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QLD Family Court - Am I Being Unreasonable on Child Access?

Discussion in 'Family Law Forum' started by Kemp, 20 July 2016.

  1. Kemp

    Kemp Active Member

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    Hello.

    I see from all the post you get an honest answer here, emotions cut out which I really need.

    Long story short, without my personal feelings, I have two kids - 1.5yr girl and 3.5yr old boy. I separated from my partner 20 months ago. We live 1200km apart. When I was asked to leave, I had no family and he encouraged and gave his permission to move to live with the family.

    Since the separation, for 8 months, he refused to talk to, see or Skype with the kids. I'd ask repeatedly as my eldest clearly missed him and asked for him. After 8 months went by, I got a tad upset by his total disconnection from the kids and rang him up and gave him what for, he still didn't care.

    A month later, he'd advised me he was seeing someone and she's forcing him to start making contact with the kids. We started with Skype for the first few months. It was twice a week, then it dwindled to once a week and now it's maybe twice a month. He's seen the kids twice in the last 20 months. One occasion, he came to see them for 2 night and the other I traveled close to him for a funeral and stopped in his town for a few nights.

    After this, nothing changed in his interest to talk or see them. Then for some reason 5 months ago, he demands that they fly to come see them. I said no, as my eldest refuses to even look at him on Skype and I don't know how he will cope in a house she doesn't know, with a father he really has no relationship with.

    We have done 3 mediation session in the time since. All I've asked is that for the next 6 to 12 months that he makes the effort to come here and see them to build the trust and a relationship with them. I've also asked that there be no overnight visits for the first few times he comes and then if the kids seem fine with him, then I'm happy for overnight stays. I said I'm very flexible with when he can come as he has family and work commitments.

    At every session, he speaks nothing of our girl, only the boy. He doesn't want the girl, he just wants the boy and refuses to even see the kids' side in this that they might not be comfortable been with him after such a long time. He said, "I don't care. The boy needs to suck it up and learn".

    I've said if he comes here, he can see the kids no problems. He's now threatened me that he's taking me to family court as I'm denying him of a meaningful relationship with his kids. I feel like I've done everything to encourage the relationship and he refuses to participate. Now I'm denying him of a meaningful relationship which I know a judge will look really poorly on.

    I have denied him to take the kids or our son to his home, I admit that, but I've never denied him phone calls, Skype or for him to come here where his kids live to see them.

    I spoke to a lawyer, maybe a year ago and due to the kids' age, she said that a judge would most likely say that he's to travel to see them in their hometown, but they are older now would that have changed?

    The mediator pulled me aside and said that he felt iI needed to be advised of long distance parenting (which after he read it to me he didn't know himself). He read to me some facts that more or less said kids aged, I think, 2 or 2.5 to 5, it's recommended that the distance parent travel to the child and they have access to the child for 2 or 3 days and that overnights is case by case. He didn't know what to say after that.

    Do you believe I've been reasonable?

    Thank you in advance :)
     
  2. AllForHer

    AllForHer Well-Known Member

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    In my view, yes, you are being reasonable.

    Regardless of why the father didn't see the kids for such a long period, the fact is that they're young and liable to experience discomfort in his care because their ages mean their memory of him would be slim.

    Overcoming the tyranny of distance to endure the kids can have a meaningful relationship is difficult even for the Court to decide, particularly given the kids' tender ages, but I'm inclined to agree that a Court will order the father to do the travel rather than you or the kids. The Court will see merit in making sure the kids are as comfortable as possible, namely by retaining them in their hometown rather than shipping them 1200km away from their primary attachment figure for overnight time with a parent they hardly know.

    But consider some other options. Can you and dad halve the costs and you fly over and back with them? Can you pay half costs for the father to come to your town?
     
  3. Kemp

    Kemp Active Member

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    Sorry for my rude delayed reply and thanks for your time and response :)

    Unfortunately, I can't assist him financially with his trips to see the kids. I am on a single pension. My youngest is continually sick been in the hospital a few times now. I've lost 2 jobs already due to the amount of time I've had to take off while she is sick. So my funds are extremely limited.

    I did, however, say that when he does come to visit the children I would forfeit the months worth of child support payments to assist him in his expenses.

    We spoke privately outside of mediation and came to an agreement that, yes, he would travel and cover his costs and accept my 1 month of child support payments offer. I said that I still wanted this written up in a parenting plan as I don't trust him we have made many verbal agreements that he has not stuck to in the past.

    He became very pushy telling me that he's not going to mediation. It's a waste of his money and a parenting plan has no weight in court what so ever so it's pointless getting a parenting plan that a judge doesn't give a s**t what parenting plan we agreed on? I was under the understanding that it's not legally binding but if we did end up in court it would get looked at and hold a small amount of weight? Am I wrong?

    He's now telling me that the terms are no longer acceptable he and his girlfriend think they are unrealistic, unreasonable and doesn't fit in with the current life plans. He has also requested that I pay half of his expenses to travel, accommodation, food, half of his loss in wages and any unforeseen expenses that he may incur.

