NSW Family Court and Parenting Plan - Reinstate Previous Orders?

[thedude]

Hi all

I'm looking for some answers.

My Ex and I have been split up since Dec 2014 (8 months). Since the separation, I have been seeing my son every week on my days off work mutually.

For the last few months she would tell me I need to sort my rights out as a father and/or arrange mediation. I did so. Once she was notified of the mediation she stopped me from seeing my child. Only allow me access whenever it suited her.

We both attended mediation. I was made to agree to a parenting plan until we push forward with court. As I don't agree with what she wanted. I had to take something until it went to court. Now she has not signed the parenting plan and is stopping me entirely from spending time with my child - against everything we agreed to.

The reason? She tells me that because someone we both know (not family or friends) have made contact with her and her family through social media causing arguments as silly as that sounds.

I need to know if this goes to family court, what is the likely outcome? After all this is not a legitimate reason to me. Will I get screwed with every second weekend like shes pushing for? Or will the original agreement of me seeing my child every week be reinstated?

Any educated answers would be great.

 

[AllForHer]

It's impossible to predict an outcome from court, but please know that 95% of initiating applications filed end with consent of the parties, rather than by trial. It's often the case that one party will receive legal advice firm enough to persuade them that court is not a good idea.

In any case, the court determines parenting orders on what's in the best interests of the child. This is outlined in section 60CC of the Family Law Act 1975, I suggest reading it to give you and idea of what the court wants to know about. Note that it's best not to criticise the other parent. Doing so tends to cause more harm than good.

It's generally held that it's in the child's best interests to have a relationship with both parents (as is their legal right), and if the presumption of shared parental responsibility is not ousted (it rarely is), the court must consider if equal time arrangements are in the best interests of the child.

If they're found not to be in the child's best interests, the court will look to substantial and significant time. This comprises a mix of weekends, weekdays, holiday time and special occasions, like Christmas and birthdays. Just alternate weekends isn't often the outcome, these days - the court recognises the value to kids of both parents being involved in all aspects of their life, not just the leisure times.

Anyway, document all attempts to spend time with the child. Some things that may help include the care arrangements that were in place before the mother refused to accommodate the child spending time with you; your capacity to care for the child (can you drive the child to school? Does the child have their own bedroom and possessions, etc.?); whether or not the mother and yourself have a history of being amicable; etc.

Anyway, I hope this helps. Legal Aid also offer free consultations for family law matters. It would be worthwhile calling them for an appointment to talk to you about your situation.

 

[thedude]

Thanks for your help. It's much appreciated.

So would it be safe to say that if my ex does not let me see my son or help facilitate me picking him up it will only hurt her case?

I have been told by her if I approach her house to see him that police will be called, and her family refuses to bring him to me as previously arranged. yes this is in text messages.

 

[AllForHer]

As a general rule, the court doesn't look highly on parents who withhold time between parent and child without having a valid reason for doing so.

In the same token, I wouldn't advise participating in a situation where there is a risk the child will be exposed to high levels of conflict. It may be best to avoid approaching the mother's house if she has said she will call the police because that may lead to the child being exposed to conflict. Instead, follow appropriate and civil avenues for remedy, such as filing an initiating application for parenting orders through the court (and make sure you seek interim orders, as well).

 

[thedude]

Further to my last post. I now have a signed parenting plan, which I'm told by my solicitor that it shows that I'm prepared to give. However......

my ex and her solicitor have taken it upon themselves to edit the parenting plan by putting a line through a clause, both initialed the change . Can they do this!? I have not initialed or agreed to the change. My solicitor has asked them for other arrangements other than this clause they have crossed out.

Can this go my way when we go to court?

 

[AllForHer]

They can't change a parenting plan without your agreement. If you want to ensure the other party knows you don't consent to the change, you could e-mail the solicitor acting your ex's behalf and confirm that you have not given consent for any changes to the parenting plan agreed to on (date) and will therefore proceed according to the original parenting plan as agreed between the parties.

 

[thedude]

I know that if I have my solicitor email her solicitor stating I don't agree with the changes she will not negotiate.

it just seems very under handed to make changes after I signed it first. Not before anyone of us signs it.

what will happen if she disagrees with going back to the original agreement or altering it the parenting?

 

[AllForHer]

Well, e-mailing the solicitor is not a request to negotiate. It's to say "We have already negotiated and the outcome was the parenting plan that both parties signed on [date], without any other changes."

Parenting plans aren't legally binding unless made into consent orders by the court, so there's not a great deal that can be done if she refuses to oblige the first plan, but you can apply to the court for parenting orders instead.

 

[thedude]

Further to my last post an update so I can understand where to go from here.

Since the Parenting Plan was signed, I was meant to be seeing my child twice a week for dinner for 2.5 hrs which I spend 1 hr of that time driving. I thought because we were still negotiating Christmas for weeks that it wasn't final. I then was told by my solicitor I should have still arranged the dinners.

I contacted my ex to arrange it via sms, she 1 denied signing a parenting plan and 2 told me unless I sign my child's passport she wouldn't stick to the parenting plan.

Since last week when all this happened, my legal aid has been terminated unless I respond to them which I have, detailing what I just said here.

Is this a substantial issue for legal aid to keep funding?

If I try to fund this myself how much $ would it cost to get it to court to get Consent orders as a ball park cost?

Thanks

 

[AllForHer]

I can't comment about Legal Aid. Usually, they will cease funding if a parenting plan is made, but you should talk to them about the issue as you may need to get orders in place of a parenting plan.

Consent orders, you can do yourself without a lawyer, but it does require agreement from the other parent. They cost about $150 for filing.

If you're unlikely to get her signature on consent orders, you should consider filing an initiating application for parenting orders. It might motivate her to reach agreement about parenting matters. Filing fee for that is about $550, but depending on whether you're self-represented or decide to get a solicitor, there will be other costs if it ends up at trial.

Generally speaking, most matters initiated in court end up settled by consent rather than by trial. It's trial that tends to cost the most money.