NSW Legal Aid and Parenting Plan - Ex Refusing Access to Son

[thedude]

Hi,

I am currently having to initiate a proceeding against my ex-partner to get access to my son. We currently have a Parenting plan which has been in place since September 2015.

For the last few weeks, she has refused me access to my son unless I sign a passport application, which I will not do until I am given access to my son and access to the passport if needed, as it is only fair I have access to the Passport. This has gone completely against the parenting agreement in place, where I see him for dinner twice a week, and he spends every second weekend with me.

My questions are:

Being my ex-partner has legal aid representation. How much can she not agree or not let me see my son if this matter goes to family court? Will legal aid cut her aid off if she keeps not wanting to come to an agreement?

Can she get legal aid to get a family court order for a passport to be issued for my son?

How much weight will SMS messages carry in family court or if the family law magistrate is made aware of these messages blackmailing me to sign a passport application or I don't get to see my son over Christmas?

I know that 98% of cases get settled before getting to trial, however, I need to know how long Legal Aid will likely support her if she keeps stonewalling me?

Any responses would be greatly appreciated.

Thanks

 

[sammy01]

Why not sign the passport form? Is she a real flight risk? If she is a citizen of another country, then you should worry. But to be honest, why not sign it? In fact, why not offer to pay half of the passport application as a gesture of goodwill and tell her that you expect that same opportunity to travel with the child as she is seeking.

Mate, you've gotta look Big Picture - so, let's go to court. She says you won't sign the form. This makes you look like a pain in the ****. You say she won't let you see the kid, this makes her look like a pain in the ****. The Magistrate thinks you're both a pain in the ****. Now, if she was looking for a reason to withhold the kid, you've given her one (all be it a crappy one).

If she is gonna withhold the child, it will work much better for you if the grounds she claims for doing so are really stupid. She is getting close.

But like I said, why not sign the form? If the only answer you can come up with is because the ex wants me to and I don't have to, then you need to think again. No offence, mate.

Let me tell you a little story. I'm in mediation with my expensive solicitor, the ex has legal aid. I get angry because the ex says she will only agree for me to see the kids 4 nights a fortnight if I agree to pay her $70 a fortnight extra child support. How dare she make those sorts of demands - right?

Nope - my solicitor pulls me aside and reminds me that we were gonna propose I pay an additional $100 a fortnight. So why fight? I've got the 4 nights I was after and saved $30 a fortnight. In short my solicitor gave me a well-needed attitude re-adjustment...

So next - my understanding is legal aid is limited. So that is a small win for you, if she flips around wasting time and money on dumb stuff like passports, then her gov't grant will run out. So again story time - in my case, we did mediation. All good, right?

Nope. Despite us agreeing to everything, afterwards, the ex refuses to sign. She wants this changed, she wants that deleted, she wants more money from me. Eventually, legal aid tells her they won't represent her anymore because she is a dill (or words to that effect).

So then stuff gets interesting. She has to hire a solicitor and pay the same insane money I've been blowing. All of a sudden she's forced to compromise because her privately funded solicitor is expensive and the reality of her situation is kicking in. I like that story. So you could spend money fighting the passport application while she gets a free solicitor, or you could save that money to take your kid on a holiday in a year or two. Which would you prefer?

As far as the SMS - look make sure you download them. Make sure you keep every strip of evidence you can. But family law isn't about justice, evidence and it isn't about what is fair... It is about the best interest of the child.

You stopping the kid from having a holiday isn't in his/ her best interest, so sign the form. Her not letting you see the kid until you sign isn't in the kid's best interest either....

Oh and most importantly - Kids being involved in conflict is the worst thing separated parents can do. I have read cases where the primary carer has convinced the kids that the other parent is a monster. The kids are so irrevocably petrified of the other parent that the magistrate is forced to make the decision to refuse the other parent any access even though that parent clearly is not a monster, but the magistrate must act in the best interest of the child and to make a child spend time with someone they are scared of would not be in their best interest. So some primary carers get a big win in family court by being an arse.

They make conflict and that can work to their benefit in getting court orders that restrict access because the magistrate does not want the kids exposed to the conflict. I know that sucks, so do not play that game.

 

[thedude]

The only reason I won't sign is because since having Mediation and coming to an interim agreement, she has constantly stopped me from seeing him for a different reason every other week (not including the passport reason).

She does it on purpose, knowing a Parenting Plan is not legally binding.

Yes, I agree the big picture is I should sign the Passport documents and move forward. However, who's to say next week or next month she invents another reason to withhold him from me?

On top of this, she will be that spiteful that she may agree now, to give me future access to the Passport, however, change her mind in the future, just to be a ****.

 

[sammy01]

Ok, so let's just take a deep breath in. Why not write to her with a proposal going along the lines of....

Dear crazy ex.... (u'm maybe not, but I understand where you're coming from)
1. outline the instances where she has not complied with the parenting plan.
2. Suggest a compromise position on the passport. Compromise goes like this: You'll agree to sign the form, but you're gonna submit it and keep it with you. And you'll hand it over 2 weeks before departure, as long as there have not been any further contraventions of the parenting plan...


Mate, I'd be getting something along those lines to her ASAP. Just might mean you see your kid at Christmas. Of course, as soon as you give her the passport, you will never see it again, but let's just do small steps here. After all, the main game here is getting to see your kid right?

Next - go back to the mediators... Ask for more mediation around the parenting plan... Or if you already have a 60I certificate, make a court application for court orders. Yep, you're right, parenting plans are a uniquely stupid agreement. In short, it is an agreement until one person doesn't wanna agree anymore. WTF?

So in the last 8 weeks, you should have had your kid for 4 weekends. How many times have you seen your kid? Have you actually made a court application? Do you have an AVO against you? Do you have legal representation?

I know, I'm asking lots of questions, but the more info you provide the more precise the responses will be.