NSW Options going into Dispute Resolution post relocation without consent

[Hummingbird]

Hi,

I'm trying to find out as much as possible about our options and likelihood of success, and am seeking advice.

Mother left Father Feb 2017 with 4yo daughter from QLD, home since daughters birth. Both agreed she takes daughter down to NSW for one week to see her extended family and consider the marriage, on arrival she blocks all contact for 3 months and then returns to QLD to file and withdraw financial abuse claims. 1st private mediation offered by Father is denied by Mother.

June 2017 Mother compelled by Fathers lawyers to enable contact between daughter and Father pending 2nd offer of mediation. Mother allows one weekend a month, cancels twice. Father not told where daughter is in day care 5 days a week, denied requests to care for daughter instead of daycare. Father and Mother organise Relationships australia mediation for November by the time Mother actually complies. Nov 2017 Mother calls Father saying she has taken daughter back to NSW 2 days earlier and while doesn't plan to live there, has packed all her things and will allow Father to fly down one weekend every six weeks to see daughter. Has abandoned mediation and Father eventually issued 60i. Father says to return immediately, Mother blocks contact that day and over Christmas. When prompted by lawyers Mother offers 6 hrs supervised by her Christmas Eve, then fails to respond to further negotiation.

Father advised by lawyer not to file for recovery as Mother denies moving, will claim it as a visit. He files custody orders in QLD the next day, on notification Mother files her own in NSW and gets an earlier date. Feb 2018 interim orders in place, without prejudice, and contact re established of one weekend a month in QLD and one weekend a month in NSW.

Father continues to want daughter returned to QLD and 50/50 week on week off. Daughter has now been in NSW 9 months, but Mother has taken her back and forth from QLD over the last 18 months. They shared care in marriage equally, Mother only gets to claim primary carer because she took off with the daughter straight off, and had made bizarre false claims about shoving and credit card fraud in her original affidavit, ignored by Father. Mother suffered several depressive conditions, is not a danger and Father wants both parents equally involved. Mother asking for full custody, increase in CS and Father visitation one weekend every six weeks, changing to only during holidays once school starts.

Court mandated mediation (3rd mediation attempt) took place in May, less than 10mins as Mother refuses to return or negotiate anything less than full or sole custody. Court ordered Dispute Resolution scheduled in a few weeks.

Is the judge likely to make an order after a 3rd failed mediation? What are likely outcomes if failed resolution occurs? Trial seems to be the only way to compel Mother to reasonable terms at this point.

Also, can Father seek to modify current interim orders to address holidays as there are no provisions in there currently and this could go on a while. Any advice appreciated.

 

[Hummingbird]

Further details of Father's proposed orders of 50/50:

Has in writing the ability to change to permanent family friendly roster allowing week on week off roster to enable days off on their week with daughter.

Once school starts handover on Mondays, one parent drips them off and the other picks them up. Until then handover Sun afternoon.

Father does request full decision making in terms of where daughter goes to school. Mother has moved overall 4 times including twice in qld, since Jan 2017, and enrols daughter in schools without telling the Father.

Week on week off continues during mid semester school holidays. On Christmas either split the whole holiday period in half or alternate in 2 week blocks. Daughter video chats whichever parent they arent with on Christmas Day.

Daughter has established relationships with Fathers extended family who provided day care and babysitting when Mother returned to work.

Daughter to have her own bedroom. Father owns their home, and has schools through to year 12 in same community.

Whichever parent does not have daughter on any week is able to video chat with daughter hetween 6 to 6:30pm Mon Wed Thurs. Both parents must advise thenother if the daughter is taken to hospital, and both parents have full access to school info and events, and out of school activities only to be with both parents written agreement. Sorry if this is really long.

 

[Rod]

Much is going to depend on the attitude of the judge. The judge has wide discretionary powers and all the Father can do is keep asking for the changes he wants, framed in a way that shows the changes are in the best interest of the child, present his evidence in the best possible light, say he is happy to co-parent, and then hope for the best.

Sounds easy, but it is not. Lots of detail to work through, documents to prepare, people to see (schools etc), court processes to understand etc.

It will take persistence and patience but it can pay off.

Remember fighting with a judge is a no win cause, though if the case is still in NSW, and the NSW judge appears to have bias, then it may be possible to move the case to QLD.

 

[Hummingbird]

Thanks Rod, yeah it's just so difficult to predict and is such a drawn out process. We'll see!

