What does this Mean?

[cassie53]

Re: What does this Mean?

HI
Thank you for helping.
It is joint ownership - 50/50. My son paid for the mortgage in January - he gave her £1100. Then Feb, he gave 600 pounds but since then has only paid 400 a month for the children. This was on the advice of the CAB to try and get her to sell. When the NMO was made he had been back at home about a week (in the hope it would force her to sell, plus he missed the kids so much). She put in her statement that her mum is helping her with keeping the house, that she could not get another mortgage, and that he earns enough to rent.

My son is self employed and missed loads of work with all of this, but when the month is normal he would bring home 2100. He pays the maintenance for the children, plus he has a 2800 overdraft at the bank, which they both spent, plus a barclaycard that he pays which is 2000 pounds, which again they both used. So he is paying all this back. He has no car, (they got a loan of 8000, but the car is registered to her, so he has no car). So getting his son from football and taking him of weekend - he uses my car.

He has a son of 11 who will have nothing to do with the new girlfriend, so spends alot of time with his dad and my house (which is about ten minute walkaway). From what I recall it was only that my son could only contact his partner re. access with the children. He was not to phone the children directly to arrange any visits etc. He would have the two youngest children every other weekend, and his eldest son, every Wednesday (where he would collect him from his football training) and he would stay the night. This has changed as the son is staying with us more and more, because he wants no contact with her new partner. Twice last week she threatened to slap his face, as he is of an age when he is answering back, and he knows more then he has ever told his dad.

My sons ex partner has asked him to collect the children on days that are not what was arranged on the day of the court hearing.

I am keeping a log of this, and I kept a log before when he was looking after the children as she was never there. She had him round the house last weekend putting up a pool for the children - I just don't know what to make of it all, plus dreading the knock on the door again. I keep telling him to keep away, but she just has to be nice to him and he does whatever she wants.

What is hard for my son to take is the girlfriend new partner. He does not want them near his children. I keep telling him that he cannot do anything about it, but the thought that she stays at his hourse. He is also furious that the mother is living at the house, the girlfriend can stay at the house - all living with what he worked hard to get. All living as normal with his children, yet he is not even allowed there.

Last edited by cassie53; Today at 09:06:AM.

[Openlaw15]

Re: What does this Mean?

HI
Thank you for helping.

"It is joint ownership - 50/50. My son paid for the mortgage in January - he gave her £1100. Then Feb, he gave 600 pounds but since then has only paid 400 a month for the children. This was on the advice of the CAB to try and get her to sell. When the NMO was made he had been back at home about a week (in the hope it would force her to sell, plus he missed the kids so much). She put in her statement that her mum is helping her with keeping the house, that she could not get another mortgage, and that he earns enough to rent."

Who regularly pays for the property, ie via the mortgage? You say your son paid £1100 for the mortgage. How much are the mortgage payments and how much does your son regularly pay and how much does his ex partner regularly pay?

The NMO/ Undertaking should only concern itself with whether your son is threat to the children or his ex partner. If your son still lived at the property correct procedure should have been an Occupation Order. An NMO/ Undertaking is when the ex partner does not live at the property and is nuisance, ie he turns up causing trouble, threatening behaviour. So, right away I think you son has grounds to challenge the Undertaking as it is was issued incorrectly in law (point of law argument): Family Law Act 1996. The effect of this Undertaking is that it has had the effect of evicting your son from his own property.

If the mum is keeping with the house she will at some point have an interest in the property called beneficial rights. She technically could stop any sale your son tries to get as she is right now an occupying the property so she may have occupier rights. You've heard of legal rights, it means a water-tight right through being on the property's deeds: legal interest. Well running parallel to this are beneficial rights where the person is not named on the deeds, the court may imply interests to the property if they're contributing to it: beneficial rights (its technical term is equitable but we'll keep it simple!).

"My son is self employed and missed loads of work with all of this, but when the month is normal he would bring home 2100. He pays the maintenance for the children, plus he has a 2800 overdraft at the bank, which they both spent, plus a barclaycard that he pays which is 2000 pounds, which again they both used. So he is paying all this back. He has no car, (they got a loan of 8000, but the car is registered to her, so he has no car). So getting his son from football and taking him of weekend - he uses my car.

He has a son of 11 who will have nothing to do with the new girlfriend, so spends alot of time with his dad and my house (which is about ten minute walkaway). From what I recall it was only that my son could only contact his partner re. access with the children. He was not to phone the children directly to arrange any visits etc. He would have the two youngest children every other weekend, and his eldest son, every Wednesday (where he would collect him from his football training) and he would stay the night. This has changed as the son is staying with us more and more, because he wants no contact with her new partner. Twice last week she threatened to slap his face, as he is of an age when he is answering back, and he knows more then he has ever told his dad.

