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NSW Partner's Ex Refusing Visitation until Consent Orders are in Place?

Discussion in 'Family Law Forum' started by Hpflstpmum, 2 October 2015.

  1. Hpflstpmum

    Hpflstpmum Well-Known Member

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    Hi all,

    I have been reading through a lot of the threads in here for quite some time while my partner has been going through the process of getting consent orders as his ex is refusing to allow their 7 year old daughter to see him until such order is in place (my partner is in a different state to the mother and daughter due to relocating for work) as she is afraid that he will not return her once she flies to see us.

    It has now been almost a year since my partner has seen his daughter and quite a few months since he has been allowed to talk to her on the phone.

    I won't bore you with the little things that have contributed to this decision made by her mother in not letting their daughter speak or see her father but will just ask a couple of questions based on the following information please?

    Mediation was done at the beginning of the year by phone due to neither parties being in this same state. A parenting plan was put in place and it was agreed that the daughter would see my partner for half of each school holidays and speak on the phone three times a week, FaceTime every weekend. The daughter would not be allowed to come and visit until the parenting plan was taken to court to then form a consent order.

    My partner has done this a few months later after saving the appropriate fees for the lawyer to do so. The lawyer has formed the draft consent order and sent it to the ex but she has come back saying her circumstances have changed because her current partner has children and it depends on what plans they have, so it is up to her what part of each holidays we see their daughter and we can only speak once a week on the phone and once a month FaceTime. Also we must facilitate visitation between the mother's sister and my partner's daughter while she is in our care for one day each holidays except Christmas where it is to be from Friday to Sunday. The daughter is also not allowed to speak to me, only her father. She also made a point in her email of saying how long it took for this order to be sent to her which we couldn't help as we had to be able to afford it and the lawyers had to draft it.

    My partner has then requested that we extend the time spent with him in order to facilitate this visitation with the aunt as the time he spends with his daughter is already limited and that this occur in just two of the four holidays so we have some time with just her. As well as phone calls twice a week and FaceTime fortnightly. We are happy to allow the mother to choose what half of the holidays as long as we get 28 days notice to allow time to purchase flights and make plans for our holidays. In addition to this we asked that my partner be able to FaceTime his daughter on her birthday and Father's Day, and phone call on his birthday. We also asked that an alternative time be organised to speak to speak to his daughter where she doesn't answer the phone as past experience has shown she just doesn't pick up and then the following time we ring his daughter she asks why we didn't call.

    She has responded to my partner's lawyers saying we are making it extremely difficult for her to agree to anything at all (her words) and she is now seeking legal advice. The mother has also said she wants to change their daughter's last name as the daughter wants it to be the same as her half sister. We have refused as we don't believe this to be fair when we have a child too who she has not even met yet and he has the same last name as her. It shouldn't be grounds for a name change simply because the child says she wants the same as her half sister?

    This is now the third holidays where we have not seen his daughter and we are concerned about what the mother might be saying to their daughter while all of this is happening. She has said to her dad that she calls her mums partner's kids her sisters and brothers and their parents her aunts and uncles, grandparents, etc. which we believe is a mechanism for her to feel not so left out. It's hurtful but we're ok with it if it makes her happy. His daughter has in the past said she might not be able to come and see him if she is sick. We know this to be a frequent excuse for no visitation previously as we have experienced it and also the father of the half sister has also missed time with his daughter because of this.

    The mother's partner has quite a few times been verbally abusive and threatening over the phone to my partner while the daughter has been in the room which is horrible for her as the partner has said things about him being an incapable father and that his daughter is laughing at him, etc.

    Sorry I apologize for the essay.

    My questions are, based on what I have explained, how would my partner fare in court if the mother comes back saying unless we agree to exactly what she wants, we can't see the daughter? He is considering representing himself as we may not be able to afford the legal fees if we do go to family court. Would that affect our ability to come to a fair agreement with the ex?

    All we want is to see the daughter every half of the holidays and to keep frequent contact with her via phone and FaceTime to allow that relationship to remain strong considering the distance. We would be paying for all flights to and from in doer to see her.

    My partner is fast losing faith and wants to give up completely because of how difficult and non committal his ex is being and feels he will never see his daughter even when going to family court and that fees will be too high and the process far too long.

