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StressedMama

Active Member
24 November 2019
7
1
31
Hi, so I have a question about how to best move forward with a situation. I will keep emotion out of it, and just state the relevant facts, but happy to share more if needed.

I left my ex-husband 2.5 years ago due to domestic violence. He has a DVO (now expired), that he admitted to - all physical. It was only against me.

We have three children, 18, 11, and 9, and I have 100 per cent care. The 18-year-old has severe special needs, intellectual impairment, and I am his carer (this is relevant I think).

There are no court orders in place, despite me trying to get them. There has been a lot of conflict around getting one in place (I wanted one due to being mucked about with care arrangements and we were having major disagreements about schooling and other things, etc). Mediation was organised, I went, he refused to go. So I was given a certificate. This was 6 months ago.

After about a year of 60/40 (my favour), straight after the divorce, for the past year it's been officially 100 per cent. The younger two go to visit for the day on Saturday (not all the time), and my son (18) stays overnight on a Saturday sometimes. He pays no child support and has backpay they are enforcing now as I got them involved.

Anyway, the main issue that has come to head just now is my mother-in-law. There was parental alienation when we were married that the kids were subjected to when alone with her, but since the divorce that been far more extreme. She lives in New Zealand, visits for several weeks at a time for 2-3 times a year. She speaks to my son on video chat for an hour a day at times, and although I try to monitor it, I can't always and I know its a drip drip drip of negativity about me, his siblings and our lifestyle and it confuses him.

She has been told by my ex many times that she must not badmouth me to them. She promises she won't, but it always happens. Stuff like I'm a bad mother, no discipline, I stole all my ex's money, I'm the cause he could lose his house. The worst part, for me, is that she has started causing problems between the siblings.

My son adores his sister (11), they are best friends, but she says negative things about her and encourages J to do this too. My eldest (19) also witnessed some pretty awful behaviour and informed me too. When my son got back I could see he was damaged by what he heard and confused and I took him to a psychologist for advice and support on how to deal with it.

The upshot of this was the psychologist supported no contact with Mother-in-Law. I invited ex in, said my son would need support but clear emotional abuse and manipulation. Even though he is 18 given his limited capacity she said he is very vulnerable and will always need me to be his advocate. He has a large NDIS package, is on disability, has an official dx of moderate intellectual impairment, and I am his official carer with Centrelink. (I'm not sure if this is relevant or not).

I imparted all this to my ex. His view was that, whilst it's happening, he doesn't deny it, but it's not a big deal. It's normal after a divorce and I should just forget about it. He also said I should be careful because she has expressed she is 'out for my blood', wants to 'take me to court and get me put in prison?' and has sneakily found out where I live!

She kept saying to my ex 'I know where she lives'. She stole a resume from my daughter's room which said my address on it. My ex was saying this to persuade me to drop it, saying he doesn't know what she's capable of, and she's on a mission 'to destroy me'.

So - I have said to my ex that this means even more so that this woman must not have contact with our children and our vulnerable son. Ultimately he disagrees.

What should I do now legally under family law?

Whilst I don't want to withhold the children from their father as they will miss him, I don't want them having any contact with her, which is what will happen when they visit. I can stop the daily chats at my house for sure, but I can't at his. Although it may be in the children's best interests longer term to not see their dad whilst we legally sort this out?

Should I initiate mediation again, even though we have a certificate? Do I initiate court or withhold children and let him do that? I have no access to legal aid due to my settlement (which is now gone due to the rent I had to pay after the divorce, and I walked about with 30 per cent of the assets, but that's another story).

What's my best move now?

I should also add that the family has a history of abuse. Years ago, when I challenged her on her nasty comments to my then 8-year-old daughter, her son (my ex's brother), called me up and said if I didn't stop he would, 'get on a plane and knock me out'. He was 40 at the time.

At our wedding, his auntie and grandmother started to physically assault his father. His other brother, 15 years ago, threatened to put a firebomb through our letterbox when he had a disagreement with my ex. So I am, understandably I think, concerned now about my ex's revelations that she is making threats. Hopefully it's hot air, and maybe legally it isn't relevant, but I think it adds further to the case that I cant have this woman around my children, and I may have to move!
 

GlassHalfFull

Well-Known Member
28 August 2018
426
36
714
The confusion for me is where you said "there are no court orders in place, despite me trying to get them". What have you attempted through the courts previously? It sounds clear that you may have a case to argue that the mother-in-law not have contact with the children, but there may be further reports necessary to prove it (a single expert witness, family report etc).

