NSW My options with a stubborn ex (re shared care arrangement)

[Warringah2017]

Hi all. First post here.

Keeping it as concise as I can:

• married 1998, divorced 2011. Two boys, one about to turn 18 and the other 14
• have had shared care since 2011, which has fluctuated between 2 nights/fortnight to the current 4 nights/fortnight
• had a blip 3-4 years ago where my depression turned into alcohol abuse. That resulted in 0 nights/fortnight
• relationship with my ex was workable until she remarried 4 years ago
• I've been on Jobseeker for the last 2 years, and living in rented accomodation. No savings
• She earns $250K/year and married a multi-millionaire (who dislikes me)
• Child Support still manage to remove money from my Jobseeker, despite the earnings difference
• 18-year old lives full-time with his mother
• 14-year old wants the opportunity to spend more time with me
• current parenting plan is worded that my youngest 'is able to' spend up to 4 nights/fortnight with me, and 'can' spend up to 50% of all school holidays with me
• parenting plan is reviewed every 6 months
• review was due 22-SEP. After discussion with youngest son, he and I agreed that I would propose increasing the 'is able to' period to 5 nights (yep, and extra 24 hours every 2 weeks)
• sent revised plan to my ex, who knocked it back saying that giving a 14-year old boy too much flexibility and that she 'needed to know where he is'
• my boy and I discussed it again last weekend and I showed him my counter email before I sent it. He said he was happy with what I was trying to communicate
• my counter was basically to state that the ONLY revision was to give our son the opportunity to spend more time with me, which he's repeatedly said that he wants. The way the parenting plan has been worded has always avoided 'will' or 'shall'. I've always said to my son that it's his choice whether he spend the full allocation of time that his mother has dictated
• having since discovered that for the first time in 11 years, she'll have to pay me child support if we increase to 5 nights, I can't help but believe that there's a spiteful motivation behind her being against the shared care revision. Not that she needs the money - it's just another form of control that she enjoys

Basically, what are my options?
Her response to my request for an extra night is hollow, however she's holding the upper hand.
I know legal advise isn't given here on the forum, and neither am I asking for it, but I can't help but think that no sane judge in the land would reject my request for a larger percentage of shared care, should it go to court.
I can't afford a solicitor. Legal Aid I've looked at over the last 2 years, and the wait-list is massive.

We've been through mediation before - twice.
Both times the mediator inferred to my ex that my requests were more than reasonable. New parenting plans were signed on both occasions, and then a short while afterwards she said that she'd changed her mind and that they were unenforceable documents anyway.

Her new husband has children a similar age to mine. He has a week-on/week-off arrangement with his ex.
My youngest has seen that first-hand for the last 4 years, and has asked me why we don't have the same. I said that he should ask his mother, as I didn't understand either

My son's rights are not being respected by my ex, and I feel powerless to do anything about it

 

[Atticus]

Basically, what are my options?

No current court orders just a parenting plan?

1) Pursue parenting orders ... the boy is 14 now. May be 16 by the time you get orders, IF it goes in your favour
2) Do nothing ... If the boy decides at 15 he wants to live with you, as long as you can provide a safe & healthy environment, (which includes uninterpreted schooling) the police will not force him to return. You can then apply for child support based on actual care.

 

[Warringah2017]

No current court orders just a parenting plan?

1) Pursue parenting orders ... the boy is 14 now. May be 16 by the time you get orders, IF it goes in your favour
2) Do nothing ... If the boy decides at 15 he wants to live with you, as long as you can provide a safe & healthy environment, (which includes uninterpreted schooling) the police will not force him to return. You can then apply for child support based on actual care.

Update as of 4th October:

• Received email from ex stating she still won't agree to revise the document, but is happy to give my son the choice to spend alternating Wednesday with me. But that she sees 'no reason' to amend the parenting plan in writing.
• This rather contradicts her previous comment that the plan should reflect clarity on where my son is and when??
• She's also asked me for the third time whether my motives are financial (which I'm seeing as borderline harassment, given that she pays more in tax than my gross annual salary).

There are no consent orders - just a parenting plan which has been rolling along and reviewed and changed every 6-12 months.
The changes have been few and far between, and seldom benefit me in any way.

If my ex refuses to mediate - or makes no genuine attempt to actually mediate, or give me a valid reason during mediation as to why an additional night per fortnight isn't the right thing for our son - do I ask for a Section 601 Certificate?

What will initiating and filing consent orders cost me if I DIY?
And likely court costs (again if I represent myself)?
If it goes this far (which I hope it won't), am I wise to go for 7 nights/fortnight? Or stick to 5 nights, and know that if I come out on the right side then my ex is unlikely to challenge any future increases in time that I request?

Should this even go this far, if my request is such a simple one to negotiate?
How would a Court view this refusal by my ex?
If it goes in my favour, is the Court likely to get my ex to pay my costs?

Lots of questions I know!!

 

[Atticus]

If my ex refuses to mediate - or makes no genuine attempt to actually mediate, or give me a valid reason during mediation as to why an additional night per fortnight isn't the right thing for our son - do I ask for a Section 601 Certificate?

It's up to the mediator to decide at what point it's appropriate to issue a S60I, & the reason for it

What will initiating and filing consent orders cost me if I DIY?
And likely court costs (again if I represent myself)?

You should file for final & interim orders ... See >>> Family law court fees | Federal Circuit and Family Court of Australia

If it goes this far (which I hope it won't), am I wise to go for 7 nights/fortnight? Or stick to 5 nights,

You should seek whatever time you are actually able to practically provide & stick to it.... At 14 (depending on maturity level) your sons wishes & points of view can be given weight, but the child's wishes can only be presented to court via a third party such as in a family report by a professional witness or court appointed independent children's lawyer.... These potentially could add considerably to time & costs.

Should this even go this far, if my request is such a simple one to negotiate?
How would a Court view this refusal by my ex?
If it goes in my favour, is the Court likely to get my ex to pay my costs? .....

Impossible to know .... Wouldn't count on a successful costs application & it would only cover the cost of any lawyers fees.

 

[Atticus]

Another option that may be worth considering prior to filing for orders is child inclusive mediation.

 

[sammy01]

Kid is 14?
ex has emailed "stating she still won't agree to revise the document, but is happy to give my son the choice to spend alternating Wednesday with me." So basically agreeing to 5 a fortnight. True?

So she has agreed to your request. SWEET. What is the problem?

Oh the paperwork... Well dont worry about that. What matters is the email where she agrees. IF this is about the $$ chill. Get 3 months of you having 5 a fortnight with some decent paperwork to support that and then you can submit that to CSA and collect the family tax benefit.

 

[Warringah2017]

Her exact words...

If he would like to spend alternate Wednesday nights with you occasionally I’m happy to consider that but don’t need to change anything to do so.

She's not dumb. She knows if the percentage of care increases for me, she'll be paying me child support instead of the other way around.

 

[sammy01]

Play the long game... accept the occasional Wednesday. Work towards it being every second Wednesday. Look it seems like your priority is the time with the child and not the $$$.
I reckon at some point your child will vote with their feet. So be patient.
Or do the whole court thing with all the angst and expense that goes with it.