2nd final hearing approaching

[Mike2017]

Hello all

Looking for some advice on my upcoming 2nd final hearing.

Background… I have an order in place that grants me every other weekend and parts of his school holidays and mid week visitation for 2.5 hours. I went for 50/50 as Cafcass also said it was doable but the courts sided with mum to an extent as at the time I hadn't had my son over night (since we broke up), so I reluctantly accepted that. 2 weeks after the final hearing she started breaking the order by abusing the wording of the order (the magistrates didn’t write a very compressive order) so I filed a C100 again. I now have another final hearing as it was deemed my application for variation has legs but I still want 50/50 and she is utterly against it, no reasons given she just can’t get over herself.

The main issue I have which her barrister digs in on is my son is a 40 minute drive away. To me that’s no big deal but has anyone had experience with this kind of sticking point? Again Cafcass said the journey is “doable” but officer did flop under questioning by her barrister in the first final hearing.

My ex has broken the current order 14 times but nothing has ever been done about it leading up to this, again any advice or experience of how I can get this dealt with as I know being a dad I’d get the book thrown at me. Im self repping also. I have also done a C79 application as part of the enforcement, does the C79 get taken seriously? I can prove all the breeches also.

My ex never submits her statements on time either and usually gets her barrister on the day of the hearing to draft her a statement so I can’t prepare for it, can I stop this happening with a plea to the court? I even ask for my new partner to help me as a Mckenzie friend but ex objects and gets her way, again any advice on this?

Her barrister is a piece of work so I don’t want to get railroaded and want to put my strongest foot forward as most of us know we are already on the back foot in these processes.

Any and all help welcomed and questions I’m happy to answer. Thank you

 

[proud_dad]

Some thoughts:
1. Most obvious - can you move closer?
2. Is it exactly 40 mins? If it is less, you could show for example using google timeline a historic journey where it tracked your journey as being 35 mins.
3. Can you make it an educational and fun experience by playing stories in the car?
4. Does the mother make any long journeys with the child, if so, you could say in court "Mother makes X journey with son, which I accept as I actively encourage their relationship and understand the need for practicality"
5. Is there a half way point where you can stop and the child participates in an activity / play?
6. Would a train be quicker?

 

[Ash]

How old is your child? Asssume he's at school if you get school holidays. 40 minutes is fine. I think 45 minutes is the limit they usually put for midweek overnight travel. I did a 40 to 45 minute journey 4 times a week when my son was a toddler after my ex moved a bit further away (but that was without a court order). It's true he didn't cope with it very well the first few times (mainly because he was used to a short journey with me before ex moved). But he got used to and I used to break the journey by stopping at a playpark mid way back or a cafe. That worked. After that he would just play on his tablet in the car and chat.

So ignore the whole 40 minute thing. But that is a barrister's job - to make everyone back down so your ex having a barrister is your problem I would think. Could you afford a barrister? At my final hearing I just got a better barrister than ex's Mine wiped the floor with her. Cost me £4,000 plus VAT.

It sounds like your ex has done you a favour by breaching so much as it gives you good reason to go back to court and to ask for more time (there is an argument that this shows the Mother both parents are equal and by removing some of her PR/time it's a deterrant to breaching again - if she sees what happens).

You mentioned a new partner - that is often why these ex's refuse to agree to anything reasonably - female competitiveness. Or something like that - I've had that problem for years. My ex just wanted me to stay single and do her bidding!

My ex actually did use her H as a McKenzie friend a couple of times. Technically it's not allowed, unless the other side and Judge agree - I was told to just accept it so I did. I kind of regret it because it made her look more credible having him there and was also not particularly pleasant for me there with both of them! I thought her H was ok until then but of course he had to back up everything my ex was saying (although it did backfire one time when the Judge saw her nasty emails and her H had no idea she'd been sending such nasty emails!).

Anyway. If the other side have refused to allow your partner to be a McKenzie friend then that's that. It's probably best not to anyway as your ex will then feel more hostile towards your partner. My partner says she likes to stay out of sight and communication so as not to wind ex up too much - or the child gets the brunt. And however good your partner is, I don't think she would be a match for your ex's barrister - it takes another barrister for that.

I am not sure you needed to send a C79 as well if you applied to vary due to the breaches, but it will probably do no harm as long as both are part of the same hearing. IME enforcements are shoddy and not helpful - whereas applying to vary is more successful.

