Mediation and NMO

[NewcastleBrownAle]

HI, Yep you guessed it. My ex has been delaying mediation (final session to agree parenting plan) by cancelling and rescheduling , actually she has delayed the mediation by cancelling 5 times ( always the day before the session is booked).
So a fresh date for the final session was booked. Then I was served a summons for an NMO by hand, the hearing is for next week, the allegations are false and I'm confident I have the evidence to refute. Although don't have much time to prep.

Question is, mediation, can this still go ahead? The paperwork is for an application for an NMO so nothing saying it is currently in force and the mediation is , well, it is mediated. So can it go ahead ? I would prefer to cancel and withdraw, but ultimately I would prefer the decision to withdraw made by another party, as I have always shown willing and always been reasonable. Maybe if I inform the mediator, they would stop the mediation as they feel inappropriate now ? Do I still need a failure certificate to file C100 and C1? Do I need to ask court permission to file , at the NMO hearing ?

Thanks for your time

 

[Ash]

She can say that mediation isn't suitable due to your "abuse". Presumably that's what the NMO is about? So I doubt very much that mediation will go ahead and personally I'd have put a C100 in the first time she cancelled mediation.

NMO hearings are tricky. If you contest it, it could drag on for a very long time and delay any chance of a Child Arrangements hearing going ahead or achieving anything. Which is probably why she's done the NMO.

Do you know if she obtained an ex parte urgent NMO and the hearing is the follow up? Or if the Judge decided not to give her the NMO ex parte urgent, without a hearing first.

The other option to contesting, is to offer to do an undertaking not to harrass her or whatever - then the case can be closed quickly.

Some information here

Can I contest a Non-Molestation Order?

Non-Molestation Orders protect a party from any form of harassment, threats or violence, this blog explains what a NMO is and if you can contest one.

www.ellisjones.co.uk

 

[Ash]

I would advise you to hire a direct access barrister for the hearing and to start filling in a C100 now and ask the mediator to sign you off and send you the sign off form asap. And don't tell your ex.

 

[NewcastleBrownAle]

its not ex parte, the hearing for the application is on Thursday. I would be happy to make an offer of undertaking, but I haven't harrased her and the allegations she has made are serious and I need to contest them, not just for reputation, they are serious enough to end my employment.

 

[NewcastleBrownAle]

I would advise you to hire a direct access barrister for the hearing and to start filling in a C100 now and ask the mediator to sign you off and send you the sign off form asap. And don't tell your ex.

actually I've been looking for one, but not found one locally, that can help in such short notice, the other issue is cost, not sure how much this would cost me

 

[Ash]

its not ex parte, the hearing for the application is on Thursday. I would be happy to make an offer of undertaking, but I haven't harrased her and the allegations she has made are serious and I need to contest them, not just for reputation, they are serious enough to end my employment.

Someone else said that recently as well, but when you look into it, an undertaking is usually best I believe.

 

[Ash]

Have a look at page 2 of this thread about why an undertaking could be better. It's natural to want to defend yourself against allegations, but see the pitfalls and logic here

Urgent non mol against me now

Sorry to hear that. Just tell him this will get sorted out. At that age, all they want is things to be ok again and they soon forget the bad stuff once things are right again. It's hard on the kids because they love both parents and don't want to feel in the middle.

www.dadswithkids.co.uk

 

[Ash]

In particular, this advice from 18city on that thread

"Very tricky situation.

The main issue with contesting it is that the power of arrest will stay on the order until final hearing which could be months away, possibly longer than the order itself.

If you offer an undertaking with no findings and no admissions then the power of arrest is removed BUT you still have to comply with the terms of the undertaking which will be the same terms as the order itself.

If you accept the order with no findings and no admissions then the power of arrest stays but you still haven't been proved to have done anything. This means you can be arrested at any time she alleges something.

How long is this non mol for? they are usually 12 months but mine was only 6 months. It wasn't worth me contesting a 6 month order because the delays in court dates for a final hearing would have taken it beyond the 6 month mark and the power of arrest would have stayed for the duration.

Remember, an undertaking doesn't mean you are guilty of anything it just means you have to steer clear of the ex. It is often the cheapest and quickest way to deal with these non mol orders. If you do an undertaking you will get a new order that states the 'non mol order has been discharged'. The only thing that an undertaking has to be agreed by both parties.

If you do an undertaking the judge will clearly state within the hearing two things...

1. That there have been no findings or admissions.

2. That the Court does not believe the events that the applicant has presented (because they haven't been proved).

The gut feeling of all dads is to defend it because they are unfair and awful to receive and often based on lies, but in reality it will be expensive and you could be up against another one a few months later.

Hope all that makes sense.

Best of luck."

 

[NewcastleBrownAle]

The advice from 18city is interesting, but confusing. He says that offering an undertaking means the powers of arrest are removed, but if you accept the order with no findings and no admission, then the powers of arrest stays.
In my case, an undertaking would most likely have conditions, and the ex would then claim I have broken them - so get arrested ? I'm not clear on the advantage of an undertaking.
My ex is a serial liar and I've been working through her statement, and I have plenty of supporting evidence to show they are false ( mainly her own text messages, which clearly , very clearly conflict with her statement). So if I made an undertaking , she would simply lie and say I have broken the undertaking ?
I can't see a way forward to be honest, and if an NMO , I can't file for CAO? I'd never see my son again

 

[Ash]

I think what it means is, if you do an undertaking, you still have to undertake not to break the conditions to keep away from her and not contact her. But if you do break them, you can't be arrested for it. Whereas if you accept the non molestation order, with no findings, you still have to not break the conditions, but if you do break them you can be arrested.

