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I'm seeking clarification of the words in red:

2. THAT until further order the child spend time with the father twice a week for periods of three hours. These are to be on days nominated by the father to fit in with his roster.

 3. THAT changeovers are to occur at Marymead or, if this facility is not available, at the Tuggeranong Police Station.

 4. THAT neither party is to approach the other. This order is made on the basis that the mother will be arranging to have a third party effect changeovers.

Does it mean that changeover only occurs at police station as long as the mother can find someone to effect changeover?  The FM said that the days are to be nominated by the father to fit within his roster.  Unfortunately, Marymead is not always open so on some days it will need to be the police station.  It doesn't say subject to the mother arranging a third party, but on the basis that she'll be arranging a third party.

My son wanted to see his son for the two days after the hearing (22 and 23 Dec) as they were his only free days until after Christmas.  She didn't turn up though because her solicitor advises she couldn't find anyone to drop him off. 
gran1956 said
I'm seeking clarification of the words in red:….
4. THAT neither party is to approach the other. This order is made on the basis that the mother will be arranging to have a third party effect changeovers.

Does it mean that changeover only occurs at police station as long as the mother can find someone to effect changeover? The FM said that the days are to be nominated by the father to fit within his roster. Unfortunately, Marymead is not always open so on some days it will need to be the police station. It doesn't say subject to the mother arranging a third party, but on the basis that she'll be arranging a third party.
I read this as … That on occasions when the MOTHER cannot arrange a third party to drop off and pick up, that the father may have contact with the mother and the mother may have contact with the father… FOR PURPOSES of drop off and pick up. (So its not a meet and greet the parents here)

The fact she could not find someone to drop off or collect is not valid under these orders (In my view) and could be grounds for contravention or enforcement orders. On the basis that Tuggeranong Police Station is always open for business there is always a drop off and pick up point. Not that I have ever been endeared to the idea of a drop off and pick up at police stations.

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
 
Thank you SPCA.  As it states "Neither party is to approach the other" doesn't this mean they can't go near one another so how would he avoid this when she's handing over the child?

My son received a letter from her solicitor today inviting him to withdraw the contravention.  He said it related to the days immediately following the hearing and orders had not been issued.  (My son had a copy of the orders the day following the hearing).  They also advised that should he pursue it, they'll be seeking costs as they can substantiate a reasonable excuse.

He also said my son made no attempt to resolve the issue through negotiation, however, this isn't true.  At the end of the hearing, the FM asked my son to go outside and sort out with her solicitor what days he wanted.  My son therefore advised suitable days and her solicitor told him to send an email.  My son asked what if he didn't get the email and the solicitor responded he always checks his emails.  My son had a credible witness with him who heard the entire conversation.   My son subsequently sent an email approx 10 mins after leaving the court house.  He received no response and sent another one the next morning.  Still no response so he followed up with phone calls and was told the solicitor wasn't available.

My son went to the police station to pick up his son but she failed to drop him and later in the day on the 22nd he received an email from her solicitor stating that as per the orders inter alia, the father and the mother are prohibited from approaching one another and the mother couldn't arrange a third party so she wouldn't be dropping off the child on the 22nd or 23rd.  My son subsequently lodged a contravention.
gran1956 said
Thank you SPCA. As it states "Neither party is to approach the other" doesn't this mean they can't go near one another so how would he avoid this when she's handing over the child?
You said the order states (In relation to that order …Neither party is to approach the other) and the bit in red was "This order is made on the basis that the mother will be arranging to have a third party effect changeovers".

It is made on the basis the mother has effected a THIRD party for change over. IF there is no third party then the mother has to do it and therefore the order does not apply because she would have to approach for handover. It is made on the basis of a third party managing handover and is NOT made if that basis has not been met. So if the mother doesn't want any "approaching" get a third party to make handover but if you can't then you will have to approach for handover.

