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Difficulty arranging access to see daughter

My ex and I have been seperated for a while and wAs able to see her weekly and more recently overnight as of this year. Few months ago some issues happened and she denied me access to see her which led me being acutely anxious and stressed  as I hadn't being seeing her. It led to the point I was unable to work, all my money saved has run out and I can no longer pay my mortgage, child support etc as it led me being hospitalized twice and in emergency twice for telling someone I felt suicidal. I return to work this week but am wondering how to go about seeing her again as she doesn't answer text messsages and I love my daughter so much. In fairness to her she did let me see her Xmas. Where can I turn to? Can she legally keep her away? There's never been violence, police etc..
Thankyou
If you cannot work out care arrangements then you will need to go to court and get some orders in place. Before you do this you need to attempt mediation. Yes she can legally keep your daughter from seeing you. Especially when you say you are anxious, stressed and have been hospitalised with suicidal thoughts. This will be used against you in court and you could end up with very little care or supervised care. Before you do anything else you had better get your life together to show that you can be a great parent.
I am currently experiencing denied custody access to my daughter.  My partner and I give my daughter a great life and she is surrounded with great people who love and care about her.  The problem is the the childs mother is jealous of my life and is insecure about my time with my daughter.  I have gone through all the mediation, councelling, and all to her requirements.  I now find myself having to take things to court of silly insecurities of the childs mother.

If you go to mediation make sure you have it made into a legal document because from my experience the insecure mother will always want her child with her and not with the Father.  My Ex wife is always in tears when she is not with my daughter and its effecting my daughters happiness, not to mention the feeling of guilt my daughter must have when she is with her father and not with her mother.
Murph the court will understand very quickly what you are experiencing and will support you however unless the mother has a mental illness or something similar, don't expect to get majority care.
Hi Fairgo
Thanks for your reply
I am sure the courts will see I am a good father and I have a parenting plan in place which I have never broken the agreement.  My Ex wife has broken the agreement on several occations in the past year.

All I am asking for is to see my daughter one day a week as we have always done in the past 5 years.

The problem with my ex wife is that if she decides that she wants my daughter on a day we have agreed on for me to have her she simply denies me access to my daughter.

Unfortunatley my ex wife lets my daughter of 10 years do what she likes and of course the child has chosen to want to be at a home where she goes to bed when she wants to, eats when she wants which is hardly ever.  My ex wife also has a nasty mother in law that re inforces all the strange beliefs on to my daughter and to me is brainwashing my daughter into believing that I am not a good father and its better not to see me the father.

This year I was meant to have my daughter for New Years Eve as agreed.  I drove 4 hours from a holiday to pick up my daughter and we where having a street party for all the neighbours…plenty of kids and swimming in our pool and staying up till midnight what kids of her age want to do  I am not a strict parent.

My Ex wife just decide that she was going to keep her for New Years Eve and considering she had my daughter for most of Christmas I thought she was totally abusing my rights to see my daughter.

So this is only one of several occastions where she has denied me access to my daughter.  I will now have to go through the process of not seeing my daughter until I go to some counselling that she has arranged as usual and my daughter will miss out on going to Melbourne to see her grandparents that she has only met a few times in her life.

I paid for her airfare $400.00 and that is all wasted now because her mother will not let me take her on a holiday to Melbourne to see my side of the family.

Any way thanks for listening I am in the process of gianing a consent order to stop these things happening.  I hope that works and I know the courts will review what agreements have been broken in the parenting plan and that will not go in my ex wifes favour.

Regards
Murphfromperth
MurphfromPerth said
I thought she was totally abusing my rights to see my daughter.

Strictly speaking - according to the law - you don't have any 'rights' to spend time with you daughter.

Was your Parenting Plan registered with a Family Law Court before 2003?


4MYDAUGHTER
Basically it looks as if you would be better off if you have orders stating the standard of every second weekend and half of school holidays.

I am not sure what you mean by gaining a consent order - can you please explain some more about this as from what you have explained, I can't see how your ex will agree the orders by consent.

4MD is correct - you have not rights at all - only your daughter has the right to know her parents.

Ken Crispins Observations

This comment is probably slightly off topic but I just finished reading retired Supreme Court Justice Ken Crispin's book "The Quest for Justice".

