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Contravention, Not Contravention or Something Else?

Hi All,

The Mother of my child's behaviour is causing me some concern. Final Orders were made in August 2008. The basic outcomes were:  Shared Parental Responsibility and 'Lives with, lives with. An Order was made with regards living arrangements as follows:

"Except as hereinafter specified, when the child shall live with the father, the child shall live with the mother whilstsoever the mother lives with her parents unless the parties agree otherwise that the mother may live elsewhere or further order of the court permits such move."

The Judge notes the following in his Reasons for Judgement:

"12. The second issue was that the husband wanted conditions attached to the order that the child live with the mother. The condition which he wanted attached was one which made the order conditional upon the mother living with her parents. The basis for this request was found in the evidence of Dr XXXXXX XXXXX ; a single Court appointed expert, a child psychiatrist, who gave evidence in the proceedings. That evidence was contained in a report admitted into evidence and evidence given orally before the Court. It had been his recommendation, based upon evidence of the state of the mother's physical and psychological health."

13. In addition, he was concerned with her former problems with opiate addiction and what is described by each of the parties as "recreational drug use". He felt that the mother might find it difficult coping with stress in the event that she did not have the continuing support of her family. He expressed the view that her continued care for the child should be dependent upon her residing with her parents.

15. "Having regard to the problems which the mother has suffered and referred to in the report of Dr XXXX XXXX, which problems historically have come and gone, and the report of her general practitioner, I am inclined to the view that the mother may well soon be able to undertake such a move, particularly if her recovery continues in the same manner as attested by her doctor. She is, however, as a result of these orders and the assumption of more responsibility by the father, going to be involved in changes her life. I therefore think that the time is not yet here where I could be totally comfortable for the condition proposed by Dr XXXX XXXX to be removed. That is not to say it will not be in the future.

16. I propose to make an order imposing such a condition but providing that it can be removed by consent of the parties or further order of the Court. It would be my view that if the mother can remain drug free for a further 12 months and demonstrate her general good health that a good case would exist for such a move provided that for at least some time the wife retained adequate and appropriate support. Of course in those circumstances if the father was not to agree to such a move and the mother was obliged to come to Court, consequences might flow to the father if that failure to agree was unreasonable."

Regarding changeovers:

"The mother has suffered significant ill health, particularly psychological ill health and I think for the time being and until she is wholly well, the burden of pick up and delivery can remain with the father and I will so order."

My problem is this - the Mother has been has been staying for periods of time (ranging from 1-5 days at a time), overnights with our daughter, with a 'girlfriend' in the St George area. I have observed that her car is packed with clothes and stuff - she appears to be living 'nomadically' between households. She may be driving a car registered to a former boyfriend who is a significant recreational drug user - who also lives in the St George area (have the registration of vechilce but yet to confirm).

My daughter has mentioned the name of this ex-boyfriend on several occassions. The Mother has, apparently, coached our daughter to withhold certain information from me. Months back she told me that she was staying with our daughter at a Hotel located in Brighten but it turned out that she was actually staying with this 'girlfriend'. 

Since the trial - the Mother has spent at least half of the time in hospital. I had a feeling that her poor health and hospitalisation may have been an outcome of drug taking.

I confronted her about her overnight stays at the 'girlfriends' - in the past and again yesterday. Yesterday she responded saying, "We stay there regularly, I need time away with [our daughter]".

Furthermore, she offered to ammend arrangements with regards changeover Saturday mornings and drop my daughter to me, saying, "because we usually stay at my girlfriends Friday nights and I'd have to go past your place to drop [our daughter] at [the Grandparents] anyway, it makes sense that I drop her to you, rather than you picking her up from [the Grandparents] or words to that effect (WTTE).

I again raised my objections with regards this behaviour with the Mother yesterday. I asked for the contacts details of the 'girlfriend', including name and address. She responded in the communication book that, "It's none of your business what I do with [our daughter] when she is living with me' or WTTE.

So effectively, she and our daughter are spending a portion of the week living with the Grandparents and the remaining time living at another location.

In December 2008, I instigated 'Dispute Resolution'. The Mother is yet to attend 'Dispute Resolution'.

What should I do? Is this a Contravention? Is this none of my business? Am I over-reacting?

Update at 11:44 AM

Just just took and drive to Brighton - went to the ex-boyfriends house. The Mother's car (the car that his registered in her name but doesn't currently use) is parked on the street opposite his house. Neighbours report that the car has been there for many months. The car is loaded with the Mother's and our child's possessions.