My sons ex partner has asked him to collect the children on days that are not what was arranged on the day of the court hearing.

I am keeping a log of this, and I kept a log before when he was looking after the children as she was never there. She had him round the house last weekend putting up a pool for the children - I just don't know what to make of it all, plus dreading the knock on the door again. I keep telling him to keep away, but she just has to be nice to him and he does whatever she wants.

What is hard for my son to take is the girlfriend new partner. He does not want them near his children. I keep telling him that he cannot do anything about it, but the thought that she stays at his hourse. He is also furious that the mother is living at the house, the girlfriend can stay at the house - all living with what he worked hard to get. All living as normal with his children, yet he is not even allowed there.

Well, get rid of this Undertaking first in my view is the first problem. Then as he is joint owner of the property he can ask her partner to leave as she only has licence, ie permission to be there. It's this Undertaking what's the problem in my view, as it's just as effective as an NMO. Who told his partner to get an NMO in the first place? It would be best if you scan the terms of the Undertaking here as this is important.

[cassie53]

Re: What does this Mean?

Well, get rid of this Undertaking first in my view is the first problem. Then as he is joint owner of the property he can ask her partner to leave as she only has licence, ie permission to be there. It's this Undertaking what's the problem in my view, as it's just as effective as an NMO. Who told his partner to get an NMO in the first place? It would be best if you scan the terms of the Undertaking here as this is important.

Well he was advised not to pay any mortgage, so has not paid since February. He went to see a solitictor to get advice about the NMO, and he said as well not to pay the mortgage. Tomorrow I will scan in the details. It always seems that we are reactive to everything and not proactive. Its because we have never been in this position so we are clueless.

Thank you.

[Openlaw15]

Re: What does this Mean?

Well he was advised not to pay any mortgage, so has not paid since February. He went to see a solitictor to get advice about the NMO, and he said as well not to pay the mortgage. Tomorrow I will scan in the details. It always seems that we are reactive to everything and not proactive. Its because we have never been in this position so we are clueless.

Thank you.

Hello, Cassie

Why was he advised not to pay the mortgage by the solicitor and other? The more his partner pays for the mortgage and the more the mother in law pays the more rights over the property the other has when you son tries to force a sale. The NMO/ Undertaking is relatively trivial - it shouldn't be a property issue it should be a contact issue. Look at an NMO/ Undertaking as a remedy for threats of violence or other harm in domestic situations and nothing more. All English speaking countries have these NMO equivalents (protection order) and they're meant to be a temporary thing.

I helped in a US situation a few years ago now, where a US State judge in Iowa was trying to claim jurisdiction (right to hear claim and punish as a remedy etc) against a Minnesota State mother by issuing a protection order against her based on US case law. Complexity arose as an attorney is only qualified in his or her own state, ie California or New York. So, in the USA they have what is called inter-state law where in some situations one US state claims jurisdiction over an other based on state (ie Parliament Act) and US State common law (case law, ie US Supreme Court level case). The mother's children were manipulated into making allegations against her, the sad thing was there was not a shred of evidence it was all just verbal.

I however wrote convincing argument to the Iowa judge using the same Iowa State common law the judge use to issue the protection order. I produced a statement to the judge that one US state can only claim jurisdiction for another state if the partner fleeing the other state is an immediate threat to the person's life. In those two cases I cited it was a dangerous man who threatened at gunpoint to kill his partner and the children. Although the effect of my written statement to said judge was the removal of the restraining order, the mother is only now getting help from a Minnesota family lawyer, is still fighting for contact with her children. What I did was remove her protection order, ie the legal device but her dangerous ex spouse had polluted the children's minds so well that even for all my good work the state of Iowa including social services were and are still against said mother.

I degress albeit it's an important comparison I make as it shows you that your son can defeat NMOs. The substantive (important) issues in your case are not the trivial NMOs/ Undertaking but rather the effect it has on his right to his property. However, the error in law is that an occupation order should have been sought by the ex, but instead the NMO/ Undertaking outrageously has the effect of an occupation Order, ie your son has been evicted from his own property by no more than a no contact order.

[Amethyst]

Re: What does this Mean?

[MENTION=85489]FionaC[/MENTION] [MENTION=85502]HannahM[/MENTION]

( just tagging a couple people who might be able to add further to what OpenLaw has said )

Personally I think witholding the mortgage payments is a very bad idea. It could be seen as trying to force her and the children out of the family home, which wouldn't go down all that well. Always keep money and contact issues separate.

I think he'd be better served looking into applying to the court for child arrangements order - first step is to sort out some mediation, if a solicitor is out of reach then have a look at some of the family law centres who may be able to assist.

[Openlaw15]

Re: What does this Mean?

