QLD Parents agreeing on Parenting Agreement then one parent unilaterally cancels after agreement reached

[Laquisha]

G'day all you good people.

The way I understand the Parenting Agreement process between parents is that parents can enter into a discussion to decide between themselves what they see as BEST FOR THE CHILD. Once both parents come to an agreement on the matter then that agreement is binding between them. After agreement one parent can't just cancel the agreement just because he/she feels like it.

Now my case (parent2) is as follows, and our current Parenting Orders clearly states "unless otherwise agreed upon by the parents in writing the child will spend time with......."

The other parent and I have a wonderful child together. We have been in-and-out of the Federal Circuit Court for almost 10 years. The Parenting Orders stated that the child lives with parent1 and spends 4 nights (Thur to Sun) with parent2 each fortnight. The child is to attend upon a school close to parent1 which the child did whilst in primary school - some 40km from parent2. Without consulting with parent2 parent1 enrolled the child into a high school (2018) some 70 km from parent2. When the child was enrolled into high school parent1 didn't put parent2 as one of the parents, next of kin or as a person that can collect the child from high school.

Parent2 has a medical condition which does not always allow parent2 the ability to take the child to school on the Fri (although parent2 did so when it was possible). Parent1 is fully aware of parent2's medical condition. Parent2 clearly worked with the primary school so that the child would have school work to do from home on these Fridays.

Whilst the child was still in primary school parent1 (early June 2016) entered into a parenting agreement discussion with parent2 regarding the child not always attending school on the Fri. Via text communications with parent2 parent1 offered for the Parenting Orders to be changed such as that the child spends 2 weekends out of 3 with parent2, from Fri after school until Mon before school, IN THE BEST INTEREST OF THE CHILD(parent1's words). After a few text messages between the parents clearly defining the agreement, parent2 agreed to the parenting agreement as put forward in the text messages by parent1. After the agreement was reached between the parents (before the agreement could be submitted to the Court for approval and inclusion into the Parenting Orders) parent1 decided to unilaterally CANCEL the Parenting Agreement, because parent1 alleges that they will have to pay parent2 $70 a month. Parent2 was NOT happy. Parent1 did ask parent2 if parent2 would be willing to enter into a private agreement to waive the apparent $70 a month, but before parent2 could answer parent1 retracted this offer as well. Parent2 asked parent1 "so because of your greed of $70 a month and NOT because what is in the best interest of the child you decided to cancel this agreement"? And parent1 replied "Agreed". Now we have to note here that parent1 remarried and that both parent1 and stepparent earned in excess of $90k a year each. Parent2 is on a Disability Support Pension.

For the rest of 2016 the child attended school very few Fri when the child was with parent2, although the child has always had school work to do on these Fridays. Parent1 decided to work extra hours to save for an expensive expenditure, and for the last 6 months of 2016 (as from shortly after the above agreement) parent1 requested (via emails and/or text messages) that the child spent the entire winter holidays, the entire Sept/Oct holidays as well as each of parent1's weekends with the child (Fri to Mon) with parent2. Parent2 agreed and did all the extra travelling without reimbursement as parent2 saw it as IN THE BEST INTEREST OF THE CHILD. Also this meant that the child spent much more time with parent2 than what was agreed upon by the child's parents in the aboge Parenting Agreement.

December 2016 parent1 falsely accused parent2 from withholding the child. The Judge in the Federal Circuit Court said this is too much for her to deal with and referred the matter to the Family Court.

Beginning 2017 (child still in primary school grade 6) parent2 again discussed the non-attendance of the child on Fri with the principal of the primary school. Parent2 made adjustments so that the child could be taken to school on these Fri.

The first appearance in Family Court was before a Senior Registrar Mar 2017 where an ICL was appointed (the same ICL as before in FCC). Next appearance in Apr 2017 before same Senior Registrar and Family Report ordered (by Court family report writers). After family report, Jun 2017, same Senior Registrar ordered that the time with parent2 be reduced to the last full weekend of the month based on the family report. Next Court appearance is Jun 2018 for direction hearing by FC Judge.

Parent2 did submit and affidavit detailing the events and the false allegations by parent1. This included the Parenting Agreement text messages between the parents. Parent1 told family report writer parent2 is lying (although all text messages in affidavit). Family report writer suggested parent2's time with the child be reduced to last weekend of the month due to parent2's inability to take the child to school every Fri as well as due to the high level of conflict between the parents.

