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Interpretation of court order regarding contact details of where the Children are staying

Would appreciate feedback and opinions on that one, thanks

Ok here it goes.

One of our SRLs came and saw me with the following order:

"That the husband notify the wife of his contact address and telephone number during contact periods prior to the commencement of the said contact period".
 
I will name the SRL Resource client Dad. Dad had sent the address and telephone number to the Mother before the commencement of contact. The details where for his residential address in Sydney where he intended to exercise contact. However during the contact which was a 16-day contact, Dad and the Children decided to go camping for 5 days in the Port Stephens area because they got hold of an attractive last minute offer.

The Mother now claims this is a breach of the Order as she was not notified of the address or telephone number of the camp ground, neither prior to the commencement of the contact nor during the contact. Dad confirmed that he did not notify the Mother at all as his understanding is he only needs to provide a primary address for the contact but from that primary address he is free to take the Children away (within the country of course).

In order to help Dad to reply to the Mother's correspondence we would appreciate some feedback from others who may have had a similar situation or would just like express their opinion on this issue.

I thank you all.

BB

Orders

BB said
"That the husband notify the wife of his contact address and telephone number during contact periods prior to the commencement of the said contact period".
This is a pretty typical order. What is intended here is that the contact details are provided. The Dad in this case provided the contact details and complied with this specific order to the letter of the order.

However the Mother has a dummy spit because she presumably has a personal problem and not yet been able to give up that controlling interest in the child(ren) and has not yet reached a situation that will allow the children to have a free reign with Dad during his exercised contact period. Perhaps it could be she is jealous of the wonderful holiday Dad and the kids had and she was not part of that.

You raise a very interesting point, because no matter how hard we try to get these orders precise there can always be a situation that an order is taken to it's extreme by one or other of the parties. The order could be made to be so precise that a Judge would not make it on the grounds  it would be to onerous on one or other of the parties and it would be considered in its wording to be extreme.

I travel a fair bit in the holidays overseas. I have an order that says I must provide an itinerary 14 days prior. It is not an hour by hour detail of where we will be, but the outbound and inbound flights and primary location i.e where we are staying which is the parents (Grandparents). This order does not mean I have to provide a day by day trip itinerary within the start and end date period, as the schedule once there changes regularly depending on: weather, funds, cheap internal travel deals, friends invites, shows and activities on offer on the day, etc.

There has been however considerable discussion between us as to what an itinerary means. It appears that a simple email to mum of flights was inadequate because on one occasion I had forgotten to advise we were staying at the grandparents and so because I only advised that a day before we were due to go she considered that I had not complied and would not release the passport. She relented but not before much anguish tears and consternation.

I had an order initially that said I got half the gazetted school holidays. The child went to a private school. The private school holidays are gazetted and so are the public school holidays. I thought I was getting half the holidays his mates were getting so booked trips accordingly. However the mother would not let me have half the school holidays of the school my son attended saying I could only have half the gazetted "public" school holidays (Some three weeks less) … I had to go back to court at great personal time and cost and get orders amended to say half the school holidays of the particular school the child attended. Now she is talking about changing school and as the school is named in teh orders I will have to go back and change the school name if the new private school has a different holiday regime.

So in all some orders have to be that precise there is no possible way of misinterpretation is the point I was making.
BB said
The Mother now claims this is a breach of the order as she was not notified of the address or telephone number of the camp ground, neither prior to the commencement of the contact nor during the contact. Dad confirmed that he did not notify the Mother at all as his understanding is he only needs to provide a primary address for the contact but from that primary address he is free to take the Children away (within the country of course).
I would be inclined to write back advising that the order was complied with fully and that the order was interpreted to mean the primary contact address. (Are there any telephone orders in place for either parent during contact) as you could also suggest that a mobile phone number is available at any time (If dad has one) should any urgent matter arise or the children wish to contact the mother…

or you could adopt a more humble approach and suggest that in future occasions when the dad is travelling to outside the primary address for any extended period (leave vague) then site contact details will be provided. That would cover any likely contravention proceeding as you have agreed already to provide additional contact addresses even though you are not "obliged to". This would not be considered a breech of an order in my view and is the sort of thing that judges must get sick and tired of anyway. The mother, I am sure, would be spoken to regarding any proposed proceeding prior to it getting up. Under contravention proceedings dad can rely on section 70NDA in this case anyway.
Subdivision D - Contravention established but reasonable excuse for contravention

70NDA Application of Subdivision

This Subdivision applies if:

a) a primary order has been made, whether before or after the commencement of this Subdivision; and

b) a court having jurisdiction under this Act is satisfied that a person (the respondent) has, whether before or after the commencement, committed a contravention (the current contravention) of the primary order; and

c) the respondent proves that he or she had a reasonable excuse for the current contravention.

Note: The court may also vary the primary order under Subdivision B.
This is important for dad because he has reasonable excuse. The initiating contravention was based around an order that for any reasonable person would have considered had been fully complied with. That the mother in this instance was unreasonable.

My letter would also advise that any contravention proceeding around this issue would be entirely inappropriate and strongly defended and that dad would rely on section 70NDA in any event and so that even if she did win an expensive contravention proceeding she would have to pay costs for both parties and that it would be far more reasonable and sensible for mum and dad to work out some arrangement that mum might be more amenable to.

Over time I think things may be easier for this dad. Lets hope so.

Hope this helps in some small way BB..  :thumbs:

Executive Secretary - Shared Parenting Council of Australia
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Orders and Interpretations

Depends very much on some of the other interlocking orders.

Minor technical contravention because of the interpretation of the wording.

Very unlikely a Court would even 'process' such an application.

The problem is that wording is often open to interpretation - hence why so many Contraventions fail.

As regards School holidays 'Gazetted' is ALWAYS wrong. Instead "The school the child is attending" is correct. It is amazing how many solicitors fall into the Gazetted trap. The same with Public Holidays - do they mean National Holidays which are the same in all States or the holidays in the State where the children reside because there are different public holiday dates in many States.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
Our orders state that contact details are to be given when leaving a radius of more than 200 km, although it is complied with, it does not always  guarantee I get phone contact, but they are some of the things you have to live with.

If you don't talk about it, how can anyone help you move forward!

Always good ADVICE

imadad said
Our orders state that contact details are to be given when leaving a radius of more than 200 km, although it is complied with, it does not always  guarantee I get phone contact, but they are some of the things you have to live with.
 

Knowing when a minor issue is something you have to live with!

For me - Shared Parenting is a Reality - Maybe it can be for you too!
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