What I've seen on here a number of times is how an ex tempts a Dad to break the nmo by suddenly getting all friendly and chatty and contacting him or suggesting meeting up or getting back together. Then gets him arrested for breaking the nmo.

There is a way forward, but the key is to get this wrapped up quickly so you can move on and apply for the CAO. You can apply now in fact but it won't proceed until the NMO situation is wrapped up. The danger of contesting is it can mean the Judge orders a fact finding hearing before a CAO can progress and that could take a year to be completed and you may not win it. Because a fact find is based on the balance of probabilities.

To get it wrapped up, probably the safest and quickest thing to do is in an undertaking - there is no admission of guilty, you're just saying you agree not to contact her or approach her.

This in itself makes child arrangements difficult - for handovers etc. But not impossible.

 

[Ash]

It's a nasty business. But keep focused on getting a Child Arrangements order. Get signed off from mediation asap. And get the C100 filled in. The NMO is just to try and stop you doing that. Yes it makes you feel angry, but it's just a strategy that has been used time and time again - misuse of the law. Let her make her allegations at a child arrangements hearing instead, and get them dismissed there. This is how I understand it anyway. But I would get a free half hour's legal advice. At which they will probably say - well you can either contest it, or accept it or try for an undertaking, but solicitors don't always advise you what is the best thing to do. If you have a direct access barrister for the hearing, they are likely to be able to persuade the Judge to either drop the case or do an undertaking. Barristers can be very persuasive. For a half day NMO hearing it could cost between £1,000 to £2,000 for a DAB.

 

[NewcastleBrownAle]

It's a nasty business. But keep focused on getting a Child Arrangements order. Get signed off from mediation asap. And get the C100 filled in. The NMO is just to try and stop you doing that. Yes it makes you feel angry, but it's just a strategy that has been used time and time again - misuse of the law. Let her make her allegations at a child arrangements hearing instead, and get them dismissed there. This is how I understand it anyway. But I would get a free half hour's legal advice. At which they will probably say - well you can either contest it, or accept it or try for an undertaking, but solicitors don't always advise you what is the best thing to do. If you have a direct access barrister for the hearing, they are likely to be able to persuade the Judge to either drop the case or do an undertaking. Barristers can be very persuasive. For a half day NMO hearing it could cost between £1,000 to £2,000 for a DAB.

If you have accept an undertaking, or contest the NMO, can you still petition the court with C100 and C1 for CAO and PRO ?

 

[DadLad]

Get your MIAM asap and get your CAO in straight away.

The NMO is a way for her to get free legal aid and it's also a delay tactic.

Contest the NMO is you have evidence which proves that every allegation is false.

Another opinion is asking for cross-undertakings?

 

[NewcastleBrownAle]

Get your MIAM asap and get your CAO in straight away.

The NMO is a way for her to get free legal aid and it's also a delay tactic.

Contest the NMO is you have evidence which proves that every allegation is false.

Another opinion is asking for cross-undertakings?

she failed to turn up to mediation, so yes I can get that certificate, but can you file for court for CAO and PRO whilst the NMO is going through court ? I can provide evidence that most are false, and for those I don't have, she has none either. how do you ask for cross undertakings, and what would you ask for ?

Thanks for replying DADLAD

 

[DadLad]

she failed to turn up to mediation, so yes I can get that certificate, but can you file for court for CAO and PRO whilst the NMO is going through court ? I can provide evidence that most are false, and for those I don't have, she has none either. how do you ask for cross undertakings, and what would you ask for ?

Thanks for replying DADLAD

if you dispute the allegations and it goes to a final hearing and you are later found out, it could go against you.

When you have your first hearing for the nmo and they ask for your position, just say that you believe that the nmo is a delay tactic and you would like to propose cross-undertakings and get the nmo finished so that you can focus on the Child arrangement proceedings.

 

[NewcastleBrownAle]

sounds like a plan, but , what would the cross part of the cross undertaking involve?

Also, the ex would have to agree? I'm fairly certain she would not agree to anything so as to keep it running, but hey, I'm really interested in your post , I'm in court today

 

[DadLad]

sounds like a plan, but , what would the cross part of the cross undertaking involve?

Also, the ex would have to agree? I'm fairly certain she would not agree to anything so as to keep it running, but hey, I'm really interested in your post , I'm in court today

start with cross-undertakings to see if she agrees, then go to an undertakings (with no findings) if she doesn't agree..

does she have representation?

 

[NewcastleBrownAle]

start with cross-undertakings to see if she agrees, then go to an undertakings (with no findings) if she doesn't agree..

does she have representation?

she has legal aid, as the "victim of domestic abuse" - If I go to undertakings, as set out for the NMO, I would not see my child at all, or be able to contact of file for court.

 

[DadLad]

she has legal aid, as the "victim of domestic abuse" - If I go to undertakings, as set out for the NMO, I would not see my child at all, or be able to contact of file for court.

Who said you wouldn't? Many have accepted an undertaking and carried on with a CAO.

I would seek legal advice first as it depends on your circumstances etc.

 

[Peanut 21]

Apologies, repeating what has already been said.

Delay tactics, NMOs and domestic abuse allegations are extremely common, and seen by solicitors, barristers, courts, SS and cafcass, every single day.
To them it's business as usual. To the individual it's a worry and can really effect your life.

But there is nothing stopping you putting in a CAO.
You have tried mediation but the other party has been unwilling to engage.
Her new tactic is the NMO to get legal aid and avoid mediation. Yet another classic tactic.

Hopefully further down the line the above points will backfire on the ex.

It's just frustrating that you have to go with the process and jump hurdles to get to the finish line.

Do not hesitate to get the C100 in.
Have faith in yourself and the truth.