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TOPIC: C100 - contact or residency advice?

C100 - contact or residency advice? 2 years 6 months ago #9431

  • 912jws
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I am new to the forum and seeking some advice on submitting a c100 application as I have just about come to the end of my tether with dealing with my ex wife.
It has not been a pleasant couple of years since we seperated(now divorced for about a year) and if anything things are worse now than what they were after the initial seperation for me and the children in 2009.

My current contact agreement is that I have my 2 children(aged 9 and 8) 10-12 days a month around my shift pattern but my ex has just reduced this to friday 5pm until sunday 5pm with no midweek access(except school holidays) so with having to work 2 weekends a month I am currently only seeing the children effectively 4 nights a month which I am not happy about, apparently she has done this to improve the childrens wellbeing and stability but being a very
hands on father in terms of that I do everything with my children and give them lots of love and currently don't rely on any childcare when I have them(she has a full time aupair) so I have regularly done all the school stuff, take them on holiday, do other fun activities etc so I fail to see how her new arrangements are of benefit to the children as she is unable to replicate that time herself.

This recent change has just broke the camels back so to speak over what has been 2 years of controlling behaviour from my ex and her not putting the children first and not considering my part in their life plus the reason we are in this situation.

Just to give you all a little background into my situation without going into too much detail as i'll be writing this for ages!

In 2008 we split up for a period of 11 months because my ex was not happy, I had become suspicious about her behaviour and thought she may have been having an affair, I had reason to feel this way as she had previously had an affair when our daughter was 1 years old. I was also very consicious about our financial situation with us spending too much money despite us earning good money(my ex had and still has a very good job which pays her in excess of
double what I earn) I said we need to cut back otherwise it will spiral more out of control.
During this 11 month seperation my ex issued her unreasonable behaviour terms about not trusting her, not letting her spend money, backing out of a house purchase which would have put us under more financial strain so I never actually agreed to sign the divorce petition. During this time we split £82K of debt down the middle which was a struggle for me due to the earnings difference.
After 11 months we started to get on more amicably and she asked me to move back in and claimed she would not put us and the children through a separation again, when we got back together I found out she had had a couple of short term boyfriends which I wasn't happy about but I tried to put it behind me for the sake of the relationship.
When we got back together we ran separate accounts and still paid our split of the debts we took on, I also made a point of due to the earnings difference that she would have to pay more towards any holidays/luxuries in a hope she would realise that we couldn't afford to do everything.
I also tried to give her more freedom by not questioning her regular odd midweek nights out where she stayed at friends houses near her office 60 miles from our house.
For the first 6 months of the 2009 things were going ok but it was not the same as there was a degree of caution on my side, we had a nice family holiday in the April but I never felt she was fully committed which is why in July she said it wasn't working out, she didn't give me any real reason except that we had tried and that I needed to move out, naturally I was a little shocked but not entirely suprised by the way she had been acting, she had also been
going out more regularly and staying overnight at friends.
She asked me to move out virtually immediately but I said that I needed a few weeks to sort stuff out which she wasn't happy about, the kids had no idea this was going on and we had just interviewed a new aupair to start work in September.
Within 7 days of her requesting I move out she asked me to go and stays with friends for the weekend and when I came back she had changed the locks on the house(Rented in her name and I was not added fully to the contract) and had a number of her friends present with my bags packed, not that I am the type of person that causes a scene, at the time I had a nice 2 seater sports car(now sold to pay towards legal bills and a holiday with the kids) which wouldn't take all my stuff so I ended up removing clothes into a smaller bag on the doorstep in front of everyone.

Anyway thats a brief insite into what went on and how much she thought of the father of her children and who was committed to making the marraige work but all this is irrelevant now as my only concern is the children which leads me on to my original question of what type of c100 application I should make given that I have the following list of issues that I have noted over the last 2 years which consistently show she does not put the children first in her life where as I would -

1. Within 1 week of me being ejected from the house she had moved her new boyfriend in who she claims she had only just started seeing, no respect was shown to the children by her or her boyfriend.

2. within 4 weeks they had booked a holiday during school time taking the kids out of school for 7 days, this is one of a number of breaks in the last 2 years where the kids have had unauthorised absence of up to 15 days per full term, I sent her an official letter 5 months ago that the kids must not be taken out of school going forward for more than 5 days per full term going forward which she is sticking to at the moment.

3. 3 weeks before I had to leave the property we had got a new puppy(something she wanted), although the dog was a handful within 2 months of me leaving they got rid of the dog saying to the children it was going to live on a farm for a holiday for a couple of months but she never came back.

4. She has left the kids alone with the new aupair on numerous occaisions for a few days at a time, on one occaision my son was so upset that he had been left the aupair was unable to cope with him that he had to go to a house of one of parents at school to be calmed down before going to school an hour late, I was at work at the time and was not informed until later in the day.

5. the aupair resigned after 5 months due to the amount of burden she was being given in respect of looking after the children and lack of involvement from their mum.