Be aware also that you have the ability to get a family violence order if there are threats made against you. It does sound like the tricky part is that your mother-in-law is in NZ and has contact with your children via video call, and I'm not sure whether the court would consider it possible to directly control her.

It would have the ability to restrict your ex from allowing contact however if it deems it necessary. It sounds like you would need for this to play out via the family/Federal Circuit Court, and to give any further opinions, you'd probably need to explain more about what you've attempted so far. Have you engaged a lawyer previously or have you tried to do things yourself?
 

StressedMama

Active Member
24 November 2019
7
1
31
So far I went to mediation - did my session, and he was invited for his, and he didn't show up. I got a certificate. That has been it.

I haven't engaged a lawyer as yet, no. And when I did a while ago, (I got some free advice from Womens Legal due to the previous abuse), they always advised to take things to mediation. Which is what I did, but then he never engaged.


Others (not lawyers) have advised me to withhold and let him take me to court for access, and the courts will see that I have withheld them for safeguarding reasons. Is this bad advice? I know he won't stop access with her, unless I take action. I'm not sure though, if I need to be the one to take him to court regarding this, or if I should let him take me?

Also, does anyone know where the law lies with regards to the 18-year-old - given they don't normally fall under family law, but he has special needs and limited capacity?
 

GlassHalfFull

Well-Known Member
28 August 2018
426
36
714
I haven't engaged a lawyer as yet, no. And when I did a while ago, (I got some free advice from Womens Legal due to the previous abuse), they always advised to take things to mediation. Which is what I did, but then he never engaged.


Others (not lawyers) have advised me to withhold and let him take me to court for access, and the courts will see that I have withheld them for safeguarding reasons. Is this bad advice? I know he wont stop access with her, unless I take action. Im not sure though, if I need to be the one to take him to court regarding this, or if I should let him take me?

Usually, the next step if mediation fails is to take it to court though. Yes, ideally all issues could be sorted out through mediation. I certainly wish mine were, as it would have saved me a lot of money. But sometimes the other half isn't willing to negotiate, and that's where you need to get court orders. So long story short though, it sounds like you never did try to get court orders made. Even mediation wouldn't have resulted in orders - only an informal (or perhaps formal) non-binding agreement.

I don't necessarily thing the suggestion to withhold access to the children is 'bad' advice in terms of achieving your aims, although it would likely be considered nasty by your ex and ratchet up the tension and make it less likely that you'd get cooperation from him. That's the problem when dealing with issues relating to the children... Often the only leverage you have is the children, and children are an inherently emotional subject for all parents.

I can tell you that from my experience, my ex probably thought she was acting 'protectively' by withholding the children too, but in the end (because she was absolutely wrong, to cut a long story short) it just cost us all a lot of money and I got access to the children again and most of what she was effectively demanding was rejected as unreasonable...

Ultimately, unless there's a very clear risk to the children, it's not seen very positively by the courts to withhold the children from parents. Having said that, my experience is that as long as you are willing to be reasonable and concede things once it reaches court, the judge is unlikely to care much about historical injustices against the father. They just want positive outcomes moving forward, and generally let bygones be bygones.

I'd suggest you get proper legal advice (I'm not a lawyer, just another punter who is working his way through family law), but as long as you're willing to be fair with the children in the longer term, withholding or threatening to withhold the children is probably the best way to force your ex to take the risk to your son seriously. Just be prepared to end up in a bitter and expensive legal fight.

Family law isn't cheap, in the end nobody really 'wins' and ultimately it's unlikely you'd be able to withhold the children for very long before the judge orders you give him time again (possible with catch up time). At least it would force the legal cogs to start turning towards a stage where proper independent psychological reports can be ordered that will determine how the mother in law is to be dealt with...

That's my two cents anyway.
 

StressedMama

Active Member
24 November 2019
7
1
31
*glasshalffull* I really appreciate your help.

Things have gotten ugly (as I suspected). He's now throwing threats my way (as he has done in the past). He has accused me of being controlling, saying he is going to take me to court now to gain full custody, and will use the following reasons:

1. That I home school the 11-year-old, and am 'educationally neglectful' and she should be in school (one child has ASD 11, and left school earlier this year due to extreme anxiety. Psychologist and paediatrician recommended homeschooling. She now has a multi-sensory tutor, a severe dyslexia diagnosis (never picked up in school), an NDIS package, a support worker, an OT, and does art therapy, and is getting better).

