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What are my options

The orders are in place, but still there are problems

My final orders have been in place for nearly as month and they specify that I am due to pick my Son on the Friday at 3pm for the school holidays.

Unfortunately I work interstate and am unable to get back until very late that night. I gave her two weeks notice of these arrangements and have even suggested that I pick him up at a time that is agreeable on the Saturday rather than us meeting in the pre-designated spot. She has made it very clear that if I am unable to pick him up at the time indicated in the orders then I forfeit my right to have him for the school holidays and will not be able to pick him up on the Saturday.

What are my options.

She has indicated that she is no longer represented by her solicitor, but I have sent her solicitor a letter asking for clarification. I have also sent my ex a letter, nicely explaining the situation, but all I get is SMS abusive back.

Trouble at mill, lad

Hi. Sorry to hear what is going on. It is not an unusual situation!

Since you have contacted the ex and her lawyer and had no joy, I would recommend the following:

Go to pick your child up early Saturday Morning; if she refuses to let you have your child, go straight to the police and ask them to help. Make sure they fill out an incident report and give you the details.

Make sure to take a copy of the orders with you plus copies of correspondence between you about you being late.

At the very least you will have a paper trail for a contravention.

What exactly do your orders say about timing? It pays to put clauses in about being late.

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. 
You should have posted in the members area but 'depending' upon the actual wording of the orders -you have offered an alternative and it has been refused.

You can 'threaten' a contravention and there are other options but knowing your case I am not going to post them in a public forum.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
Unfortunately there is nothing in the orders about changes of circumstances.

I was led to believe that the Family Law Act allows for changes to the orders where there is a "reasonable excuse" and this was proven in a recent case.
If she chooses to contravene the orders then due process will have to be followed as in any contravention.

But Agog has already suggested there may be other alternates for you to follow that need to be discussed in the members section for your personal situation.

I myself if in the same situation would do as monteverdi has suggested, knowing the police may well chose to handball it to federal police who may well handball it to the court. Reason being is it's leaving provable evidence. I'd do this ASAP then be off to the FLC to apply for contravention with a request for make up time. But this is simply a personal approach and others may choose an alternate that works better for their situation.
Just a thought - I have no personal experience of the law here, only years of eperience in child care and kindergaarten teaching.

How about telling the mother beforehand, (perhaps by text or email or courier since you are running out of time), that you will go to police if needed.

That may help her see differently and may also, just as importantly, avoid a scene on the doorstep in the front of the child.

You would only need to knock, show your face, make your request, state where you are going next in a calm voice, and leave.

That means you do not inflict a scene or truma on the child - any trauma from a scene after you leave is most damaging for the child but not your doing if you just leave immediately without engaging in the debate.

My advice is not legal, but hopefully will protect a child you obviously love.

Good luck.



Really ?

cjarmain said
Unfortunately there is nothing in the orders about changes of circumstances as I was led to believe that the family law act allows for changes to the orders where there is a "reasonable excuse" and this was proven in a recent case.
Hang on - you are now talking about Rice and Asplund issues. You are incorrect in your belief about reasonable excuse; the Rice and Asplund threshold is very difficult to pass. Have you really understood the recent case you talk about?

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. 
It looks to be more involved than the simplistic view I took if this is moving to " Rice and Asplund ". If so I bow out to the people who have a better understanding and much more qualified experience.
 ( Shut my mouth  :$  :P ).

katie good suggestion for less adversarial situations with parents who can communicate in the child's best interest but could see the mother simply removing the child from the home. Forewarned Forearmed.

I totally agree if people present themselves on another door step that it is imperative to avoid conflict but behind this is also an alternate motive. In the very least it allows you to approach police about the matter.

A few times I have been left holding the bag so to speak for doing the right thing and it is a little devastating and it is very hard but you are right.

  


Hi Mate,

I disagree with some of the advice given here.

Firstly - don't threaten to get the police involved. That will only inflame matters. Be cool. Also, the intention of her response might have been to deliberately upset you. DO NOT escalate the situation.

Secondly - forget Rice & Asplund matters for the moment. Those considerations are not even in the frame at the moment.

Establish a paper trail. Get your communications in written form - even if only in SMS text. Get her communications in writing or SMS text message.

Did she use a lawyer before or was she self represented? If she used a lawyer before, put your proposal in writing and fax it to her lawyer. Faxes are great.

If she was a SRL before - does she have a fax machine? If so, fax your proposal to her.

Get a fax transmission receipt. Keep your SMS text messages in a safe place. Think about getting a mobile phone that connects to your computer and get phone tools software, so that you can manage and store that text communications between you.

Next - turn up at her doorstep to pick up the kids as you have proposed. Take a neutral friend to the pick-up so they can witness the events but make sure it is someone level-headed and a calming influence. Not a great idea to be accompanied by a woman.