After my first order I had to apply to vary because I found my first order was so badly written it wasn't actually enforceable! So the option then was to apply to vary - and got a better order, like you're doing. A couple of years later I then had to try and enforce that order and it was a shambles. So based on that I would usually suggest applying to vary for more time because it's treated differently. With an enforcement there's a lot of faffing about over whether it was actually a breach or not (it's only a breach if there is no reasonable excuse!). Then there isn't really any punishment - possibly unpaid work or possibly a fine but usually just a telling off. And what I discovered is breaching is often deliberate to force and enforcement application so the ex can say - order isn't working - and you come out with less time (ie ex gets a free variation!). This is very common and why enforcement has such a bad reputation. Solicitors for exes actually advice them to do this - breach the order - wait till he applies to enforce and then get the time reduced. It's a nasty game.

So applying to vary is much better. The fact you've done both is good though as you've covered both bases, but if you haven't already sent the C79 off I wouldn't bother - just do the C100 application to vary. That's how my breaches were reported when my order was unenforceable.

So for 50/50 you'd be looking at 2 midweek overnights wouldn't you? A 2-2-5-5 schedule. And you absolutely should have half the school holidays - that's standard.

So I take it you didn't even get shared care at the last final hearing? And its a spends time with order? You can still have lives with both/shared care even if it isn't 50/50. I have shared care/lives with both with four nights a fortnight and half the holidays. Usually it needs to be at least 5 nights a fortnight.

They don't usually like to change an existing schedule - but - if she has breached a lot you have good arguments for a better schedule and for shared care (to stop her abusing her power as "the parent with care").

I had to choose at my final hearing. I got the "lives with both" by consent after some heavy negotiations between barristers, before it went before the Judge. I was told to grab the "lives with both" by consent (even though she wouldn't agree to the 5th night I wanted) because if it went before the Judge to decide I would almost certainly get the 5th night, but not necessarily the "lives with both". It still bugs me that my week-end ends at 6pm on Sunday instead of Monday morning. But my son is a teenager now so ............

So you have a second final hearing coming up. My advice would be to find the money to pay for a good barrister. Not one that only costs £1000 as they'll be rubbish. Minimum 4k for a good one that will probably be better than your ex's barrister.

I was mightily impressed with my barrister - used him again a couple of times on a direct access basis for urgent hearings (holidays prevented). And after the second time he made a complete stink about my ex and got me a judgement against her and costs ordered - she knew then if it went to court again I would go for residency and she had a big black mark against her. She still messes about a bit but not too much.

I think that will give you the best chance of getting lives with both parents/shared care. Maybe not the full 50/50 but at least 5 or 6 nights a fortnight shared care and half the holidays. Hopefully.

Arguments need to be completely child focused though - not about what you want exactly but to say why 50/50 would benefit your child - the stability and continuity of routine, not having long gaps between seeing you - being able to fully enjoy his home, hobbies and friends at your place. That kind of thing.

I did find some bonuses to the 40 minute distance actually - it really helped my son detach from his Mum and her life - his life with me was in a different place - he could switch between the two easily. My ex then moved back closer to me and it was a nightmare! Too close for comfort. Once you've driven for 40 minutes there is no way you can just "pop back" for something! And kind of out of sight out of mind.

 

[Ash]

One of the best and simplest things I heard my barrister say (when ex's were constantly arguing why I shouldn't pick up from school rather than ex's house - when I had been picking up from school for years until she stopped it!) was - "So why shouldn't the Father pick up his own son from school"?

It was blindingly simple. There was no reason why not - except ex didn't want it.

 

[Mike2017]

Some thoughts:
1. Most obvious - can you move closer?
2. Is it exactly 40 mins? If it is less, you could show for example using google timeline a historic journey where it tracked your journey as being 35 mins.
3. Can you make it an educational and fun experience by playing stories in the car?
4. Does the mother make any long journeys with the child, if so, you could say in court "Mother makes X journey with son, which I accept as I actively encourage their relationship and understand the need for practicality"
5. Is there a half way point where you can stop and the child participates in an activity / play?
6. Would a train be quicker?

Hi

I can’t move forward right now as I’m a fixed term mortgage and properties where she lives are a lot more expensive. I kuldip possibly rent which I’m looking into but reading that 40 minutes is in a given time frame I don’t see it as an issue.

Train is much slower as she i tentuly moved to an area with limited public transport links.

She doesn’t make any long journeys, he’s school us right next to her new home. It is all calculating.

 

[Mike2017]

How old is your child? Asssume he's at school if you get school holidays. 40 minutes is fine. I think 45 minutes is the limit they usually put for midweek overnight travel. I did a 40 to 45 minute journey 4 times a week when my son was a toddler after my ex moved a bit further away (but that was without a court order). It's true he didn't cope with it very well the first few times (mainly because he was used to a short journey with me before ex moved). But he got used to and I used to break the journey by stopping at a playpark mid way back or a cafe. That worked. After that he would just play on his tablet in the car and chat.