    I appreciate any helpful information and suggestions as well as experience you have in this matter.
     
  2. AllForHer

    AllForHer Well-Known Member

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    Lordy, where do I begin.

    Okay, so, under section 60B of the Family Law Act 1975, children have a legal right to know, spend time and communicate with both parents (and other people relevant to their care, including grandparents and step-parents) on a regular basis, regardless of the status of relationship between said parents. Since the court is there to uphold rights, and the only extant rights in family matters are the children's rights, it does not take well to parties who refuse a child's time with the other parent without a reasonable excuse for doing so.

    So, if the parties have attended mediation, one or both will have received a s60I certificate, which enables the parties to file an initiating application for parenting orders through the court.

    The court will only make parenting orders that it deems to be in the best interests of the children, and the elements it will give consideration to when determining what's in the best interests of the children are outlined in section 60CC of the Family Law Act 1975. If he is self-representing, he must get very accustomed to the phrase 'in the best interests of the child' and how to use it to argue in favour of the orders he will be seeking, so I suggest reading section 60CC in very close detail: http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60cc.html

    For the name-change request, the mother cannot change the child's name without the father's consent, or alternatively, with a court order, but the court is very reluctant to make such an order where the parent after whom the child is named is still involved in their life. It will again only order a change of name if deemed in the child's best interests to do so, though the considerations come from case law, not legislation. They are as follows:
    • Short and long term effects of a change;
    • Any embarrassment to the child;
    • Any confusion of identity for the child;
    • Any effect which a change of surname may have on the relationship between the child and the parent whose surname the child had during the relationship;
    • Advantages both short and long term in a change;
    • Contact the other parent has with the child;
    • The degree of identification the child has with the father and mother, and with any siblings;
    • The effect of frequent or random changes of name.
    So, that's the fundamental law about family matters, but how it actually pans out in court is something nobody here can predict. There are a lot of variables, from the respondent's argument, to the outcome of any family reports that might be completed, to the judge assigned to your case. Thus, anything I provide hereafter is merely a reflection of my view and experience, and it's definitely not legal advice.

    Now, I don't usually advise parents to jump on the pathway to court proceedings because it turns parenting into a competition of who can defame who more and it can be quite costly, but it sounds like your partner may have no other options. Realistically, the mother really does need to get legal advice anyway, because lawyers are pretty black-and-white about the reality of parenting matters, which is that:
    • The court doesn't take to parents who withhold a child's time with the other parent without a reasonable excuse for doing so;
    • The court doesn't take to parents who make no genuine effort to co-parent with the other party;
    • The court doesn't take to parents who refuse to encourage and support a child's relationship with the other parent;
    • The court doesn't take to the excessive involvement of step-parents; and
    • The court rarely makes orders for no contact with a parent.
    The part about refusing to encourage a child's relationship with the other parent is very quickly becoming a major driving point for parenting orders, these days. It's becoming increasingly common for the court to order a change in residency where the primary caregiver has been found unable to actively and positively support the child's relationship with both parents. A parent who frequently withholds contact, denigrates the other parent, encourages a child to call a step-parent 'mum' or 'dad', and refuses to consult with the other parent about major long-term decisions affecting the child's care, welfare and development generally fall into this category. No lawyer in their right mind would encourage a client to act on any of the above, because it would weaken their case substantially (but then, they also have to act on their client's instructions, regardless if it is the opposite of what they've advised).

    On top of that (and as much as it pains me to say it), an initiating application can be a powerful motivator for the other party to reach agreement. About 95% of parenting matters initiated in court are settled by consent, rather than by trial, because most parents in such circumstances learn the hard way that court is not at all like the exciting battle of wits shown in television dramas. Court is a cold place for emotional parents, and judges are ruthless with their honesty. If they don't agree with the actions of one party, they will not be delicate about saying so, because they don't like seeing parents in their courtroom and a firm dressing down is a good tool for compelling parents to work harder on co-parenting.

    So, if you were to file an initiating application, I would argue that what your partner is asking for is more than reasonable, even bordering on too generous. Legally, parents are not at liberty to determine what a child does and who the child spends time with when in the care of the other parent, so the clause about spending time with the aunt would never hold up in court. If the aunt wants that time, she's at liberty to pursue proceedings of her own.

