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Are these changed circumstances sufficient to change consent order to sole responsibility?

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Briefly:  consent orders signed 12 months ago. One 8 yr old son. Agreed to live with me (mum) 5 nights a week and father 2 nights.   Because of pre consent order issues, father had given an undertaking via his lawyer not to drink in the presence of our son to the extent that it would be put him over the driving limit.

The agreement was signed in September 2010 and it quickly became apparent that his father was not taking his shared parental responsibility seriously.  On his two nights with our son he would take him to the local bar till late at night.  Assumption is (from witnesses too) that he was drinking heavily as he failed to get up the following morning for most of a whole term of school.   Our son either got to school two days a week very late (11am+) or not at all.  There were also a number of incidents where he behaved very badly in front of our son (basically very drunk and threatening).  There is now a DVO in place to protect me but of course it doesn't do anything to help my son.   For the last four months I have withdrawn overnight access, so he now only has our son between 3pm and 7.30pm two nights a week.   He is complying (although he didn't acknowledge the lawyer's letter requesting that he signal his acceptance of this new arrangement - which was done as a way of avoiding returning to court to get orders changed).  My guess is he was relieved not to have to worry about his son while he was busy drinking and partying.  Even with the shorter access after school, he still takes him to the bar and he often brings him home very late, particularly given these are school nights.   He shows virtually no interest in any aspect of his life, attends no school events, does not exercise  the right he demanded to have him for half of all school holidays (he sticks to the two days a week) and does not participate in any decisions about his education.   In other words I effectively have sole responsibility by default and he is just a very poor babysitter for eight hours a week.

And now he is refusing to pay any of the child support which is in the agreement.  We agreed that there would be no regular payments, but there is a binding agreement for periodic payments to cover his school fees, medical fees etc..   The extra two nights a week I now have him have reduced the time I have available to work (I am self-employed) and also increased my costs of caring for our son.   So my circumstances have certainly changed.

I don't want to prevent him having access to our son, although I personally feel he his not the male role model an eight year old boy needs.  But I would like the agreement to reflect the reality - and to be honest if I had known what a poor carer/father he would make, I would not have agreed to the shared responsbility in the first place.    Do I have sufficient grounds to seek sole responsibility?    What can/should I do to ensure he at least pays his share of the big bills?  My concern is if I don't make a stand now what will happen as our son gets older (and more expensive to maintain!), can my ex argue that I can clearly cope financially without his help?    And it seems wrong that I have to consult him over everything but he shows no interest and pays not a cent.

I don't think mediation would be appropriate as the DVO requires not to come within 100m of me.   But I really can't afford a lawyer - the settlement cleared me out financially.  We are not young either (both of us are in our forties) - so I think he should be mature enough to know better.

I have read quite a lot around the site (although not every post)… And I'm just seeking advice from those with experience as to what would be a sensible way of going forward.  I'm not a vindictive ex.  And I'd like nothing more than my son to have a good relationship with his father - but I have tried everything to try to engage him into getting help for his alcohol issues and to go to counselling to become a better father.  And he just refuses…

Thanks for taking the time to read this.  I realise it's not the most horrific you've ever heard, but it ain't great either…
I would not dwell on the Parental responsibility issue as having Shared Parental Responsibility is there by default and you need to rebut that presumption, so its a lot of heartache for I think very little return. Sole Parental Responsibility is not Sole Parenting time.

The issue here is there are no binding orders and of course it seems that an agreement was possible in 2010. It looks to me like the agreement has been grossly abused. I wonder what other personal issues he must be having to carry on in the manner you have described? To initiate any court action you will need to attempt mediation although the DVO may give you an option to bypass that. He seems to be spending little time with the boy so I am not sure how that relationship will fare , especially in a  year or two when the boy will want to hang out at friends and get on line or gaming. At about 12 they become pretty independent as to who they want to see this weekend etc. and if he wants to maintain a relationship he will need to be doing a range of activities with the boy.. Court action might see orders made that you will not be happy with so try to work out something that is operational able to work.