So ignore the whole 40 minute thing. But that is a barrister's job - to make everyone back down so your ex having a barrister is your problem I would think. Could you afford a barrister? At my final hearing I just got a better barrister than ex's Mine wiped the floor with her. Cost me £4,000 plus VAT.

It sounds like your ex has done you a favour by breaching so much as it gives you good reason to go back to court and to ask for more time (there is an argument that this shows the Mother both parents are equal and by removing some of her PR/time it's a deterrant to breaching again - if she sees what happens).

You mentioned a new partner - that is often why these ex's refuse to agree to anything reasonably - female competitiveness. Or something like that - I've had that problem for years. My ex just wanted me to stay single and do her bidding!

My ex actually did use her H as a McKenzie friend a couple of times. Technically it's not allowed, unless the other side and Judge agree - I was told to just accept it so I did. I kind of regret it because it made her look more credible having him there and was also not particularly pleasant for me there with both of them! I thought her H was ok until then but of course he had to back up everything my ex was saying (although it did backfire one time when the Judge saw her nasty emails and her H had no idea she'd been sending such nasty emails!).

Anyway. If the other side have refused to allow your partner to be a McKenzie friend then that's that. It's probably best not to anyway as your ex will then feel more hostile towards your partner. My partner says she likes to stay out of sight and communication so as not to wind ex up too much - or the child gets the brunt. And however good your partner is, I don't think she would be a match for your ex's barrister - it takes another barrister for that.

I am not sure you needed to send a C79 as well if you applied to vary due to the breaches, but it will probably do no harm as long as both are part of the same hearing. IME enforcements are shoddy and not helpful - whereas applying to vary is more successful.

After my first order I had to apply to vary because I found my first order was so badly written it wasn't actually enforceable! So the option then was to apply to vary - and got a better order, like you're doing. A couple of years later I then had to try and enforce that order and it was a shambles. So based on that I would usually suggest applying to vary for more time because it's treated differently. With an enforcement there's a lot of faffing about over whether it was actually a breach or not (it's only a breach if there is no reasonable excuse!). Then there isn't really any punishment - possibly unpaid work or possibly a fine but usually just a telling off. And what I discovered is breaching is often deliberate to force and enforcement application so the ex can say - order isn't working - and you come out with less time (ie ex gets a free variation!). This is very common and why enforcement has such a bad reputation. Solicitors for exes actually advice them to do this - breach the order - wait till he applies to enforce and then get the time reduced. It's a nasty game.

So applying to vary is much better. The fact you've done both is good though as you've covered both bases, but if you haven't already sent the C79 off I wouldn't bother - just do the C100 application to vary. That's how my breaches were reported when my order was unenforceable.

So for 50/50 you'd be looking at 2 midweek overnights wouldn't you? A 2-2-5-5 schedule. And you absolutely should have half the school holidays - that's standard.

So I take it you didn't even get shared care at the last final hearing? And its a spends time with order? You can still have lives with both/shared care even if it isn't 50/50. I have shared care/lives with both with four nights a fortnight and half the holidays. Usually it needs to be at least 5 nights a fortnight.

They don't usually like to change an existing schedule - but - if she has breached a lot you have good arguments for a better schedule and for shared care (to stop her abusing her power as "the parent with care").

I had to choose at my final hearing. I got the "lives with both" by consent after some heavy negotiations between barristers, before it went before the Judge. I was told to grab the "lives with both" by consent (even though she wouldn't agree to the 5th night I wanted) because if it went before the Judge to decide I would almost certainly get the 5th night, but not necessarily the "lives with both". It still bugs me that my week-end ends at 6pm on Sunday instead of Monday morning. But my son is a teenager now so ............

So you have a second final hearing coming up. My advice would be to find the money to pay for a good barrister. Not one that only costs £1000 as they'll be rubbish. Minimum 4k for a good one that will probably be better than your ex's barrister.

I was mightily impressed with my barrister - used him again a couple of times on a direct access basis for urgent hearings (holidays prevented). And after the second time he made a complete stink about my ex and got me a judgement against her and costs ordered - she knew then if it went to court again I would go for residency and she had a big black mark against her. She still messes about a bit but not too much.

I think that will give you the best chance of getting lives with both parents/shared care. Maybe not the full 50/50 but at least 5 or 6 nights a fortnight shared care and half the holidays. Hopefully.

Arguments need to be completely child focused though - not about what you want exactly but to say why 50/50 would benefit your child - the stability and continuity of routine, not having long gaps between seeing you - being able to fully enjoy his home, hobbies and friends at your place. That kind of thing.

