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NSW Family Law - If Partner's Ex Withholds Son - What to Do?

Discussion in 'Family Law Forum' started by Corinne, 10 December 2015.

  1. Corinne

    Corinne Well-Known Member

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    Hey guys,

    My partner has filed an application for parenting plan 6 months after his ex moved 4 hours away interstate with his child. Before the move, his son was in our care every weekend. After the move, his son has still been in our care every weekend but we understand this may change when he starts school next year.

    The first hearing date isn't until march so it's a waiting game until then, but she has turned around and said that it's 'unfair' that we have the child every weekend because the weekend is 'family time' and he needs to 'spend more time with his half-brother.'

    My partner's son is in his ex's care 5 days a week. She doesn't send him to the kindergarten program he's enrolled in so they're all sitting around, all day, for 5 days a week getting more than enough quality time together.

    Is this a legitimate request on her part? She's using the brother as an excuse, but we know she really means spending time with his stepfather, which shouldn't cut into my partner's time with his son.

    What rights do we have under Family Law if she starts withholding his son on weekends for this reason?

    Cheers
     
  2. AllForHer

    AllForHer Well-Known Member

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    I think you'll find the court will prefer the child spend some weekend time with the other parent because it IS family time and it IS the only real time he would get to bond with his brother.

    The other thing going against you is the tyranny of distance. Four hours is long travel time for a young child. The court wouldn't likely agree it's best for the child to make that trip every weekend. Every second weekend, maybe, but probably more like two weekends a term and half school holidays.
     
  3. Corinne

    Corinne Well-Known Member

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    Yeah, she moved away without consent orders or a parenting plan in place to live in a family dictated by the defence force. So we're trying to argue that he'd be more stable with us, and to visit his mother and half-brother wherever the army has them living at the time.
     
  4. sammy01

    sammy01 Well-Known Member

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    Read the legislation.

    http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s65daa.html

    So, yes, weekend and mid week time. Yep, she is sitting on her arse with the kids at the minute, but when the kids start school, mum will be doing all the school runs and you will have all the fun time. So it is a legitmate request according to the legislation.

    So when you said you had all weekends, what do you mean? Fri- Mon morning? How many nights did you have per year?

    If mum refuses time over the holiday period because you've initiated court proceedings, all you can do is nothing. The cops won't help and the courts are closed, besides, there will be hundreds of parents withholding their kids over Christmas. The court backlog is crazy... But if it were to happen, my suggestion goes like this: Do nothing. Yep, I've said that twice now. It is important... So I want to make sure you're paying attention.

    Do nothing - but when you get to court notify the magistrate. It helps paint a picture - mum moved away without consent. Mum is stopping the kid from seeing dad, now that the move has happened. Bloody hard for mum to maintain the argument that the move is in the best interest of the child and that the move isn't going to significantly damage the child's relationship with the dad. So let the mum paint the picture for the magistrate.

    Your job is to paint a different picture. Your picture should look like this: You want to be an active parent, you want to work with mum. Prepared to be primary carer.

    Tough road ahead, but make good decisions. You're already behind the black ball, so one dumb mistake can blow your case... The best way to not make a dumb mistake is to do nothing, but I've mentioned that already, right?
     
  5. Corinne

    Corinne Well-Known Member

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    It's hard to paint a picture without making it look like you're trying to denigrate the other person. Usually, if it's ended up in court proceedings it means one person is acting idiotic and being uncooperative, so it's easy to base your case around the negative aspects of that person.

    For example, My partner's ex lied to the child support agency about how often we have his son in our care which is Friday evening to Sunday evening every weekend (sometimes to Monday morning). But she told them it was only one weekend a fortnight. We provided evidence to prove it was every weekend and the dispute was settled in our favour.

    We left this out of his application because we thought at the time it doesn't directly relate to the matter relevant which is the child's best interest. She's a money hungry cow to my partner, but that doesn't mean that her malicious behaviour is also directed at their son.

    She's also been encouraging their son to call his stepfather 'dad'. Which is also inappropriate and upsetting.

    Should we file an updated affidavit closer to the court date to include these things?
     