That's how I have read it. It is a completely obscure order and open to interpretation. I have never seen an order that states "This order is made on the basis of something (In those words) are you sure the order in full states those words that you have highlighted in red text.
gran1956 said
My son received a letter from her solicitor today inviting him to withdraw the contravention. He said it related to the days immediately following the hearing and orders had not been issued. (My son had a copy of the orders the day following the hearing). They also advised that should he pursue it, they'll be seeking costs as they can substantiate a reasonable excuse.
This is where it gets really tricky because section 70NAE in the Act is detailed in regard to reasonable excuse and sits around page 272…onwards. If the contravention was a "one off" and if it was as they say a day or two after the court orders AND there was a reasonable excuse such as the section of the order was unclear and I was seeking advice, then it is probable there is reasonable excuse. It doesn't take much of an excuse it and the test is "Is the excuse REASONABLE"… It does not have to be reasonable to you or I but it needs to be reasonable under sections 1 - 2, 4, 5 6 and 7 and it speaks in language of included but NOT limited to… (There is wide discretion when they say this so it is not limited to any of the sections anyway). You definitely need to read some of it and I have put a couple of sections here for a glimpse…

(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2),
(4), (5), (6) and (7).

(2) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.''

(3) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the
obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

(4) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child did not live with the person in whose favour the order  as made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
gran1956 said
He also said my son made no attempt to resolve the issue through negotiation, however, this isn't true. At the end of the hearing, the FM asked my son to go outside and sort out with her solicitor what days he wanted. My son therefore advised suitable days and her solicitor told him to send an email. My son asked what if he didn't get the email and the solicitor responded he always checks his emails. My son had a credible witness with him who heard the entire conversation.  My son subsequently sent an email approx 10 mins after leaving the court house. He received no response and sent another one the next morning. Still no response so he followed up with phone calls and was told the solicitor wasn't available.

My son went to the police station to pick up his son but she failed to drop him and later in the day on the 22nd he received an email from her solicitor stating that as per the orders inter alia, the father and the mother are prohibited from approaching one another and the mother couldn't arrange a third party so she wouldn't be dropping off the child on the 22nd or 23rd. My son subsequently lodged a contravention.
All problematic. This does not auger well for a future of cooperative parenting that's for sure. Email is an extremely poor medium for sending advice. Follow up any advice to her solicitor with a written letter. Emails often get caught up in spam engines and unless you requests a receipt request *Server side) and a Read Request (User opens and reads which relies on the user clicking yes to send a read receipt and most say NO so its useless.) then you are unsure if it has been read. They probably have it but say they don't. You will need an affidavit from the "witness" who will need to be available at the hearing.

The thrust of this will be did a contravention happen = Yes, now lets look at reasonable excuse which = yes so there will probably be cost orders awarded against you of somewhere around $1200 - $1700 I suspect from the book list of standard fees and the solicitor will be out of pocket so no one will be happy. That is a very quick assessment of what you have here.

Is the contact happening now? Anyway can't she drop off regardless at the police station and go and he sits in the car outside the police station and when she goes out he walks in and the kids are in there for a moment or two. Its all quite a lot of nonsense the way this sort of hand over happens especially at police stations. She will just say every time that she cannot get a third party and you will never get contact on the basis you set out. They would have been better doing this at MacDonalds, as at least the kids will have some fun. She could change arrangements if she wanted to but why should she, as it is making it as hard as hard can be so why would you want to make it easy on the kids…. and anyway the solicitors will make some more money out of her for a while yet while this all settles down so they won't be keen to see a proper arrangement either.



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
 
Hmmmm….. I'm surprised that an FM made such 'loose' orders. It might prove very difficult to enforce these orders - they are far to general.

Gran… what happened to the orders I forwarded you? Why weren't they used by the FM? Were they submitted for consideration?

I suspect that in the proceedings issues were canvassed that weren't relevant, the hearing ran overtime, and as a consequence, the FM constructed some very loose contact orders at the very end. Is this what happened?