Parent2 argues that:
1) if the agreed Parenting Agreement was in place then the child would have attended school every Fri
2) parent2 was able to drive every Fri to collect the child from school and to return the child to school the following Mon (without fail) for the last 6 months of 2016.
3) Contrary to Parenting Orders clearly stating when and how Parent2 can call the child, this is almost never possible due to parent1 controlling the phone communication and not allowing it. For instance of the 63 times parent2 could call (and did call) the child during 2017 they got to speak on 6 occasions only. This is not new but in previous years the child and parent2 had regular weekends
together so parent2 did not take parent1 to Court for contravention
4) It is quite evident that parent1 is trying to remove parent2 from the child's live
5) Parent1 forces the child to read all communication between the parents as well as forcing the child to read the affidavits submitted by parent2.
6) In text messages parent1 clearly tells parent2 that "from now on" parent1 will show the child exactly what is happening between the parents, and parent1 does so.


Anybody out there that can please give parent2 some legal advice that will assist parent2 and the child to continue having a substantial meaningful relationship?

 

[thatbloke]

You are way off the mark. Parenting plans are not legally binding, one parent CAN pull out at any time. When it gets to court thought he parenting plan can be considered as what has been happening to determine what will happen, but only considered. TOilet paper have more value than parenting plans.

In your first paragraph you mention plan, in your second you mention orders. They are NOT the same thing so, what do you have orders or a plan? If its orders then they are binding but the "as agreed" part means that, as agreed, no agreement then the fall back position is the designated times. If those times do not work its either tough luck or try to get back into court .

If you decide to go back to court you have to have a significant change of circumstances from when the orders were made to even get past the first mention.

I am of the opinion that if you cant get the child to school on certain days then that is no excuse to miss school, you should look at days when you do not have to do that. School is actually quite important.(which seems like what the court has done) I am on DSP, my son has a disability and lives with me and only sees Mum 2 nights a fortnight but i sure as hell make sure he goes to school at all costs and if i could not get him there i would be making arrangements with Mum to change the days.

I think this not taking them to school was a huge mistake, agreement or no agreement


Your post is WAY confusing

 

[Laquisha]

Yes it helps to take a pen and paper and draw a picture as this is a VERY confusing case. There are Parenting Orders made by the Court and then the mother and I had a Parenting Agreement which she suggested, we agreed to then she cancelled unilaterally. I do realise the importance of schooling and that is why I worked with the school to ensure that the child's schooling was not affected too dramatically - yes we can get into the social side of schooling etc, etc, etc. It is easy to say take the child to school, but if you have to drive 140km with a fractured back then it is another story. You and the mother of your child might be able to work together in the best interest of the child, but in my case it is clearly not the case. Amd yes, there is a difference between Parenting Orders, Parenting Plan and Parenting Agreement.

The question is surrounding the unilateral withdrawal by one parent from a Parenting Agreement after and agreement has been reached by the parents.

 

[thatbloke]

WIth the greatest respect you did not have a parenting agreement at all. You had orders which include an "as agreed by the parents" clause and you both agreed and now one of you does not. THe only thing that overrides the orders is agreement by consent. You are fighting a lost cause arguing this was some kind of binding agreement

 

[MartyK]

A parenting plan can result in the orders being negated. The issue you have is that firstly, a ad-hoc agreements to vary orders does not, in itself, constitute a parenting plan, and secondly, the changes were never implemented.

Your time has been reduced? You need to adjust your current approach and attitude.

Your matter is still in Court? Concern yourself instead with making it clear to the Court what a great relationship you have with your child and what you have done, in the child’s best interests.

 

[Laquisha]

Thank you Marty and I wholeheartedly agree with you. My current approach is very much focused on what the child and my relationship is like, what the child's desires are, how the temporary Parenting Orders have affected the child and how I have assisted the mother in effectively co-parent (although it was one-way) since the making of the last Parenting Orders.

My sticking point was just the Parenting Agreement we had and how to convey that in my documentation. Maybe the right thing is not to put too much weight on it other than that I was willing to compromise in the best interest of the child?

 

[Imlost12345]

Just a question on this, how does the courts think about when the parent (parent 1 I think) says they have changed their mind in extra time with parent 2(I think it was parent 2), just because of an extra $70 in child suppprt payment?
To me that looks like there is a money value being placed ahead of a child’s relationship with a parent?
Sorry Laquisha to butt in on your post.