breach or not breach, that is the question

[NewcastleBrownAle]

so,, on the 25th Jan , I went to court, as my ex, filed for an NMO with outrageous false allegations, DV blah blah. I negotiated a cross undertaking, which , the legal assessor said was unusually complex for her to word, so expect some delay receiving it.

The cross undertaking, was that I could request to see my child , by emailing the solicitor of my ex, and using a parenting app "out of hours and weekends".

So over 2 weeks, I've emailed the solicitor 4 times and no reply. So tonight I have sent a simple polite request to see my child at the weekend and explaining that her solicitor has not responded to my previous requests in any way. She hasn't replied to the request.

Meanwhile, I have the CAFCASS call coming up in a few weeks time.

I have emailed the courts, but still do not have a copy of the undertaking ,so I am not aware of the exact wording, I'm only recalling what was agreed on the day.

So, some would say I am in breach of the undertaking, although it was sent out of hours. Others would say her solicitor has broken the undertaking, others will say we both have.

thoughts anyone ?

 

[mva]

Reading the wording that you recall no one has breached an undertaking.

You sent message out of hours.
Your solicitor has received your emails
Your ex has recieved your message


The reality is your ex is probably just ignoring her own solicitors correspondence. Down the line with the CAO hearings it won’t look good to the judge for your ex that she isn’t responding.

But her motive might be that she sees you as a safeguarding risk and doesn’t agree to contact.

You obviously need to highlight this lack of contact and communication to the caffcass officer when they phone.

 

[Ash]

I think you need to be careful and not message your ex again - just to be on the safe side. I would email the court instead and say that as part of the cross undertaking, it was agreed you could request arrangements to see your child by means of emailing ex's solicitor. However the solicitor is not responding to the emails or email reminders. And you ask for an urgent directions hearing to resolve the matter and ask for this email to be passed to the Judge.

 

[NewcastleBrownAle]

I think you need to be careful and not message your ex again - just to be on the safe side. I would email the court instead and say that as part of the cross undertaking, it was agreed you could request arrangements to see your child by means of emailing ex's solicitor. However the solicitor is not responding to the emails or email reminders. And you ask for an urgent directions hearing to resolve the matter and ask for this email to be passed to the Judge.

I have asked emailed the court and not received a reply and also called them, but after over an hour in a queue, I gave up. how do I go about an urgent directions order hearing ? and yes , I won't be texting again

 

[Ash]

If you send an email like the one I suggested above (If you haven't already), but at the end put "I would be grateful if you could confirm receipt of this email". What did the one say that you've sent already?

 

[NewcastleBrownAle]

If you send an email like the one I suggested above (If you haven't already), but at the end put "I would be grateful if you could confirm receipt of this email". What did the one say that you've sent already?

I set out that the solicitors had not responded, and ask for the email to be forwarded to the judge for their consideration.

 

[Ash]

Ok I would just do a follow up email then - Email heading is Case Number Then

Dear Sirs

Further to my email of x date, as part of the cross undertaking, it was agreed that I would make arrangements to see my child via Mrs Ex's Solicitors. I have attempted to do so four times but still have no response from them, despite reminders. I request an urgent directions hearing to resolve this matter as it leaves my child unable to see me and leaves me with no point of contact. I would be grateful if this email could be passed to the Judge and please could you confirm receipt of this email. Thank you

Yours sincerely, Your name (Father)

 

[NewcastleBrownAle]

Ok I would just do a follow up email then - Email heading is Case Number Then

Dear Sirs

Further to my email of x date, as part of the cross undertaking, it was agreed that I would make arrangements to see my child via Mrs Ex's Solicitors. I have attempted to do so four times but still have no response from them, despite reminders. I request an urgent directions hearing to resolve this matter as it leaves my child unable to see me and leaves me with no point of contact. I would be grateful if this email could be passed to the Judge and please could you confirm receipt of this email. Thank you

Yours sincerely, Your name (Father)

Done !

