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Withdrawal of care by the mother

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ex-wife abruptly decided to refuse to return our ten-year-old son

Three weeks ago, my ex-wife abruptly decided to refuse to return our ten-year-old son to my care and indicated that she did not intend to return him to my care because she claims he feels unsafe at my house.  I have re-partnered and she agrees with me that there is no reason for the ex-wife to think he is unsafe. I also have a sixteen-year-old daughter who is apparently quite content and feels safe to live with me 12 days a fortnight.  She mostly makes her own decisions about where she wants to stay.

My ex-wife and I separated two and a half years ago and resolving our parenting and property matters were very acrimonious.  We eventually settled at a Court ordered conciliation conference and signed a parenting plan. This was after a lengthy process including failed mediation and some previous interim court orders for equal care/equal time. I did not think a parenting plan was optimal, but the ex-wife has a four day on/four day off rolling roster with night work.  I suspected the parenting plan (equal care and equal time with the children) would fail but both our lawyers at the time felt that it would be more problematic to have consent orders and the ex's work roster required a lot of flexibility.  The ex has done little since to abide by the terms of the agreement, generally behaving in a way that suits her best with regard to her roster, though it has usually been the boy in my care perhaps 6 days a fortnight.  It is, to say the least, a volatile situation and has been deteriorating for some time.

A few days after the ex withdrew care, her new lawyer contacted me indicating the ex wished to formalise an agreement through mediation.  I replied that I was reluctant to go to mediation until the parenting arrangements were restored with respect to our son.  I then filed an Initiating Application including for a recovery order and the application was accepted without a form 60I.  The Court date is four months away.

I also contacted a mediator.  I felt it necessary to do so in case my application was rejected.  The ex has now agreed to attend mediation but based on past experience, I'm confident it's a complete waste of time.  Her lawyer will not negotiate either and ignores my emails requesting that his client make her intentions know with regard to the children.

I've maintained contact with our boy by telephone and he denies that he told his mom he felt unsafe.  He also wants to see me, my partner and my partners' three children.

My questions are these:

If I withdraw my willingness to participate in mediation, what are the ways this might impact my case?

If the ex's failure to return the child to my care becomes a protracted situation, what are the implications regarding decisions the Court might make?

To what extent are a ten-year-old child's wishes taken into consideration by the Court?  The ex is extremely possessive of him, calls him ten times a day when he is with me, constantly monitors him and coaches him.



 
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