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Notation at end of Consent Orders

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Can anyone advise me if a notation at the end of consent orders is legally enforceable and can be cited in a contravention application?

The notation I am referring to also has the words in it 'xxxx will not unreasonably withhold consent to yyy spending time with the children during these periods''.

So even if a contravention application were brought it would be very hard I would imagine to argue what does and does not constitute 'unreasonable/reasonable'.

Thanks for your assistance

God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.
larissap said
Can anyone advise me ifa notation at the end of consent orders islegally enforceable and can be cited in a contravention application?

The notation I am referring to also has the words in it 'xxxx will not unreasonably withhold consent toyyy spending time with the children during these periods''.

So even if a contravention application were brought it would be very hard I would imagine to argue what does and does not constitute 'unreasonable/reasonable'.


A notation in Consent orders is used to add clarity or further detail or even alter the context of and therefore the operation of some orders.

What is (or was) reasonable and unreasonable is a decision of the Court and although the term appears quite flexible and open to interpretation similar cases would give a guide to the Courts possible ruling.
The advice I received was if it was not part of the main orders it was unlikely to happen.
So I did not accept things I required to happen to be notations.
Notations are not orders therefore you would not contravene "notations" but hopefully you would see the clarity in them as otherwise they would be a waste of time.

They are generally used where there it is known that unless an order is made crystal clear, without ambiguity and or interpretation that it will likely be contravened. Parents who have significant conflict are more likely to see a range of "notations" in their final orders.

Notations can typically be along the lines of:

Notations

To give effect to school holiday periods the following shall apply:
  • School holiday periods shall commence after school on the last day of the school term in the first half and the second half shall conclude before school on the first day of the new term if a school day and if a pupil free day at 5.00 p.m. on the previous night.
  • In calculating school holiday periods the parties shall count the number of nights including the last day of the school term and the night before the commencement of the new school term [excluding pupil free days].
  • Changeovers on the midpoint day shall occur at 10.00 a.m. with pick up by the father.
  • Pupil free days for the purpose of these orders are to be treated as if they are gazetted school holidays.

Other notations that have been included:

Noted the father shall have the second half of the first term holidays in 2011.

and

The commencement of the school holidays shall be deemed to commence at 9:00 am the day following the conclusion of the last day Xxxxx is required to attend school for the Term immediately preceding a school holiday period, and conclude at 6:00 pm the day preceding commencement of the first day xxxxx is required to attend school in the next Term (thus the holiday period shall include any pupil free day).

The first half and second half of the school holiday periods shall be determined by dividing the number of nights during any relevant holiday period equally between each half and if there is an unequal number of nights then the additional night shall be added to the first half.

The first half of the school holidays shall conclude and the second half shall commence at 10.30am on the morning following the last night that falls into the first half of the school holiday period as calculated in Order nn

and

School in these orders means Pre School, Day Care Centres either home run or state run, Primary School, Kindergarten, Intermediate or Secondary School, Independent Private and or Catholic schools and any other educational institute that the child attends.

and

The parent who has the first half of the school holiday period will have contact order xx the first weekend directly after the end of the school holidays.

and

Telephone contact means contact by any telecommunications device or Internet enabled device and is not limited to and may include either telecommunication and video communication or both through applications such as Skype, Google Plus, Apple and related applications that allow such communications.

Device means Mobile or fixed in place device.

Executive Secretary - Shared Parenting Council of Australia
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Thank you Secretary and Wabbit

I have received advice elsewhere and it does appear that notations are not legally binding depending on what is in them.  My notation is about a change of circumstances whereby my ex said he might be buying a house in our city and spending time here and the notation refers to me not unreasonably withholding consent to him spending time with the children when he does that.

Unfortunately in the nearly 2 years since the orders were agreed I have learnt that the only thing that prevents the high level of conflict between escalating evem more us is to stick to the orders word for word.  Anything that is not absolutely clear and unequivocal in the orders causes the greatest stress and conflict because unfortunately my ex cannot see reason or put the children first.  So as I am currently in the middle of contravention proceedings and he is now going to be spending time in our city in the near future I am trying to head of trouble before it comes.

I intend to ask at the contravention hearing for the FM to clarify the notation because our next step after the contravention hearing is to make new orders for the change of circumstances.