Last edit: by 4mydaughter


4MYDAUGHTER
I was waiting to see if anyone who had a better knowledge base than myself would reply but as they haven't I'll try my best.

I personally would consider this a breach and would bring this to the attention of the court, if she is back associating with known drug users and refuses to supply contact information then you need a court ruling as to if this does indeed need to be supplied if it has not been raised prior.

If you can obtain evidence that suggests she is in use of this vehicle and it has been at this location for an extended period you could show concerns as to whether she is indeed residing with her parents and more importantly if she is in residence whilst the child is with her.

Because a high percentage of heavy drug users do re-offend when associating with other drug users it to myself would be a concern and not an over reaction again because of the specific court orders I would consider it essential to know the where abouts of the child to be honest who cares what they get up to when the child is not in their care so you are not concerned about what she does in her own time simply in joint time.

If you feel that the child is in danger then lodge a contravention, if you feel it is more diplomatic to wait for mediation then follow that path.

Things to keep in mind is that you must back things up in the right way and this really should be the write way, send letters about the situation to her and even perhaps her parents, make it known you have concerns about the endangerment of the child as specified in the orders and you feel there is still a need that they are adhered to.

If you can get affidavits that back up your statements then do so and even request a confirmation that she is in residence at her parents when your daughters there.

If you start the ball rolling and you do go back for a ruling you need to be prepared for them to allow the mother this freedom if they feel she has developed to the state to handle the responsibility people can indeed reform.

Hope this help a little.

And I hope I'm corrected if I have it wrong   
D4E said
I was waiting to see if anyone ……….would reply but as they haven't I'll try my best.

Because of heavy case loads the SRLR Execs are mostly responding in the SRLR members forums or whispering or emailing through those forums.

SRL-Resources. the Family Law People on this site (look for the Avatars) www.srl-resources.org  Non gender Professional and peer support for SRLs. Closed site, no public forums, no search engines, no lurkers, guests or the other side and their Lawyer and Friends.
Thanks for the heads up SRL-Resources, sometimes it's hard to know if the SRL-Execs are so snowed under they simply haven't had time as I realise they are flat out most the time.

Though perhaps other members who are not SRL- Execs may have been drawn to the post and post as 4mydaughter also seemed to be having moral concerns as well.

Members may have had experience in this area and may have something that they could share with 4MD.

Thanks D4E.

I was kinda wondering the same myself.

Just now returned from a session with Legal Aid. The solicitor gave me her opinion and provided direction.

She expressed the view that, 'where the child sleeps, is where she lives', and therefore, the Mother is in Contravention of the Orders by taking our daughter elsewhere overnight without my consent.

Furthermore, she was of the view that the Judge must have had 'good reason' to place restrictions on where the child's resides (sleeps) as he has done. So in that context, the Mothers actions in taking the Child elsewhere overnight goes against the intention of the Judge.

Her advice moving forward was to utilise the Dispute Resolution process to obtain a parenting plan whereby, among other things, the Mother's agreement be gained not to bring our daughter in contact with drug users. She thought that a Parenting Plan (whilst not binding) would provide a Court with evidence of what was covered the in Dispute Resolution phase - important given that the parties can't disclose what is discussed in Dispute Resolution.

She noted that given the Mother requires my consent, or a court order, to change her living arrangements, she suggested this gave me 'power' and that I should leverage this power in a smart way to bring about change in the Mothers behaviour. She suggested that I develop an agreed plan and process through which Mother could to demonstrate and provide evidence of her 'fitness' (or non-fitness) to enable me to agree (or not agree) to a change in the Mother's living arrangements. She felt that such a plan might force the Mother to change her behaviour.

So after speaking with Legal Aid, it seems the next steps are to:

1. Write a letter to the Mother stating that she does not have my consent to take our daughter away overnight and any such action constitutes a Contravention.

2. Engage in Dispute Resolution with a view to producing a Parenting Plan that fills 'in the gaps' which exist in the Final Orders.

3. Engage in Dispute Resolution with a view to developing an agreed evaluation process by which the Mother can demonstrate her capacity, thereby enabling me to consent to a change in the Mothers living arrangements.

I hope this makes sense?

4MYDAUGHTER
I would suggest the legal representative has opted for the least adversarial solution possible when there is a necessity to seek influencing the mothers actions.

