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Complex Matter

Relocation, contravention, false allegations and the desire to see my children.

I have been having a really good read around this website but have been unable to find a specific answer to assist in my current family law matter.

To date, I have been self-represented and have used the advice of Legal Aid and the Family Courts to assist me in my case. However, the mother of my children keeps battling me in the Court and now I am at a loss to which action to take next.

In a nutshell…

The mother applied for urgent interim orders and final orders late last year. The mother failed to serve the documents properly and attended the case assessment conference without my knowledge. After being sent the new orders by the Court, I was instructed to attend the Interim hearing in less than a week. At the hearing, I requested that the matter be adjourned given the little time I had to prepare and the Judge adjourned the case for a number of weeks. Before reattending Court, we had a family report written (albeit extremely biased toward the mother) and submitted. At the hearing, I negotiated with the mother's representation, through the ICL's representation, and together we settled on final interim orders via agreement, with a hearing for final orders to be relisted until later this year.

In the meantime however…

Prior to the first access visit, the mother tried to show that I had been dishonest in disclosing my residential address to her (given I live overseas and indeed did supply the correct address) and that this was a reasonable excuse not to present the children for their access visit, aruging that I was a flight risk. I supplied evidence to her showing my address and the visits went ahead as the Orders outlined. However, at the end of each day for the length of the visit, the mother handed me detailed letters outlining the terrible things I was doing to the children during their visits. After collecting five of these letters, I responded, explaining that what she was alleging was simply not true.

Prior to the second access visit, a couple of months later, the mother tried to prevent the access visit, by claiming that I had failed to comply with the Orders by not showing her directly proof of my attendance at a post-separation parenting course, although the Orders stated that this information went directly to the ICL and not her. The visit went ahead at planned.

Most recently, after travelling a long distance to see the children, the mother was not at her residence when I went to collect the children, instead leaving a letter for me from her solicitors alledging that I had behaved sexually inappropriately with the children during the prior visit and this was a reasonable excuse to prevent access. This was particularly upsetting for me, as I love my children and have never acted in the way she accuses. Obviously, I did not see the children that weekend and she is now saying that she will not provide them again for another visit.

I also have weekly telephone calls with the children, and on at least half of these, she has not put the children on the phone, citing various reasons, eg. they are asleep, they do not want to talk etc.

Now I am at the point that I am not sure what to do next. It is clear that the Orders aren't working and she is failing to comply with them regularly, but how do I go about getting the matter heard in the Court and what type of approach do I need to take? Is applying for a Contravention Order appropriate? Is it worth applying for a Recovery Order as well? How do I get the Orders changed given the matter is waiting to be heard late this year, clearly far too long to wait. The mother threatened that she would do this to me when I finally called for the separation, I just had no idea about the lengths that she would go to.
Ok Edberg, first thing to do is join the SRL group on here. There you can provide greater detail privately.

Looks like a very common scenario. Keep making records of everything.

You'll be in good hands with the SRL group. You join the SRl group by clicking on Community in the darker blue bar, then SRL-Resources on the left and then on Join SRL-R, aslo on the left.

Need help

You must join the srl group. We will need to see ALL affidavits, legal letters etc to do with the case - no secrets! We will need to have a good chat with you.

We will also need to see the family report.

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas. 
Thanks for the prompt response. I have sent off an email a few days ago about joining the SRL-R group (I assume this is how it is done after reading the SRL-R resources pages) but as yet have not heard anything.

The biggest problem for me, as I am sure faced by many SRLs, is not knowing the Court procedures intimately and which forms exactly I should use to initiate an Application. So far, I have only ever been a Respondent, replying to the Applications initiated by the mother (it does not really help either that she is a trained solicitor herself and is using family law specialists also). Given her behaviour since the Interim Orders were made and the fact that she is now refusing to supply the children ever again for a visit, it is necessary for me to initiate an Application in the Courts.  What type of Application I need to make however is what I am unsure of.
Edberg…

1. Are there Orders in place?

2. Are these Interim Orders or final orders?

3. Where were they made Family Court or Federal Court, and when?

4. What are the Orders?

5. How is she not complying with them?

4MYDAUGHTER
4mydaughter,

1. Yes, there are Orders is place;

2. The Orders are Interim Orders;

3. The Orders were made in the Family Court last November;

4. The Orders basically stipulate that I can make twice weekly telephone calls to the children and have them for a weekend (without sleep overs) every 6th to 7th week. This was the access times I asked for at the Hearing given I live a considerable distance from the children and need to fly to Victoria to see them.