The book covers a variety of subjects including 'drugs' and on page 194 stage Justice Crispin makes the following comment about illegal-drug use by youths relating to parental conflict as follows:

Justice Crispin said
As mentioned earlier, children seem to be more likely to initiate illegal-drug use if they are from disrupted families, and the emotional impact of family disruptions maybe aggravated by lingering hostility between estranged parents that leaves children unable to feel affection for one parent without feeling that they are betraying the other

Food for thought.

4MYDAUGHTER
Thanks 4mydaughter for your comment.
"Strictly speaking - according to the law - you don't have any 'rights' to spend time with you daughter".  Its a bit of dissapointing news though!

I have just begun getting legal advice today as it there has been a string of public holidats since I have been denied access to my daughter.

The parenting plan was signed off Jan 2010 and I have not made it legal.  I will be getting legal advice tomorrow and I'm sure things have changed since 2003.

My daughter has the right to not only see me but she has the right to see her grandparents.  Alcoholics and drug addicts get to see their kids and so will I.
MurphfromPerth said
Thanks 4mydaughter for your comment.
"Strictly speaking - according to the law - you don't have any 'rights' to spend time with you daughter".  Its a bit of dissapointing news though!
I have just begun getting legal advice today as it there has been a string of public holidats since I have been denied access to my daughter.
The parenting plan was signed off Jan 2010 and I have not made it legal.  I will be getting legal advice tomorrow and I'm sure things have changed since 2003.
My daughter has the right to not only see me but she has the right to see her grandparents.  Alcoholics and drug addicts get to see their kids and so will I.

Yeah. The whole thing is unfair and sucks. I've been there - more than once.

Whilst a parenting plan - not registered before 2003 - is not enforceable like court orders - I suggest you manage the situation like the mother has breached/contravened court orders - except you wouldn't be commencing Contravention proceedings because obviously you are prevented from doing so.

I'd send her a 'Notice of Denial of Parenting Time' - which is not like a court form or anything - its an idea borrowed from overseas.

In the notice, reiterate the relevant section of the parenting plan the mother did not comply with/'breach'.

Outline briefly the facts around the alleged 'breach'.

Specify exactly what, where, when the next visitation is according to the parenting plan. State your intention to attend for the next visitation/contact etc.

State that if any she does not comply with terms of the parenting plan in the future, you will immediately file an application with the court without a section 60i certificate.

You could go a step further and claim 'make-up time'. Assume that she will agree to this and propose some options for 'make-up' time. Ask her to accept one of the options in writing.

You could also seek reimbursement for expenses relating to visitations she cancelled.

You need to create/establish an evidentiary 'paper trail'. Remember you letter may be read by a magistrate/judge in the future, so don't write anything that could be held against you. Don't get emotional. Keep all correspondence business-like. DO NOT start talking about your 'rights', your child's 'rights' or anything of the sought. All such statements or personal judgements are irrelevant and 'inflamatory'.

Think of it as a 'civil' contractual dispute. A contract was entered into. You allege she breached the terms of the contract. Its just business!


4MYDAUGHTER
4MD - Yes food for thought but it begs some burning questions.
Does this mean that one parent should be excluded from the child's life?
If yes then which parent is excluded?

I think your suggestion is a good way to get the ball rolling for Murph and this is what a lawyer will probably recommend in the first instance.
Thanks for your comment Fairgo but I dont agree with excluding either parent and from what I have read the courts first priority is to make sure both parents have equal parenting rights and one parent cannot take away these rights because the child needs both parents and its in the best interests of the child to have contact and a loving, caring relationship with both parents.  I will quote directly from the Family Court Parental Order.

The Primary Considerations
"The benefit to the child of having a meaningful relationship with both parents".

It is very damaging to a child not to have access to a parent who is genuinely caring for a being a good parent to the child.

Regards
Murph
MurphfromPerth said
from what I have read the courts first priority is to make sure both parents have equal parenting rights and one parent cannot take away these rights because the child needs both parents and its in the best interests of the child to have contact and a loving, caring relationship with both parents. 
 
You're almost there Murph, but remember - there are no "rights" for either parent, only the right of the child to have a meaningful relationship with both parents. The court's first priority when making decisions (according to the Family Law Act, 1975) is the Best Interest of the Child (BIC), and unless proven otherwise, it is in the best interest of the child to have both parents in his/her life. May sound like nit-picking, but these basic technicalities are important both to grasp and to express correctly. Even moreso if you are seeking legal advice and potentially taking action in the courts. Knowledge is power, and the more you know and understand the basic concepts you are working with, the better you will be able to express yourself and your case, leading to a better chance for a desirable  outcome. You're on the right track - keep positive and focused, and hopefully you'll be reunited with your daughter soon.