It is very important to 'stay on point' and only address/canvass issues that are relevant to the orders you are seeking. It's important not the allow the other party to 'hijack' proceedings and direct discussions into irrelevant matters.

On the orders you have there, I'd be surprised if any of them would be enforceable in contravention proceedings. They're not specific enough.

The Australian Master Family Law Guide has got this subject material covered. Got a copy yet?

Re letter from mother's solicitors in respect of mediation - the solicitor is referring to Family Dispute Resolution. Your son would need a Section 60I certificate to file a Convention Application unless the matters 'urgent'.

Last edit: by 4mydaughter


4MYDAUGHTER
Sorry SPCA, I don't know how to do boxes, so have put your comments in italics:

It is a completely obscure order and open to interpretation. I have never seen an order that states "This order is made on the basis of something (In those words) are you sure the order in full states those words that you have highlighted in red text.

Yes, that's exactly how the order was written.  Is it permitted to contact the court (or FM's office) to seek clarification if part of an order isn't understood? 

My son will need to give serious consideration as to whether or not to proceed with the contravention in this instance, given that his aim is to be able to co-parent effectively and I agree it won't happen if there's going to be continuing conflict. We'll look up section 70NAE and then weigh things up.  We personally believe she didn't drop off their son because things didn't go her way.  There were a number of people she could have asked if she didn't want to do it.  According to her lawyer, she was stressed after the Magistrate's decision.

Regarding costs, he's self-representing because he can't afford a lawyer.  Can the other side request costs at the final hearing for the overall case (ie not just the contravention application)?  If so, is it reasonable to object on the grounds that:

a) the reason for self representing is because he can't afford a lawyer (specifically as he's currently defending another case as well, and he's already stretched to the limit)
b) he was forced to go to court because she wouldn't attend mediation
c) it was her choice to hire a private lawyer when she is currently eligible for legal aid
(she lives at home with her parents, receives benefits (as she's currently not working), child support and family tax benefit)  
Gran1956 said
Sorry SPCA, I don't know how to do boxes, so have put your comments in italics:

Boxes (actually you're talking about the quote type box, there are other types but unless you ask I'll not go there) are simple. Select the text that is to be quoted and then click on the quote button and type in the name of who is being quoted. Note that  the word said is automatically appended to the name in the boxquote title.
Gran

If your son is self-representing - and as I've said numerous times before - he should be on here getting advice directly.

You acting as a conduit is an incredibly inefficient way of getting meaningful and effective advice in respect of your son's matter and could lead to significant errors.

We are reliant on you passing on accurate information about the matter. We are effectively hearing about things third-hand. Errors could arise in what information you are passing on in these forum for feedback by members.

Then there is the issue of you passing on information/feedback to your son.

Since you are a novice in these types of Family Law matters, you're probably only going to retain/understand 10%-20% of the feedback provided here. Your son's only going to understand 10%-20% of what you tell him. I can tell you're only understanding a small percentage of the feedback provided here because you keep covering the same material in your postings, asking about the same things.

There is going to be a lot of important information 'lost in translation' back and forth. Misunderstandings, misdirections and misinformation could prejudice your sons case.

So as I say - you acting as a conduit in this matter is a very inefficient way of obtain meaningful and effective assistance - and the members here don't have unlimited time and unlimited patience to deal with your son's matter in this manner.

Over time you'll find that members here stop providing feedback on your son's matter because they feel its a waste of their time or is having little meaningful effect.

Last edit: by 4mydaughter


4MYDAUGHTER
4myd re "Re letter from mother's solicitors in respect of mediation - the solicitor is referring to Family Dispute Resolution. Your son would need a Section 60I certificate to file a Convention Application unless the matters 'urgent' "

Solicitor isn't referring to Family Dispute Resolution.  My son already has his section 60I certificate which is why he's going to court.  Her solicitor is referring to the negotiation outside the court house regarding negotiating dates for care.  I didn't use the word mediation in my post. 

