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A question about final orders & contraventin / substantial change of circumstances

As this is my first post here I'm guessing this is the place to put it….

Have had final orders (by consent after 18 months of court) since August 2011.  I'm the residential parent & have one 3yo child who spends 2 nights a fortnight with his father & the alternate weekend he goes for the day.

I have a scenario & was wondering people's opinions regarding whether or not it falls under family violence, substantial change or contravention?  Any, all or none?

in the orders it states "each parent are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent".  The orders are quite clear about how Christmas will happen- it was agreed upon by consent.  However my ex has started harrassing me for more time.  My son is at his house this weekend and is sick; my son asked to telephone me and the ex let him; then the ex gets on the phone and gets stuck into me over xmas and wanting more time.  My son bursts into tears then I get bombarded with text messages for making my son hysterical.  I got so concerned that I rang the police for a welfare check (my ex had threatened not to return my son).  Then he telephoned me screaming down the phone calling me a F***ing psycho b***h several times with DS in the background.  In all I received 31 abusive sms messages in 3 /2 hrs.  This kind of behaviour is now escalating and becoming more frequent since the final orders were made.  It happened in the early days of the separation 3 years ago but stopped fairly quickly; then it happened around the time of our mediation 2 years ago and went away fairly quickly but now its getting worse.  2 years ago I filed for an AVO but dropped it when he threatened me with a defamation case.
There are many here that will urge you to seek legal advise promptly as i am.

Following orders to the T can be seen as 'inflexible' but i would pursue that path - create a trail of evidence, start with a legal registered letter initiating the process,  orders are orders they are there to be followed,…………

There are sections under the listening devices act that permit you to record - look it up

Domestic violence is another Jurisdiction but now has a stronger interlinear relationship Family Law

peace to all.,

MyYellowCar,

I've read your post over and over again and the only thing I can come up with is that your ex's behaviour seems normal given the circumstances.

My first thought was wow you've got all that time with your son and your ex doesn't. Regardless of the reasons why you separated or why he has so little time, did you ever stop to think that his abuse is caused by you not letting him see his son? I'm sure he has family too that would like to spend a little more time over Christmas.

I've been trying to negotiate spending more time with my son over Christmas with my ex too despite what the court orders say and he has blocked me and point blank refused. I only have the public holidays off work and he has a whole 5 weeks! How selfish is that? I've cried, I've screamed, I've begged but to no avail. I've wanted to go and take my son in desperation and not give him back because he's my baby too and he loves spending time with me because he loves me just as much as he loves his dad. Whilst I in no way condone abusive behaviour in any form, I can understand where it may come from. Your ex sends abusive texts, abuses you verbally in front of your son. I suffer in silence.
your son loves you both and doesn't want to see his mummy and daddy being nasty to each other. He doesn't understand it

There is no change in circumstance here. Contravention? All depends on perception. Record and document everything if that's your concern but think about the repercussions. Would it not inflame the situation even more if you filed for contravention? Family violence? Come on, put yourself in his shoes!

At the end of the day, your sons father just wants a little extra time over Christmas. Maybe you can come to some kind of agreement and give him a little extra, after all, Christmas is a time of giving?
The purpose of a AVO is to provide safety and protection. Although being called names and yelled at is never ok, especially in front of a child, do you truly feel your life, mental health or possessions are threatened by his behavior???

If you apply for and are granted a AVO, you need to be aware that it is likely the court will only allow contact between the two of you, in relation to your son through a solicitor. Very frustrating should emergency issues arise in relation to the child.  

Your son is only young and as he ages, those consent orders will likely need to change, allowing your ex more time, like in school holidays ect. Perhaps, you could invite your ex back to mediation to discuss his issues of wanting more time, rather then jumping straight back into court for a contravention.
Thanks for the comments and suggestions- given that ALL of my circumstances weren't in the first post some of them are a little off mark.  I get the message now that this forum is geared towards the nonresidential parent.

The court orders do allow for more time as my child gets older.  There were other identified issues in the family report that need to be addressed hence a gradual increase.  In fact from next year christmas school holidays are split right down the middle and every Christmas one parent will miss out on christmas time altogether.  This year the 3 days of Xmas eve Xmas day & boxing day have been split right down the middle to the hour which 6 months ago we both thought was reasonable.
I think in this case you probably need to start with a very strongly worded letter from you soli that any further harrassment or abuse via telephone will be reported to his telephone service provider, as it is a federal offence to use a telecommunication service to harrass anyone.

As far as the orders go, he agreed to them via consent, they are now orders and he needs to deal with that.  He had his opportunity to negotiate for more time then.
The court orders do allow for more time as my child gets older.  There were other identified issues in the family report that need to be addressed hence a gradual increase.  In fact from next year christmas school holidays are split right down the middle and every Christmas one parent will miss out on christmas time altogether.  This year the 3 days of Xmas eve Xmas day & boxing day have been split right down the middle to the hour which 6 months ago we both thought was reasonable

Thank you for the further information. Your first post didn't indicate what the actual Xmas arrangements were, hence no body would have been able to accurately determine if your ex had any legitimate grievance in wanting extra time or not. I do think after reading the above arrangements that it is reasonable, so he shouldn't be pushing you to change anything. Only you can decide the issue of a AVO and if you feel like you need that protection then contact the police ASAP.

