NSW Have I Breached Family Court Orders?

[Peter_P93]

I have not been allowed to talk to my little girl in over 2 months as I have been sent overseas to work for my employer (government agency).

The family court orders state that my daughter's mother is to facilitate phone calls on certain nights and times, yet when I call her, I get told she is not available. I have been told by my daughter's mother that the orders are void as I left the country.

I just received an email from her legal informing me that I have breached courts orders ? I was under the impression my responsibility was to give my daughter back when I had her, and my job provides me reasonable excuse on why I can’t follow orders at this point in time.

Her mother has told me she doesn’t care if I never see her again.

I feel my young daughter will quickly forget me if I don’t maintain contact but it’s not me stopping the contact.

 

[AllForHer]

Breached orders how? Have they clarified in what way they allege you have contravened them?

Mum is wrong about the orders being void if you leave the country. The only thing that voids orders is the subject child attaining 18 years of age or new orders from the Court that also discharge the old ones.

 

[Peter_P93]

I have been unable to have her as per the court orders every second weekend and alternating Wednesday’s. I was also unable to have her on a few specified days as I was interstate doing training.

My solicitor (whom I can no longer afford) told me after we got final orders that the orders are there to ensure I give my girl back when I am supposed to, that her mum gives her to me, and facilitates phone calls... And also that if I can not attend or can not have care as per the orders, I can’t be contravening orders. I also can’t ask for any time made up if not miss time... Super confused.

 

[sammy01]

How long are you OS for? What exactly do the orders say about what happens in the event that your work requires you to be away? Anything? Is the nature of your work requiring constant travel? And has that been factored into the orders?

I'd imagine you can't do much until you're back in AU - then request the orders resume... If she doesn't comply, you will have to apply to court.

 

[Peter_P93]

Away for another 5 months, Orders don’t cover anything about it. Very plain and simple orders.

I’m devastated she has decided to stop communications.

It’s all come down to money, and this is how I am punished, and how my little girl is being punished too. I’m not worried about orders after I get home, I know it will all go back to normal. I just don’t think it’s fair to my daughter to stop all interaction with me.

 

[AllForHer]

Hold up, so first, you're not contravening orders by not spending time with your daughter.

Orders impose an obligation on the resident parent to facilitate care time. It doesn't impose an obligation on the non-resident parent to take up the opportunity to have that care time.

If mum's not facilitating phone calls, she's in contravention of the orders.

The issue with addressing it though is that you're overseas.

My opinion is to try and call at the time that you're meant to each and every week, and record every time mum refuses. Maybe text her first to see if the child is available so you have written evidence of mum refusing. You need to keep a record of efforts to talk to the child.

When you return from overseas, tell mum you expect her to follow the orders again, and if she refuses, then take it up with the Court.

I know it's not ideal, but don't worry. Kids don't forget their parents after five months. You're overseas, it doesn't mean she will forget you or stop loving you.

 

[Rod]

I have been unable to have her as per the court orders every second weekend and alternating Wednesday’s.

What do the orders say, word for word?

I'm not convinced there is no positive obligation and would prefer to see the order before making an emphatic statement.

 

[AllForHer]

It's not an empathic statement. It's the same principle the Court has held up time and time again. The Court ensures parents have the opportunity to spend time with their kids. It doesn't force them.

 

[Rod]

It's the same principle the Court has held up time and time again.

Do you have any case references to support your position?

I understand orders 'to spend time with' create a positive obligation on the parent who lives with the child, and if they don't, then filing for a breach of orders can be sought by the aggrieved parent. I'd not considered the reverse position position from a legal perspective whereby the parent who lives with the child demands the other parent to pickup as per the orders else they'll claim a breach of orders.

I can envisage a situation whereby a parent drops of a child at school and takes off for an extended weekend away as the 'spend time with' parent has confirmed they'll pick up the child after school as per court orders. The 'spend time with' parent then fails to pick up the child as per agreement and the written court orders. Would this then be a breach of court orders? It certainly puts the child at risk if primary school aged and can't make it to either home.

 

[AllForHer]

I'm not going to find one for you, you can do that yourself, but here's what Legal Aid says about it: Queensland Legal Aid | Helping Queenslanders with their legal problems

Specifically, read the entry under 'What if a parent doesn't want to spend time with a child?'