 

[Resolute]

Hi NBA,

Some thoughts.

1. If the parenting app is not yet in place, messages to your ex are risky.

2. What is your ex's undertaking? If the undertaking is that you can "request" time through her solicitor. I cannot see any onus for that time to go ahead. Or indeed, for her to respond.

3. I am not familiar with the term legal assessor. Were you both in person at the hearing? If you were, and if the court is writing the order. I suggest requesting sight of the 'minute' before it goes to judge/magistrate. You can then provide comment to be appended for consideration before the order is sealed.

4. Your ex's solicitor may well be bending the court's ear. Shenanigans between the hearing and the order can be more important than the hearing. I suggest you ask your representative to throw themselves into any correspondence that has followed the hearing. If you are in person, I recommend writing to the judge/magistrate directly.

5. Play the long game. Only put your foot down when you are on unquestionably solid ground. Delay is infuriating, regress is unbearable.

6. This is not fair. Liberate your mind from any expectation of fairness. You are dealing with snakes and liars. These people do not need a sixpence to turn 540. Sincerity and good will are to be banished from your thoughts.

P.s. good luck, and take my words with a pinch of salt if I have missed the mark. You know your case best.

 

[NewcastleBrownAle]

1. we were told to use the parenting app - it was an NMO hearing and a cross undertaking was made.
2. The undertaking - I can only recall what was said in court - I still have not received a copy- the undertaking was a bit confusing, to email the solicitor to arrange to see my child, and use the parenting app out of hours and weekends ( I know, it does sound strange) and the solicitor has not responded to my emails, not at all. Not even to say, the Respondent declines.
3. The legal assessor - the person who sits by the judges and advices on matters of law and writes up directions
4. There was no order, just the cross undertaking and advised by the judge to file C100 pronto - which I did.

 

[Resolute]

Hi

I made an undertaking in the NMO hearing. None of my ex's Family Law Act applications were granted. There was still a Family Law Act order though. Her barrister tried to rewrite the order saying that it was made "due to risk respondent poses to the child". This would not have been a good look for me. It may have secured legal aid for my ex as well. I was included in discussions following the hearing and got his phrase removed by the judge. In my final hearing the judge refused to include me in discussion on the order. As a result, the barrister got a clause into our CAO barring me from the vacinity of my ex's residence. This was not mentioned once in the hearing. It is a very dirty game we have to play.

Have you started using the parenting app?

Talking Parents is free and it is easy to register.

 

[NewcastleBrownAle]

Hi

I made an undertaking in the NMO hearing. None of my ex's Family Law Act applications were granted. There was still a Family Law Act order though. Her barrister tried to rewrite the order saying that it was made "due to risk respondent poses to the child". This would not have been a good look for me. It may have secured legal aid for my ex as well. I was included in discussions following the hearing and got his phrase removed by the judge. In my final hearing the judge refused to include me in discussion on the order. As a result, the barrister got a clause into our CAO barring me from the vacinity of my ex's residence. This was not mentioned once in the hearing. It is a very dirty game we have to play.

Have you started using the parenting app?

Talking Parents is free and it easy to register.

yes, we were told to use APPCLOSE , which is how I sent the message, informing her that her solicitor was not responding to me and that I wanted to see my child this weekend.
Surely, when the undertaking documentation is sent to me, if it is different to what was agreed, I can challenge it ?

 

[Resolute]

yes, we were told to use APPCLOSE , which is how I sent the message, informing her that her solicitor was not responding to me and that I wanted to see my child this weekend.
Surely, when the undertaking documentation is sent to me, if it is different to what was agreed, I can challenge it ?

You can, but I believe you would have to do so through an application if you leave it until after it is sealed. Before it is sealed, you can have it revised as a part of the current process.

Others may know different on this. I am only speaking from my experience.

 

[Ash]

yes, we were told to use APPCLOSE , which is how I sent the message, informing her that her solicitor was not responding to me and that I wanted to see my child this weekend.
Surely, when the undertaking documentation is sent to me, if it is different to what was agreed, I can challenge it ?

