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ExperiencedLawyer
ExperiencedLawyer, Solicitor
Category: Law
Satisfied Customers: 311
Experience:  I have 14+ years of experience as a family lawyer, advising people on all kinds of relationship and family law issues.
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Hi, My ex wife and I arranged for me to have our son this

Customer Question

Hi,
My ex wife and I arranged for me to have our son this Christmas, because she has had him for the last two. we get on OK ish and have not had any major problems and try to get along because of our son. She asked me a couple of months ago, knowing I was having our son for Christmas, could she take him to Australia on boxing day, the day after Christmas for a couple of weeks to visit family, but he could be with me for Christmas day. Knowing that this would be a fantastic opportunity for him and he would see his estranged family that he has hardly had any contact with, and seeing the fireworks on Sydney Harbor Bridge on new years eve, and it would be a wonderful summer holiday for him, (this is how it was sold to me), I said yes.
However, I have just had an email, and consequent frustrated emails back and forth between me and his mum, she has informed me that they are going before Christmas and they are going to fly before Christmas, there was no consultation with me, she just booked the tickets, and told me they are going. I have emails and text confirming that we agreed to me having him this Christmas. We have legal agreements about maintenance and days of the week we divide him between us, but these ad hock moments cant be legalized because they are so impromptu.
He is expecting to be with me this Christmas, I have not had him for Christmas for two years, can she just do this? do I have rights?
Please help me, I don't have much money to appoint solicitors, if i need to spend money on lawyers, i need to know if I have a case.
If i do have legitimate rights on this, would it be worth me trying to pursue this, or would courts decide against me?
Kind regards

Steve
Submitted: 3 years ago.
Category: Law
Expert:  ExperiencedLawyer replied 3 years ago.
Hello,

My name is Mac. I will be able to help you with your question. First I need a bit more information:

- how old is your son?
- what plans do you have for Christmas?
- given she has done what she's done, what do you think the best outcome of a bad situation should be?
- has she offered any compromise / apology?

Regards,
Mac
Customer: replied 3 years ago.

Hi Mac,


My son is nine next month, My plans for Christmas was to be with our extended family, his grandparents, Uncles, aunties and cousins. The best outcome would be that she stuck to the original plan, and took him to Australia on boxing day as first suggested, he would benefit from both then. She has not compromised and there was no apology, she just told me what she was doing.


 


Thanks for your help,


 


Steve

Expert:  ExperiencedLawyer replied 3 years ago.

Neither you nor the mother have any more right than the other to impose arrangements on the other. You had an agreement, which you say is clearly evidenced in writing (namely emails between you). She should not have gone ahead and made arrangements without checking with you first that you would agree to a change.

If you do not agree with her suggested changed plan, then the two of you would ultimately need someone else to decide - ie the court. A court is in reality only one person making a decision, so it's not possible in this area to say with certainty what the outcome of that would definitely be. I can say that the court would be largely juggling the unfairness to you (and your son's extended family on your side) from not having Christmas at yours, against the expense to the mother of having to change her flights (even though she should not have booked the ones she did in the first place).

I consider that you would have a reasonably good chance of succeeding in court, but there is an appreciable chance of not being successful, so you would have to go into it knowing that there was risk it wouldn't go your way.

Another alternative could be to use this opportunity to extract other concessions that you would like for other holidays in the coming twelve months (as well as next Christmas) in exchange for letting her go - but that may not suit you.

Before you make any application, you should suggest mediation. Not only would it give the two of you to agree a way forward at much less cost than going to court, but also the first thing a court will do is try to make you mediate anyway.

I hope that is helpful. If you would like me to clarify anything, please ask. If not, I would be grateful if you could rate my answer.

Regards,
Mac.

.
Customer: replied 3 years ago.

Thank you Mac,


I know she has done this now and it seems that there is little I can do, but for the future, Is there such a thing as a court order, to make sure she gets my approval before taking him out of the country?


I am under the impression that she needs to approve me taking him out of the country on holiday.


Regards


Steve

Expert:  ExperiencedLawyer replied 3 years ago.

You are correct that permission is needed before a child is taken out of the country. Technically that means that you can withold your permission; in practice the situation is unchanged from as described above because, in the absence of your permission (ie agreement between the two of you), and if there is no compromise, there will still have to be a resolution by the court as I described.

However, if you feel that it helps you in pushing back against her behaviour, then you would be correct to say to her that her permission is needed.

.
Expert:  ExperiencedLawyer replied 3 years ago.
Hello,

If I can give you any more clarification, please let me know. Otherwise, I would be very grateful you could rate my answer, (as it's the only way we get paid - sorry to ask).

Regards,
Mac.
Expert:  ExperiencedLawyer replied 3 years ago.
Hello,

If I can give you any more clarification, please let me know. Otherwise, we would be very grateful you could rate an answer, (as it's the only way we get paid - sorry to ask). If you don't rate it within the next eight hours or so, then the website company will simply retain the deposit itself.

Regards,
Mac.

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