  6. sammy01

    sammy01 Well-Known Member

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    I don't think an updated affidavit is required. Why? Well, magistrates don't want to know about child support. The magistrate wants to know that you've had the kid on average XXX% of the time. I'm hoping you've had more than 35% care... That is a ballpark figure IMO on when the magistrate should say hang on a minute, dad has been involved and mum moved away... It's different if dad wasn't all that involved to start with... And it isn't your job to paint the picture of the ex. Let her do that and if she is an idiot like you say, then that is the picture she will paint because she is stupid. Don't you be stupid too...

    Next, your picture should show how you can co-parent with the ex but you disagree with the decision to relocate. So whinging about the step dad being called dad does one thing - it shows high conflict and that shows you can't co-parent.

    BTW, yes, it is bad form on mum's part, but like you've mentioned, if this person is a twit, and I'm sure part of the motivation here is to piss off the dad, well you need to understand that no court orders can make a horrible nasty person start being nice... So what are you gonna do every time you hear the child refer to step dad as 'dad', are you gonna re-apply to court? So let it go...

    Let me give you an example. My orders stated that we are not to speak to each other in a derogatory way... My ex used to swear and abuse me at every other change over... I could choose not to respond, or to hurl abuse back. No thanks.

    I could choose to take her to court, but all that would do would be to cause more angst. Some stuff you just have to learn to live with. And it didn't take long before the kids started to see her behaviour for what it is. They were not impressed...

    Stay calm - do nothing, Wait till you get her affidavit, bet it is full of stupidity... But again, not for you to worry about because it is up to her to show the 'facts' of her affidavit and if she is that stupid, her case won't hold water....
     
  7. Corinne

    Corinne Well-Known Member

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    Thanks for your input. We'll definitely just sit tight.

    We haven't received her affidavit yet. Not sure if she's even planning to respond!
     
  8. Corinne

    Corinne Well-Known Member

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    On Sunday we were under a minor threat of a bushfire over 20kms away from where we live. So to be safe we left our house and drove into the township further away.

    Today we get a letter from her lawyer saying that we didn't leave early enough and that in future we have to leave sooner and text a photo of the child in a safe place.

    Since when do lawyers have the authority to go around demanding this kind of crap?

    Laughable.
     
  9. sammy01

    sammy01 Well-Known Member

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    Write back to the solicitor, make the letter really long. Explain the circumstances and explain that the thought of taking a 'selfie' and sending it to mum was not high on the agenda. Oh, and while you're there, explain that if that is something the mother would like included in the order then you'd expect it to be a mutual responsibility. Then ask for the solicitor to direct you to the relevant section of the family law act, and since it doesn't exist, please tell your client that she is a twit (or something like that).

    Make the letter long. Really, really long. Tell the solicitor what the child had for lunch after being evacuated. Why? Well, every 100 words a solicitor reads, they charge a fee so the longer the letter, the more it will cost the ex and she just might start realising that she'd be better to keep her opinions to herself.

    Lawyers don't have the authority to go around demanding this kind of crap. They have the authority to take instruction from their client. Their client does not have take good advice from their lawyer... You know that one about anyone who represents themselves has a fool for a client... Well in your case, the lawyer really does have a fool for a client...
     
  10. Corinne

    Corinne Well-Known Member

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    In the email was also her response and affidavit. The affidavit was full of lies, but that was expected.

    Our orders explain in detail our requests for visitation, school reports, to be involved in the child's education decisions, to be notified about medical issues, for him not to be moved further away etc.

    Hers states vaguely, a brief visitation schedule, a massive section about fire safety and 'for all of the father's orders to be dismissed.' Nothing about his schooling or anything that relates to shared parental responsibility.

    The affidavit is full of information about the medical condition of her other son with her new partner. Full of stuff about all the money she's spent on the house her and my partner used to live in. This house was only settled in her name, so there were no legal property issues there between the two of them, so is irrelevant.

    The main thing she is running with is that on a camping trip this time last year, my partner, his dad and his son went on a camping trip. I wasn't there, but apparently they let his son pull the trigger on some sort of hunting gun whilst they were shooting bottles. It wasn't their smartest idea and she's put that in, her notice of risk. (We don't own guns, My partner's dad is a licenced firearm owner.)

    There's another stuff about us letting him watch inappropriate movies and play inappropriate video games. Which is all false. She's also used a stat dec my partner signed, but it wasn't witnessed by anyone. It wasn't attached in the email, will have to wait for the sealed copies, but a stat dec without a witness is useless yes? And if she's falsified his witness that's illegal yes?
     

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