The fact that the notation contains the word unreasonable means that I could end up in court arguing about what constitutes 'unreasonable' if notations are legally binding.  It is a relief that the consensus of opinion is that it isn't legally binding in the form mine is worded but I will seek clarification from the FM.

Thanks again

God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.
larissap said
….
The notation I am referring to also has the words in it 'xxxx will not unreasonably withhold consent toyyy spending time with the children during these periods''. …
Words like "unreasonably"; "reasonable"; "exact times to be agreed"; "days to be agreed";  are words that should definitely be excluded from any orders.

"As agreed" must be followed by "and in the absence of agreement for…

The problem with those words is they are open to interpretation by one party who might have a very different interpretation of the meaning from another. The courts do not want to see parties back again and seek certainty and closure.

"Such other times as may be agreed between the parties" must be included because one day the parties might agree to something and often I find that IF that order is not included one party says well we cannot vary the orders because they must be followed to the letter and there is no flexibility. Adding an order in the appropriate context using the words makes it very clear that both parties can actually vary orders if they agree. Often this order is accompanied by a note such as "Such other times as may be agreed between the parties in writing".
larissap said
….My notation is about a change of circumstances whereby my ex said he might be buying a house in our city and spending time here and the notation refers to me not unreasonably withholding consent to him spending time with the children when he does that.
In this notation there would be some expectation that IF he bought a house in your city and was spending time in that house then you would make some endevours to facilitate contacts. How often and what length of time would relate to the "reasonableness" test.

So is 30 minutes reasonable one day a month? Is a day reasonable from 9am to 5pm once a fortnight? Would two days and a night included be reasonable once every fortnight if he hasn't seen the kids for a while then perhaps it would be. To test what would be reasonable outline the contact to date, outline the orders to date and the notation and say "What would be reasonable?"

You could test three or four friends and see what sort of consensus there may be as to what would be considered "unreasonable" and what would be considered "reasonable".

You must have reasonable excuse for continuing to disregard court orders where a contravention has been filed.

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
 
SecretarySPC said
You must have reasonable excuse for continuing to disregard court orders where a contravention has been filed.

I am not disregarding court orders, I am preparing for what may well be another contravention brought against me because I am sure that what my sons and I think are reasonable my ex doesn't.  But thankfully the FM is going to be changing the orders once the contravention has been heard.  My ex has been ordered to produce a Minute of Orders of his proposed new orders 3 days before the hearing for the contravention and after the contravention hearing the FM will be making orders for the next steps.  I will be asking the FM for the notation to be clarified and if possible some interim orders until the new orders are made as my ex has stated he will be spending more time in our city from July onwards.

I totally agree with you that everything should be as clear as possible because when there is no clarity (and I have been sent a copy of the Barrister's advice to the solicitor that the orders are ambiguous and unclear) then every single point is cause for argument and I have had enough of it.  The children and I need the orders to be spelled out word for word so that if we aren't in agreement there is something to fall back on.  That is particularly needed for when you have an ex that uses the orders to try and make you do things 'because it is in the orders' when it is only his interpretation of the orders!  

Thanks for your advice and I will await his proposed orders and the decision of the FM.




God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.

Consent Orders - Property

We had a Conciliation Conference in which agreement was reached and a Heads Agreement was signed.  The first payment under the  terms of the Agreement is due Friday, 19/4/2013.  I am a self represented litigant.

1.  Is there anything I need to do with regard to this payment?

2.  What are my options if the payment is not made?   What do I need to do to ensure/enforce payment?

Thank you,
Do your orders have a default order if any payment is not made?

What does the payment relate to?

no-winners #53671

Guest said
Do your orders have a default order if any payment is not made?

What does the payment relate to?

The Heads Agreement does not have a default order.
The Consent Orders are being done by the Solicitor for the other party and I have requested that a default order be included but I have had no co-operation from the solicitor for the other party - and yes I acknowledge that he is the sol for the other party not for me.  I have no idea what stage the Consent  Order is up to - I know I need advice but I have no money.
The payment relates to the agreement reached at the Conciliation Conference as monies payable to me as part of the property settlement.  The first payment is due on 12/4/2013.
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