NSW Family Court Orders Not Followed - Apply for Contravention Orders?

[Karsidi]

My children lives with the mother interstate. Only 3 weeks ago I had children matters just decided by the FCA (Federal Court of Australia) and I am happy with the judgement. However the mother disagreed and she indicated that she will lodge an Appeal.

There are orders afoot that the children are to spend time with me, the father, during the school holidays and one of them needs medical treatment with the Judge being specific with the medical practitioner to provide the treatment. Regrettably the mother disagrees with these orders and won't cooperate. She argued while there is an appeal underway that (a) she needs not comply with any orders everything is suspended and that (b) because she has been granted sole responsibility over long term decisions she can override the Family Court Orders in the best interests of the children.

Is it too early to apply for contravention orders? I meant, will it annoy the Judge if I do since her decision was still fresh? The Sep/Oct school holidays just around the corner, how can I get an urgent hearing before mid September? Is this too ambitious so I just have to give up the idea of having the kids spending time with me then?

 

[AllForHer]

Has she actually contravened the orders yet?

If not, you might consider contacting her solicitor to ensure that she is aware of what is required of her and the consequences of not complying. Parental responsibility doesn't override court orders under any circumstances, and I believe the orders remain in place unless the court orders interim orders as part of the appeal. She only has 28 days to file for an appeal once the decision has been made. She must also successfully argue that an error of law has taken place, rather than an error of fact, so simply adding new evidence is not grounds for appeal.

 

[Karsidi]

Has she actually contravened the orders yet?

If not, you might consider contacting her solicitor to ensure that she is aware of what is required of her and the consequences of not complying. Parental responsibility doesn't override court orders under any circumstances, and I believe the orders remain in place unless the court orders interim orders as part of the appeal. She only has 28 days to file for an appeal once the decision has been made. She must also successfully argue that an error of law has taken place, rather than an error of fact, so simply adding new evidence is not grounds for appeal.

Thank you for your input. Of course she has not contravened the orders pertaining to spending time with the father for that has been slated in the future, end Sep to early Oct for the next opportunity. But she has steadfastly refused to send the child to the medical practitioner and the treatment cannot be postponed any further because of the regressive nature of the illness. Hence why I am keen to apply for contravention orders ASAP, but very concerned that there be no duty Judge that can hear my application for months on end with dire consequence on the boy.

Thank you for reminding me that the appeal must be grounded on points of law not just to rehash the disputes in the first instance and 28 days to mount the appeal.

 

[AllForHer]

If I may, has the mother taken the child to a different practitioner for treatment?

 

[Karsidi]

The treatment was already started by the same medical practitioner (that the Judge directed the child to continue with) a couple of years ago through mutual consent by the parents. For her own reasons the mother suddenly stopped the treatment in Jan 2014. During the trial, this medical practitioner was a witness and extensively cross examined by the ICL and mother, the outcome being the Judge is satisfied with the quality and urgency of the treatment thereby directing that the boy continue with the treatment with the cost equally split between the parents.

The mother disagreed and now wanted to propose treatment with the Qld Health Service and she has booked the first appointment for assessment on 28 Sep (which coincidentally mid way during the school holidays whereby in pursuant of Court Orders the children are supposed to spend time in Sydney with me, their father).

So in short, no she has not taken the child to a different practitioner, but she intends to engage a new one via the Qld government public health system. I am still gob smacked about this.

 

[AllForHer]

Of course, I understand your frustration.

It would be prudent to forward a letter to her solicitor in the first instance addressing these proposed contraventions and your intended action if confirmation is not supplied showing that she will not deviate from the orders.

The problem, of course, is that you can't file a contravention application until she has actually contravened the orders. Clarify that you will be forced to file contravention proceedings if the orders are not followed, as has been suggested by the mother.

Orders, once made, always have some teething problems, but both you and the mother have legal obligations that you must uphold and if she does not have reasonable grounds for her actions, she may have to face the consequences.

 

[Karsidi]

Thank you for your insight, very good tips. I know what to do now.