The thing to remember is dispute resolution is a voluntary process so it is wise to prepare your evidence in case this option is refused. It may never be used but will be imperative if there is a need and your record will show lineal events to produce an alternate outcome. Basically it will show you have made all the right moves.

Make sure you state when you became aware of this happening and that you followed a process to the point of the letter, there is no need to state " I have been advised " but there is a need to state the date and events that led to your original objection when she confirmed that she had chosen to go against the orders and not inform you, etc etc.

Going through Dispute Resolution can have adverse outcomes depending on the people involved, I believe Dispute Resolution needs both parties represented by legal counsel to draw up a plan and sometimes this can lend to conflict.

My personal experience of Alternate Dispute Resolution provided by legal aid was some years ago and I still have a bitter taste in my mouth so I'm not the best to comment.

I would look to try and establish other opinion on ADR before committing as well as look to Mediation for the same purpose.

Just opinion mind.

All best D4E     
D4E,

Agreed. What Legal Aid was saying is that if a need to go back to court to gain further orders, I need to go via CDR anyway, so I might as well try to maximise the opprtunities potentially available through that vehicle.

If the Mother doesn't participate in the CDR process, then the way is open for me to file a new application, Contravention or otherwise.

I'm hoping the CDR will work because I'm over having to go to court. Really, its the last place I want to return to. I want to get on with my life and move forward.

The last fews years have been so taxing. My health and well being has suffered. My personality and pysche has been retarded and distorted.

All this fighting has left me far from the kind of person and father I wanted to be for my daughter.

4MYDAUGHTER
It all comes in time but certainly start to look at how you can make things better and more relaxed for your girl after all that what it's all about.

D4E,

I issued the Mother with two letters (faxed) yesterday.

1. Re: Living Arrangements - basically stating that if the child is sleeping overnight at a location not specified in the Orders, that I will imediately commence Contravention proceedings forthwith.

2. Re: Contact with 'recreational drug user' - basically stating that if evidence is found that my daughter is having contact with the ex-boyfriend or other known drugs users, that I will commence proceedings forthwith to minise risk of harm.

Next, I plan to write a letter to DOC's who asked me to keep them in the loop with respect the Mothers recreational drug use or assocation with drug users.

4MYDAUGHTER
Thats a fairly decisive communication and perhaps a little stronger than I would have suggested in regards to the word " proceedings " but that is in regards to my situation as it would be a red flag to my X though may work to perfection in your case.

Best thing is it's a start to the process and that will have to make you feel a bit better.

All best D4E
Stress is always a problem during and after the court process.

It is important that you look after yourself first, so that you have the capacity to do the things you need to do for your child.

Lots of walking for exercise, good diet and stress supplements like ginseng or st john's wort and valerian if you need a bit of help getting to sleep.

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. 
Hi All,

Had an interesting conversation with my daughter yesterday. It went like this…

She said to me,"If you are naughty, a monster comes and gets you, and takes you away"

I responded asking, "Who told you that?"

She replied, "Shane" [the Mothers drug meth taking boyfriend]

I said, "When was this?"

She replied, "The other night".

She further stated, "He told me not to be naughty or I can sleep in the car"

This conversation was witnessed by my flatmate and follows 7 days after a written warning was issued to the mother regarding my daughter having contact with the Mother's ex-boyfriend (or current boyfriend as it now appears).

The question is what to do? I feel I have enough evidence to support some action on my part.

1. I have video and photo's of the Mother's car parked outside this guys place.

2. I have various conversations with my daughter that have been witnessed by 3rd parties.

3. I have a witness (former neighbour and friend) whose wife got involved with this guy and ended up with a major addiction to 'ice'. She was living for a period with this guy at the same address.

4. I have my own first hand experiences with this guy in relation to drugs.

5. I believe that the vehicle currently beinging driven by the Mother is registered to this guy.

Situation:

1. Final Orders were issued Aug 08 - did not contain orders preventing contact with drug users.

2. Currently in Family Dispute Resolution - unknown at this stage where or not Mother has undertaken intake or the compusary "Building Connections" course.

Previously in the post, I stated that I would await the outcome of the Family Dispute Resolution before taking action. Does anyone think the situation warrants elevation to an urgent new application before the court?

PS - for those of you that know this case - my daughter informs me that the Mother is back in Hospital!