I did find some bonuses to the 40 minute distance actually - it really helped my son detach from his Mum and her life - his life with me was in a different place - he could switch between the two easily. My ex then moved back closer to me and it was a nightmare! Too close for comfort. Once you've driven for 40 minutes there is no way you can just "pop back" for something! And kind of out of sight out of mind.

Hi Ash

My son is 5. He has been doing the journey for 2 years now weekly (as I’ve had weekly visitation/contact) the case has been going on for 3 years now.

I can’t afford 4k, I should think though that given the obvious breeches the court would say she doesn’t have a keg to stand on, her own barrister stitched herself up last time and I used her words against her and shut her down as did the judge. Prior to him starting school I had him 7?14 days (4 /14nights) and I had magistrates that said in the summing up that midweek over night should stop once he starts school and it become 2.5 hours which is shocking as there is such limited activists we can do esp given covid, winter etc.. I’ve been doing this since autumn last year.

My ex hates my partner as she is a mother figure for my son, she’s constantly causing arguments in front of my son so I removed myself from hand overs and my partner now facilities them to stop conflict. My new partner works for social services as a family worker so very familiar to all the games. I have s visual impairment which is why I need her as a MF as she knows my bundle inside out. It says on law journals that a request shouldn’t be dismissed just cause your ex objects as I am not asking for a rights of audience (I think it’s called) just tgere bext to me for support esp given she has a vicious barrister but I can argue anything she has to say.

No I don’t have shared care/lives with as at the time of my first final hearing my son wasn’t having over night contact which was the magistrates reasoning which I felt was justifiable even though I didn’t like it as I knew what would happen. I’ve hit bundles off texts just to agree holidays as it’s shears a draw out affair as the court didn’t state anything just TBA between parents even though we can’t get on (no fault in my end) I’ve tried everything to get along. Triple P, SPIP, extra private social workers scrutinising my time with my son at my ex’s request. I’m hoping that given her disregard for the order and the fact I had him 7/14 days will be enough to say WTF, this dad is getting abused! I’m asking for shared care as you said it the child’s identify and how they see their world and he knows he has 2 homes.

Here’s a question…if my sons is stating he wants more time with me as he now has step siblings on both sides that have 50/50 so he sees this day in day should I ask the court for him to be interviewed? As my ex is so opposed to any form of shared care, would they listen to him or is he still too young?

I just don’t see any angel she can have which is why I’m reluctant to get a barrister as she doesn’t have a leg to stand on as I’m not asking for anything more than what I’ve had it hit. I just want her behaviour stopped… do undertakings get taken seriously Ash? Any knowledge on them, she refused one in the last hearing.

 

[Ash]

So your son is used to the journey - overnights shouldn't be an issue. Sounds like your first order was rubbish as well - no midweek overnight and holidays "by agreement" - that is so pathetic of them! Erm excuse me but if I could agree holidays I wouldn't be coming to court. My first order was terrible too. I learned a lot from that and took a draft order to my next court round at final hearing - with specific wording and clarity.

You mentioned having your son 7/14 - when was that? Before he started school? Your ex and her barrister one the point to stop midweek overnights unfortunately but I would still try and get them back.

Unfortunately it doesn't always work the way of common sense (she doesn't have a leg to stand on or Dad is being abused) - it's just a weird legal process. Everything has to comply with Practice Direction 12J. Courts just hope people will agree things and go away. Some Judges are lazy and see this as small fry compared to serious abuse cases, and can't be bothered.

So you will need good arguments as to why your son should spend more time with you (I can think of a few), you already have good arguments for why it should be shared care and midweek overnights (because she keeps breaching and it causes anxiety and instability for your son and he goes too long without staying with you. Teatimes are frustrating because he expects to go home with you./ He's been doing that journey for 2 years and there are no issues whatsoever - it's good parenting time and enables a fun break on the way home and you regularly stop at x place for tea which has become a nice routine. Your son enjoys his regular bedtime routine with you which he misses when away so long. You have always been on time, usually 10 minutes early (if that's the case!) for collections and drop offs. It's important that your son sees you involved with his school life.

She will have numerous counter arguments. The difficulty is if she uses that barrister again - they can be very persuasive and use caselaw.

They "might" interview a 5 year old but they wouldn't take his wishes seriously at that age. I also think it's best to keep the kids out of it if possible because they end up in the middle being pulled both ways. He may say one thing to you and another to his Mum because he's trying to please everyone and doesn't want anyone to be upset with him. When I cited things my son had told me at court once, I regretted it - my ex really distressed him and frightened him out of doing that again - so he was then scared to tell me things. It wasn't good.

Undertakings are quite serious. If an undertaking is breached they can be sent to prison (the undertaking needs to be signed on the back for that to be the case) - although it's unlikely they'll be sent to prison but it's a good threat/deterrant. What were you thinking of an undertaking to be about? Not breaching again?

