NSW What to Expect at Family Court Hearing?

[iTrulyDoLoveMySons1990]

I realize I'm not alone in what I need help with here, but I feel very lost.

My son is currently 7 and a half. For 6 years my ex showed no interest in our son. I would take our son to my ex's mother's house or his father's house to get him to see his son. I invited him to every birthday except his second one.

I fought with him so many times because I wanted him to be a parent to our boy. I swear I tried. He knocked us back so many times because he was too busy partying, sleeping around, abusing alcohol, abusing drugs and selling drugs. I even tried, despite the fact that our relationship had turned physically abusive towards the end of the relationship.

I kept hoping he would change.

2 years ago, I went to legal aid for help to get a parenting plan made up in the hopes of getting my ex more involved in our sons life. I felt like I had no choice. I told him what I was planning on doing in regards to the parenting plan, I never lie to him.

His fiancee who is now his wife turned the whole thing around on me telling me that they had wanted my son for a while and I had denied my ex access. This was the start of their lies. It took almost a whole year to get through legal aid and mediation and sign a parenting plan.

Unluckily for my son he was very very sick on his first visitation with diarrhea and vomiting. I emailed my ex and asked if we could please reschedule for the following weekend because I didn't think it was a good idea to drag our son around the shops in his state, especially as my ex had never cared for him before.

My ex got angry and his excuse not to make it was that his fiancee had hair rials the following weekend. I don't see how that would have personally stopped him from visiting his son as he wasn't the one doing hair trials, his fiancee was. He got angry and kept accusing me of trying to breach the agreement which really wasn't my intention, I was just concerned for my son.

He finally said 'fine we'll do it your way' and breached the agreement and I'll see our son at the next visitation. I didn't reply because he was being very toxic.

For the next four months, we just kept arguing and the parenting plan went out the window as if it never happened. In January, legal aid forwarded me an email of a proposal parenting plan from my ex.

Apparently he had sought legal help to try and force me into some very unreasonable plans that were impossible on my part because of my lack of a drivers licence and lack of finances and I had a little baby.

I also received that email after the date that my ex wished it to commence so it wasn't my fault that nothing ever happened. In the February, I was so fed up with being made to feel horrible by my ex and his wife. All I cared about was my son.

I emailed my ex and said look, 'All I have ever wanted was for you to be in our son's life and at this stage it seems as though we may finally be on the same page'. I said that it would take too long to go back through mediation and all we would be doing is wasting time we could be putting towards our son.

I put forward a proposal parenting plan in the email and we negotiated back and forth until we were both happy. When he didn't reply to the last email I assumed that that was now the plan we were going by.

This parenting plan worked for us all the way up until Christmas just gone. There were a few issues with my son telling me things about his fathers living conditions that concerned me but my ex talked his way out of anything I brought up. I did not step outside the plan except once when I chose to move two and a half hours closer to my sons father so they could have a better relationship and I asked them to change one Tuesday afternoon visitation to an overnight visitation the following week so that our son would be out there with his father while I moved all our stuff to the new town.

Basically my ex got more time anyway. As soon as I moved to town they started getting more afternoon time, more weekend time and more overnight time. I never once stopped my ex and his wife and her parents from having more time with my son.

More info in comments...

 

[iTrulyDoLoveMySons1990]

Then the six week Christmas holidays were upon us and my son went of to his fathers for their agreed 3 week holiday. I packed my sons suitcase and my ex's wife and her parents picked my son up. I rang my son every 1 - 2 days to chat about his day and see how he was.

Every time I would call my ex's wife and her mother would be on the other end dictating what my son said and telling him that I wasn't allowed to do things like cut his hair anymore or that I didn't kiss and cuddle him enough. 2 days before my son was due to come home my ex emails me and says our son approached him about staying there and that he wanted a week on week of arrangement or full custody.