    I don't think it's unreasonable for him to ask for half of his travel or accommodation if I had the money id happily pay it, but his food and loss of wages and unforeseen expenses?

    When we spoke privately, I explained to him my finances and that I was paying off his debt that were in my name and I didn't ask for a cent. I just sucked it up for peace and quiet sake and about our sick child he was more than understanding and willing to work with me but the moment I said, "no I want the parenting plan", he flips his lid.

    So after all my blah blah blah, my question is, does a parenting plan hold some weight in court if it came to that?

    Can I be forced to pay for his food expenses and loss of wages and unforeseen expenses?

    thanks so much again for your help :)
     
  4. AllForHer

    AllForHer Well-Known Member

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    Parenting plans aren't legally enforceable, meaning you can't file for contravention proceedings if someone doesn't uphold the agreement, but they are certainly given weight in Court. As a personal example, my partner signed a parenting plan only to discourage the other parent from withholding access to the child again, and then filed for Court shortly after.

    The parenting plan, vastly different to what the long-term arrangements had been prior, was made into interim orders at the first hearing, and remained in force until consent orders (vastly different again) were agreed on just before trial a year later. His daughter didn't cope at all with the parenting plan arrangements, but alas, the Court said 'well, that's what you agreed on, so be it.'

    Regarding the shopping list of expenses you've been asked to cover, the Court isn't likely to come anywhere near making orders to that effect. At best, you might be told to cover the flights, but even that would be a stretch, since he consented to your moving away in the first place. What's more likely is an equal split on the costs of travel.

    The offer to forego child support on months when he does fly to see the kids is reasonable enough, unless his child support is $50 a month and flights are more like $500 return. I can't see this being made into an actual order though, only because the Court doesn't like to cross child support issues with parenting disputes.

    Again, nobody can predict what the Court would rule. These are just some perspectives to consider.
     
  5. sammy01

    sammy01 Well-Known Member

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    So why not ask him if he will agree to pay for half of all your expenses if you travel with the kids to his location?

    Look CSA have clear guidelines about expenses and, in fact, he does have a case to seek a reduction in child support based on travel expenses. But having grounds to have it looked into is different to it actually happening and I'm willing to bet that whatever reduction in child support they might assess will be nowhere near the actual expenses he is hitting you up for...

    He is being unreasonable. Tell him to apply for a change based on the child support rules and tell him that apart from that, you have no interest in talking to him about money. Simple.
     
  6. Kemp

    Kemp Active Member

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    I cannot thank you guys enough for your help! Thank you so very very very much.

    We have a child support assessment. I collect privately as per his demands wanting it that way. He's meant to pay based on the assessment just short of $600, however, he only pays $300 and when he feels generous he pays $400 (Which is not often). To keep the peace I say nothing and don't ring child support to ask them to collect as it will cause all sorts of fights, as he believes that he shouldn't have to pay for something he doesn't see. Something is better than nothing right!

    I did put the question forth to him (as per your advise Sammy) if he would pay half my travel expenses if i travel up there, he went on to accuse me of going after his money and wanting a free holiday out of him so all i could do is have a private laugh, it's his way or the highway.

    He's finally agreed to him coming to see the kids, that he will fund these trips and I forgo 1 month of child support payments and supervised visits with our daughter. He's agreed to all this in mediation however he said he will not sign and date to make it a parenting plan that would hold up in court if we end up there.

    I'm guessing there is nothing i can do? Will the unsigned parenting plan on his behalf hold any weight in court? Do I still sign it even though he won't?

    Thank you again :)
     
  7. AllForHer

    AllForHer Well-Known Member

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    Unsigned, probably not, so no point in you signing it either.

    I can see both sides here. For him, agreeing in writing to supervised time is a big step because it's practically indefinite. What if you never agree to unsupervised time? What if you never agree to send the kids to see him in future? Etc.

    For you, not having something in writing comes with risk. What if he doesn't return the kids?

    I think you should roll with what you've got so far even if it's not in writing. It's supervised, so not a great deal of risk and you can use it to consider how to move forward.

    Also, you really should be getting child support collected through the Agency. If it starts a fight, you can just tell him to direct his complaints to CSA.
     
  8. Kemp

    Kemp Active Member

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    I understand what you're saying and I can see his side when you say it like that. In saying that I contacted him again and asked to talk about it and if that is how he felt, if he wanted the parenting plan worded differently to safeguard him more, he was just angry and nasty. I'm trying super hard to make it a workable situation for both the kids and him but he won't work with me.

    He's given me a new list of demands.

    That I must be his friend.
    That I must be friends on facebook.
    and that I must allow him to call me as he pleases to talk about things other than kids...

    It's no secret I do not like him at all. He made some very selfish choices that affected my children and so at this time I have zero interest in any kind of friendship. I'm civil and friendly when it's anything to do with the children, however, my personal life is mine and I don't want to know about his. Is that fair?

    When I told him that he said that, a judge will say my attitude towards him needs to change as it's in the best interest of the kids that he and I be friends. I feel like that's an utter load of rubbish. As long as I fulfill my responsibility to encourage and facilitate the relationship between the kids and their father and do nothing to hinder that I'm not doing anything wrong? Am I right? Or will my feeling towards this man be judged harshly?