How does it work with your partner doing the handovers if your ex hates her?! It's a tricky one when the Mother just can't accept a stepmum being involved.

 

[Ash]

Is your final hearing being held by magistrates again or a District Judge? How far away is the hearing? If not by a district Judge it could be worth emailing the court and asking for the hearing to be allocated to a District Judge, due to the number of ongoing breaches and the fact there have been issues for three years now.

 

[Mike2017]

It was rubbish, they even “commended” us for “coming this far” in their summary notes, like she was being a good parent. Why would I be in court if that was the case .

My 7/14 days was while he was at nursery, I picked him up after nursery & returned him the following evening. It was less traumatic for him being picked up by me there than his mums as that always came with issues, she would use negative reinforcement to make me look bad. I am asking the court for an undertaking as she is abusive and always goes in on me in front of my son. I produced 76 items of evidence in my first final hearing but the court lost it and wouldn’t let me resubmit it on the day! Shocking miscarriage of justice. I do feel judged are lazy though and need to put parents in check but as you say it’s small fry but none the lesss fever staying to the parent in question. I’ve read directive 12J and I fall into a lot of that as does my position statement. I’ve suggested a handover schdule for his whole childhood that reduces contact between his parents and risk of conflict. My whole statement is geared around avoiding conflict for him.

My undertaking was to stop negative language about either of us in front of our child (I signed up to show willingness to show I’m trying to be chikd focused) she point blankly refused it, it showed her attitude very clearly and even caught the magistrates off guard, now I’d add to honour terms of the order too!

My ex doesn’t respect anyone and has to control everything, my partner takes no shit as it’s part of her job dealing with awkward parents so she shuts her down a lot and it reduces conflict, which is the point.

The court haven’t given me that information, I’ve emailed to ask but they are slow in coming back, won’t say what court as I never know who’s reading this stuff but it’s her beck of the woods as that’s where he’s registered. I’m just thankful it’s face to face and not on a laptop as you get a better gauge on body language.

 

[Mike2017]

Is your final hearing being held by magistrates again or a District Judge? How far away is the hearing? If not by a district Judge it could be worth emailing the court and asking for the hearing to be allocated to a District Judge, due to the number of ongoing breaches and the fact there have been issues for three years now.

It was rubbish, they even “commended” us for “coming this far” in their summary notes, like she was being a good parent. Why would I be in court if that was the case .

My 7/14 days was while he was at nursery, I picked him up after nursery & returned him the following evening. It was less traumatic for him being picked up by me there than his mums as that always came with issues, she would use negative reinforcement to make me look bad. I am asking the court for an undertaking as she is abusive and always goes in on me in front of my son. I produced 76 items of evidence in my first final hearing but the court lost it and wouldn’t let me resubmit it on the day! Shocking miscarriage of justice. I do feel judged are lazy though and need to put parents in check but as you say it’s small fry but none the lesss fever staying to the parent in question. I’ve read directive 12J and I fall into a lot of that as does my position statement. I’ve suggested a handover schdule for his whole childhood that reduces contact between his parents and risk of conflict. My whole statement is geared around avoiding conflict for him.

My undertaking was to stop negative language about either of us in front of our child (I signed up to show willingness to show I’m trying to be chikd focused) she point blankly refused it, it showed her attitude very clearly and even caught the magistrates off guard, now I’d add to honour terms of the order too!

My ex doesn’t respect anyone and has to control everything, my partner takes no shit as it’s part of her job dealing with awkward parents so she shuts her down a lot and it reduces conflict, which is the point.

The court haven’t given me that information, I’ve emailed to ask but they are slow in coming back, won’t say what court as I never know who’s reading this stuff but it’s her beck of the woods as that’s where he’s registered. I’m just thankful it’s face to face and not on a laptop as you get a better gauge on body language.

 

[Ash]

I produced 76 items of evidence in my first final hearing but the court lost it and wouldn’t let me resubmit it on the day!

Hmm. That sounds like Cafcass to me - I've found if there's any evidence against the ex they ignore it! Anyway the only time you can submit evidence is as part of your statement at a final hearing usually - so that shouldn't get lost as it's part of your statement and part of the bundle for final hearing. I have to say though that they don't like to see either parent being negative about the other - they like to see that parents are trying to be amicable and co parent. So even if she isn't, it helps your case if your communications can be seen to be being courteous and amicable.

You could ask for a recital in the order that says "neither parent will derogate the other to the child" - that's quite common.

Don't know the specifics of your ex being difficult, but I know I had to bend over backwards and put up with some xxxx to try and avoid my son being caught in the middle of conflict. It might be that your ex is never going to be amicable, but if you show that you are, in communications, then the court sees you're the reasonable one and she';s the hostile one.