I said no to week on week of because I do not think it would be appropriate for my son because they still lived an hour away and I didn't want my son to be made to get up at 5AM with my ex to be in town by 7 when my ex starts work and then have two hours of unsupervised time while my ex is at work and then find his own way to school. And then my son would finish at 3 and have to find his own way back to my ex's work and spend 4 hours unsupervised while my ex is still working only to get home at 8:30PM and then still have to do dinner, homework, shower and chores.

That just isn't fair on my son. I also said no to full custody because under no circumstances will I ever abandon one of my children, I would never separate siblings, I would take my child away from living 600metres away from his school to being an hour away from any school (they live on a property at the end of a dirt road an hour away from the closest schools which are both within 6kms of me) and away from the mother who has loved and cared for him for 7 years and given him stability and safety.

I agreed to giving him every Tuesday instead of fortnightly Tuesdays as had always been in the agreement (because we had originally lived 3 and a half hours apart before I moved 2 and a half hours closer), I agreed to him staying over his fathers every second weekend where that hadn't been in the plan at all to begin with, I agreed to half of all holidays as was in the plan, I agreed that my ex could pop in any time he liked to take our son out, I gave him everything he asked for except the week on week of and full time.

Then 2 days later he messages me through his wives Facebook saying that child protective services had called him the day before and said he was not to return my son and if he did he would be charged with negligence. He didn't bring my son home that day like he was supposed to.

My ex had been seen the day before leaving the police station, I think he had been there to see what time they closed because not only did he not message me about not returning my son when he apparently got that call but he waited until 5PM the following day when he knew the police station would be unmanned (small country town) and I wouldn't be able to talk to them or be able to call anyone for legal help. At that point everything had taken on a very pre-planned, premeditated feel.

I managed to get a hold of the closest police station that was manned but I was brushed of and told to go to the police station in my town the next morning when they opened. I was hysterical. Not only had my son been withheld from me but my ex took away my sons rights to talk to me and said i was only allowed to contact his email or his wives Facebook and that that decision was at the suggestion of his lawyer.

I was devastated beyond measure, I had never felt like i was dying like I felt in that moment. At 9AM the following morning I was in the police station letting them know what happened and giving them as many details as I could of everyone involved.

By 9:15 I was on the phone to Law Access NSW to get legal advice. By 10:30 I was on the phone to find out what I could about what my ex had said about child protective services. They told me that a complaint had been made but they had not even looked at it yet let alone processed it and that meant that there was absolutely no way that there would be any official orders for my ex not to return my son to me.

By midday I was on my way to the Family Court house in Newcastle over an hour and a half away. For the next week I was in and out of the court house getting my application for a court hearing to get a recovery order and interim orders ready to serve on my ex.

On the second day I was at the court house I was doing my affidavit with one of the duty solicitors. The duty solicitor was trying to find out if my ex was still being represented by the lawyer he had previously seen. My ex emailed the duty solicitor calling me a liar and apologizing on my behalf for the inconvenience he said I was being on their office, it was slanderous, untrue and horrid.

I did not hear from my ex, his wife or her mother or my son for almost 2 weeks. I researched everything I could find about custody and children's rights, i got all the advice i could get from solicitors, I even called FACs back to confirm everything that had told me earlier in the week. I collected all evidence I could to help me when I go to court in a week.

A few days ago I had a post on my blog about doing my sons school shopping and how I wished he could have been there to help chose his school stuff for the year but that that was stolen from him. My ex's wife and her mother started slandering me on my post saying I wasn't contacting my son, that all I cared about was winning and that I didn't care about my son at all and they were the ones caring for him and loved him.

I was forced to ask them to stop lying on my public blog and post a screenshot of the message they themselves sent me saying I was only to contact my ex or his wife. They kept saying well why didn't you contact your son then? Because they said I couldn't ring him.

Even 3 solicitors I spoke to said they can't do that and they can't replace phone communication with emailing them instead of talking to my son. Then my ex's wife and her mother kept saying your son has written you a letter of his own accord and wants you to see it but you don't care about that at all. They sent me a picture of the letter. The first line said 'you are lying'. He wrote down that their property is a building site which is obviously in response to the mention in my affidavit that I was informed by the local electrician that their living conditions are disgusting. I know for a fact that they should not be using my son to reply to my affidavit.

