have no other contact numbers for her if she blocks our numbers like she has threatened. Often the calls she allows between my partner and his son are rudely interrupted or cut short by her if she doesn't like the conversation topic (e.g my partner telling his son he would like to see him and asking if he is behaving at school, etc.).

I would say he is allowed to have contact with his son for an average of less than one hour per week on average by phone. He has also voiced concern to her about the possibility of her taking their child overseas without his permission as her close friends and family are all currently in America where she was born. She was given citizenship in South Australia two years prior to their marriage but has mentioned she will be taking their child to the USA to see family next year with or without my partner's permission.

They are separated for over 18 months and are not divorced. There is no history of domestic abuse on his part. He currently pays child support each week and has never missed a payment, frequently tries to call (usually 4-6 nights a week) and often sends his son gifts.

Sorry, this is such a long thread. We are seeking legal advice but the initial appointment seems to be taking some time.

Any help would be greatly appreciated as we are at our wits' end, as are the rest of the paternal family.

Thanks in advance.

 

[franklin9]

Sorry I know I said i would keep this short, kind of snowballed. Appreciate anyone who takes the time to read it all.

 

[AllForHer]

First, she can't take the child abroad with the father's permission, but to be on the safe side, the father should apply to have the child placed on the airport watch list as a precautionary measure. If the mother's family is overseas, it's likely the court will determine that she has enough links to pose a flight risk. If she goes abroad, it becomes significantly harder and more expensive to recover the child.

More information about the watch list here: Watch List Orders - A paper for a CLE Seminar for Family Law Practitioners - Federal Circuit Court of Australia

For the matter of time spent with, I think you may need to apply for parenting orders through the court because based on the facts you've provided, it sounds like the child is going to experience difficulty maintaining a relationship with the father is regular contact is not maintained. The court will determine parenting orders based on the best interests of the child as outlined in section 60CC of the Family Law Act 1975. Ordinarily, it is held that it is in the child's best interests to have a meaningful relationship with both parents, and the court will usually try to make orders that facilitate the development of those meaningful relationships.

Unfortunately, I think you will have to work with the situation that currently exists, which is that the child has relocated and will have already settled in that location. The time that has passed will make a recovery order nearly impossible to attain, I think, so you're better off pursuing parenting orders that reflect the current situation.

Given the distance, it would probably be acceptable to request time with the child for three or four weekends in every school term and half of gazetted school holidays (as well as time around Christmas, Easter, etc.). I think it's also fair to expect the mother to cover all or part of the costs for flights since the mother relocated with the father's consent.

I also think Skype/phone calls three or four times a week is a reasonable expectation, and the best way to organise this is to nominate days and time frames in which they are to take place (e.g. Monday, Thursday and Saturday between 6:00 pm and 7:00 pm).

If the mother is genuinely determined to oust the father from the child's life, then it might be that the only way the child will be able to have a meaningful relationship with both parents is to reside with the father and spend regular time with the mother, but I can't comment on whether or not a case for such orders would be successful.

I think it's important, however, to get legal advice. It might also be worthwhile enroling in a post-separation parenting course and perhaps doing a child consultation with Relationships Australia so your partner can hear from a psychologist about what is ordinarily considered good and bad for a child of that age group.

Step-parent to step-parent, I also advise minimising your direct involvement in the matter. Step-parents who over-involve themselves are not looked on favourably by the court because it inevitably creates more friction between the parents and more conflict for the child. I have no doubt the court would want to hear how you will contribute to the facilitation of care arrangements, but making decisions about the child's medical needs, education, etc. or being too involved in those major long-term issues may create more problems because those are issues for the parents to decide.

Hope this helps.

 

[franklin9]

My partner has tried to bring up with her the subject of her not taking their son abroad, she basically laughed it off and told him not to question her. I'll show him the link, thank you.

Lawyer's appointment seems to be taking a while, but his intention is definitely to request court orders and parenting plans. They've said nothing will be done until next year which leaves us with a gap of a couple of months with probably no contact. It's been a week and she insists that my partner has no rights to their son and doesn't "deserve" to know anything about his schooling, docs appointments, etc.

The only problem with the suggested visitation is that we live in a rural area where there is no airport so visiting for such a short amount of time (one weekend) seems very difficult when you add on the hours of driving to the closest airport to pick him up and drive home again. My partner suggested she pay half of the travel cost and again received nothing back but abuse. Would the court force her to help pay for his flights?

My partner both attended mediation and also a 3-hour post-separation parenting lesson. During mediation, he agreed to her suggestion of calling between certain times on certain dates but she does not comply.

Also in regards to not getting involved, I have no contact with his ex whatsoever. She has my number as my partner has needed to use my phone to call his son when his phone was broken and so often sends abusive and threatening texts to both of us. I completely ignore them as I have no desire to complicate the matter further between them. But unfortunately, ignoring the attempts at contact from her don't stop the abuse and she often takes to messaging my partner abusing him about anything from his personal life to accusing him of being an incompetent father etc.

Bit annoying that there isn't anything we can do until next year. Worried that such a long time is too long for a 5-year-old and he will end up thinking his dad doesn't care.

Thanks again

 

[franklin9]

My partner is wondering about the watch list. The lawyer says the court orders won't be put through until next year and she is claiming to take him overseas for Christmas. If the orders aren't in place for the watch list before then, how can he find out if his son has been taken overseas without his permission? It is hard to know where they are as she frequently ignores his phone calls for a week at a time.

 

[AllForHer]

Does the child have a passport already?

 

[franklin9]

Yes

 

[AllForHer]

You can apply to have the child placed on the Family Law Watchlist by filing this completed application form: http://www.afp.gov.au/~/media/afp/pdf/f/familylawwatchlistrequestform.pdf

Note that it must be accompanied by an application for parenting orders seeking that the child be restrained from international travel.

For more information about this, in particular the preferred wording for orders seeking to restrict a child's travel, I strongly suggest that you read here: Family law kit - Australian Federal Police

 

[franklin9]

Our lawyer is getting the papers in place but says he doesn't think they will be passed before next year :-/ thank you for the help though

 

[AllForHer]

No, the orders don't have to have been made by the court, or even heard at first mention. There just needs to be an existing application with the court.