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Withholding of visits with child due to nonpayment of child support

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Hi,

I was wondering if someone can give me some advise as to the withholding of contact with my child due to nonpayment of Child Support. I have only not paid one fortnight's Child Support. Basically the Custodial parent is stating that I am not going to see my child unless the Child Support is paid by next Tuesday. There are no court orders in place with regard to contact and visitation. It is a 'Private Collect' situation, as far as Child Support is concerned.

Hope someone can guide me in the right direction as to the law on this. I would appreciate even a link or something to gain more information.

Thanks
Revhead74,
               unfortunately there are far too many parents who deny children their right to know and be cared for by their parents for financial reasons. If one thought logically about the situation it has the reverse affect as having care costs financially. Obviously you should do whatever you can to pay the child support due and to pay the correct amount of CS. Perhaps consider have the payments deducted via CS collect, although I would suggest that this is likely not an ideal situation.

What you also really need to do is to have court orders drawn up. You need to arrange mediation at a Family Relationship Centre. If you come away from this with a parenting plan then I'd suggest that you should go the one step further and have them made into court orders.

The mention of court may bring fears of what it all could cost and rightly so, however there are ways of greatly reducing the cost and this site can assist you in taking such a path. It does have to be understood that such a path that reduces cost may involve a lot of work on your own behalf.

There is very little that can be done to ensure that non-court ordered contact goes ahead. However the other parent has no right to deny the child their humane right unless there are exceptional circumstances. I would suggest that you try to obtain evidence that the other parent is denying contact as a weapon in order to compensate for a lack of CS payment. Not necessarily that easy to do. Perhaps a thoughtfully written letter laying asking the other parent to clarify the situation.

I have little doubt that others will offer advice that you should consider. I'd advise listening to all and trying to make a sound decision based upon the collective advice that you receive.
Contact and child support are different issues in the Courts. Obviously you cannot go to Court for a contravention or an enforcement order because there are no orders in place.

If this is likely to become a regular occurrence you will only have the option of getting the Courts to make some form of contact orders.

If the CSA have full details of the Private arrangement which details some of the contact this material can be used.

Apart from common sense initially prevailing, your long term goal may be to obtain orders, these give you some limited protection against the cash for contact re emerging.

In practice you should start an FRC process which can be tedious and take time. Another option is to try on an emergency application if previous contact has been occurring regularly and for some time.

SRL-Resources. the Family Law People on this site (look for the Avatars) www.srl-resources.org  Non gender Professional and peer support for SRLs. Closed site, no public forums, no search engines, no lurkers, guests or the other side and their Lawyer and Friends.
They are supposed to be two seperate issues. And as such are "governed" by two different areas of government.

If the ex has an issue with the non-payment of child support then she is more than welcome to take that up with the Child Support Agency.

On the other hand, if you have an issue with regard to contact with your child then you are welcome to initiate action which may or may not end up in the court system.

From the sounds of it, she may using the non-payment as an excuse to start something, but then again she may not be. Bit hard to tell as we don't know how your situation is progressing.

There is plenty on here about the whole process to getting orders either by consent (preferred) or court ordered. And it doesn't necessarily mean a huge expense for you if you are willing to "have a go" yourself.
Thank you for your responses. And so quick….very much appreciated.

To clarify some of my situation, I have so far spend in excess of $20,000 to try and get some sort of contact arrangement put in place. To no avail. My ex-husband, who has care of our daughter through initial mutal agreement has constantly been withholding contact of our daughter with me. There have constantly been a myriad of reasons. There is a Protection Order in place against my ex-husband (post our daughter electing to live with him the majority of the time).

Essentially my daughter has been held to ransom in many different ways. This is just the most recent one.

I do no owe thousands of dollars in Child Support. I don't even owe $200 in child support. I was paying regularly…every fortnight however the past fortnight my own financial situation meant that I could not pay it. Due to the protection order, and other harrassments etc I cannot advise the other parent that it was going to be late.

I have, in writing an admission from my ex-husband that unless I he has the Child Support by Tuesday I will not get to see my daughter. I actually haven't seen my daughter since the end of March. Again, due to reasons that my ex-husband has imposed.

Again, I thank you all for your prompt and informative responses.
Oops, it would appear that my gender bias slip was peeking out from under my hem, apologies.

Back to you though Rev, at what stage are you in the "process" with regard to contact with your daughter? Have you been into a court room yet, as $20k seems a lot if you haven't.

As has been previously stated child support and contact are two seperate issues. It would seem that the payment of CS by yourself is a private arrangement. If it were to go to CSA collect (as in CSA collect it from you to pay to the other pareant) then it would only be paid to the other parent once per month. Not fortnightly as it appears is your situation. CSA also, if you are having them collect it, won't collect if your wage falls below a certain income for the payment period. It will still be required to be paid, but will be a debt as such.

Do you have legal representation? What is there take on all of this, and what have they advised you to do?

Then again, I am confused as to why you haven't seen your daughter since March. So sorry to hear that.
Boots…no worries on the gender thing.  :$

I have basically had to give up with the whole 'process'. I just couldn't afford to keep going. No I hadn't even got to make it to court.

As far as why I haven't seen my daughter since March… basically my ex-husband continually withholds contact. He uses all different reasons and means including our daughter to do that. Essentially my daughter is being used, in my opinion, as a tool to get to me. The reason I was given for my daughter not seeing me (aged 10 then) was that I didn't ring her on Easter Sunday. The only phone number I had for her was my ex-husbands mobile or home phone.

