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Ex is ignoring parenting plan and wont mediate. Consent or Parenting order needed?

My ex is a nurse and works all kinds of silly hours…morning shifts and afternoons mostly for two or three shifts a week, including most weekends. Over the past few months, she has for some reason decided that I can only have the kids in my care when she works and at no other time. She took out an Intervention Order against me for family violence because I, get this, sent a text message to her which referred to her deceased mother in less than flattering terms (I'm not omitting anything there…it was ONE text message), so she doesn't have to mediate. I have a certificate from the FMC saying mediation isn't an option.

Anyway, we have had a parenting plan since Dec 2010 which says I have the kids at least two nights a week during school terms and half the holidays. Now she is only letting me have the kids when she works and won't even let me see them for a visit on any occasion she isn't working. I have told her I'm happy to have the kids when she works but the kids want to spend nights with me other than when she works. Today for example, I went to her place (the order says we can talk on the phone, txt each other to arrange kids matters) and she wouldn't let the kids even come outside to see me.  I suspect she is deliberately limiting the nights the kids are in my care in order to extract the maximum child support from me. Her aim is to get the most amount of money out of me as possible and to do everything possible to limit my time with the kids. She has no justifiable reason for limiting the time I spend with the kids though. The parenting plan is basically being ignored and even without the Intervention order, she refuses to mediate anyway.

So my question is this: do I need a consent order to have the kids more than only the nights she works, or do I just apply for a parenting order? She will no doubt refuse to agree to any care arrangements other than having the kids in my care on nights when she works…but the kids want to see me more often and I want them to spend three nights a week with me like they usually do. I know the law takes the view that shared parenting is the best option for kids and there is no history of famlily violence as far as the kids go (or at all considering the intervention order was granted due to a single txt message!)

One last thing…she has international students living with her who pay either $10800 or $20,000+,  per year. She is excempt from paying tax on this money and the CSA child support assessment does not include this as part of her income. My question is, seeing as this money constitutes income…how do I get the CSA to add it to her taxable income amount so my child support reflects our actual incomes accurately?

Any advice would be most appreciated.

EDIT: She is also disputing the care % which is currently calculated at 33% but is actually 44%. I've made an objection in writing to the CSA with a letter from my landlord/housemate stating the kids are with me three nights a week and have been for the past 6 months. I've filled in and posted the Change of Assessment to reflect all her income…not just the taxable amount.

Last edit: by monkeyboy

Monkeyboy said
So my question is this: do I need a consent order to have the kids more than only the nights she works, or do I just apply for a parenting order?

Consent orders, are orders made outside of the court making a decision, but filed with the court and are thus made into court orders and have the same legal standing. Parenting orders are really just the parenting aspect of court orders. As you have found out parenting plans have no enforceable weight and are pretty hopeless in a situation where errant parents take no or heed of the plan or obviously important aspects of the plan. I think the clear advice is that parenting plans should be made into court orders, including filing them with the courts. As the parenting plans are not being adhered to then I think you have little option but to take the matter to court and apply for court orders. However, the contact aspect needs to be both reasonable and pratical and would obviously form part of the orders that you would be seeking.

In seeking orders you would very likely have to defend against the intervention orders, in doing so I'd suggest that putting them down to nothing or little would not be beneficial. I think you need to accept them and consider how best you can show that they should not be a consideration in relation to any proposed orders.

With regard to CS. There are, as I see it two issues. The level of care and the other parent's taxable income.

Unfortunately legislation around level of care has, I believe, been surreptitiously introduced, to make it very easy for a "lives with" parent to exploit a child for monetary gain by abusing the child's humane rights to know and be cared for by the child's parents. In that if there is a dispute, even if court orders exist, that the parent with the lesser care is expected to take reasonable measures to correct this and it is highly unlikely that the CSA will take into consideration anything that the parent with the lesser care provides in the way of proof. The CSA compound this by basically misinterpreting the legislation to insist that the only reasonable measure is to take the matter to court and within 14 weeks  (if I recall correctly). Hence, you need to see this as another reason that you need to take this matter to court and perhaps to even keep on doing so if the other parent follows a similar path and contravenes those orders.

In relation to the other parent's income. The correct way that should, if the legislation were enacted by the CSA correctly, without bias, justly and equitably, be via a reason 8 change of assessment (COA) (the correct legal term is a departure from formula based assessment or simply departure). However, the CSA very clearly, see and apply change of assessment to not apply the legislation but to apply the practice that whatever money they can grab from the paying parent is what the CS should be or still under what it should be. To be more precise the CSA's top line is how much they can collect or transfer as this then equates to how much FTB is saved (i.e. for a $1 in CS, FTB is reduced by 50c). If your financial  affairs are not at least 1000% correct you are likely to find the CSA making a decision which increases the CS. You can object and then take the matter to SSAT (Social Securities Appeal Tribunal). However, SSAT are themselves very much following or even trying to lead the way in regards to what the courts have termed as "Palm Tree Justice". Should you go this route and meet the proven bias against liable parents from the CSA and then meet the palm tree justice of the SSAT appeal, you may have a chance of taking the matter to court on a matter of law.
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