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Hi, I have a question to anyone who might know. I'll try and keep it short and to the point…

My children's aunt took me to court for access to my two children, she started the case under the belief that when the father was released from prison, he could then change to the main applicant rather than respondent and take over from there including any time granted to the aunt. Well the magistrate ordered that he was not to be present on her visits and she is not to bring them into any means of communication with their father and I was given sole parental responsibilities.

These were interim orders and the father went back to prison. I did not ask for the orders in relation to the father, only sole parental responsibilities.

My solicitor initially told me I could not ask that the father not be present until after the orders made by the magistrate.

Months later the paternal aunt and I attended mediation where i agreed on one Sunday visit per month with the other orders already mentioned, however I told my solicitor i only wanted that in the interim as i wanted to go to hearing.

On the final court date our agreement was signed off by the magistrate as final consent orders. I was very clear to my solicitor that i wanted a hearing but she didn't seem to listen… Anyway, my question is, if the father is not to be present or come into any contact by any way of communication with the children when the aunt has them, how can that be possible when he is now living with her and could this be a reason for me to be able to go back to court? Thank you for reading.

Last edit: by Secretary SPCA

Dustee said
Anyway, my question is, if the father is not to be present or come into any contact by any way of communication with the children when the aunt has them, how can that be possible when he is now living with her and could this be a reason for me to be able to go back to court? Thankyou for reading.

My guess is that the Aunt informs the father that the children are coming and that the father leaves the premises for the duration that the children spend with the Aunt. If that happens and you took it to court without evidence to the contrary then I can't see that you would gain anything; especially as the courts would likely have considered the likelihood of a contravention happening.
I don't see how you have got consent orders when the father has not been a party to the matter at all. From what I see here there is nothing to stop the father making an application to have some contact. Just because he has been in prison does not mean the child does not have any rights in relation to contacts. Certainly there are some measures to be taken to comply with current court orders but that may not be the situation in some time ahead. Also I am not sure why you wanted to go to a hearing when you made consent orders. If you made consent orders you would not go to a final hearing.


Executive Secretary - Shared Parenting Council of Australia
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The father has only recently been released from prison again.

On the first few court dates the aunt was asking that she supervised the fathers time with the children if she could make an undertaking to ensure their safety, which i was agreeing to on my solicitors advice, however the magistrate ordered that he not be present at all or be allowed to come into any sort of contact with him because the court was not satisfied that she would be able to supervise given his history….So the reason I ask what i asked is because they were also under the impression that he would not be living with her in the future.

The father wad listed as second respondent to the matter, on the first court date he turned up to court very obviously under the influence of drugs and was back in prison by the next court date, which was only 2 weeks later.

The aunt has so far had the children 6 visits out of 12 with little or no notice of her not being able to take them. In mediation i told my solicitor that i would only agree to what we talked about on an interim basis and wanted to go to a hearing which was noted but when we went to court she said i wanted that agreement to be made final. On the final court occasion, the magistrate noted that the father was an unacceptable risk to the children and it would be seen that way until he had 6-12 months of demonstrated changes in his life. On all of the orders it says somewhere undefended by the respondent father.
It seems the father has some work to do to get "his act" together. The father MUST comply with the order.  He will have to do something else for the 12 times a year the children have some contact with the Aunt. If he sorts out teh substance issues over the next period of time there is nothing stopping him discussing with you options to have some contacts supervised or other and you may not even need to go to court. What needs to be demonstrated is the change of attitude toward the issues at the core or heart of the matters here.

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
 
Thankyou for your replies… I am using a mobile device to post and not all the features of this site will work for me, so I am unable to edit, seperate paragraphs etc. My apologies…

I don't think we will be able to work out anything without court given past experiences. The very same day he was released from prison recently, he started with nasty nonsense. While i would like to avoid court again (as it is a very confusing, stressful and time consuming) I'm not happy that i didn't go to hearing.

I believe the outcome could have been very different if my case had been heard. I don't think my solicitor even looked at one of the subpoenaed documents in my case, when i viewed it online the only requests to inspect subpoenaed documents were from the ICL.

The children's aunt is also a solicitor and I don't think my solicitor was to keen on 'taking her on' so to speak, I can only speculate… I have spoken to two other solicitors who gave me very different advice (than the solicitor i used) about what was reasonable and unreasonable for me to ask for in court etc.

If the aunt has missed 6 out of 12 visits, is it likely that a contravention order would be successful? I know i haven't given lot of information about the case but just in general? Missing 6 out of 12 visits is a lot of messing everyone around for something she never really wanted in the first place.

Last edit: by Secretary SPCA

dusteee said

If the aunt has missed 6 out of 12 visits, is it likely that a contravention order would be successful? I know i haven't given lot of information about the case but just in general? Missing 6 out of 12 visits is a lot of messing everyone around for something she never really wanted in the first place.
Why would you file a contravention to enforce orders you don't want anyway. If the aunt doesn't want the contact there is nothing you can do to force the contacts. Seems a lot of effort and angst for nothing. If the contacts don't take place then they don't take place.


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
 
There is no obligation under the law for the aunt to make use of the time she has been allocated, so I don't think you'd get anywhere with trying to file a contravention on that. While the "lives with" parent is legally compelled to make the child available at the set times, the "spends time with" parent/relative is not compelled to actually take it up. You have no grounds upon which to force contact, therefore probably no grounds upon which to penalise the lack thereof.  

If you have to travel or make special arrangements to meet the aunt only to find she doesn't arrive, I would maybe send her a letter (registered post, keep a copy and the receipt) stating that due to the time, effort and expenses required to make the child available, it would be helpful to know if and when she intends to partake in the arranged visits before hand. Otherwise, you will logically have to assume she is not coming, based on her failure to turn up on x number of occasions. A simple text would be adequate. That way, you've extended the offer to make the child available as usual if she seeks to visit, and if not, you just carry in with life without the wasted time or expenses. But if a hearing is what you're looking for, I don't think this is your avenue.
Thanks again for the input. Rabbit- your suggestion is very helpful, i think i will do that. It's like she's got a ticket now to walk in and out of their lives whenever it's convenient for her, yet on the last scheduled visit i couldn't make the children available because i was in labour and she brings up something like 'letting the court decide' when her next visit will be. Thats the only one i have missed and my child was born that day, so i'm sure thats got to be a reasonable excuse to have not taken them. Anyway, the very first time i miss a visit she speaks of court, it just makes me feel like i've got it hanging over my head.
She can only contravene you if you do not have a "reasonable excuse" and the criminal burden of proof applies to contraventions, so they are not easy to get through the system.  She has to prove that you maliciously kept the child from contact and you can easily prove that you were giving birth at the time!

Therefore, don't be too stressed about it, in fact, I would tell her to bring it on, as the court will take a very dim view of her failing to exercise her contact and then bringing a contravention action.  A contravention also has the effect of opening up the orders for amendments and she may even end up worse off than what she already is.

I like Rabbit's suggestion, and would go so far as to say that, given that she has not turned up on xyz dates, in future that, if she does not give you a minimum of 48 hours that she is exercising her rights to contact, then you will not be taking the child to the meeting point.  

Given that you obviously have another child, I hardly think the courts are going to give you a hard time over making this a condition, as she is clearly trying to yank your chain on behalf of her brother.
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