Who was writing up the undertaking? There will probably be an order of sorts even if it just says - the parties have agreed to an undertaking. If it's your ex's solicitor or barrister writing it up, then they should send you a draft for approval first - which they sometimes don't! And which is why it's good your email said that it was agreed arrangements would be made via the solicitor.

If you messaged your ex via the app, out of hours then you're not in breach. But I wouldn't message again yet so you don't get accused of harrassment. See what the court response is.

I hope you get a directions hearing. But be prepared for the fact that your ex may just withold your child until FHDRA.

 

[NewcastleBrownAle]

Who was writing up the undertaking? There will probably be an order of sorts even if it just says - the parties have agreed to an undertaking. If it's your ex's solicitor or barrister writing it up, then they should send you a draft for approval first - which they sometimes don't! And which is why it's good your email said that it was agreed arrangements would be made via the solicitor.

If you messaged your ex via the app, out of hours then you're not in breach. But I wouldn't message again yet so you don't get accused of harrassment. See what the court response is.

I hope you get a directions hearing. But be prepared for the fact that your ex may just withold your child until FHDRA.

yeah, I've asked for an urgent directions hearing, but not received a response. My concern about not seeing my son, is that my ex is systematically brain washing him, so by the time I see him, he won't want to see me Of course, I won't message again, I've shown willing, and been reasonable, it is for my ex now and her solicitor to show they have complied with the undertaking and been reasonable.
Interesting, she has seen the messages, and accessed them at 9.03 and 14.58 - so she is showing her friends at school ( she only has 2 friends and they are seriously toxic, just like she is).

meanwhile, I have CAFCAS call coming up in a few weeks time, and I need to decide how to approach the subject of my ex turning my son against me.

 

[Ash]

It must be very worrying but have faith - the brainwashing can wear off quite quickly.

 

[NewcastleBrownAle]

When CAFCAS call, do I mention the brainwashing, or would that be seen as parent in conflict ? should I leave this concern to the FHDRA?

 

[Ash]

It would be an allegation so it would be better not to. Cafcass will just say conflict between parents. You could just say you are very worried about how your son will be coping without seeing you. ie keep it child focused and not about the ex or what she might be doing.

Having said that - have you seen signs of him being brainwashed? Anything he has been doing or saying? Even so I would still save that for a position statement to the Judge, rather than to Cafcass. Who will just misinterpret it - due to the way they think. So for example if you said - I'm concerned about some rejecting behaviours he has had towards me - becoming hostile and slipping in and out of being a normal happy boy and then accusing me of things. While that describes a child who is semi alienated, Cafcass have tunnel vision IMO and will just see it as a problem with you!

 

[NewcastleBrownAle]

how about witness accounts, of his mother and her daughter, standing over the child telling him his dad is a useless idiot, until he cries and is confused as they stand over him and laugh , would this not be a concern for CAFCAS"?

 

[Resolute]

how about witness accounts, of his mother and her daughter, standing over the child telling him his dad is a useless idiot, until he cries and is confused as they stand over him and laugh , would this not be a concern for CAFCAS"?

This is a head f**k. I still struggle to find a way of justifying the gentle approach to myself. Here is the best I can manage.

They would have to entirely reject the other side if they were to give weight to reports such as the above. It is not necessary to convince Cafcass that your ex is the problem. You only need give reason for them to believe you are not the problem. It is probably not a good idea to force a choice between two evils - i.e. drunken, abusive, layabout father; manipulative, alienating, maniacal mother. Realistically, they will likely come down in favour of your ex if forced to choose. The child is well enough, the child is with her. Status quo is all important.

If you are reasonable to a fault, you contradict what Cafcass are being asked to believe of you. If you present witness accounts to show your ex is the problem, you ask Cafcass to condemn your ex. I believe an attack from the weaker party works against them.