 

[sammy01]

Relocation cases are the hardest to give advice on...

So look for possibilities /contingencies... For example, would you be prepared to move to NSW?

 

[Hummingbird]

To be honest Sammy, moving is where we draw the line. Both the father and I work in specialised roles in emergency services, making transfers possible but a long drawn out process. We are both committed to staying in QLD with both our extended families here. We have just bought a house, and possibly about to be pregnant.

We are looking at options for how to manage meaningful access either with the father if the daughter stays in NSW, or with the mother if she chooses not to come back if the daughter is ordered to. Video chats Mon, Wed, Fri seem like a good start. Inclusion in school updates, and the option to have daughter go to the other parent when there are 3 day weekends like public holidays or school free days would help fill the gap between holidays as well. We plan to offer flights at our expense and to foot all schooling fees, medical everyday things should we end up with primary. We don't expect child support if it goes that way either due to the mother quitting her job and having none since.

 

[sammy01]

child support is based on income. So I'm guessing dad would earn about $80 000??? mum would probably not have to pay childsupport until she earned over about $30 000...

 

[Hummingbird]

Just for anyone who may be in a similar situation and interested in the timeline of events for NSW Family Court for us, my partner had the dispute resolution early August in Sydney. It turned out to be a 20 minute interview with the person doing the report, then a follow up call after they spoke with his ex. It went back to court end of August, and both parties were provided a copy of the report made to the judge. I was really disappointed to see that there were so many personal attacks on my partner made by the ex that were allowed to be included in the report that in my mind are not relevant, eg she added more claims of him verbally abusing her, and claims he pressured her into sex at the end of the marriage. Nothing that requires proof. And nothing added to the report about my partners response to that claim on the follow up call. Nothing in the report about provable history of blocking contact and his repeated attempts at mediation which she refused, nothing in the report about relocation being without the fathers awareness or consent. None of his concerns about the ex facilitating any more contact than what is specific to the order, which at the moment does not specify holidays and Christmas arrangements. The ex is still stating she has no money and wants his visitation reduced plus child support increased, and makes statements that their daughter tells her she sleeps alone in a cold dark room. Come. ON. How is this is in a court report? It is supposed to be what are in the best interests of the child, what has been the arrangement so far, and discussing the situation of events leading to now. Besides the fact she is in her own room with a night light and this is not true, why is that worth mentioning? Meanwhile their daughter tells us that mum said she lives there because daddy hurt mummy, mummy said daddy doesn't like her (to me this sounds like alienation as her phrasing sounds too particular to be her words, and since we don't discuss things in front of the child where is she hearing this from?), and says to us that mummy makes her sleep in nappies every night. But she also says typical crazy kid stuff, things like the ex is pregnant all the time and other fibs that kids make up so I don't know why unless it's a safety concern its even mentioned. And none of that we even bothered to mention because the child is 4, and none of it is reliable.

The judge has ordered a Family Report, from what I understand this is the more detailed version of the dispute resolution and THE final step before trial. My partners solicitor objected and requested the procession to a trial since the dispute resolution was the now 5th I think failed attempt at some mediation (3 private or RA ones and 2 court ordered), and the other side actually agreed. The judge decided to proceed with the Family Report. We have been advised the earliest this will come back to court is April next year. This is ridiculous. How many times does he have to jump through these hoops before they get it that mediation is not working, FFS. From what I was told both parties agreed to a trial, this makes no sense.

So we are now waiting for dates to head back to NSW where their daughter, the ex, my partner and myself apparently will be interviewed, and there may be supervised play sessions with each parent to observe the childs behaviour. There is discussion about a child psychologist, as the ex wants one but my partner doesn't see the need, she has no behavioural issues and is too young and easy to manipulate, with no real understanding of the situation.

Coincidentally the next day there was a text from the ex offering to now agree to him having their daughter up for the week next month, which she had refused twice before. Now the ex knows we want a trial. We are happy to see her more, and are going to try and organise more weeks over Christmas and January before the girl starts school next year. Since the ex blocked contact for 3 months over Christmas last year we expect she will still believe she is entitled to it again but we have a leg to stand on with her past behaviour. In all we are happy we still have the interim order time, and possibly more time over the next few months, but this won't be resolved before school starts next year, which we were hopeful going to trial now/ early next year may have sorted.