My son in fact made every effort to try and negotiate dates, however, her solicitor fobbed him off and told him to send an email.  He subsequently sent a couple of emails and made several phonecalls, but to no avail.  Now her solicitor's claiming my son made no attempt to resolve the issue through negotiation.
@ Gran

Ok. I'm might be getting mixed up. It's all gett'n a bit messy.

He'll need a section 60i certificate before he can file a Application for Contravention unless the application is urgent, would he not?

He really needed the section 65L order included, i.e.

Section 65L said
Pursuant to section 65L of the Family Law Act 1975 these parenting orders be supervised until further order of the Court from the date of these orders by such counsellor as nominated by the Manager of Child Dispute Resolution Services to give any party to these orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of the parenting order.

This might have been of assistance.

The moral of the story is…. always make sure the wording and construction of the orders you are seeking are proper and leave no room for ambiguity before they are made by the court.

In this instance the FM should have known better.




4MYDAUGHTER
gran1956 said
Sorry SPCA, I don't know how to do boxes, so have put your comments in italics:
Just use the quote button and that will quote the text. Use a quote at end and start of any text you want quoted.

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
 
gran1956 said
….
My son in fact made every effort to try and negotiate dates, however, her solicitor fobbed him off and told him to send an email. He subsequently sent a couple of emails and made several phone calls, but to no avail. Now her solicitor's claiming my son made no attempt to resolve the issue through negotiation.
I have already covered this. Email is completely inadequate and must be followed up with a letter/Fax. You cannot guarantee delivery of email let alone it will be read or read by the person it was intended for… I argue that the order means that the mother CAN APPROACH the father at drop off and pick up IF SHE DOES NOT have a third party available to make the drop off and pick up.

The problem you have is there is probably a reasonable excuse and one of the excuses they will use is the orders were two days old (I use 2 days and you have said a few days old)

There is almost no chance of a contravention being made. It will succeed but will not be made and you will have cost orders against you. That is my view and I will wait with some anticiPATION to see what the outcome would be and if I am wrong, but if I was a Federal Magistrate that's a finding I think would meet the requirements and circumstances here. You are giving yourself a lot of stress trying to make this one off event into a contravention and make up time. It will cost at least a day in court for all concerned.

You might be better off writing to the solicitor and telling him what the orders actually mean and telling him that on this occasion you will act sensibly and let it slip but that in future the fact she cannot find a third party to drop off and pick up is not a reason not to drop off and pick up and you will file in future. You don't need a 60I certificate to file this. I am never happy about Police station drop off surely these two parents can act sensibly and sort something out.

That orders is quite "out there"  … Who was the FM?

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
 
We generally do not comment in threads when one person is trying to help another who should be posting first hand (frequently commented on by 4MD)
4MD said
You acting as a conduit is an incredibly inefficient way of getting meaningful and effective advice in respect of your son's matter and could lead to significant errors. We are reliant on you passing on accurate information about the matter. We are effectively hearing about things third-hand. Errors could arise in what information you are passing on in these forum for feedback by members. Then there is the issue of you passing on information/feedback to your son.
 
The actual Father should be posting on here and not relying on his Mother to interpret issues for him - in our experience this can result in some very bad performances in Court where the SRL flounders because he/she has relied too much on a third party.

However - in this case 'ignorance' of the content or 'interpretation' of the order when someone is represented is not a 'reasonable excuse' it is an excuse which the Court MAY accept but is not likely to result in a Costs order. To a certain extent the original solicitor may be using a 'try on' claim (Ambit) because they did not pass on the orders or properly explain them to their client.

If the case is still in progress no 60i is needed but the contravention may be concertinaed into the Final Hearing. If December was the Final hearing a Contravention or Enforcement application can be submitted without a 60i.

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