5. The last time I went to pick the children up for an access visit, the mother was not at her residence and I was unable to locate them. I spoke with the Police and they were unable to help me unless I had a Recovery Order, which I currently do not have. The mother had left a letter at her residence addressed to the ICL making some false accusations about how I had misbehaved with the children at a previous visit. She was advised by the ICL (prior to the access visit) to make an Application to the Court but failed to do so and indeed has not since. Since this weekend she has only put the children on the phone a couple of times but mostly does not answer the phone or tells me the children are asleep. She also had her solicitors write me a letter saying she will not provide the children for any further visits on the grounds outlined in the original letter to the ICL. As far as I am aware, she has made no Applications to the Courts.
Edberg,

You sounds like you will be making an Application for Contravention of Orders.

There may even be a Contempt case here.

I am going through this as we speak. I filed an Application for Contravention yesterday. It took me a week to prepare.

On the Home Page under "Contravention of Orders" you will see my thread which has developed over the last fews weeks. It may help to read the posts.

Your case sounds easier than mine in that the Mother has admitted the Contravention by way of the letter to you.

She would have to prove that her Contravention is 'reasonable'.

Happy to help out were I can. Just remember, this is my first time. I am half way through this process. So I have no 'feedback' as yet.

Last edit: by 4mydaughter


4MYDAUGHTER
Thanks 4mydaughter.

I have read your entire thread on Contravention of Orders because I thought that was what I would have to apply for.

It will be relatively simple to prove a contravention because the mother admitted in a letter to not supplying the children for the access visit. What is more tricky is the clause about 'reasonable excuse'. The mother stated in her letter that she felt that if she supplied the children she would be putting their physical, psychological and emotional health at risk (very similar to the wording used in the Family Law Act) and was not prepared to put them in such a situation. I assume if I make a Contravention Application is it then up the mother to prove her excuse was reasonable?

By making a Contravention Application am I able to request the Court to review the current Orders, given they are clearly not working and also request a Recovery Order so that the next time I fly to see my children, the police will actually be able to help me. What happens to our case then, given it is awaiting listing (for a Final Orders hearing) to be heard late this year?
ed berg,

I just emailed you some stuff.

Yes - the onus is on the Mother to prove reasonable excuse. It sounds like her Lawyer is covering the Mother's back-side. So they will argue the child at risk tangent you mentioned.

This reasoning may not hold up given her approach to phone contact. I take it she has been facilitating sporadic phone contact with the Children also in Contravention of Orders?

Does her conduct around phone contact support her 'child at risk' argument or undermine it? Can you prove this conduct? Do you have call records to prove when you called (and call durations) or text messages you can use as evidence?

Do you have any evidence of the Mother offering an excuse other than the one communicated by her lawyer? Think back to when it first happened.

4MYDAUGHTER
I am not in a position to offer advice on Recovery Orders as I have never walked that path.

In terms of my Contravention thingy, the Final Hearing in my matter is in August 2008.

Last week I got a 2 hour Contravention hearing listed for Mid-June 2008 - no problem at all. I am referring to the Family Court here.

Once again I cannot offer advice on Federal Magistrates Court processes  - as I have not been in that court.

The good thing about Recovery Orders - and hopefully someone will correct me if I am wrong here - is that a Recovery Order stays in effect for 1 year.

So my understanding is that one Recovery Order can be exercised multiple times over 12 months - so you don't need to go back to Court to get another Recovery Order on each occassion your daughter is not produced for contact. You just call the Police [..Yay! The Keystone Cops!] Recovery Orders might be the appropriate course of action if you think the Mother will continue to withhold contact again over the next 12 months.

To answer a question in your earlier post, Yes - a Contravention hearing is a chance to vary the existing orders. You can ask for compensatory time. You can get the Mother into a 'parenting after separation' program.

Is seems fair that you should be compensanted for the out-of-pocket expenses for travels cost incurred for 'contact' that did not eventuate because of the Mother withheld the Children. Whether or not this type of remedy is avaible under the Act - I wouldn't know. Perhaps a more experienced SRL member might provide an answer on that score.