My son also wrote on his letter that I treat my youngest son as number one and that I should be treating him as number one and my younger one as number two instead. I treat both my kids equally, I don't play favourites at all, ever. The only way he is writing these things is if he is being told what to write.

Later that day they finally let me him call me for the first time in almost 2 weeks. The were right behind him whispering telling him what to say, I could hear them clearly. They kept making him bring up the letter and the week on week of arrangement. I told him that I wasn't allowed to talk to him about those things and that I definitely wasn't allowed to do it over the phone. I told him we could talk about fun stuff instead though and I automatically changed the subject to Beauty and the Beast.

I told him he was allowed to call me any time he wanted day or night before we ended the call. Two days later I had not heard from him so I emailed my ex and said can you please remind our son that he can call me anytime no matter what. I didn't get a reply until the next day. My ex said he showed the email to our son and that he would call at 7:30PM. He sent the email 9 minutes before 7:30. I waited for over an hour for that call before I realized they were playing games.

Then the next day (today Monday just gone) my son finally called me at 4PM. He once again had my ex's wife in the background dictating. He tried to bring up the week on week of arrangement, I told him that we don't know what is happening yet but that we will know next week at court. I then said we can't talk about it anymore because none of the adults should be dragging him into this and using him to send messages, he said OK and dropped the subject.

He kept talking about how he will be living with his father and will visit me sometimes. It is so obvious that my ex and his family are manipulating my sons mind. Surely they can't be doing any of this. Surely a judge will see through all their games and return my son?

What if the judge believes all their lies and all the stuff they say trying the discredit me? I want my son to come home where he belongs, where he will be safe, clean, well fed and will have a routine and consistency. Surely the court will see that he needs to be with his mum? It's not like I'm trying to stop my ex from seeing our son even after he did all this.

The court hearing is in 7 days and I am scared I am going to lose my son. I've seen him for all of 20 minutes in almost 6 weeks, I want him to come home

 

[MartyK]

Wow that's a lot of information, I almost stopped reading.

Before I go on, I would suggest that you take down your profile picture if this is of the child in question.

Your lawyer would be far better placed to tell you where you stand or the likelihood of the child being returned than any assumption I could make here. But I will say that your biggest ally will be the hard copy evidence you can produce.

You said that both child protection and the police were contacted by the father and a complaint was made against you. What are the allegations? Do you have proof that they are fanciful?

The child is school aged? Has the school ever raised concerns about the child's wellbeing? Make sure you have copies of his school reports to show he is doing well at school.

Print out (hard copy, a Judge isn't going to look through your phone) all email and text communications between the father, his ex or his mother and you which can be used as evidence. Highlight important information for ease of reading.

Take screen shots (and print outs) of all communications from any social media accounts of the father or his wife that are slanderous or identifying.

Write down dates, in order, with relevant information to pass onto your lawyer. This will give your lawyer a clearer picture of what happened when and will also assist them to write a timeline. Be brief. Your lawyer will present it in the right format.

e.g.
1/1/15 Father and I attended upon mediation and a parenting plan was made (copy of parenting plan)
3/1/15 Received a slanderous email from fathers wife saying I was an unfit mother (copy of email).

Be very honest with your lawyer and make sure you inform them of anything that can come back to bite you.

 

[sammy01]

Yep, and do not engage in stupid arguments via an online blog. Do not communicate with these people at all.

Get to court for the recover orders. The court will order your son be returned unless the magistrate really does think you've been abusive... So if that does happen and you're innocent great. All of a sudden your ex's case will be seriously flawed...but don't dare help them by getting in arguments via social media...

Let us know how you go in court...and one more thing - When you write your posts, before you hit 'post reply' please please read through and take out about 1/3 of your information - just give us the important stuff. And write in paragraphs. Sorry but sitting down to read those two big paragraphs was hard work.