@FionaC @HannahM

( just tagging a couple people who might be able to add further to what OpenLaw has said )

Personally I think witholding the mortgage payments is a very bad idea. It could be seen as trying to force her and the children out of the family home, which wouldn't go down all that well. Always keep money and contact issues separate.

I think he'd be better served looking into applying to the court for child arrangements order - first step is to sort out some mediation, if a solicitor is out of reach then have a look at some of the family law centres who may be able to assist.

Interesting, Sharon. It could be viewed as constructive repossession, ie the bank gets possession order owing to no mortgage payments. Can you believe theCAB and the solicitor advised this?

[Amethyst]

Re: What does this Mean?

I can't work out the reasoning, I suppose if he went in asking what was the best way to force his ex and the children out of the family home ? But I can't imagine that was the case. I just can't see how it could be perceived in his favour at all, but there may be things we don't know about that influenced that advice of course. I'd always tell the non-resident parent to be the most mature, responsible, faultless parent and take it through mediation and court behaving impeccably. If reactions are being goaded, don't react. She is aware of the undertakings and the Non-Mol issue obviously, so there is only one reason she is badgering him to go to the house to 'fix things' - so he would be in breach. Take every opportunity he is offered to see and spend time with the children, even if it is collecting them on days that weren't on the court order, and keep a diary of everything. If she is more interested in her new relationship than the children that will shine through in any contact proceedings. There's no need to enter the property to pick up or drop off children ( and presumably that was accounted for in the undertakings?). I'm no family lawyer/expert by any stretch of the imagination, but that mortgage issue just doesn't seem right. I think Mediation is the next step - have a mooch about http://www.familymediationcouncil.org.uk/ and other sites or contact a local family law centre.

Also, on the court proceedings issue, you would have to ask the court usher when you arrive if you can go in with your son to the hearing, as support / mackenzie friend. It is usually allowed, and although you can't have an input you can be there, and discuss things quietly between yourselves during proceedings. The court usher will ask the judge and the judge may ask the parties before giving permission for you to go in.

[Openlaw15]

Re: What does this Mean?

I can't work out the reasoning, I suppose if he went in asking what was the best way to force his ex and the children out of the family home ? But I can't imagine that was the case. I just can't see how it could be perceived in his favour at all, but there may be things we don't know about that influenced that advice of course. I'd always tell the non-resident parent to be the most mature, responsible, faultless parent and take it through mediation and court behaving impeccably. If reactions are being goaded, don't react. She is aware of the undertakings and the Non-Mol issue obviously, so there is only one reason she is badgering him to go to the house to 'fix things' - so he would be in breach. Take every opportunity he is offered to see and spend time with the children, even if it is collecting them on days that weren't on the court order, and keep a diary of everything. If she is more interested in her new relationship than the children that will shine through in any contact proceedings. There's no need to enter the property to pick up or drop off children ( and presumably that was accounted for in the undertakings?). I'm no family lawyer/expert by any stretch of the imagination, but that mortgage issue just doesn't seem right. I think Mediation is the next step - have a mooch about http://www.familymediationcouncil.org.uk/ and other sites or contact a local family law centre.

Also, on the court proceedings issue, you would have to ask the court usher when you arrive if you can go in with your son to the hearing, as support / mackenzie friend. It is usually allowed, and although you can't have an input you can be there, and discuss things quietly between yourselves during proceedings. The court usher will ask the judge and the judge may ask the parties before giving permission for you to go in.

I don't think the McKenzie Friend is a request it's a common law right and judges are well aware of it. They may not like it as they prefer professionals and the usual stuff. If the request was refused well that's the end of that. Instead I would say common law provides me with the right to benefit from a McKenzie Friend and I choose to benefit from this.

[cassie53]

Re: What does this Mean?

I don't think the McKenzie Friend is a request it's a common law right and judges are well aware of it. They may not like it as they prefer professionals and the usual stuff. If the request was refused well that's the end of that. Instead I would say common law provides me with the right to benefit from a McKenzie Friend and I choose to benefit from this.

Hi,

Sorry cannot scan the form, printer not working. Here is what it said...... and give an undertaking to the Court promising NOT TO:
1. Use or threaten any violence towards.....
2. Threaten, intimidate, harass or verbally abuse........ in any way
3. Send any threatening or abusive letters, emails texts or viocemail messages to.....
4. Make any threatening or abusive telephone calls to ......
5. Communicate with..... whether by letter, telephone, text message or other means of communication except through her solicitors, same for texts solely in relation to contact with the children
(these are extra that the solicitor/barrister wanted on the day.
6. Communicate with the children for the purposes of contact and only arrange contact with ..... via text message and by no other means.
7. The respondent is also forbidden to instruct or encourage any other person to do anything which he is forbidden by the terms of this order.
8. The respondent is forbidden from entering or returning to the property...... or otherwise interfere with the applicants enjoyment of the same or instruct or encourage any other person to do so.

