NSW Contravention of final consent orders

[Bill1979]

Hi there,
There are final consent orders that state the maternal grandparents are not to attend changeovers with the children, though they have been attending every changeover since the final orders were made. On one occasion the maternal grandmother assaulted the father and tried to strangle him in front of the children, a police statement was made, though as there was no CCTV footage of the incident there were no charges made. Since that event the other party has witheld the children from the father and a letter was sent to the mother requesting the reasons they have witheld the children from the father. The mother put a public post on facebook stating that "i know fathers have rights but you don't deserve any" the mother has stopped all contact and her phone has been disconnected despite the final orders stating that the parties are to notify each other within 48 hours of changing numbers. The phone contact with the children has also stopped as a result. The mother then applied for mediation and this is set down for the next few weeks. My question is is what should the father request in mediation or at the next stage of a contravention hearing to stop these breaches by the mother and to get them to start following the orders, the mother has also breached previously since final orders were made by witholding on Christmas day and on 4 other separate occasions before the assault. it will have been two months since the father last spent time with the children by the mediation date.

 

[Tremaine]

So mum initiated mediation? Interesting.

Has dad filed an application for contravention orders, or is he waiting until after mediation to decide his next move?

One of the main things he should request is that changeovers occur in a public place, like McDonald's, if they're not already. If he's otherwise satisfied with the orders, though, he should feel comfortable resisting other changes that he doesn't agree with and going down the path of contravention proceedings if she doesn't start facilitating the kids' time with dad in accordance with the orders.

 

[Bill1979]

So mum initiated mediation? Interesting.

Has dad filed an application for contravention orders, or is he waiting until after mediation to decide his next move?

One of the main things he should request is that changeovers occur in a public place, like McDonald's, if they're not already. If he's otherwise satisfied with the orders, though, he should feel comfortable resisting other changes that he doesn't agree with and going down the path of contravention proceedings if she doesn't start facilitating the kids' time with dad in accordance with the orders.

So mum initiated mediation? Interesting.

Has dad filed an application for contravention orders, or is he waiting until after mediation to decide his next move?

One of the main things he should request is that changeovers occur in a public place, like McDonald's, if they're not already. If he's otherwise satisfied with the orders, though, he should feel comfortable resisting other changes that he doesn't agree with and going down the path of contravention proceedings if she doesn't start facilitating the kids' time with dad in accordance with the orders.

Yes the mother initiated mediation, though thet think it was more of a delay tactic as the father was looking to proceed to contravention. The father will wait on the outcome of mediation, and then proceed with contravention if there is no outcome at mediation. The changeovers do occur at a public place though the grandparents still attend and both the mother and grandparents engage frequently in denigration of the father to the children when they do attend despite this being in the final orders. Are there some common orders that can be requested at contravention to prevent the mother from contravening again, or will the judge just advise the mother if they slip up again then care arrangements will change.

 

[Tremaine]

Unfortunately, no parenting order is going to stop a person from behaving like a d-bag. Managing that is more of a personal approach than a court-ordered one. But if the orders aren't followed where it's really important, that's what contravention orders are for (like mum withholding the kids).

The court can't do much more to discourage denigration than make an order restraining the parties from denigrating each other in front of the kids, but it's a hard one to enforce, so for the denigration that occurs at changeover, dad needs to learn to ignore that and not engage at all with either the grandparents or the mother. Even if they continue being idiots, dad doesn't need to confirm their statements by retaliating in front of the kids. Kids aren't stupid - if dad is always polite and mum/grandparents are always aggressive, they're going to work out on their own where the issues are coming from.

The most important issue to address is mum following the orders about the kids spending time with dad. If mum continues to withhold after mediation, then dad files contravention proceedings, but only then would I bother with the issue about the grandparents attending changeover. I wouldn't pursue that as a contravention on its own because it's probably not worth it.

If, after mediation, the grandparents continue to attend changeovers, dad should consider writing to the mother to remind her of what the orders state, then if it continues, start recording changeovers so dad can transcribe the exchange into an affidavit supporting contravention proceedings.

 

[sammy01]

I'd be putting the contravention application asap. Sure mediation might work (it wont - bet ya). So wait until mediation, wait some more because she will offer more mediation, then watch it fail and then apply for contravention? nearly a year has passed...

Or do the contravention asap.

 

[Atticus]

On one occasion the maternal grandmother assaulted the father and tried to strangle him in front of the children, a police statement was made, though as there was no CCTV footage of the incident there were no charges made.

Did the police suggest the possibility of having an APVO (Apprehended Personal Violence Order) served on the grandparent/s... Or you could consider making the application yourself. Certainly have grounds for it reading this... That will prevent them from being at changeover... Breaching that will result in the police visiting & possibly laying criminal charges for breaching.

 

[Bill1979]

I'd be putting the contravention application asap. Sure mediation might work (it wont - bet ya). So wait until mediation, wait some more because she will offer more mediation, then watch it fail and then apply for contravention? nearly a year has passed...