    Further, the time he is asking for is also not as generous as what the court would probably order if he asked for it (child's best interests pending, of course). You haven't indicated the approximate flight times for the child to spend time with her father, but if it's not that long, why not request every long weekend, as well as half all school holidays?

    Given the distance, the court would likely look at ordering Skype/Facetime/phone calls two to three times a week, rather than just phone calls once or twice a week and then Facetime intermittently.

    So, do I think your partner would fair well in proceedings? I think the child would be granted time with her father, whether the mother likes it or not, because he doesn't need her approval to parent his daughter.

    Would self-representing affect your partner's case in court? This depends heavily on your partner's commitment to actually being a self-represented litigant. He would need to learn the law, know what he wants and why what he wants is in his daughter's best interests, and he would need to know how to present the evidence he has to support that argument. There are stacks of resources (including lawanswers.com.au) for helping self-represented litigants through the process, and Legal Aid offers free consultations that can help, as well.

    If he wants to position himself as best he can, I also suggest he enroll in a post-separation parenting course with Relationships Australia, which is all about improving the co-parenting relationship after separation to overcome communication issues and ensure the children's interests come first. For his case, this is a show of commitment to co-parenting with his former spouse. If she's unwilling to co-parent as well, then that is for her to answer to in court.

    Anyway, I hope this helps in some way.
     
    HLee and Hope this helps like this.
  3. Hpflstpmum

    Hpflstpmum Well-Known Member

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    I was so hoping you would respond AllForHer - my fingers and toes were crossed as you are such a wealth of knowledge so thank you.
    We are now just hoping that my partner's ex will respond to our lawyers next week with good news that she had been advised she wouldn't get much luck with her demands and so will agree on what we have suggested. Who knows.
    At least we're not imagining things when we think we're being reasonable.
    Flights wise we're under an hour and a half flight away so very short distance on a plane. We thought it may disrupt his daughter too much having long weekends as well and found most subjects inflammatory when discussing them with his ex back in mediation as well as obviously now during the to and fro of the consent order.
    The ex also won't allow us to know her address so we have no idea where they are either. We hope this is something that we will be able to find out come consent order finalisation or if/when we go to court.
    Again I really appreciate your response as it has given me a little peace of mind that we may have some luck in seeing her.
    I guess it just a matter of how long the consent order will take to be finalised in court? Or if we go to court, how long that will make take.
     
  4. AllForHer

    AllForHer Well-Known Member

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    Parents have tried before to argue that a child's relationship with the other parent is 'disruptive to the child's routine', which, when put like that, loses its credibility, doesn't it? It's ordinarily held that the loss of relationship with a parent is going to cause more psychological damage than the alleged disruption to routine, and besides, a long weekend isn't exactly routine, anyway.

    On top of that, I don't agree that parents should make concessions for the child's time with them just because their insistence on being involved makes the other parent angry or uncooperative. That's pandering to the parent's needs, not the child's.

    Since the mother is refusing to facilitate time and follow the plan they both agreed to anyway, your partner really has nothing to lose by insisting that long weekends be included in the consent orders. Since the flight time is quite short, he could probably ask for one weekend a month and stand a decent chance of getting it, provided the cost of travel is affordable. I also encourage half of all school holidays (including the long summer holidays), and alternating years for Christmas and Easter, as well as every Father's Day.

    Consent orders don't take long to determine, the court hears the matter in chambers and stamps the orders with the court seal.

    If the parents are unable to negotiate about consent orders, though, then it may result in proceedings. What the father can do to ensure time with his daughter if proceedings commence is file a request for interim orders with the application for final orders. Interim orders are what goes in place while the matter is going through the court system, because it can sometimes take one or two years to get a final decision handed down if the parties don't agree by consent before then. So far, the only genuine complexity that you've mentioned is that the other party is non-committal, so it's very likely consent orders would be the result.

    Hopefully, the mother doesn't want to go to court, or that she at least gets some realistic legal advice. I assume she hasn't been represented as yet?
     