Last edit: by 4mydaughter


4MYDAUGHTER
4mydaughter, thanks for the email. Will certainly have a read.

Absolutely the lawyer is covering the mother's backside and I have no doubt they will argue that the children were at risk if she was to hand them over. As for a form 4 LifeInsight, I was unaware of this form but will certainly investigate more. The mother is alleging abuse by me against the children. As far as I am aware she had made no police report in regards to the allegations but she did kindly inform me on the phone a few days ago that my eldest informed their doctor about her allegations and that the doctor has reported it to Human Services. So far I have heard nothing from Human Services so if this is true or not, I am unsure. My biggest fear is that her brainwashing is having a serious impact on the children.

Re: phone contact. Since the contravention she has put the children on the phone a few times, speaker phone that is. She constantly talks to the children in the background and encourages them to say goodbye quickly. My eldest has said very little but my youngest is happy to say a few words about what he is doing. One might argue that if she felt the children were at a serious risk that she would not be putting them on the phone at all. I am unable to 'prove' her conduct on the phone as it just me calling and her answering but I will have in my phone records the time that I rang and the duration of the call. The mother never sends text messages anymore so have no proof there.

The mother has provided no other excuse other than the one offered by her lawyer. When I rang on the morning of the contravention she simply reiterated what her lawyers had written. She has provided no other evidence for her allegations. What's more interesting is that she alleges that I misbehaved with the children during the previous access visit earlier this year, despite the fact that my new partner, and my parents were present for the entire access visit. She is alleging that despite the presence of four adults that this abuse still occurred. Is it then worth providing a written affidavit from both my partner and my parents outlining what happened at the access visit ie. no abuse?

Re: recovery order. I have no doubt the mother will continue to prevent access and this is why I want to have a recovery order put in place. I had the same understanding, 4mydaughter, that the recovery order is in place for 12 months, and that each time she prevents access the police will be able to help me. Before I apply for a recovery order however I wanted to have the interim orders changed as they are clearly not working as the mother is not complying. Also given the expense involved with travelling to see the children I wanted to request a week at a time (during school holidays) as a pose to just weekends more regularly. Am I able to do this through a Contravention Application or do I need to make an Application in a Case asking the Interim Orders to be changed on the grounds of the mother's non compliance? Can a recovery order also be dealt with on the day, or is that a separate Application/Hearing in itself? The mother continually acts as if the Orders do not apply to her and that is why I wanted to pursue contravention as a pose to just a recovery order.

 
Edberg, You naughty boy for misbehaving! Bad boy! :'(

I must stress this - I don't know much about recovery orders. It sounds like the Mother is exhibiting 'alignment' or 'Hostile-Agressive Parenting' behaviour.

I guess what you may need to ask yourself, and given that you are a SRL, is how much can you take on at once? Initiating both a Recovery Order hearing and a contravention hearing at the same time sounds like a big ask of yourself.

I'm not sure if the two can be heard at the same time.

Speaking of time, my understanding is that you only have two hours to put forward your case - effectively.

Don't forget, the Mother is going to want to use up a fair chunk of that time as well.

To run both, you may need more than 2 hours, in which case there may be a significant delay before your matter is heard.

How I understand it to work is this. Contravention hearings are normally 2 hours in length and are dealt with by the 'Duty' Judicial Registrar rostered on for that day. Total time from filing to the hearing, in this senario, is 28 days. Anything longer than 2 hours means that the registry have to find a Judicial Registrar with a gap in their schedule to accomodate you. Who knows when that might be? 2 months. Maybe not. But the reality is, you will only find out for sure, when you file your application with the Registry.

Getting your affidavits and application together may take you up to 2 weeks. It took me 2 weeks to get a handle on contravention, Division 13 of the Act, some case law and to put together the appropriate documentation.

So these are some things you may need to factor into the equation. I'd digest the stuff I sent you last night ASAP.

Last edit: by 4mydaughter


4MYDAUGHTER
A recovery order does not require a lot of discussion. It could be presented with a contravention. True, most of the discussion will centre around the contravention.

