Donate Child Support Calculator
Skip navigation

Mother blocking kids from living with dad half the time.

Add Topic
Hi everyone,

What a relief to find this resource!  Here's hoping someone can fill me in on a couple of things….
My husband's 13 and 14 year old kids have recently told us they want to live with us half the time.  Currently they are with their mother more of the time on a 5/9 schedule. Their reasons for wanting this are mixed.  They haven't had a great relationship with her for a while now and in the last few years because of their dad marrying me, they have now got siblings they want to spend more time with too.  The kids recently asked her for this but she hit the roof instantly and said no.  They have become increasingly upset by her unwillingess to even consider what they want and there have been instances where she has used guilt to make them feel bad for wanting to 'leave her' as she puts it.  They have been calling us from her home crying for several days and in some cases begging us to get them out of there.  It's been so sad.

My husband went to a mediator over a week ago about this issue and his ex had until Friday last week to advise the mediator whether she would be attending.  She ignored this deadline.  I am concerned about what this means for us now.  What are our chances if we have to go to court?  I feel sick just thinking about it.

O_o
Nelly10 said
My husband went to a mediator over a week ago about this issue and his ex had until Friday last week to advise the mediator whether she would be attending.  She ignored this deadline.  I am concerned about what this means for us now. 
It means that you wont be mediating anything soon, she probably is not interested and that you will be able to get a 60i certificate and file in any Federal Circuit Court of Australia to get a Judicial officer to make a decision.
Nelly10 said
… What are our chances if we have to go to court? …
Probably quite good. The children are at an age they have a view and in fact a significant view. The mother is quite foolish going down this direction as there will be a lot of cost and angst for little return for her.

If there are orders in place you will need to have those amended. What was the background were there orders in place previously and how long ago?

The key message to you is the children are old enough to have a significant input.  :$

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
SPCA is correct. One thing to also consider is that at 13 and 14 any final hearing would be a long long time down the track. The kids will probably be 15 and 16, possible older. If you were to go back to court trying to secure some interim orders would be better than not and sticking with the 9-5, then waiting for 2-3 years to get orders at a time they would almost be young adults with even more "freedoms".

Having said that, they are at an age where she simply will not be able to stop them from doing what they want very soon (if not already) so her objection might just make them take action themselves at some time in the future. This might not be a "we are moving" kind of thing, more a "well we are staying tonight mum, what are you going to do about it" kind of thing

Really, if this happened, what could she actually do about it? The police wont act, as long as the kids are safe and its clear what they want to do, her only option would be a contravention which would open up the door for order changes anyway

Me and the ex  had a 9-5 split and at about the age of 12 my daughter just started doing what she liked, including getting the bus to me and meeting up when she wanted. My ex jumped up and down but, in reality there was nothing she could do at all.

Do you live close to each other? If you do she is fighting a losing battle and would have a much better relationship with her kids if she respected their views at this age.

Just bear in mind the long court process and age of the kids. Their maturity and choices are on your side

 

Last edit: by The Wolf


Nothing i say should be taken as legal advice. I am not a Lawyer. If i help you it is of your own free choice to listen to what i say or not. I do not create documents for you. I do not represent you…. Purple Monkey Dishwasher
Thank you both for your responses.

Secretary SPCA: I have double-checked and the Orders were actually drawn up close to 10 years ago.  No changes have been made since then at all.  Probably against his better judgement, my husband agreed at the time for his ex having more time with the kids, rather than 50/50.  She has had mental health problems for a long time and was back in hospital for two 1 month stints last year.  I think things are improving a little for her but they are still problematic, she can't work, etc.

Wolf: What would the Interim orders involve? Do you have any advice around those?  And yes, we live just around the corner!  No impact for the kids for the commute to school or anything.  We are in this situation ultimately because she is petrified of letting go of her kids for fear they won't come back.  And I don't know how we solve that quite honestly.

Thanks again!
Thanks to you both for your comments.  Very helpful.

Secretary, the current Orders are well over 8 years old.  Nothing much to report on the background there.  It was all pretty standard as far as I'm aware.

If we do need to go to court, will we have to prove a significant change in circumstances (Rice vs Asplund?) that many people refer to on this site?