6. she hardly ever gets involved in the kids schooling due to her work committments so does not attend many parents evenings/school plays/sports days or regurlarly checks their homework or signs their school books

7. Despite 2 years of requests I have failed to get the childrens birth certificates to set up savings accounts with monies from relatives on my side of the family, I am currently trying to get this sorted yet again.

8. Saying the children can not stay over for one night stays as its too disruptive, this was when I could only get day one off around their 2 week holiday in school time so I ended up not seeing the kids for 3 weeks.

9. Numerous times of her restricting my time with the kids including my daughters birthday when she doesn't get what she wants ie. she expects me to take holiday from work so she can leave the children with me rather than take the kids with her.

10. Despite verbal agreements to alternate the christmas breaks, she has decided this year that she is taking the kids on holiday so I wont be seeing them.

11. I am currently not allowed to drop off or pick the kids up from school despite doing this a couple of times a week since they started going to school?

12. Over the school holidays this year I had the kids for a 12 day period and found out from the kids that when I was taking them back she would not be home for another 3 days as she was on holiday, I suggested to her they stay with me for another 2 days but she said they had plans and would not confirm if she was home, I never got an official confirmation from her so decided to do what was best for the children and minimise their time without a parent looking after them. On the day they were originally due back I get a call from their mum saying they need to be brought back within an hour as they have plans, after a few text messages she conceeds she is not in the country but there will be consequences for not returning them on time which is why I am here now on top of all the other stuff.

13. To top things off my financial status with the marital debts has hit the wall and I have defaulted on some of agreements and I am struggling to live, I have explained this to her but she has reported me to the csa despite the fact they earn in excess of £200K, go on nice holidays. have nice cars etc and asked her to respect my situation as I am trying to pay off debts that were built up on joint salaries.

With all of the above I don't know whether I have a good case for residency as I am more than capable of having the children to live with me and their mum can see them just as much and it will save all this controlling behaviour and unreasonable demands, at minimum I want a more stringent contact order put in place where I don't have my time with my children restricted.

Can anyone give me their thoughts from their own experiences, naturally I can't afford legal costs but I do have access to a free legal hotline at work which will help.


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Re: C100 - contact or residency advice? 2 years 6 months ago #9435

  • actd
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Hi Jon
I’m not going to reply to your post point by point as there’s too much, so I’ll summarise to some extent, and we can home in on the important points later on.
One thing I will say, a few years ago I was assisting a friend with a legal matter of his and went to see his solicitor with him for a chat about the case. My friend had a huge list of points he wanted to raise in court ranging from the trivial up to major points. The solicitor ran through the points crossing lots of them out, saying that however interesting they were, for the case in hand they were not important enough. The lesson was that if you swamp the courts with lots of little facts, they may well miss, or not place enough importance on, the really pertinent facts.
I would therefore pretty much forget what has gone on previously between you and your ex with regards the history of your relationship, and any new relationship she has now unless her boyfriend is a direct threat to your children. I know it’s not ideal by any stretch of the imagination, but you need to go into court concentrating on your contact with your children – if you raise lots of points about the relationship, you are going to start to alienate the court. Same goes for the point you raised about the dog, and the au pair (you wife can argue in court that she was paying for help for your children because she has to work long hours etc – a court will find this reasonable in my opinion), it’s simply not relevant and certainly not worth more than a paragraph in your statement. I would say that you don’t have enough of a case succeed in getting residency - you may not like the situation as it is, but the courts are generally quite reluctant to take children out of one home, where they are settled, unless there is a compelling case for them to do so, and from what you have said, I wouldn’t consider that there is one.
Before you start with court proceedings, have you tried mediation? You will need to show the court that you have at least attempted this. I would concentrate on the fact that you have had regular contact until recently, and that this worked very well for your children, and build up from there – that’s the most important point going forward for both your children and yourself, and the court need to see that as well. As you are not using a solicitor, I would recommend giving the Children’s Legal Centre a call – their number is on the website, and its free advice.
I would post a question to the CCCS counsellor (see the finance section of the forum) about your debt, but there are a few lines you may wish to follow. Firstly, was the debt taken out in joint names, and was it secured or unsecured? If the debt IS in joint names, then as far as I am aware (long time since I studied this area), the loan company can come after either of both of you should the loan go into arrears – and if you don’t have any money or assets, then they are able to go after your ex. It doesn’t matter that you have agreed to split the debt (though it makes your life a bit harder if you’ve done that in writing), unless the loan company agreed to that split, then they are not bound by your agreement. Second, the CSA will take into account any debt that was accrued during the marriage if it was for the benefit of that marriage, so when assessing your income for the CSA calculation, they will deduct any loan outgoings from your net take home pay when calculating the maintenance payments. Finally, I’m not a massive fan of IVAs as I feel they have been misused, it may be an avenue worth exploring in your case – the CCCS will hopefully be able to advise you. One more point, and it extends the point I made about some stuff being irrelevant – your wife’s income if totally irrelevant to the CSA calculation, whether she can afford holidays and other luxuries may seem unfair, but the system purely takes the number of children and your own income and circumstances into account for their calculation.
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I am not qualified in family law, or other area of family matters. I am simply a dad who has been through the mill. Any opinions I give are my own, and any advice should be checked before acting on it.
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Re: C100 - contact or residency advice? 2 years 6 months ago #9437

  • Yoji
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Hi Jon,

Thats quite a wall of text :)

As actd has pointed out, when making a Contact Application to the courts ensure that it is highly concise on what you are asking for. In terms of this Application it isn't expected that you put every point thats ever occurred.