A conscientious FM/Judge will control the ex to make sure what needs to be heard, is.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
Recovery Order is pointless in this case. The point of a recovery order is that a warrant issue authorising the Police (Fed or State) to find the children and take them from where ever they are and give them back to whoever should have them.  Edberg's orders say he has them for Sat and Sunday only. Unless I am missing something, I don't see how a recovery order could issue, be given to the Police, the police take action on it, and deliver the children to Edberg in time for him to enjoy his Sat to Sunday visit.
Recovery orders are (by their nature) mostly used where so called "abducted children" need to be returned to a resident parent. In theory they can be used to recover children for a visit (aka access) but considering the time frame, ie preparation, filing, mention, hearing, Order issuing, order given to police, children found, children taken into custody, children returned to other parent,… it is not likely to help unless it is a long visit. It is not likely to help in this case.
LifeInsight - if you could email through the forms that would be great.

4mydaughter - the mother is definately employing the 'parental alienation' tactic. She uses the children as messengers, she uses them as spys to find out what my new partner and I are doing and tells them things like, 'daddy wants to steal you away'. Not much to make them feel secure in such a turbulent situation!

In regards to the Recovery Order, and this was mentioned previously, once a Recovery Order is issued does it stay in effect for 12 months? That is, if I apply for a Recovery Order now and when I next travel to see the children and she does not present them will I be able to contact the Police immediately or will I have to wait until the Court opens on Monday and refile the Application? If this is the case then in effect the access time has passed and I have to fly back home for work, effectively 'missing out' on my visit.

To date, the Mother has not filed a Form 4. Indeed her solicitors wrote to me today requesting my permission for the children to attend upon a psychologist to discuss their behavioural issues as a result of my alleged abuse. They want this psychologist to write a report.
T12 said
Recovery Order is pointless in this case.

Is it? and I ask this to more find out about the point rather than to argue it because I don't know. Could it perhaps be a little like what I hear has happened, shared care is asked for it gets knocked back because the parent doesn't ask for full care (this is according to stories that I've been told). Could it be seen to be "You can't be bothered as you haven't tried a recovery order", but then could it be seen as "Recovery Order, what are you up to". Could both bases be covered? Are there more bases?
edberg,

Have you read the material I sent you the other night? The question regarding recovery orders being effective for 12 months is answered in that material. That's where I got my information from.

Recovery orders are also covered in those discussion papers. Those discussion papers were written by the Judicial Registrars who you will most likely hear your case - so tune into their wave length - get inside their heads. Their opinion on these matters is what counts the most. Not mine.

Time to hit the text books. Discussion papers are published on these subjects every year. You can buy them online - even the DVD. You can go to your nearest law library the copy them.

I agree with T12 - I don't see the practicality of Recovery Orders in your situation. It seems really messy. It might even be misconstrued as an overreaction on your part. Perhaps I don't understand enough to say otherwise.

With regards the request to for your daughter to see a 'shrink' - write back and say - 'NO'. Its inadmissible in Court anyway. My understanding is that these reports have to be court ordered. Assuming that her solicitor would knows this, why would she ask? I find this strange. Perhaps they want you to say 'no'.

Would the response 'no' suggest you are trying to hide something?

Did they actually state that the Report was for court?

Are there orders in place that say she must gained your approval?

This is really starting to smell like 'Hostile Aggressive Parenting'. Did these problems start after your new partner attended for contact with you?

I'm sorry my friend, I seem to raise more questions than I answer. Just playing devils advocate. I hope I'm helping. Stretching your field of perception.

I think you need to build off a contravention platform. You need to make a decision and act swiftly and accurately.

If you like I will send you my affidavit to work off. Perhaps T12, Verdad or Monaro (or other SRL execs) might like to critic it first so I don't send you off on the wrong tangent.

Happy to share - even my mistakes.

Last edit: by 4mydaughter


4MYDAUGHTER
Apologies, when I saw relocation, I assumed the mother had moved…

Unless the mother has moved, recovery orders seem a bit over the top

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 

Restrictions on examination of children & Recovery Order period.

102A  Restrictions on examination of children

              (1)  Subject to this section, where a child is examined without the leave of the court, the evidence resulting from the examination which relates to the abuse of, or the risk of abuse of, the child is not admissible in proceedings under this Act.