[cassie53]

Re: What does this Mean?

Can I just add, that the police have never been called to the house before, my son has nothing against him for violence, there have been rows with both of them as bad as one another, but never any violence. He has always had the children from when he comes in from work, while she when and did private work by hairdressing. Looked after the children when she went with friends for the night. I am not saying he is perfect just fault on both sides. More her side now as she now has been unfaithful, and we don't know how long it has been going on.

[Openlaw15]

Re: What does this Mean?

Hi,

Sorry cannot scan the form, printer not working. Here is what it said...... and give an undertaking to the Court promising NOT TO:
1. Use or threaten any violence towards.....
2. Threaten, intimidate, harass or verbally abuse........ in any way
3. Send any threatening or abusive letters, emails texts or viocemail messages to.....
4. Make any threatening or abusive telephone calls to ......
5. Communicate with..... whether by letter, telephone, text message or other means of communication except through her solicitors, same for texts solely in relation to contact with the children
(these are extra that the solicitor/barrister wanted on the day.
6. Communicate with the children for the purposes of contact and only arrange contact with ..... via text message and by no other means.
7. The respondent is also forbidden to instruct or encourage any other person to do anything which he is forbidden by the terms of this order.
8. The respondent is forbidden from entering or returning to the property...... or otherwise interfere with the applicants enjoyment of the same or instruct or encourage any other person to do so.

Cassie, it's my view that this Undertaking is outside the court's powers, ie ultra vires. It need to be removed and you and your son could do this, or pay for a lawyer to have it removed. How come his ex had a barrister acting for her and you son didn't even have a solicitor in the end. A barrister is a legal expert who has amazing skills to argue in court. A solicitor is just no where near as good. I think you need to get a barrister yourself. Personally, if this were me I would do it myself. You have nothing to lose as the damage has already been done.

[cassie53]

Re: What does this Mean?

Cassie, it's my view that this Undertaking is outside the court's powers, ie ultra vires. It need to be removed and you and your son could do this, or pay for a lawyer to have it removed. How come his ex had a barrister acting for her and you son didn't even have a solicitor in the end. A barrister is a legal expert who has amazing skills to argue in court. A solicitor is just no where near as good. I think you need to get a barrister yourself. Personally, if this were me I would do it myself. You have nothing to lose as the damage has already been done.

Thanks - I think you are right, but it is getting the right one. The one we went to was useless it seems, but what I have read here. It just all seems that althought he sweated blood for that house, and she got everything done before all this started (finished the last coat of paint Christmas eve) he had replaced tiled the bathroom, and now he is supposedly not allowed round there unless through a solicitor. I told he needs to start paying the mortgage, but leaves him living with me and his dad as he could not afford to go anywhere else. Also his dad is not well, and when the kids are around sometimes it is a bit difficult. I did look at him getting a council place, but he cannot do that either as he owns a home. No wonder men are rebelling, eg. fathers for justice. I really understand it all so much better now why they are up in arms.

[Openlaw15]

Re: What does this Mean?

Thanks - I think you are right, but it is getting the right one. The one we went to was useless it seems, but what I have read here. It just all seems that althought he sweated blood for that house, and she got everything done before all this started (finished the last coat of paint Christmas eve) he had replaced tiled the bathroom, and now he is supposedly not allowed round there unless through a solicitor. I told he needs to start paying the mortgage, but leaves him living with me and his dad as he could not afford to go anywhere else. Also his dad is not well, and when the kids are around sometimes it is a bit difficult. I did look at him getting a council place, but he cannot do that either as he owns a home. No wonder men are rebelling, eg. fathers for justice. I really understand it all so much better now why they are up in arms.

Cassie

If I were you, I would do this yourself with your son. What is more important was the date of the application for the NMO and I still need to see a copy of the NMO application by his ex girlfriend (claimant). I need to know what defence your son (respondent) relied on.

I can help you with legal matters, you'll have to find away around the scanning issue. You really have to take this situation seriously, ie use a friend's computer or go to a local library and ask if they can scan the court document and then send it your email, where you can then save it to your computer and attach and or copy and paste its content here. I have been doing some research and found procedure for discharging and varying existing Order proceedings. This is why I need to see the document and its application and effective date. There are things you can do to get rid of this but you must take prompt action. I know it's emotional just like it was emotional when I was helping a US friend. But I got her through something extremely complex and now things are in motion for her to have contact rights. This US lady had lost contact for years with her children, does your son want the same thing? Please act now otherwise he will just be like the other fathers for justice yet with no legal remedy.