The stage I am at now is that unless I speak to him (on the phone) then I don't see my daughter. The Protection Order is clear that there is to be only contact by email or text with regard to contact with our daughter. He flatly refuses to abide by the Protection Order in this regard. I have spent hours upon hours at police stations submitting breaches. But due to 'loopholes' only one was applied. He was given a 6 month behaviour bond. It took in excess of a month for the police to even charge him. They had him in for questioning then released him. I was told that they would just have to wait for a traffic officer to maybe pull him up for a traffic violation, and maybe check if there was outstanding warrants before he would be charged. I was told that when i was submitting another breach.

He's withheld contact for the reason that I've taken my daughter, when she was visiting with me, to friends places for BBQ's.

There has just been a never ending stream of reasons.
Maybe it is time to go on as a self represented litigant. It definitely won't cost you as much and if you join the SRL site, there is an avenue for more detailed responses, without it being "googled".

AS for withholding contact because you took your daughter to a barbecue, that is ridiculous. What you do on your own time is none of his business just as what he does with her on his time is his own business, unless of course there is a safety issue.

In the meantime, keep detailed records of every thing, and I mean everything, all you texts, your phonecalls, your emails and your interactions with your daughter, as well as your non-interactions.

Play it by the book. Initiate mediation, and go from there.
If "parenting time" is denied regularily, draft up a "Notice of Exercising Parenting Time" prior to each upcoming parenting time period. This notice consists of the facts surrounding the time period; who, what, were, when and why. This notice should be served on the other parent in a manner that can be verified, i.e. fax, registered post or an email with 'read receipt' and/or other email tracking options activated.

When "parenting time" is denied, a "Notice of Denial of Parenting Time" is similarity drafted and served. Even though the notices have no legal binding power, they can be a persuasive tool for changing the pattern of denial, without any further involvement of the court. The denying parent realises that you have documented evidence that they are not facilitating the child's relationship with the other parent, as is their obligation.

Non-payment of child support is not a satisfactory reason for withholding 'parenting time'. It reflects poorly on the parent in this instance and will not go down well in court.

You need to establish a 'paper trail' - i.e. evidence.

Begin a parenting diary. It's primary focus is to track positive aspects of your parenting, interactions, plans with your children and spouse. It's secondary focus is to track all data related to the denial and interference of your access/visitation with the children.

Purchase a copy of "Australian Master Family Law Guide" from CCH. I guarantee it'll be the best $110 your ever spent and will help you greatly should you chose to self-represent.

In your correspondence to the father, keep the issues of child support and parenting time separate. However, if he tells you that he is denies parenting time after being served the 'Notice of Exercising Parenting Time', giving child support as the reason, in the "Notice of Denial of Parenting Time', note that reason provided by him at the time, verbatim.

DO NOT in your correspondence say anything inflamatory. Keep your correspondence business like and concise. Keep personal opinions and commentary out of all correspondence.

Obviously, turn up for change-overs. If no one is available to go with attend with you (i.e. a witness), surreptitiously use your mobile phone to record audio or video of the exchange.

Last edit: by 4mydaughter


4MYDAUGHTER
Sorry for the digression from the original post.

4MD,

I have thought about this idea of making recordings of conversations whether through a recording device. Is this able to be considered valid evidence of a conversation? Is it even legal to do this?

I have searched google before about it but it usually comes up with the telecommunications industry such as telemarketers, who need consent about recording phone conversations for quality & training purposes (we have all heard that before). But in this case it is making a recording of a conversation in the open, not phone tapping.
ds80 said

I have thought about this idea of making recordings of conversations whether through a recording device. Is this able to be considered valid evidence of a conversation? Is it even legal to do this?…
Search this site using the site search engine. There are hundreds of posts about this subject. Read the posts from the SRL team.


Executive Secretary - Shared Parenting Council of Australia
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ds80 said
I have thought about this idea of making recordings of conversations whether through a recording device. Is this able to be considered valid evidence of a conversation? Is it even legal to do this?

Always a tricky one this. Such recordings are admissible in some situations. Phone recordings generally aren't admissible and in some instances is are a crime. It never comes across that well in court under any circumstances unless it is very clear that you are being threatened.

My first thought is that recording telephone conversations with the mother is probably necessary at this stage. Your circumstances don't warrant an 'ultra defensive' mindset at this stage.

In your current situation, I'd just be vigilant and make notes in your diary. Try to focus on all the positives and enjoy your time with your child.

Primary focus in short term is to maintain continuity of contact with your child and develop your bond with the child. Secondary objective over the medium term - 2-3months - increase to frequency of contact to twice a week, than 3 times per week.

In the mean time you need to examine your living situation and make determinations about it suitability for care of the child. Do you have a spare room for the child? Change bag? Do you have a cot? Child capsule? Flatmates? Proximity to mother residence? Do I need to move into more suitable accommodation? All those practical considerations.

Read some child development books.

Just be mindful that you could be asked to produce the diary in court proceedings. Be mindful of what you write. Don't write notes denigrating the mother. Don't make notations regarding your feelings or beliefs. Don't justify anything you do. Just note details of things in a matter-of-fact way, free from emotions, short and concise. For example:

"9th Sept 2010 - Arrived on time at mothers residence in Sylvania for contact at 10am. Child in good spirits. Changed child's nappies. Interactions with Mother amicable. Bought child some clothes and nappies. Visit went well. No concerns. Departed at 2pm."

15th Sept 2010 : @ 9:08am - Mother called me and requesting that this weekends contact commence at 11am rather than 10am. Mothers request accepted"

You're in a good place. You've got a good attitude. You're doing very well under difficult circumstances.

My sense is that you will be successful and a great dad.

And BTW, congratulations!

Last edit: by 4mydaughter


4MYDAUGHTER
I think some people should re-read some of the posts, revhead74 is actually the mother and is the one being denied access.   
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