Good luck! :)
I'm kinda thinking that there's an even bigger issue of the kid being 10 years old.

I guess it's that age old conundrum of how old a child needs to be before the Court will give serious weight to her opinion… 10? 12?

I'm only raising this as a potential issue since it looks like this may go to Court. Family Courts being Family Courts, there's no such thing as a 'swift' resolution. These things invariably appear to drag out if both parties are unwilling to agree. In this case, you have three parties. Mum, Dad and Daughter all with competing wants and needs and as previously stated, this is about what's in the BIC and whether the Court will give substantial weight to what she wants, age and maturity being the key factors.  

I'm wondering whether another tact should be considered given that in a year or two, if the child doesn't want to go to Dad's house, no Court Order will force her to if she simply digs her heels in and outright refuses. I think the harder you push, the more dissatisfied you may feel in a year or two with the prospect of having wasted valuable time and money.

That said, of course the best option is Mediation (it always is) and a flexible approach. More importantly, the focus needs to be on a person that is developing her own wants and needs and not that of what her parents necessarily want.

I'm not saying I don't empathise, I do if there's no reason behind the denial of access… Just your friendly neighbourhood Devil's Advocate.
Fairgo said
 
Does this mean that one parent should be excluded from the child's life?

Not at all. Both parents are responsible for ensuring that children are not exposed to this type of dynamic.

My child has been has put in this situation and it has really screwed with her mind. My ex recently changed her attitude towards me, we get on like normal parents now, which caused my next door neighbour to say me me over Christmas, "I can't believe how much your daughter has changed in the last 2 months. She's so much more relaxed. She's like a different person"  

I guess what's interesting is that Justice Crispin, a recently retired supreme court judge, former crown prosecutor and solicitor, who's had much experience in criminal matters involving drugs, etc. has identified this 'causality', connecting parental conflict dynamic with illegal-drug use.

I don't think a child would need to be in the 'shared care' for this dynamic to occur. I believe this dynamic could easily happen under a sole 'custody' arrangement.

The ignorance of some parents amazes me. Parents just don't seem to get how ongoing parent conflict and 'custody' disputes can affect their children longer-term.

4MYDAUGHTER
Well looks like this is where it's all heading now - read this:

http://www.smh.com.au/national/mother-wins-custody-battle-after-terrifying-children-about-father-20110103-19dwr.html
@ Fairgo

Scary, huh?

Combine this reasoning with the proposed changes to the Family Law Act, removal of costs consequences against parents making false allegations, and hey presto! Disastrous results for children and fathers.

Leave the kids with the emotionally abusive parent. Way to go Justice Austin!

4MYDAUGHTER
I guess we have to remember this will only occur in a small minority of cases and it will be very hard for advocates to undo the public perception that 50/50 shared parenting is still the preferred model of caring for children when parents split.

Murph don't be discouraged by this. Only a small minority of parents are like this. There is a good chance your case might be settled before it gets to a trial.

The saga gets worse

I have now been to mediaton and was a willing participant until I recieved a phone call from the Family Relationship centre telling me that I and my ex is to receive a certificate to go to court.  Apparently it is assummed by my ex wife that after 11 years of my daughters birth that she thinks I may not be the biological father and I am now having to wait to see if I am the bio father.  I am going to put any legal advice on hold now as I cannot do anything until I know the outcome of the DNA test.

Many of my family and friends think she is lying to damage me and my relationship with my daughter.  My daughter now does not want to speak to me or see me and this is causing huge amount of distress for me and my whole family.

I have been trawling the internet to find example or some kind of similar experience that other people have encountered but I can only find one case in QLD and one in the UK which where both newspaper articles.

My main concern is that my ex is trying to coerce my daughter into not speaking to me and I am becoming estranged from my daughter.

Does any one have any experience of something like this

Regards
MurphfromPerth
In the eyes of a family law court - DNA does not determine who the 'father' is.

Please read this article.

ERROR: A link was posted here (url) but it appears to be a broken link.
Father's battle for 'son' not over.

4MYDAUGHTER
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