Or do the contravention asap.

Update, ok so we attended mediation where the mother agreed to attend with the children on Fathers day for 2 hours though unfortunately did not attend with them. She produced a psycholigist report at mediation stating that one of the children has anxiety when they are in the fathers care and so the psychologist recommended that the existing arrangements be amended, all without any input from the father to distinguish the validity of the mothers story. There were several errors with the psychologist report namely that the accounts given by the mother were false, right down to telling the psycholigist that the current contact arrangements are only for 2 hours a week when it is 2 nights building up to 5 nights a fortnight!!! She also claimed to the psychologist that father had kidnapped the children when in reality the police told her on one occasion to hand over the children during a time she was witholding so clearly the report would be biased based on these outrageous claims. The issue is is that given the psycholigist has made a recommendation for decreased time, would this be considered a reasonable excuse in the case of contravention. Would the father be best served applying for a contravention or making an interim application with slight amendments to orders to make it harder for the mother to breach, and would the time lost be able to made up under each of these options? Given that its already been several months aince since the father has seen the children how long would it take before this gets back to court. Ive heard that the court generally doesnt like contravention applications but isn't situations like this what they are meant for?

 

[sammy01]

mate you wanna go see a solicitor asap. Nope faster. Don't allow for any more delays.
The fact that you've waited months is your worst enemy.

Don't take advice from punters on keyboards, go and get good legal advice. If you used a solicitor to get the consent orders go back and see them asap.
Do not delay... Read that twice DO NOT DELAY.

 

[Rogered spectacularly]

Hey mate,

I am not giving legal advice....I am not qualified but am acting as the lawyer with my Barrister on overwatch...but the below could save you tens of thousands as that is what is cost me for this bit of my rolling train wreck / case.

So, when it comes to contravention of Orders by a party, the court does not enforce its own Orders. Yeah that's right....you have to open a whole new Case (Initiating Application) for the Contravention of orders, by say the Mother, which takes as long as the main Case and costs the same too. It doubles your time and cost however it runs in parallel with your existing case, just behind it by the period between the first Initiating Application and the breech of Orders.

Every time there is a new breech of Orders you can add to this Contravention Case with an additional Affidavit so it is all documented.

Time for a rant...

Unbelievable but true, this process seems like such a good idea since we all have a day job but can easily squeeze this paperwork avalanche in to our daily lives for years, have spent our life savings, probably sold our family homes, can’t find a decent lawyer in this field and realize this will all take a long time and it is stacked against you as a male. It’s like fighting for your rights or trying to save your children in slow motion while trapped in a giant jar of honey. A perfectly sane and normal situation just don’t be angry about it or express your male genetics in any way that startles the sheep, or you could be hit with a DV allegation then your world will turn to s**t fast. Particularly in Qld which has special rules and the assumption of guilt before innocence apparently.
I don’t know why this situation has been created other than the apparent Cash grab it creates for our legal bros. It clogs the system already straining to cope with the volume and sends the message that they have no teeth or desire when it comes to enforcement of their own Orders.

Rant ends.

I reckon you have got 2 choices:

1. In opening the additional Case for the Contravention, reporting the bad behavior is good but it is a long journey that MAY one day affect them. The first time before the court they will no doubt give warnings only, then fines, then a last warning / fine before they actually penalize the other party with time in lieu that you have lost with the children and thereby made up to you or imposing a serious fine or time in custody.

The good news is it strengthens your case for arguing that the other party is preventing a meaningful relationship with your children. The judgement of Rigley and Stiller 2014 is a precedent in the Federal Circuit Court that may apply to your custodial argument if you are at the extreme end of things; investigate its applicability for your case.

2. Don’t open the additional Case, instead reference each breech in your Affidavits as part of the general updates given to the court in your existing case. This way they are still aware but will not officially punish the other party. It shows the true colors of their character which may weigh in your favor at the trial or final Hearing where the Judge makes final Orders and rulings based on their assessment of the behaviors of the parents, how that affects the Best Interests of the Children and their personal feeling on how they deliver justice. This has to be justified by precident and evidence but people make emotional decisions and justify those decisions with logic and reason.


Also the bigger things that will affect your case are who your Judge is and whether the Court judges you to be a person who is reasonable and someone they like. This is largely a matter of luck BUT 'Triage' judges are used to dealing with the tough cases and see through the BS. Luck favours the prepared, I hope these ideas help.


I am not a lawyer, my advice therefore is not legal in nature, just based on experience the hard and costly way. I hope this saves you some time, effort and money or makes things easier for you.

 

[Philly2020]

You meet at a public place?

Record them. Have your phone on video and RECORD EVERY SECOND from when they arrive until they leave. Use this to either obtain an AVO, report a breach of AVO or annex it as part of your affidavit.

It is possible if they are aware they are being recorded their behaviour may change.