Failing that, take a video camera and have it rolling upon arrival and throughout. But don't have it in their face.

DO NOT take someone along who will get fired up or fire you up.

Whatever happens - be cool. If she refuses to facilitate contact - be cool, calm and collect. Try not to be confrontational.

As far as calling the police to enforce contact? That's your call. And I'd suggest its an action of last resort. You need to spare your kids from that kind of carry-on if you can.

If she withholds contact, you need to cop it and establish grounds for Contravention of Orders or even possibly Contempt of Court.

Lastly - I have to say I feel for you bro. I am in a similar position. Assume the best outcome. Just leave a paper trial.

J

4MYDAUGHTER
I do not know what you may have tried to arrange with your work, but have you approached your boss or employer and explained the situation and have tried to arrange to to leave work early to enable yourself to be there at the appointed time  even if you had the day off and arrived the evening before.

I assume you may have already tried.
I must apologise for not reading your first post properly. I did not read the last few lines.

Was at work at the time and was trying to post a reply without the boss seeing.

You have indicated that she no longer uses her solicitor.

I think at this time you have probably done all you can do. The ball is now in her court. Should she withhold contact for the reason mentioned, her actions should be deemed unreasonable should you go back to court.

Hopefully, she is just trying to rile you. If she withholds contact, then she's a fool. If this happens you could file for Contravention of Orders immediately.



Consider this section of the Family Law Act:
FAMILY LAW ACT 1975 - SECT 112AB

Meaning of contravene an order

(1) A person shall be taken for the purposes of this Part to have contravened an order under this Act if, and only if:

(a) where the person is bound by the order - he or she has:

(i) intentionally failed to comply with the order; or

(ii) made no reasonable attempt to comply with the order; or

(b) in any other case - he or she has:

(i) intentionally prevented compliance with the order by a person who is bound by it; or

(ii) aided or abetted a contravention of the order by a person who is bound by it.
Consider this FCA Full Court Appeal Judgement - and act:
Stevenson & Hughes per Fogarty (quoting Moore)

Between: Robyn Ann Stevenson Appellant/Wife and Kenneth Alan Hughes Respondent/Husband Appeal [1993] FamCA 14; (1993) FLC 92-363 16 Fam Lr 443 Contravention (1 March 1993)

In the Full Court of the Family Court of Australia
Fogarty(2), Nygh(1) and Gun(3) JJ

FOGARTY J

5. The third matter to which I should refer is to endorse specifically the analysis by Moore J of the issues involved in cases of this sort.

6. Section 112AB(1) provides in effect that where a person is bound by an order such as an access order, a breach may occur where that person makes no reasonable attempt to comply with the order. That is a statutory statement of the obligation but I thought that her Honour explained aspects of that in several passages of her judgment which I think should be reproduced. At p 8 of the Appeal Book her Honour said this:
"There is also implicit in every order for access an obligation imposed upon the custodian to take reasonable steps to do what they can to ensure that the stipulated contact occurs."
Then at pp 11 to 12 of the Appeal Book there is the following passage which, although lengthy, is worthy of being repeated and it is as follows:
"I have already made reference to the implied obligation of the custodian to take reasonable steps to ensure that the access stipulated in an order takes place. Words and actions have meaning in context and affect. It is not a sufficient discharge of custodian's obligations, express or implied, to point to words and actions and to say, in effect: 'You see I tried. But the child does not want to go,' and thereafter to figuratively fold their arms as if that were an end of the matter.

Theirs is an active role with an obligation to positively encourage access. It is not a discharge of their duty to set up access to fail. That is to say, it is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation."
7. Finally, her Honour, in relating those observations to the particular facts of this case said this:
"… the respondent has adopted on the occasions when those expressions have been used a passively obstructive stance inconsistent with her obligations under the order."
8. It is important that in cases of this sort custodians appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance. That matter was emphasised as early as 1984 in Stavros (1984) FLC 91-562, but I am afraid that the contrary attitude still appears to permeate the jurisdiction and the sooner that that misunderstanding is removed the better for everybody.
Attachment
Stevenson & Hughes Appeal FamCA 14 1993 FLC 92-363 Contravention - Quoting Moore re Blocking & Facilitation of Contact
Hi cjarmain

I agree that 4myDaughter gave you the best advice and I hope it all went well.

Regarding involving the police, I only meant with a view to having them confirm and document that your child was not available for you to collect.

I certainly would not suggest having the child forcibly handed over in the presence of the police - that is far too traumatic.

If forewarning about any police involvement meant that the child was simply not present when you arrived, that would be sad for both you and your child but also good for your child. The police could confirm the child's absence without the child ever knowing they had been there,and that is good because it protects your child.

All of this is very unfair when all you and your child want to do is see each other and I feel for you both.



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