NSW Parenting Plan on Top of Existing Family Court Orders?

[sammy01]

Take the court orders with you.
Stay calm.

 

[Atticus]

Totally agree. It is her new interpretation of orders that have been in place for years that is the conflict here, not you following them...

 

[Bananatree]

To provide an update for anyone interested...

We advised mother via email we would be picking the child up as per the usual interpretation despite her protests. Father turned up at the school and collected the child without incident (she did not attend and from his possessions she planned for the child to be collected by the father). The child will be returned as per orders.

Mediation is now booked as both parties agree it is needed so hopefully it was just a tactic and we will get this all back on track again. Mediation will have to go ahead as there is still disagreement about the interpretation so it would be better to get it all sorted as otherwise it's going to be a merry go round.

 

[Atticus]

Thanks for the feedback... That's good news

Mediation will have to go ahead as there is still disagreement about the interpretation so it would be better to get it all sorted as otherwise it's going to be a merry go round.

Mediators can't offer legal advice & I doubt they will be drawn into giving an opinion on an interpretation of existing orders... What they will do is try & help you two agree on how you want the 'issue' at hand to be dealt with in the future. They will be looking for the common ground around the issues to build on & reach an agreement.

That's great if you can agree on how the current orders should be interpreted...but...just to repeat... be very wary of agreeing to enter into a parenting plan...

The default position of the family law act is that an existing parenting order is subject to a later parenting plan unless the order specifically says otherwise >>> FAMILY LAW ACT 1975 - SECT 64D Parenting orders subject to later parenting plans

As you know, a plan is not legally enforceable... You don't want that, you just want to clarify the interpretation

 

[sammy01]

I'd be going back to your solicitor, especially if they wrote the consent orders?
so the slip rule might apply... If there is a type or a phrase that could be considered vague then the courts will rectify it nice and easy...

But my thinking here is DO NOTHING. I don't think there is any -wriggle room here. The orders are pretty clear, this is just an ex trying to find problems when they don't need to exist.

 

[Atticus]

Whilst after 3 years of compliance this sudden 'new interpretation' is almost definitely just a case of trying it on by pushing boundaries, the problem with doing nothing is that nothing is likely to change (as in her behavior)...

I imagine she will have reservations about taking the opinion of your solicitor, & I'm sure hers would see her interpretation as reasonable..... Not sure the slip rule would apply here either if a different interpretation amounts to a significant change, & I believe it doe's

At least with mediation if nothing comes of it by way of agreeing on the 'interpretation', then you will have a s60I certificate that you can then use to take further action as either an enforcement or contravention application if you so choose

 

[Bananatree]

Hello all,
Sorry to be back but the saga continues...
So following the June/July holidays going to pot we went to mediation the week prior to the September holidays. A lot was raised and minor breaches had agreements made to prevent in future however no headway was made regarding the visitation issue and no formal written outcomes recorded. Section 60i cert issued. Following mediation however emails were received from the other solicitor and agreements made regarding the interpretation of the orders. A calendar was provided by the other party and we agreed to it. Happy days... For the September holidays ie a week.
Then all of the agreements re the minor stuff were broken but we sucked it up. The calendar then said we picked the child up Friday 6th December so we turn up at school to pick him up and she grabs him and leaves... We have no idea what's going on. We sent texts and emails to her and her solicitor to try and work it out. After multiple followups we today get an email from the solicitor saying she has again changed her interpretation and the agreed upon calendar which was meant to solve all this means squat. As the child's school was unknown when written the orders state Qld school holidays (as per ed Qld) she's now saying as hes at a private school and holidays start a week early there's no provision for that week as he's in holidays but not Qld Ed.
So our solicitor advised to send an email requesting the calendar be upheld and make up time provided for this missed time, especially seen as no communication happened. We have done this but nil reply yet... Tbh we have Buckley's of this being agreed to but have to try.

So we are now looking at contravention proceedings as the constant change of interpretation of orders (which our solicitor is flabbergasted about as she reckons they are the strictest orders she has ever seen) and constant minor breeches is getting ridiculous.
So my question is: with two withholdings (6days each) in 6 month due to 'interpretation of orders even after a calendar is agreed plus a large amount of minor breeches (failing to notify of anything including medical etc), not taking the child to school and constant abuse of us via email. What is the likely outcome of contravention proceedings? Are they likely to be of use?
Also, agreements made at mediation (that were basically to follow the orders already made re medical, communication, time and costs) are they useable in court or because it's in mediation can those agreements not be raised (trying to show we tried to sort the issues prior to court)?

Any advice welcome

 

[Atticus]

So my question is: with two withholdings (6days each) in 6 month due to 'interpretation of orders even after a calendar is agreed plus a large amount of minor breeches (failing to notify of anything including medical etc), not taking the child to school and constant abuse of us via email. What is the likely outcome of contravention proceedings? Are they likely to be of use?

If the orders are demonstrably unambiguous, (& it sounds like your solicitor believes so) then that increases your chances of a finding of a contravention/s having occurred without reasonable excuse. That then allows the court to use tools available to it, which range from an order to attend a parenting program plus make up time, to having a bond imposed..... plus an order for costs... If she appears before the court again on breaches the court may even find her in contempt which can even bring a term of imprisonment....

Also, agreements made at mediation (that were basically to follow the orders already made re medical, communication, time and costs) are they useable in court or because it's in mediation can those agreements not be raised (trying to show we tried to sort the issues prior to court)?

Communications in mediation are private unless it is to do with allegations of child abuse where mandatory requirements come into play... I don't believe that should prohibit you from advising the court on any agreed outcomes though

 

[Bananatree]

Thankyou for your reply. I guess the initial question was asking what is the likely outcome from the court. I know they have options available to them but do they generally use them? I am happy that we are more than able to prove the contraventions.
And with the mediation I know what was said in mediation is confidential. It is more that it would be extremely useful to be able to say this issue was brought up in mediation and this solution agreed upon however it wasn't followed. So I am just confused as to whether the agreements are able to be stated (we have also emailed outlining them but not been responded to if that makes a difference).
Thankyou for all of your help. While we have a solicitor on the case it is very useful getting a second opinion and being able to ask the questions we forget without booking another appointment! Especially as to commence proceedings (they have been great with the odd piece of advice so far) we are in for another large retainer and tbh funds are low due to a heavy legal bill to get the orders.

 

[Atticus]

I know they have options available to them but do they generally use them?

If the contraventions are without reasonable excuse it's unlikely the court WOULDN'T make some order in addition to an order to make up time lost

So I am just confused as to whether the agreements are able to be stated

As I said, I can't see how an agreed outcome from mediation can't be used. That is different than providing actual communications that took place

we are in for another large retainer and tbh funds are low due to a heavy legal bill to get the orders.

Has your solicitor mentioned applying for a costs order should your contravention app be upheld?.... Will depend on her financial circumstances amongst other things, but just something else for her to consider before ignoring orders in the future