    So when I said no to his what I consider ludicrous requests, he demanded daily photos and updates of the kids. As it stands, I send him photos for a definite once a week and maybe a second time later in the week. I send him updates twice a week once with the first round of photos and the second the day of Skype so he has something to talk to the kids about. I feel this is very fair. I said, "instead of daily updates, how about daily skypes?". He said he doesn't have time for that; he gets home no later than 6pm. Sso I don't understand who can't find 5 mins to skype with their kids if it's that important he needs daily updates. He wants to leave for Sundays as that's his only free and suitable time.

    He came back a few days later and said that he's been researching and my refusal of sending daily photos and updates is a clear violation in denying him of his meaningful relationship. I told him I think the daily photos is more about him trying to control me and make me do something he wants and nothing to do with building a meaningful relationship. I said, "the offer still stands; you are welcome to Skype or call the kids every day". Before bed in the morning, on your lunch, break in the afternoon as it pleases him he will build a stronger relationship talking to them, them seeing his face over me sending photos.

    Again am I unreasonable as I honestly don't feel I am. Other mum's would send no photos I'm am sending him at least once a week. Other dad's who genuinely wanted to see their kids would take daily phone calls/skype would they not?

    Thank you, again :)
     
  9. AllForHer

    AllForHer Well-Known Member

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    Yikes.

    So, his requests are, as you said, ludicrous. No Court has ever, or will ever make an order that separated parents 'be friends', 'be friends on Facebook' or 'be at liberty call each other to discuss matters unrelated to parenting'. To the contrary, the Court is more likely to, and often does make orders that restrict communication between the parents, usually to written methods only and only about the child, because those are the kinds of boundaries that alleviate conflict, rather than exacerbate it. Additionally, many an order will include an explicit clause that the parents not talk to the children about the personal life of the other parent, either.

    The same principle goes for the exchange of photos and updates. The reality is that the Court usually only makes such orders for updates where a parent has been restricted from spending time or communicating with a child all together. Sending one update a week is more than enough to show that you recognise the importance of his involvement in the kids' lives, but the onus isn't just on you to ensure his inclusion. It's also up to him to be involved, most predominantly by spending time and communicating with the kids as often and as much as possible. Section 60CC(c), in fact, states that one of the considerations when deciding what's in the best interests of the child is:

    the extent to which each of the child's parents has taken, or failed to take, the opportunity:
    (i) to participate in making decisions about major long-term issues in relation to the child; and
    (ii) to spend time with the child; and
    (iii) to communicate with the child; ​

    And for the record, even phone calls once a day is excessively generous. Most orders allow two or three times a week, at best.

    I suppose the only issue of concern for me is that you've said 'it's no secret' that you do not like the father, but I hope that's used only as a figure of speech and that you do your utmost not to include the kids in your feelings toward dad. If there was to be an argument made for your failure to support and encourage the kids' relationship with dad, that's where he would find it.

    To me, this sounds like you are being reasonable and dad is using made-up or manipulated information to try and intimidate or control you. It appears that when you give an inch, he demands a mile, and unfortunately, that's simply not how it works. The Court wants to alleviate conflict, and forcing 'friendship' upon parents who are simply incompatible such that they would need to go to Court just to determine what's best for the kids, is no way to go about ensuring the children's aren't exposed to their parents' disputation.
     
  10. Kemp

    Kemp Active Member

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    Wow, thank you for your super speedy response!

    I'm glad I'm not the only one that thinks his requests are a bit over the top.

    When we first separated it came at a huge shock to me, therefore, I was a mess and unfortunately my kids did hear some of my feeling about him I hope that because they were little it didn't impact them and their feeling towards him.

    Over the last year, I've pulled my head in and put my kids needs to see and talk to their father first. I've asked all friends and family to not ask me about the father if it is going to be something they know will be a negative reply of some sort. so in general if my kids are around we do not talk about him full stop I think my son is now understanding the relationship between his father and I.

    Unfortunately, while I tame my mouth in front of my kids and that man he has no hold backs on giving me an ear full where he sees fit generally I end those Skype calls with a feel free to text me your concerns if you feel like talking to XXXX and XXXX please call back later and terminate the call. and quickly distract the kids and hope they forget about it.

    We didn't discuss or put on paper Skype calls its just been a long term verbal agreement am I allowed to withdraw myself from these calls and have my mum or dad assist with these calls (I get the pleasure of living with my parents so someone is more or less 80% time available I believe he would be more compliant and less combative if I wasn't there?

    I did, however, agree to (but he's not going to sign) supervised visits with our youngest with me can I also make that one of my parents do that? he doesn't have family or friends here that know our kids for them to be present.

    I feel like he's got some really crazy ideas of what kind of relationship he and I should have and if I remove myself from as much interaction as I can maybe he will start to see the light. I would still continue to send photos and updates.

    thank you so much again for your help, AFH. You have a beautiful heart to give your time up and help us all :)
     

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