The reality is that you put your arrangements previously until their current arrangement. You then need to specify what you want the court to order. In your case this may be recognised as being resident/custodian parent with a view that the order be made through shared residence but you will need to raise a residency order through the courts.

Your points 1-6 and some others will support your application for residence. In light of what has been said, i feel confident that when your children reach 12years of age, they may wish to come and live with you, especially given their seemingly hectic home life.

Relating to your point 7, this is easily remedied, you will just need to go down the the Registry Office. The application is very straight forward and the fee for the birth certificate is around £10-£15 dependant on what you are requesting.

If there are any particulars. Feel free to ask away :)
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Re: C100 - contact or residency advice? 2 years 6 months ago #9453

  • 912jws
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Thanks for your responses.

I guess I was just hoping that if I went down the residency route I had a slim chance of winning the case and it would also show my intent but in reality after checking a few posts on various forums that I probably would not succeed, I think what Yogi says is my best hope that when my kids reach the age where they can make their own decisions they will see how they have been treated and move in with me.

I have approached my ex on numerous occaisions over the last 2 months that we should go to mediation which she has refused saying it is not needed, luckily I have this is writing.

The children were born in Germany so its not that easy to get copies of their birth certificates and it appears to be a rather long winded process, I can look into this further but I have asked her to meet me at the building society so these accounts can be set up in my name.

With regards to the debts, I did consider making my ex take a higher percentage based on her earnings but my solicitor advised this would cost several thousand pounds(that i didnt have) due to digging out every financial statement to prove the money was jointly spent, I was also perhaps a bit naive that I could cope with 50% of the debt and refinance it at a good rate, but with the current economic climate the interest free cc deals are drying up. I have managed to negotiate with 2 of my main CC debts to a reduced payment plan with no additional interest which has been a big help although I have defaulted on my credit rating for the first time in my life. The CSA were understanding to my situation and would take into account the loans but not the credit cards which is a little unfair, he said he would refer my details to the variation team for assessment.

I understand about keeping the points brief and yes I will omit the emotional and relationship comments as they are irrevelant to what I am trying to achieve which is to restablish the contact but to having a more defined consent agreement where she doesn't mess around with the time the children and I spend together.

So is shared residency a potential option that the courts may agree on?

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Re: C100 - contact or residency advice? 2 years 6 months ago #9455

  • Filmmaker_1970
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Shared residency is becoming more popular and I would think that this would be an achievable goal, rather than full residency.

The fact that your ex won't acknowledge mediation means that you should be able to go forward with an immediate application to the court. If you do not have legal representation, you can call the Children's Legal Centre (CLC) for free, confidential advice and they'll talk you through the process of self representation. I'd recommend calling them anyway before you do anything and take their advice on what your next step should be.

It might be an idea to write to your ex one last time telling her that if she's not prepared to enter into mediation in an attempt to resolve your differences, then she's leaving you with no option other than to take the issue to the courts. I would identify a convenient mediation service and speak with them about costs and what to expect from the service. Provide your ex with all the details and ask her to provide you with a response within 14 days.

The advice from ACTD and Yoji is very good. It's hard to be objective when someone has put you through the emotional and financial ringer, but you have to endure I'm afraid. You'll need to demonstrate to the court that you're reasonable and only want what's best for the children as you move forward. The courts aren't really bothered about what's happened in the past, unless it's something that has threatened the welfare of your children. If your ex is obstructive, and she probably will be, the court and CAFCASS will no doubt recognise this.

So from now on concentrate on the only thing that matters; your children.

Good luck with everything and please keep us informed about your progress!
I've been where you are now. I'm here to share my experience and to support you through yours. I am not qualified in family law, or other areas of family matters. Any opinions I give are my own and any advice should be checked before acting on it.
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Re: C100 - contact or residency advice? 2 years 6 months ago #9456

  • actd
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I don't know enough about shared residency to give a definitive answer, but it does seem like something that would be far more achievable than full residency, and might put you in a position where you could go for full residency in a couple of years if your children's life with your ex isn't stable - however, don't mention (or even hint) that you may consider this later on - if you do, your ex will fight much harder to prevent it.

If you can give details of how you see the shared residency working out, it will help the courts considerably - you need to consider access to schools, friends etc. Don't forget, the courts' primary concern is for the welfare of your children, so if you can show them that shared residency is the best option, you have a better chance of success.

Under no circumstances should you mention the consequences of joint residency on maintenance and benefits, as your ex will argue to court that your only reason for your application is financial - you don't want the court to think that this may be your motive - but be prepared that your ex may have considered this and have counter arguments ready.
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