I am wondering though if your partner dealing with things could be just winding your ex up more and making her feel threatened? Agree that changeovers to and from school are best, except in school holidays.

You could ring the court. Always be polite and friendly even if you feel frustrated. The clerks vary - some can be really helpful, some not, but they do wield some power - they have the ear of the Judge I have found and can be somewhat influential (I once got a hearing date brought forwards via a helpful clerk who mentioned my concerns to the Judge).

But start getting your evidence together if you haven't already. It's tricky as your statement needs to show why it's important child has more time with you and why changeovers are better to and from school - ie showing some of the issues - without directly being negative against the ex or they see that as mud slinging and both parents being as bad as each other - tar you both with the same brush.

One thing I put in my final statement was - I felt the equal time shared care was important to help ameliorate the negativity about me, my son was subjected to when in his Mother's care. I could only say that because I had some pretty strong email evidence of what she was saying to my son (really aggressive hostile emails to me saying - he hates you blah blah and that kind of thing) plus an email she actually used for her own evidence! Which showed her up (she had written to the school dissing everything about me, ,my home and partner). She thought that proved what she said but all it did was show she was being negative about the other parent which is bad for the child.

However badly your ex is behaving, your best chance of getting a better order is to show that you and your partner attempt to resolve things amicably (ie copy emails) but are concerned at the hostility shown towards you in front of your child.

Your final statement is your evidence. It needs constructing carefully. With evidence attached for every point you make. No evidence and it's just words. Everything in it must be 100% accurate with no embellishment - and backed up by evidence. If there is one little thing that is not entirely true (ie a bit vague or contradicts something else) her barrister will undermine your statement. The Barrister's job is to prove the other parent is lying by finding something in their statement that isn't true or is contradictory - once they can show that then that statement and evidence is ignored. Same the other way. Whoever is cross examining your ex on her statement, needs to prove she has lied somewhere then her evidence is dismissed and you get what you asked for. Final hearing is really important. It's all legal protocol and you either win or lose. It's less like the earlier hearings which are more conciliatory.

I can hear your anger and frustration - been there - but you need to channel that or bottle it and come across in writing and in person as the calm one who really wants to improve things with the Mother and is only concerned for child's wellbeing and stability with both parents and families.

If they sense hostility on both sides it can be classed as "conflict between parents" and if that happens they can decide the conflict is harmful to the child and give more time to the Mother (ie one main home) to reduce the conflict. Hence treading carefully. But arguing for changeovers at school for "seamless transitions" is good. If you have evidence of her being hostile with you in front of child, that helps but often that's just you saying this is what happens and it comes across as being negative about her (accusing her) without evidence.

 

[Ash]

In think the main argument should be that for the child's certainty, stability and to reduce stress, he needs regular and significant time with both parents and families, without long gaps between seeing either parent. Also add lots of positive things about his life with you - if he has friends next door or grandparents he sees in holidays, and how he needs to be able to have certainty of things to look forward to in holidays so defined weeks would allow for that. In particular as arranging holidays between you has been extremely difficult (see exhibit d). Exhibit d being email conversations trying to arrange holiday weeks and showing her to be obstructive. That kind of thing.

At the end of your statement you need to clearly and specifically ask for what you want the court to order. Eg I therefore respectfully request the court makes an order for child to live with both parents on a 2-2-5-5 basis plus half the school holidays with defined weeks, as per the attached draft order. And attach a draft order that details all of that.

Eg Child lives with both parents

Recitals

Neither parent will be derogatory about the other to the child or in front of the child
Both parents will communicate courteously with regard to arrangements for the child

With Father during term time

Week 1 Wednesday from school through to Monday morning school drop off
Week 2 Wednesday from school through to Friday morning school drop off

With Mother during term time

Week 1 Monday from school through to Wednesday morning school drop off
Week 2 Friday from school through to Wednesday morning school drop off

Each parent will facilitate their own collections and drop offs to and from school on their respective care days.

And half the holidays with each parent as follows

May half term with Father, October half term with Mother, half of February half term with each parent with consecutive days and changeover midweek
A full half of the easter holidays with consecutive days - each half to alternate between the parents annually, with the second half of the Easter holidays with Father in 2023.
A full half of the Christmas holidays with each parent - first half with Father in 2022 and even years and first half with Mother in 2023 and odd years. With Christmas Day and Boxing day on alternate years with each parent from 5pm 23rd Dec to 11am 26th Dec. In the event the Christmas dates don't fall fully in the first half of the holidays, the parents will adjust the days between them.
Weeks 1, 2 and 5 of the Summer holidays with Mother. Weeks 2, 4 and 6 of the summer holidays with Father. Any remaining summer holiday days after week 6 to be divided between the parents equally.