Last edit: by 4mydaughter


4MYDAUGHTER
I would be cautious relying on a child this age saying "the other night" because this time frame can be weeks ago.

The situation sounds like it is unravelling, but it is important to build a very strong case.

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. 
Artemis said
I would be cautious relying on a child this age saying "the other night" because this time frame can be weeks ago.
 

Yes - the same thing occurred to me.

Just had a chat to Monaro and we are in agreement that the next step should be a articulate the situation and my concerns to DOC's, for the purpose of continuing the paper trail.

I'm considering buying a GPS tracker from the USA and sticking it under the Mother's car. This device relays its precise location to Google Earth at any time, lasts for 90 days without recharging. Need solid evidence.

Thats where im at!

4MYDAUGHTER
The admissability of evidence by illegal methods is not permitted under the Evidence Act.
It has been noticeable over a period that litigious litigants are required to almost surpass threshold of probability in establishing proof.
The court has in effect caused the Government to create obstacles (FRCs) to apprehend cases that are able to be resolved in less costly forums.
After demonstrating that a party  has gone to the nth degree to obtain a resolution the court appears to be more likely to hear favourably arguments of the party who has sought a more timely resolution.
In a custody case a judge specifically wrote orders into the judgement which impeded a party from pursuing insignificant appeals and contraventions. That woman was dealt with harshly, yet she did express an intention to act litigiously.
How the GPS might be used to collect evidence would need to be very carefully considered. Stalking is an illegal offence as I understand it.

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
4mydaughter,

Before purchasing such tracking devices, considerable effort must be spent researching legislation including, Listening Devices Act, telecommunications Act and the Evidence Act.

The use of such devices to protect your lawful interest fall somewhat in uncharted waters, arguing it's admissibility,that is, if no law's are broken - will make interesting observation.

verdad said
How the GPS might be used to collect evidence would need to be very carefully considered. Stalking is an illegal offence as I understand it.
 

If the Mother is residing with our daughter at a place other than what is specified in the Orders and in contravention of the Orders, how do I prove it?

It's been suggsted that I follow her (and our daughter) and take pictures? Or get a PI to follow her (and our daughter) and take pictures?

I don't believe this situation would qualify as 'stalking'.

The purpose of my actions is not about stalking the Mother or seeking to cause her harm. The 'intent' is not criminal. The 'intent' is to protect my daughter from 'risk of harm' bought about by the actions of the Mother, which are in contravention of the Orders. Furthermore, my daughter is staying overnight in the residence of a drug user/dealer!!!

The GPS tracker would enable me to 'remotely' observe where the Mother's vehicle is parked overnight. This information would enable me to drive directly to the location to garner photographic evidence rather than follow her around 24/7.

Parents do use GPS devices to tracker their children. There are now GPS watches available that do exactly that.

It's an ugly senario but what is one to do? The burden of proof is on me.

Last edit: by 4mydaughter


4MYDAUGHTER
The Private Investigator is a preffered option in that a personal stalking of a person can give cause to further litigation.
If a PI is employed, then during the same period it might be possible to obtain provisional evidence that might assist the PI.
Establishing that the mother is contravening orders is not exceptionaly dificult if she is not residing where she is meant to.
Regardless of an intent, stalking is stalking.
A question as to whether one might be a better parent if not absolutely engrossed in getting something on the mother is alive.
The information about the person concerned may be of more interest to the court than excessive photos giving the mother in the company of this person. That might have inherent problems that need to be addressed.
BUT, the main concern is how does one get that or any other material into the court record without self incriminating and looking like a parent more interested in self interest?
Beyond it all is the affect that comes from being as one not really wishes to be

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha

whole thread needs to be moved

If my ex partner were to do this to me, I would make much milage out of it. I might even be able to turn it to advantage and excuse my transgression, by pleading that I felt safer at a boyfriend's house with my ex stalking me. As Verdad states, this is illegal.

Letting the mother incrimenate herself would be more beneficial.

It is certainly a situation that requires more thought.

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. 
Whilst I take on board what everyone has said in relation to GPS tracking, there are no laws that regulate or ban the use of GPS tracking technology in Australia.

As long as you dont commit a crime in the process of installing the device to the exterrior of a car (e.i. breaking into the car, tapping into the cars power supply, cause damage etc) it's not a crime.

The simple fact is that law has not keep up with technology in this area.

It's also not illegal in the USA.

4MYDAUGHTER
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