And The Wolf, if you could indulge me one step further (!) what would be involved in applying for Interim Orders exactly?  

Thanks again.  :thumbs:



Maybe log in so we know its you posting?

Guest said
Wolf: What would the Interim orders involve?
 Well in basic terms it would mean asking for interim orders to run until (enter defined point) or a final hearing happens. You cant just go out and ask for a major change of care without backing up the ask with plenty evidence though AND, it might even happen, could go the other way or everything could also stay the same. If it was myself id be a bit worried that orders like these would not be granted in the interim without some kind of report from someone or some pretty decent evidence as well

Guest said
We are in this situation ultimately because she is petrified of letting go of her kids for fear they won't come back.  
 You dont know that, best not assume what you think the other side is doing for and just stick to the facts and those are kids are 12 and 14 and want to  live with you more.

Guest said
And I don't know how we solve that quite honestly.
  
 What you have to solve is making the kids requests to you happen with minimal problems, if that's what you really want to do

Guest said
  She has had mental health problems for a long time and was back in hospital for two 1 month stints last year.  I think things are improving a little for her but they are still problematic, she can't work, etc.  
 You said the magic words.. "I think" Think means nothing, its only what you know backed up by ACTUAL EVIDENCE. "I think" can get you into a lot of trouble. As i said first up it it was me i would be trying every other way to make this happen BEFORE court, the reality is, at 12 (almost) and (definitely) at 14 what the kids really want can't really be stopped by one parent or another..

I would not, if i went to court, be mentioning your "i thinks" and sticking to the very credible argument that the kids are almost adults and want to spend more time with you.. Anything about mum and the other house can be explained by them to a reporter or an ICL….

Think about  this again….WHAT COULD SHE REALLY DO IF THE KIDS DECIDE TO DO WHAT THEY WANT??? :-)

 

Nothing i say should be taken as legal advice. I am not a Lawyer. If i help you it is of your own free choice to listen to what i say or not. I do not create documents for you. I do not represent you…. Purple Monkey Dishwasher
We were a bit slow in validating the last post from Nelly10…

There is very little to add except to reinforce two things.
Nelly10 said
…She has had mental health problems for a long time and was back in hospital for two 1 month stints last year. I think things are improving a little for her but they are still problematic, she can;t work, etc.
Making allegations that she has mental health issues without proper medical support will cause big issues for you in any court. You cannot assume anything and courts are only interested in real solid evidence. Anything else other than solid evidence will be rejected and struck out. This means you will need to be raising subpoena's on the medical practitioners, hospital, Medicare etc. You certainly wont be able to do that until you start a case.

The advice you are getting from The Wolf is solid and worth carefully noting.

Mediation needs to be vigorously pursued in this case. There are a range of mediation options available to you that you would have read already on our site pages under Counselling and Mediation... What's it all about? - Family Law Web Guide. I would press the mediator to make personal contact with the mother directly not just send letters. Secondly I would ask the mediator if you can enter into child inclusive mediation. This is not often done, but can be done and here you have a situation that these children are old enough to participate.

Lastly you can involve legal practitioners to conduct legally assisted mediation. You would have read all this anyway on our site. If you decide to go down that path you can contact me directly via a private message.

What I assume is happening is that the children are too frightened to spend more time with you otherwise they would already be doing that. You need to continually reinforce to them that whatever they want to do you respect that and will be there for them. If they want to spend more time they should not be concerned that they wont have a place to stay if the mother threatens to make them move out. I usually find there are two things going on in these sorts of cases. A lot of guilt is applied   such as "I will miss you every day you are not here" and "I can't live without you being here"… Then you also get  "If you  spend more time with dad you can take your stuff and move out and never come back"…  The latter usually does the trick and the kids then are distressed about the whole thing and don't want to get involved.

The best way for this to resolve is through mediation via the parents. In this case the mother has a reliance on the children spending more time with her not less. The next best method is child inclusive mediation and then lastly legally assisted mediation.

In all of these both parents have to want to be involved.  The last resort is a court path and the Federal Circuit Court of Australia is the correct place to go but expect a lengthy process at least 12 months to a final set of orders and longer if they call for a family report and involve an ICL.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
1 guest and 0 members have just viewed this.

Recent Tweets