All school holidays to commence at the time school ends on the last day of term, and end at the time school recommences on the first day of the following term.

Such further and other times as agreed between the parties in writing.

Passports:

Mother will retain child's passport and release it to Father 21 days before any booked holiday or for any other reasonable purpose it is needed for.

Schools:

Neither parent will change the child's school without the consent of both parents.

 

[Ash]

The line about schools is so she can't do a moonlight flit. If you get wind she is changing child's school it gives you warning she is thinking of moving further away so you can act quickly ton prevent child being moved.

 

[Ash]

So your statement plays a big part and taking a draft order means if a Judge agrees with it, you already have a draft order. The draft order can also be used for negotiations before going in to the hearing - if agreement is reached, the draft can just be amended in pen and the order left for sealing., Do not go away with the business of "solicitors to draw up the final order" or her side will mess about with the wording or not agree it and you end up back in court. That's when it helps having a barrister. You can say to them - I want the order drawn up on the day and left for sealing. If she has a solicitor/barrister and you don't they will expect her solicitor/barrister to draw up the order. And they will try and incorporate loopholes.

Cross examination is the time to persuade the Judge. That is something that can be hard (but not impossible) to achieve if you're not a barrister. However if you partner was your McKenzie friend, she would be cross examining your ex in court and that would be very personal and could increase hostilities ongoing - and might be deemed inappropriate by the court as well. They can be funny about step parents being involved and see it as solely a matter between the two parents.

 

[Ash]

How about finding an actual McKenzie friend? Although be careful. We don't recommend any on here and some are not that good. They're not free either.

A lot of Dads self rep and get good orders, but I am really unsure how they would view a step parent being a McKenzie friend. It could backfire even if allowed (ie sympathy for the ex).

All I know is that people who use barristers tend to get the results they want and I think it's worth paying for, for a final hearing. Even if you have to borrow the money and pay back in instalments.

It can save time and money in the future rather than repeat court hearings etc. 5k for a better life.

Barristers want to win - they come to their own in courts at final hearings with expert cross examination and using caselaw to persuade a Judge. I am sure your partner is very good (mine helped a lot but stayed in the background) but as she's also a step parent.,.... There are still some very set views on step parents not overstepping the mark. As I found when my partner made a report to social services about my ex.

 

[Mike2017]

How about finding an actual McKenzie friend? Although be careful. We don't recommend any on here and some are not that good. They're not free either.

A lot of Dads self rep and get good orders, but I am really unsure how they would view a step parent being a McKenzie friend. It could backfire even if allowed (ie sympathy for the ex).

All I know is that people who use barristers tend to get the results they want and I think it's worth paying for, for a final hearing. Even if you have to borrow the money and pay back in instalments.

It can save time and money in the future rather than repeat court hearings etc. 5k for a better life.

Barristers want to win - they come to their own in courts at final hearings with expert cross examination and using caselaw to persuade a Judge. I am sure your partner is very good (mine helped a lot but stayed in the background) but as she's also a step parent.,.... There are still some very set views on step parents not overstepping the mark. As I found when my partner made a report to social services about my ex.

Hi Ash

I’ve had 3 different barristers, 1 was s##t one was ok (not available for my hearing) and the other a cocky pr#ck that my partner showed up as he was spouting off outside the court room about the case & my partner corrected him a few times and he didn’t like it as she’s a social worker she knows her safe guarding criteria. As a MF she wouldn’t be granted a voice just someone to offer support inside the court room n help me with the bundle as it’s 7 inches thick now as been going on for 3 years. She wouldn’t be granted or requested to speak n she wouldn’t be allowed to cross examine as NF’s don’t have that right unless granted. It’s such a difficult one to judge as if I spend that money n don’t get justice I’ll be fuming and feel I could do a better job myself as so far all custody I’ve got has been done off my own back. Could you provide me with your barristers name as I will look him up as food for thought.

My position statement is very considered and focused around avoidance of conflict for my son. This is a final hearing but no where have we been given the opportunity to provide a witness statement like in my previous final hearing where the court weren’t in possession of it, it had loads of damming texts and correspondence but that was 2020 and she’s learnt a few tricks since and doesn’t do anything in writing just goes at me face to face, she won’t hand over to my partner and refuses till I go to the door just for a row which I try avoiding at all costs but I’m not an island and only so far a person can be poked n prodded till they react (argue back). How do I prove that….I can’t but it’s the basis of probability as Cafcass stated in 2 reports she can’t see past her anger towards me and doesn’t see the impact it has on the child. The magistrates at the final hearing didn’t even read the reports . They are a bag of rebels as are judges I’d assume.