 

[iTrulyDoLoveMySons1990]

I completely didn't even think about the profile picture, I logged in using Facebook when I joined and that was the automatic picture used.

Sorry, I thought the more detail the easier to understand my situation.

My ex is saying that my husband is creating a toxic environment because he has issues with depression. They were trying to say my husband is financially not capable of supporting our son. And they tried to say my husband abused alcohol in the family.

There is absolutely not credibility to these allegations, my husband would never hurt another person, even if his depression ever got him angry he would never hurt another person. My husband was also studying his Cert III in Hospitality and completing accompanying work experience since this all began and with the exception of the school holiday break where he didn't have any school, he now has a proper job 6 days a week.

My husband also does not drink, I don't even allow alcohol in my house. To top it of my husband is no longer living with me because of his schooling and work commitments that require him to live 2 and a half hours away.

My husband only stayed for any continuous time during the school holidays because we have our younger son together. None of the allegations against my husband is even considered valid as far as FACs has been able to tell me anyway.

My son had oppositional problems during kindergarten but did not show signs of this continuing in year one and is now going into year two with a perfect attendance record, a great report from year two and a massive love for school. I have never found the school to raise any concerns, rather after kindergarten I never actually met his year 1 teacher because she was so busy all the time.

D often wet himself but with the exception of one occassion where I literally had no way of getting to him for about an hour because we were so far away with no car and had to find a lift, we were always at the school within 5 minutes with new clothes (We lived right around the corner).

I have printed out as much as I can of all the communication and photos I can find on their personal profiles as well. I have so many print outs it feels like I went overboard.

My affidavit contains a timeline of everything that has transpired between myself and my ex since we were in a relationship to now. I have affirmed to everything even though I can't prove that my ex was abusive towards me when I was pregnant because I didn't report it to police.

I was definitely honest with my solicitor. I even told them about any time I experimented with a drug (which both occasions involved my ex, when were were 17 before we had kids and then he sold it to me the only time I ever bought a pill to try, our son was with my ex's mother for the weekend). I literally can't imagine there would be anything else he could try using against me.

 

[iTrulyDoLoveMySons1990]

The only argument I have put towards them is that they told me I can't ring my son and showed them a copy of the message they sent me. Apart from that I have asked them to stop harassing me.

Sorry, my posts were so hard to read, I was very emotional whilst typing it up and just went for it.

 

[sammy01]

No worries - I understand.

When is court hearing for recovery order?

 

[MartyK]

Sounds as though you are quite organised, which is a good thing.

If all of the allegations are against your husband, not you, then this should be good for your case. As should the fact that your husband is studying and doing work experience. I would expect he would likely not get very far in his course or new employment (even if it is only work experience related) if the allegations of him being a drunk were accurate.

Like sammy said, do not partake in an dialogue on social media or otherwise. Direct all communications, at this time, through your lawyer.

In relation to the phone conversations with the child. Calling the child every single day, unless there is agreement about this with the other parent, or the child is old enough to decide, while not necessarily of sinister intention, could easily be viewed by the other parent of intrusive of their time with the child. In other words, when the child is usually with you for the majority of the time, is there really any need for this?

 

[iTrulyDoLoveMySons1990]

My hearing is next Tuesday the 31st.

I'm also worried that my ex and his wife won't send my son to school on the 30th, my son has never missed the first day of term.

We had agreed that phone communication would be liberal, they never had an issue with that and my son seemed to enjoy the calls. I don't think they have even said anything as far as them having had a problem with that, just that because they were withholding my son from me that their lawyer had told them that the only communication they allow was directly to them.

 

[iTrulyDoLoveMySons1990]

There had been a few times where there wouldn't be any calls for about 3 days too, mostly because I had commitments at the same time that I would call each night anyway.

My ex's wife and her mother were dictating my sons conversation from the very first call though so I feel like they may have actually used that time to use my son to get to me.