As far as Child Support goes have you considered telling him that unless there is some contribution to costs you will leave it to the CSA to collect. They will collect at the formula amount and you can calculate what that would be through the site here. You may run into problems if he suggests to the CSA that you have a binding agreement already but it won't hurt to suggest that the CSA will become involved if you can't get some regular financial assistance…

You have pretty well hit the nail on the head in relation to what is needed in relation to some counselling and management of the alcohol. Have you mentioned DiDS and going to a DiDS night? The key thing is to ensure that the DVO is adhered to and that the child is also safe. The father, it seems from your story, needs to step up to the mark here. That will require an attitude change from him and nothing you will tell him will fix that. Have you got any mutual friends that can assist him going in a better direction. He is heading to a situation where the boy will eventually vote with his feet…


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
 
Is the binding agreement an actual 'binding child support agreement' under the assessment act? I've seen a lot of consent orders dealing with custody arrangements that don't stack up as child support agreements. CSA may look at the consent orders and treat them as a limited child support agreement and that gives you a bit more room to move.
Burbs said
Is the binding agreement an actual 'binding child support agreement' under the assessment act?
That is a very good question. The CSA seem to deal with this in different ways and I will have to take a look at what the Guide has to say. I was unsure if the orders were orders prepared and agreed to in a Federal Magistrates Court or if they just had an agreement between the solicitors. If the agreement was the former,  it might be very difficult to get CSA to collect. Its all a grey area. I have had a situation where a private agreement entered into some years ago has been deemed to be binding on the parties by CSA even when we have subsequently some years later, modified the agreement (Parenting plan). In that case we were looking to collect a small amount each month due the unreliability of the other party in paying. I can't see any reason why, if a private agreement goes bad, that CSA can't take over the collection arrangement… but my experiences to date suggest that is not just a simple matter.


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
 
Firstly, thank you both for your considered, sympathetic and helpful replies.   

Just to clarify.  There are consent orders (covering access, shared responsibility etc) and a binding child support agremeent in place.  Both were prepared and agreed to in a Federal Magistrates Court.  The CSA  also accepted the agreement at the time it was reached and it has been registered with them.  But as it is an agreement for what they term non-periodic payments, i.e. not fixed amounts, they are unable to collect on my behalf.  The agreement is that he pays half of all school related costs, healthcare and extra curricular activities.   As these aren't fixed amounts, they're known as periodic payments.  To date I am owed $2600 as I haven't received a cent since January.  I have been advised that my only option is to go back to Fed Mags Court and ask them to enforce the agreement.   I'm going to try to do that myself (i.e. without a lawyer), so any advice would be v helpful.   I have told my ex that he has left me with no option.  He says he can't afford to pay what he agreed to.  I have advised him that he needs to ask the CSA for a reassessment if he feels that, but I know he won't because I doubt they would agree with him (and he knows that)…

Separately from that, I take your advice on not trying to overturn the shared responsibility - it just seems so ridiculous that I am obliged to consult on everything but get nothing back in the way of support or often even a response.   I think it's called power without responsbility..

But I am wondering whether I do need to ask for the consent orders to be revised to better reflect the reality - i.e. that I am the full-time carer of our son (as opposed to my ex having him two nights a week and half of all the holidays as the orders presently say).   Whilst he is not exercising his right now (as he clearly accepts he's not fit to have him overnight), I worry that he'll try to in future just to spite me (as opposed to caring about the welfare of his son), and if I haven't taken steps to revise the orders to reflect the situation I won't have a leg to stand on and I would be in breach if I tried to prevent overnight stays.  It also occurs to me that a court hearing might order him to seek counselling and that wouldn't be a bad thing..

As for mutual friends who could assist him.  I'm afraid he has managed to alienate them all.  He's not a pleasant person these days I'm afraid.  Yes he clearly has some mental health problems, and at the beginning I did try to encourage him to get help for them - but he doesn't think he has any problems (that of course is part of the problem).  He doesn't see the world like you or I do, and I've decided I need to focus on my son and our future and that I can't "fix" him too..  ANd of course there is now a DVO so he isn't meant to come anywhere near me.
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