I wasn’t cross examined in my last final hearing as I wasn’t represented so the magistrates said it was unfair so it kind of helped me slightly but she would have been shown up if I’d have questioned her, so double edged sword.

My draft order is very similar to the one you’ve written as it takes away any reason to converse thus reducing conflict.

 

[Ash]

That is unusual not to have witness statements and evidence at a final hearing. What was the previous hearing? Just an FHDRA? Yeah my ex cottoned onto texts and emails being used as evidence against her and refuses to communicate in writing now. Although luckily she sometimes just can't help herself by responding to something I send with a nasty one back! Usually making false allegations and thjreatening to tell Cafcass the allegations (her way of saying - if you don't let me breach the order I'll make things bad for you at court). Almost tempting to go back to court just to show them her threats! But that's another story.

You sound understandably angry and frustrated at the system - but if they pick that up they won't warm to you.

I suggest you email the court and request the case is heard by a District Judge (and yes they are much more on the ball than magistrates) for the reasons mentioned above. You may or may not get one now the hearing is already listed.

How can it be a final hearing with cross examination if there are no statements and no evidence? What do the court papers say that issued the date of the hearing?

Yes some barristers aren't very good - some are more biased towards Mothers. I asked for recommendations for Barristers from other Dads who had been happy with theirs and got a good one. But unfortunately it is sometimes you get what you pay for. Any Barrister costing £1000 is a waste of £1000 IMO. £4000 and you're likely to get a very good one - IF it's one who has won cases for Dads before (so many of them focus on Mums and can't help but have an inherent bias - although they are supposed to be unbiased and work for either party. Same with solicitors.

But before thinking about getting a barrister, I'm wondering what's what with this final hearing with no witness statements?

 

[Mike2017]

That is unusual not to have witness statements and evidence at a final hearing. What was the previous hearing? Just an FHDRA? Yeah my ex cottoned onto texts and emails being used as evidence against her and refuses to communicate in writing now. Although luckily she sometimes just can't help herself by responding to something I send with a nasty one back! Usually making false allegations and thjreatening to tell Cafcass the allegations (her way of saying - if you don't let me breach the order I'll make things bad for you at court). Almost tempting to go back to court just to show them her threats! But that's another story.

You sound understandably angry and frustrated at the system - but if they pick that up they won't warm to you.

I suggest you email the court and request the case is heard by a District Judge (and yes they are much more on the ball than magistrates) for the reasons mentioned above. You may or may not get one now the hearing is already listed.

How can it be a final hearing with cross examination if there are no statements and no evidence? What do the court papers say that issued the date of the hearing?

Yes some barristers aren't very good - some are more biased towards Mothers. I asked for recommendations for Barristers from other Dads who had been happy with theirs and got a good one. But unfortunately it is sometimes you get what you pay for. Any Barrister costing £1000 is a waste of £1000 IMO. £4000 and you're likely to get a very good one - IF it's one who has won cases for Dads before (so many of them focus on Mums and can't help but have an inherent bias - although they are supposed to be unbiased and work for either party. Same with solicitors.

But before thinking about getting a barrister, I'm wondering what's what with this final hearing with no witness statements?

in my first final hearing I submitted a witness statement along with everything else but the court didn’t have it on the day but her barrister submitted hers on the day and the magistrates allowed it, unbiased indeed. I asked that I could email them the doc there and then but was told “we will proceed without it”. They didn’t allow cross examination due to me not having a barrister as they stated it would be unfair on me, which I guess is true.

I’ve emailed them to ask if I have a judge listed but this court are poor with their admin and take ages to reply and you can’t ring them, they hide behind a call centre which are next to useless unfortunately. I’ll email again to ask the question about submitting witness statements but as it’s only over a week away I doubt I’ll get a response.

Could I have this barristers name so I can see if he is available at least. I can keep my sh#t together and have very good reasoning why the order needs a variation but she’s now using words like harassment in relation to me so I’m assuming that’s her angel she’s running with in court and probably wants a non molestation order against me. It is purely that I won’t agree to her schedule over contact as it’s a breech of the order in place, but knowing her & her barrister they will play the victim card well. I can counter it purely as the current order states “holidays are to be agreed between parties”, we never agree hence why it’s back. I should get more than half his half terms and Easter holidays as it’s not written in a standard way but she won’t have it, I said to her” ok let’s just split it 50/50 as that’s fair” and she don’t agree to that, she has to have the lion share all of which I have texts backing it up.

But as that’s her angel now I’m starting to think I’ll need protecting as Dads are already on the back foot. I have to do what’s best for my son and I don’t but to fail him, he is my world.