  5. Hpflstpmum

    Hpflstpmum Well-Known Member

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    That's fantastic news both about the long weekends and the interim order! How great that we can potentially try to see her sooner so we don't have to wait. Would the judge assist in providing this interim order based on seeing how non-committal the ex is being?

    Yes she hasn't been represented as yet - up until the last email from her complaining about how difficult us and our lawyers are making it for her to agree to anything, she has corresponded directly herself. Our lawyers politely requested two weeks for a response from her after she said she wouldn't be able to give a response within the 7 days they had initially asked for. So yes I do genuinely hope she is persuaded and guided in the logical and fair direction but as you mentioned, and as we all sadly know, she can tell her lawyer what she wants and they can act on that regardless of what they believe the likelihood is of that happening. She definitely can't afford private legal representation so would likely be going through legal aide. I'm almost half expecting her to come back to us next week and say she still is going through it all and will just prolong the process even further which will take us through to Christmas time and we will miss seeing my partner's daughter yet again.

    The irony of it all too is that her current partner has four children from different relationships and apparently they are going to be (if they aren't already) fighting to see them in court. So you would think they would be a bit more understanding but instead it feels as if they're playing the power game with us because they have none in their other visitation battle.

    Very sad how children are virtually punished by the primary carer indirectly by them not allowing time with the other parent. I've read another thread you were commenting on about limitation of step-parents in regards to involvement and how there is a massive gap in the law around enforcement of orders, etc. How frustrating!

    I really am glad I found this forum as we were so fed up with the complications and missed her so much we were just going to try for custody as we felt it would be a better environment for her to grow up in and we wouldn't be restrictive in visitation to her mum but we realize now that would be more detrimental than good to her and it would be too hard to prove it was in her best interests over ours. Also of course we don't want to be slandering the ex as that's not what the whole thing is about. It's about her and giving her the best life possible regardless of where we think that is.

    I hope that we do get a response next week and we can move forward, so that we may just be able to see her for the Christmas holidays. And if not, at least we'll aim for the following holidays.

    If we have to go to court, we'll have to weigh up whether we can spare the time to study law in the depth that is required to represent ourselves or if we have to pay the lawyer. Is it common for someone to just get a loan from the bank to pay for the legal fees?

    Again thank you so much for your insight in this. You are a fantastic help.
     
  6. AllForHer

    AllForHer Well-Known Member

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    I can't speak on how people pay their legal fees, but I do believe personal loans are an option. I have found Legal Aid lawyers more firm about their legal advice due to the public funding arrangement, but it is possible to use a private lawyer who is funded by Legal Aid, as well.

    However, if your partner feels confident self-representing, then he should do so, because the time he is seeking is fairly minimal, which makes it significantly easier to argue the case for. If he was pursing a change of residency or sole parental responsibility, I would certainly advise getting legal representation, but that's not the case here (and I am happy that you and your partner have both identified that may not be in the child's best interests, in any case).
     
  7. Hpflstpmum

    Hpflstpmum Well-Known Member

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    Thanks again AllForHer.

    We are just waiting to see if the ex or her legal representation will respond to us today. My fingers and toes are crossed for a good outcome. If she somehow complicates the situation, we will certainly have to consider whether we can manage with self-representing or if is necessary to keep our lawyers.

    Yes certainly for the time being we just want it as simple as possible to allow the ex to see we are only trying to be co-operative and not take her child away. Perhaps over time we can get more visitation as she warms to us (or who am I kidding? She dislikes us tremendously) but only time will tell. We're certainly considering the long weekend a month though if we do have to go to court! And of course the interim order to allow us to see her after such an extended period of time!

    I'll be posting again with the ex's response just to allow others to keep up in case they're interested or it helps in anyway as everyone else's threads have certainly helped me.
     
  8. Hpflstpmum

    Hpflstpmum Well-Known Member

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    Sadly she did not respond yesterday as we half expected. Obviously she has no legal obligation at this point to speak with us at all or come to an agreement but I so wished she had.

    Is it possible to file an interim order if you haven't gone to court yet but you are in the process of drafting a consent order for the courts?

    Based on anyone's experience in this area, would you expect our case to take long considering how simple our requests are in regards to seeing my partner's daughter?

    Would this work against the mother in court as she is making no clear effort to assist in supporting a relationship between father and daughter?