              (2)  Where a person causes a child to be examined for the purpose of deciding:


                      (a)  to bring proceedings under this Act involving an allegation that the child has been abused or is at risk of being abused; or


                      (b)  to make an allegation in proceedings under this Act that the child has been abused or is at risk of being abused;


subsection (1) does not apply in relation to evidence resulting from the first examination which the person caused the child to undergo.


              (3)  In considering whether to give leave for a child to be examined, the court must have regard to the following matters:


                      (a)  whether the proposed examination is likely to provide relevant information that is unlikely to be obtained otherwise;


                      (b)  the qualifications of the person who proposes to conduct the examination to conduct that examination;


                      ©  whether any distress likely to be caused to the child by the examination will be outweighed by the value of the information that might be obtained from the examination;


                      (d)  any distress already caused to the child by any previous examination associated with the proceedings or with related proceedings;


                      (e)  any other matter that the court thinks is relevant.


              (4)  In proceedings under this Act, a court may admit evidence which is otherwise inadmissible under this section where it is satisfied that:


                      (a)  the evidence relates to relevant matters on which the evidence already before the court is inadequate; and


                      (b)  the court will not be able to determine the proceedings properly unless the evidence is admitted; and


                      ©  the welfare of the child concerned is likely to be served by the admission of the evidence.


              (5)  In this section:


examined, in relation to a child, means:


                      (a)  subjected to a medical procedure; or


                      (b)  examined or assessed by a psychiatrist or psychologist (other than by a family counsellor or family consultant).


Note:          Section 69ZV is relevant to evidence of a representation by a child, if the admissibility of the evidence would otherwise be affected by the law against hearsay

67W  How long recovery order remains in force

             (1)  A recovery order remains in force for the period specified in the order or 12 months, whichever is the shorter period.

             (3)  To avoid doubt, unless a recovery order specifically provides to the contrary, each term of the order continues to have effect until the end of the period for which it remains in force regardless of whether anything has previously been done in accordance with the order.

Last edit: by 4mydaughter


4MYDAUGHTER
Lifeinsight, 4mydaughter and others, thanks for your insight and thoughts on this matter. After 'stretching my field of perception' I made an urgent application to the Court to have the Orders altered and filed an Affidavit in support. The matter will be heard within the next couple of weeks.

Needless to say, despite the Mother maintaining her accusations of abuse she has still not filed a form 4 or filed any police reports in the matter. I did write to her solictors refusing permission for the children to attend a psychologist for a psychological assessment/report and I got a reply back stating that I didn't have the children's best interests in mind otherwise I would have given permission. Since being served my Application the Mother has now put forward that given she had the children assessed by a Pediatrician recently and the Pediatrician supports what the Mother is saying (ie. in regards to the children's behaviour as a result of spending time with me) that she will be sending the children to the psychologist regardless of my not giving permission, so the children can have 'counselling'. Is there any way I can prevent her from doing this given she will seek to rely on what the psychologist says in her response to my Application?

To answer your questions 4mydaughter:

With regards the request to for your daughter to see a 'shrink' - write back and say - 'NO'. Its inadmissible in Court anyway. My understanding is that these reports have to be court ordered. Assuming that her solicitor would knows this, why would she ask? I find this strange. Perhaps they want you to say 'no'. I can only assume that they would ask because by giving permission then I am admitting that I did hurt the children and I am agreeing that they need help as a result of this.

Would the response 'no' suggest you are trying to hide something? Maybe in their opinion but I know I am not hiding anything and have tendered Affidavit material from the other adults present to support my position.

Did they actually state that the Report was for court? They stated that the report was for the psychologist who wrote our Family Report last year.

Are there orders in place that say she must gained your approval? The Orders say nothing about gaining approval for medical/psychological testing.

This is really starting to smell like 'Hostile Aggressive Parenting'. Did these problems start after your new partner attended for contact with you? Absolutely! Prior to this she was trying to get me to return to the marriage.

I think you need to build off a contravention platform. You need to make a decision and act swiftly and accurately. I have tried to do this by providing evidence that 'proves' her contraventions.

Like you 4mydaugher I tried to base my Affidavit around the discussion papers you forwarded me. I felt that I put forward a strong Affidavit but it is always difficult when I can never anticipate what the Mother will put forward as she always puts forward things that I never expected!
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