If you don't feel the need to involve the police, then you could try smurfgirls suggestion of firstly getting a solicitor to write to him. Any letter sent from your solicitor maybe handy down the track if it goes back to court. It would show the court you have tried to be reasonable by sorting the issue out before going back to court.
No this site is not biased, but people can only reply based on the information given. Most people on this site are for the children.

Christmas is an emotional time of year and always remember that christmas can be whenever you make it even if not December 25th for small children as they do not have a calendar.

Enjoy Christmas and try not to have black marks against it.
every day you have your children is Christmas Day, Fathers Day, Mothers Day etc it is how you spend it with them that counts.
MyYellowCar said
… it was agreed upon by consent.
Orders like this never ever work in my opinion. No one ever consents, agrees,, gives up extra time, accommodates the less fortunate spends time with parent, or works in any reasonable way to accommodate various requests that involve a consent agreement. This improves sometimes over time but orders like this and "either parent may agree to amend orders" usually results in intransigent positions.
MyYellowCar said
However my ex has started harrassing me for more time. My son is at his house this weekend and is sick; my son asked to telephone me and the ex let him; then the ex gets on the phone and gets stuck into me over xmas and wanting more time. My son bursts into tears then I get bombarded with text messages for making my son hysterical. I got so concerned that I rang the police for a welfare check (my ex had threatened not to return my son). Then he telephoned me screaming down the phone calling me a F***ing psycho b***h several times with DS in the background. In all I received 31 abusive sms messages in 3 /2 hrs. This kind of behaviour is now escalating and becoming more frequent since the final orders were made. It happened in the early days of the separation 3 years ago but stopped fairly quickly; then it happened around the time of our mediation 2 years ago and went away fairly quickly but now its getting worse. 2 years ago I filed for an AVO but dropped it when he threatened me with a defamation case.
Goodness me… Was a Police SWAT team response really required at all? You both need a reality check and some anger management workshops and a love in to get along a bit better. Is it any wonder he dropped a bundle so to speak. Surely a police response was a ridiculous escalation of what went on.

The number of SMS messages was ridiculous and the stuff an AVO is made of. There si clearly a big problem here. Dad is not happy with the orders as he wants to spend more time with the child. You and he cannot talk to each other civilly so mediation is your best bet to resolve any of these issues. If you can't get into the FRC, try and use a local private mediation and work out who will pay what share. The Police and Courts are a place of absolute last resort. Share the parenting and share some good times with your child over Christmas. Will an extra few hours here and there make any real difference ? At least the nice gesture might.

Spare a  thought for all those mums and dads who don't get any contact over the Christmas period at all…

Last edit: by Secretary SPCA


Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Hi MyYellowCar,

I just wanted to let you know that I'm feeling for you. Abuse is not right under any circumstances and verbal/emotional abuse is just as bad as physical abuse AND to all of those posters here who have belittled this abuse Shame On You !! It might not seem much from anyone elses standpoint but when you come out of a verbally and emotionally abusive relationship any further abuse, not matter how little adds to what has previously been experienced and YES it has a very strong effect ! I feel physically sick each hand-over because I have flash backs of previous encounters and I have in my head all of the abuse he sends via email.

Children should be able to ring either parent when they want/need and when either parent stops this from occuring they are just doing irrepairable damage to their relationship with their child. My children now very rarely ask to ring their father because each time they did he would upset them. In my case it got to a point where my children would run, hide under the table/bed and cry each time the phone rang. These days they don't do that but they still refuse to pick the phone up they will sit next to it and let it ring rather than answer ! It is horrible ! Even when it is someone they want/enjoy talking to on the phone they are still extrememly hesitant !

I'm in a situation now where the father refuses to let the children ring me and infact I have his number but it is disconnected and he refuses to give me another number, even though the orders require me having a working number on which I can contact my children whilst in his care. I have no way of contacting my children once I wave goodbye to them at changeover. I also do not have his address !! He gave me an address, I looked it up on Google maps as I just wanted to know where my children would be and it just didn't fit the description my children gave of the place. My children have sent christmas cards to their father and they have been returned as "not at this address" . . . so I am in a situation where I do not know where they are going and I cannot contact them !! It scares me terribly !!

I even tried offering the father extra time leading up to Christmas as he only sees the children each fortnight and I thought it would be good for them all (not for me). But he refused, he doesn't want to see them any more than the orders require and doesn't want to talk to them inbetween (does not call them for chats). All he seems to be interested in is continuing his abuse of me. It is really sad !

MyYellowCar, I hope things calm down and you get some support !! Keep your chin up and stay strong for your kids !
Staying_Safe said
….MyYellowCar, I hope things calm down and you get some support !! Keep your chin up and stay strong for your kids !
Sensible commentary for BOTH parents I think. Clearly a third party needs to mediate just where the two different positions are and sort out  this continuing escalation.


Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
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