    Could the judge consider change of primary residency because there has been multiple occasions of the mother outright refusing to enable the daughter to communicate with her father? Examples are "because I said so" when asking why we cannot talk to her on the phone, "no" when we ask if we can speak to her on Father's Day, "no" when we ask to call for Facetime, "no" when we ask if it is a good time after, no answer when we have called during the only hours we are allowed to call of 6&7 her time, denied FaceTime "because you did last weekend", etc etc.

    We are quite nervous now about not being able to see her by the next holidays because it appears her mother might just be dragging this out.

    One thing I didn't mention also in regards to the name change request was that her mother said why would she have the same surname as someone where she spends no time with the family? But we have not been allowed time for her to spend with my partner's parents even though they live in the same state as the daughter.
     
  9. AllForHer

    AllForHer Well-Known Member

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    This is all fairly typical of a standard parenting case, and coincidentally, this is usually why parents end up in court in the first place.

    Unfortunately, you can only apply for interim orders if you are also seeking final orders, so you're better off just doing the initiating application for final orders, ticking the box for interim orders and filing it with the court. As I said, most cases result in consent orders anyway, it's just going through the unfortunate process of getting there, but it's at least going to put a deadline on the thing. Right now, the other parent can just say no for however long she wants with no consequences and no prospect for change, so you have nothing to lose except maybe $600 on filing fees.

    A change of residency is difficult to attain and takes a very long time, but I have seen many people successfully argue for a change of residency on grounds it's the only way a child can have a meaningful relationship with both parents. I wouldn't self-represent for that, though, given the high stakes.

    Do I think your case will take long? That's not a question I can answer. What's the mother's argument for withholding time? An allegations of domestic violence? What were the care arrangements like before contact ceased?
     
  10. Hpflstpmum

    Hpflstpmum Well-Known Member

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    Thank you AllForHer. We thought this would be the beginning of thousands and thousands of dollars but if initially it's just the filing and ticking the interim application then we really should get the ball rolling in order to see her as soon as possible. I guess the longer it goes on in court is where the fees start to increase?

    You're exactly right - she can just say no for as long as she wants to drag things out for.

    I appreciate your suggestion on legal representation for if we were to go with change of residency. I feel that based on how much refusal we're being met with, it shows the mother really just doesn't want us to have anything to do with the daughter at all "just because". There is no domestic violence coming from our side at all. If anything, we would be more likely to have evidence of that with the threats from the mother's partner.

    Contact beforehand was really good with the daughter directly but there was always speaker phone and like she was being coached to say things to us or not say things so there was no privacy, which is where the no speaking with me has come from but that privacy was between father and daughter. She should still be able to maintain a good relationship with her step parents just as she should if she were with us and wanted to speak with her mother's partner.

    The issue that really tipped the mother off the edge was that the daughter had been speaking with me and said she was very unwell and her mother didn't have enough money to get her a puffer (she has asthma), so I suggested before we ended our conversation that she ask her mum if she needed some money to buy one for her. Well I was met with a massive "what!? No!?" in the background. The daughter came back to the phone but thought I had hung up so the conversation ended and that's the last we spoke to her which was months ago now.

    I can understand if her mother's ego was hurt but it was just an act of kindness by looking out for the daughter when she was saying she wasn't well. The next time we were due to talk to her (usually Monday Wednesday Friday so this was Friday), my partner rang and the mother answered saying "you can't talk to her" and hung up. My partner then texted her asking why he couldn't speak to her and she said "because I said so". The texts then went on to say things like "you guys putting your noses where they don't belong" and even bringing up that we were in arrears with child support but we were very confused about this as it is taken out of my partner's pay. Then we were told no contact at all until the order is finalized and in the mother's hands.

    There were many other little tiffs like this where the mother would refuse contact because we did something to annoy her or we were met with angry abusive texts or her partner would be yelling at my partner on the phone, and this is why we're so afraid of annoying her again with our requests as we just really want to see the daughter.

    Prior to us moving to a different state, we were seeing the daughter every second weekend and speaking three times a week on the phone with no FaceTime. Then when we moved, it all turned a lot more sour but the relationship was very on edge to begin with between mother and my partner.
     

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