2. That I am the cause that my girls don't want to stay the night at his house, because I am 'too nice to them', and 'I co-sleep with them'. (I have gone to many psychologists session with my daughter regarding why she wont sleep at her dads, and invited him but he doesn't believe in psychologists. They said it was common for ASD girls going through puberty to sleep with and only want to be with one parent. I even supported her during visits at his for a while so she would stay, but he was abusive to me so I had to stop that).

3. That I am mentally unstable and a bad parent with no discipline (after I left him I had a nervous breakdown due to his abuse, the kids never saw anything and are unaware, and ive been fine for over 18 months. My parenting style is very gentle (especially due to the ASD, and psych recommendations), but I do not punish or am authoritarian with kids. Never have been, never will be.

I think I need to remain calm, not be bullied, and not respond to his accusations. I think I need to let him take action, if he feels he needs to, and then respond when that happens. Would people agree with that?

I'm still wondering what happens with my son, who is 18. Will family law court not be interested due to his age?
 

StressedMama

Active Member
24 November 2019
7
1
31
. Even mediation wouldn't have resulted in orders - only an informal (or perhaps formal) non-binding agreement. [/QUOTE said:
Really? I thought, if you could agree in mediation, you could get a parenting plan rubber stamped that made it official? No?
 

Atticus

Well-Known Member
6 February 2019
1,540
221
2,394
What should I do now legally?
Whilst I don't want to withhold the children from their father as they will miss him, I don't want them having any contact with her, which is what will happen when they visit
So to begin with going to court to fight alleged parental alienation by grandma by alienating the kids from dad is a bad bad idea...

As an example, you withhold the kids. Dad takes you to court to get the kids right to see him formalised in orders... Your argument for withholding is you don't like the way grandma talks about you... Bad idea. You have a s60I certificate, still valid for 6 months, so filing an initiating application is an option open to you... You could DIY, & dad will be compelled to attend mediation because that's almost certainly what the court would do to begin with...

As far as granny goes, being in NZ means a restraining order probably can't be served on her, & even if it was, how do you know if she's speaking to kids or not when with dad... I suggest perhaps look at just downplaying whatever garbage she is telling the kids because no court order will stop her venom, in fact it would probably increase. Nothing wrong with monitoring the calls at your house & telling granny she is no longer welcome to call if she persists... Also, kids aren't dumb. They know what rings true & what doesn't.

ALso, does anyone know where the law lies with regards the 18 year old - given they don't normally fall under family law, but he has special needs and limited capacity?

I think you may have missed that boat unfortunately... If you had applied before he was 18, the family court would have had jurisdiction & would have been able to make a child maintenance order that extended into adulthood given his conditions. However, that may have affected your NDIS package too, don't know.

If you have a CSA assessment in place for the other kids , you may be able to look at a COA reason 2 (the costs of maintaining a child are significantly affected because of the special needs of the child) although that is probably unlikely as well because it's normally child specific, but maybe worth a call to CSA to inquire.... Hope someone comes along with a better idea on that one
 

StressedMama

Active Member
24 November 2019
7
1
31
Your argument for withholding is you don't like the way granma talks about you.

Thanks so much for taking the time to help. My argument isn't that though, is it? It's that she is talking negatively about me, about their siblings, about their lifestyle - and it is having an emotional impact.

If it wasn't, and they just brushed it off, and it wasn't doing any damage then I wouldn't pursue - but it is. I thought the courts thought parental alienation (and, in this case, sibling alienation too), as abuse and illegal. I thought you could legally withhold a child if you felt they were at risk?

So, are you also saying, because I have the certificate, I should apply for a court order immediately? I'm best to initiate it myself?

How does one even prove alienation? Will they interview my children, my ex about this? My 19 year old daughter would certainly back all of this up as a witness, and share her experiences growing up, but id feel awful putting her in that position.

This just all makes me want to give up. But how do I just turn a blind eye though to something I can see is doing emotional damage to my child?
 

GlassHalfFull

Well-Known Member
28 August 2018
426
36
714
Thanks so much for taking the time to advise. My argument isn't that though is it? Its that she is talking negatively about me, about their siblings, about their lifestyle, - and it IS having an emotional impact.
If it wasn't, and they just brushed it off, and it wasn't doing any damage then I wouldn't pursue - but it is. I thought the courts thought parental alienation (and, in this case, sibling alienation too), as abuse and illegal. I thought you could legally withhold a child if you felt they were at risk?

So, are you also saying, because I have the certificate, I should apply for a court order immediately? Im best to initiate it myself?

