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are we entiltiled to makeup visits if the mother claims children are sick?

Hi, New to this forum and was hoping someone may be able to give us some advice..

We have a court order in place where we see the children for xxx amount of hours on XXX day of the month.. the mother has stated that if the children are sick they wont be attending the court ordered visit and that there is no such thing as a makeup visit (only as a goodwill gesture), and legally she does not have to do it.
Can anyone confirm if this is true?

 there is nothing in the order in relation to makeup visits, just that the visits are to occur XXX amount of hours on XXX day of the month.

Thanks, Larrybob
Larrybob,
             if it's not in the orders then make-up isn't assumed. However it appears to be quite clear that the other parent, as too many do, may try to exploit the child in this way for personal gain (such as, financially by increasing the CS they receive, introducing and taking advantage of conflict or a sick and twisted vengeance against the other parent) as the matter appears to have come to light before the fact. However, if the other parent uses this excuse too much you could have good cause to question this tactic through the court as contraventions (I'd suggest considering joining the SRL-Resource who could assist you in such a matter). I would suggest that you keep a record of all contact whether it happened or not and if not the reason why not, perhaps requesting a copy of the medical certificate. You should not let refusal of contact aggravate you, you have to react calmly (an adverse reaction is often what the other parent wants, so that they can yet further reduce the child's or children's humane right to know and be cared for by both parents and gain personally).

Assuming that the other parent is not planning to use this as a tactic and that they are reasonable and good parents, then they should see that the child's best interest would be to see fairness and thus that make-up time be used as in reality it is the child's time with someone very special in their life.
But, if she did not briing the children to the changeover at the appointed time and place, wouldnt that be classed as a breach or a contravention to the order?
There is also nothing in the order to say that if they are sick that we miss a visit..
you are correct in assuming it is a breach.



However taking this to court is another matter entirely.

Judges like to see many breaches in a contravention order before proceeding.

In any case the only persons  to be punished will be yourself(financially) and the child/ren

you will spend countless thousands on a solicitor or lost income if you wish to self represent

youre child/ren will be further punished by not seeing youreself as the lives with parent may take the route of denying access untill court decides.

Do remember if you call the lives with parent a few times or raise youre voice at them they can infact seek out an apprehended violence order and claim they are fearful of you which will mean no contact at all until that is  seen in court.



in either case the judge will consider you frivoulous and as a problem parent if you bring forth a single contravention

you will also find the judge will just give the lives with parent a warning.

of course if you bring forth eg 20 contraventions all of the same nature….. 1 or 2 of this kind and 1 or 2 of that kind etc dont count with judges as far as i can tell, the judge may consider this  more seriously and hand down a warning to the lives with parent.

It seems to be standard practice for judges to handout warnings for contraventions against the lives with parent and  not follow the set procedure as per the family law act.



I would suggest as  Mike has stated stay calm and most importantly keep a diary

take from this  post what you wish however i do suggest you search the austlii site under contravention to give you an idea of what may happen remembering each case is different.

You can fool some of the people some of the time but you cant fool all of the people all of  the time unless they work for CSA and youre a Payee:)
just to give an indication as to the way that she behaves, when a family report was done( at her solictors insistence) the report writer stated that she presented to him as angry, bitter, unashamedly foul mouthed and notably immature.. when the report came back her solictor (government funded) dropped her as a client immediately.

I believe my question has been answered, and thank you to those that have replied.

this will not end happily for anyone, even though a court order is in place, and it should have resolved the so called "issues" the mother has with us, she is going to use the "kids are sick" story to stop the visits going ahead
Larrybob said
But, if she did not briing the children to the changeover at the appointed time and place, wouldnt that be classed as a breach or a contravention to the order?
There is also nothing in the order to say that if they are sick that we miss a visit..

I did mention contraventions and yes it is one, however I am pretty sure that somewhere in Family Law it states or implies that contraventions are not deemed as such if there are reasonable grounds for the breach. The things is that if a matter goes to court then you have the job of convincing the decision maker that whatever decision you want is in the best interest of the child. There isn't a set list of what is and isn't in the best interest of the child what is and isn't is basically within the mind of the decision maker, which includes their knowledge of what has and hasn't been accepted before. An analogy could be that it is not to unlike a minefield.

I can understand where you are coming from. I've been in a similar situation, rather than sickness though it was "The solicitor said it was best", although this wasn't a contravention as there were no court orders, just agreements. As is often the case the timing was just before Christmas. You have to fight wisely or in my case rely upon luck and the wisdom of the decision maker. The former is definitely what I'd suggest is the more likely to work and hence why you unfortunately very likely have to bide your time and tread with the greatest of care due to the disadvantages that "spends time with" parents and also that fathers specifically face on this very uneven field (although without doubt some will rant that this is not the case). My advice is to prepare to win what is best for your child and what is the child's humane right therefore again I'd suggest considering joining the SRL-Resource who have a great deal of experience of Family Law and can help you to help yourself and also likely save a great deal of money.
Give her enough rope my friend. With a family report like that vindictive non-compliance and further litigation will likely be interpreted as inevitable. Your task is to document her behaviour and any effects on the child. Has the child missed substantial school, received medical treatment, dropped out of activities, anxiety/socialisation problems?

If a pattern of behaviour becomes evident a change of residence might be warranted. Evidence is required to support that there has been damage to a child due to parenting incompetence by reason of ongoing issues identified in the family report and/or where the resident parent cannot meet the needs of the child namely by undermining the child's meaningful relationship with the father where this is imperative for the emotional well-being of the child.

It is most important that you do not retaliate to provide the excuse she needs. Do not take make-up time or enmesh the child in your grievances. In cases of demonstrable mutual conflict the judge usually does not worry about determining fault and the consequences can be grave.

Another consideration is that legal aid does not fund contraventions. If she is required personally to finance defence of her actions in court she might become more inclined to compromise.   

Last edit: by MikeT

please amend - I can't

the judge usually does worry about determining fault
to
the judge usually does NOT worry about determining fault

Changed as requested.

Last edit: by MikeT

larrybob said
just to give an indication as to the way that she behaves, when a family report was done( at her solictors insistence) the report writer stated that she presented to him as angry, bitter, unashamedly foul mouthed and notably immature.. when the report came back her solictor (government funded) dropped her as a client immediately.
Out of curiosity, how does it come about that a Court Reporter could make such negative observations about the mother yet your Orders are for you to see the child only on very limited occasions?  Surely the report writer would have made some recommendations about the benefit of you (and maybe your partner) playing a more active role in the childs life? 

"Never, "for the sake of peace and quiet," deny your own experience or convictions". Dag Hammarskjold
I needed help with my case and couldn't afford a lawyer and found these guys invaluable  srl-resources.org
Crazyworld,
               I believe that there is a relatively recent judgement where the "lives with parent" was seen to be a harm to the child, but still that parent remained the "lives with parent" (Damn, sorry I can't recall why though). Perhaps this might jog someone's mind.
Thinking along the lines Mike of additional usable information from the Court Report in terms of recommendations (given reports hold a lot of weight usually) that could give larrybob extra leverage to formulate an argument at least to TRY to reopen if need be (not sure about the success rate there the SRL-R's would be better equip to answer that), based on the mother's still maniplulative attitudes to contact.  From what you guys say…contravention applications are hard to push if there hasn't been a pattern which could mean not seeing the child for ridiculous amount of time??  I'm not terribly familiar in that area.    

"Never, "for the sake of peace and quiet," deny your own experience or convictions". Dag Hammarskjold
I needed help with my case and couldn't afford a lawyer and found these guys invaluable  srl-resources.org
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