How does one even prove alienation. Will they interview my children, my ex about this? My 19 year old daughter would certainly back all of this up as a witness, and share her experiences growing up, but id feel awful putting her in that position.

This just all makes me want to give up. But how do I just turn a blind eye though to something I can see is doing emotional damage to my child?

The judge / court itself isn't going to interview anyone, but a family report writer (a 'single expert witness' - a psychologist with experience in family law), usually appointed by the court, will interview all children and both parents. Basically the judge/registrar's job is to collate all the relevant information from outside sources and make a decision based on them. This is something I wasn't aware of until I began my legal journey...

I assumed the judge would take more initiative in making decisions, but it turned out not to be the case - they really do far less decision making than I expected (especially at the interim stage). Almost everything that I've achieved in the family court has been by consent (agreed by both sides on the day of court, but prior to the hearing), and the judge/registrar has just rubber stamped what has been agreed upon.

That's not to say that there was no point to the hearing. In my case, the writing was on the wall for my ex to accept the agreement because her case was pretty weak given the available information and evidence, but she wouldn't agree until push came to shove in court. Your experience might be different if your ex is more prepared to discuss and negotiate, but that's been my experience.

Generally speaking though, usually the decisions made in court are based on recommendations by an Independent Children's Lawyer or family report writer which both carry a lot of weight, unless the judge disagrees strongly with them for one reason or another. Arguments and wishes by either parent are considered by the court more from the point of view of attempting to isolate what is agreed upon, and what is a matter of contention between parents.

So for example, if both parents don't disagree about a particular issue, the court is unlikely to get involved and make orders against the wishes of both parents. I guess I'm stating the obvious here but it seems like maybe you need a high level overview of how it all works.

I'd say that what may be likely to happen in your situation is that once you've submitted your initial affidavits, an interim decision will be made by the registrar until such times as a family report can be prepared after consulting with all sides (including the children where relevant). You'll then go back to court a few months later for another hearing and more interim orders will be provided, probably mainly as recommended by the psychologist.

There may be many other steps along the way and probably more following if you and your ex are still in dispute, and I have no idea what the end game will be, but that's my gut feeling about how it may evolve. It almost certainly won't be over in a single hearing, and it'll be a long and emotionally straining process with no guarantee of a successful outcome... Sorry to be discouraging, but that's the likely reality in my opinion.

Also, I don't think Atticus' analysis of your argument was entirely fair, but ultimately it might be hard to convince the various players in the court that it's a significant enough issue to enforce a fairly severe restriction on the mother in law (or the father for failing to do anything about it).

It's unlikely that your psychologist's opinion will simply be accepted as-is, because the psychologist has been appointed by you, may be swayed by only hearing your side of the story, etc. I'm not saying you are wrong to say that it's psychologically damaging, I'm just saying that the court tends to see a lot of biased reports from psychologists paid for by one parent or another, and tend to prefer reports made by independent third parties with experience in family law.

At best, your psych's opinion in affidavit form it may be the catalyst for further independent reports like the family report. Again, just my two cents.
 

Atticus

Well-Known Member
6 February 2019
1,540
221
2,394
So, are you also saying, because I have the certificate, I should apply for a court order immediately? Im best to initiate it myself?
You say you won't qualify for legal aid funding, & to be honest, I'm not sure if this would pass thier merit test anyway, so filing a DIY initiating application would get the ball rolling & dad would be compelled to attend mediation & make an effort to reach a resolution... The filing fee is under $400 from memory..
How does one even prove alienation.
Parental alienation is when one parent alienates the other... This is not what this is. What this is, is a disgruntled ex-mother-in-law. You could spend a great deal of time & money in a prolonged court battle, which in the end, may do little except throw fuel on the fire...

At best you may end up with an order that directs dad to restrict his mothers contact with the kids ( & when I say kids, I mean the kids... The order can have no direction around restricting contact with the 18-year-old which you say is the main concern) & if such an order is in place, how can you know what is going on in dads care time anyway, & if he breaches, are you willing to go to court again?

So this is why I said perhaps the best approach for you, as the parent, & hopefully dad as well, is to just downplay the rubbish that comes out of this women's mouth, & as much as possible, give your kids the tools to deal with it, which won't be a bad life lesson for dealing with such people in the future anyway...

This is not to belittle what is happening to you & kids, but the truth is, in this sort of situation there is no sure-fire legal remedy, you must employ other avenues... There are good counselling services that can provide you, & or the kids with tools to cope with, & actually grow from this sort of thing... I honestly think that is your best approach.