QLD Consent Orders Disagreement with Ex - What to Do?

[sammy01]

You don't have to type them all just the bit about weekends and holidays.

BTW how old is the kid and am I right in thinking she is at private school? Because primary school holidays and high school holidays are generally the same in most states. Private schoosl can vary?

 

[Louisa Smith]

You don't have to type them all just the bit about weekends and holidays.

BTW how old is the kid and am I right in thinking she is at private school? Because primary school holidays and high school holidays are generally the same in most states. Private schoosl can vary?

His daughter is 12 and yes it's a private school. This school has holidays per all state schools at Easter and September but 3 weeks in June holidays and 7 weeks at Xmas

Orders say, each alternate weekend from 5pm on Friday until 5 pm Sunday with the father to collect the children from and return them to the mothers residence

That the child spend time with the father for half of all gazetted school holiday periods, being the first half in even numbered years and in alternate years thereafter and the second half in odd numbered years and in alternate years thereafter; and that provisions set out in Paragraph 4 of these orders be suspended during gazetted school holiday periods

Paragraph 4 is referring to the weekends as noted above

 

[sammy01]

So if the orders say half gazzetted school holidays but the private school has additional holidays. Then a strict reading of the orders says the extra holiday time is with mum. Bit stingy on her part...

So what do you think is the mother's intention? Stop dad seeing the kid? Something else....

I would go pick up the kid as per orders... He should take you along and he should leave when told.... That way the kids at least see that dad didn't just dump his kids and that mum is the problem. Don't cause a scene because he will get an AVO against him.

That way the ball is in her court.

 

[AllForHer]

I'm inclined to agree with the above - if the order states 'gazetted' school holidays, then for the purposes of the orders, the holiday time would be in accordance with what is posted on the state's education department website, rather than what the holidays are for the school the child attends.

On the upside, this basically means holiday time would be back to two weeks, so alternate weekends continue. On the downside, the kids are going to miss out on a few extra nights with their dad.

 

[Louisa Smith]

I'm inclined to agree with the above - if the order states 'gazetted' school holidays, then for the purposes of the orders, the holiday time would be in accordance with what is posted on the state's education department website, rather than what the holidays are for the school the child attends.

On the upside, this basically means holiday time would be back to two weeks, so alternate weekends continue. On the downside, the kids are going to miss out on a few extra nights with their dad.

My husband tried the path of 'gazetted school holidays' He understands he would forgoe a couple of nights. She has come back with 'gazetted means publish' therefore the school to which the children attend "gazette" their school holidays prior to the school year.

I still disagree as the definition of 'gazetted school holidays' is govt published

Nowhere in the orders does it state gazetted holidays for the school the children attend ? Can anyone suggest what we should do now?

I am thinking we need to have a letter drawn up from a solicitor to hers but want to make sure we have grounds and not a backward forward debate that gets is nowhere.

Thanks

 

[AllForHer]

It sounds like you're dealing with a difficult party, which means unfortunately, if they want to turn it into a back and forth debate, they will.

So what are your options?

The final goal should be to get the final orders varied so there's no room for misinterpretation - have a new order included that clearly states what happens after the school holidays conclude.

In my view, there's two possible ways to go about this. The first is the usual path of having a solicitor emailing a suggested interpretation, then organising mediation if she's non-receptive, and then filing an initiating application to have existing orders varied by including one ancillary order for clarity. I think the Court will support your position over the mother's - it's an ordinary meaning type deal because it's a fairly standard order for the Court to make.

I also think the Court will nip the issue in the bud quickly - it won't want you in Court over such a minor dispute for any longer than is critically necessary, but also, who knows? Maybe the prospect of more proceedings will compel the mother to change her view.

The other (potentially more hostile) way is that you could try and have it done through contravention orders. Send a letter clarifying the ordinary interpretation, notify that any deviation from this interpretation will be treated as a contravention of the orders, request assurance that she will continue complying with the orders and state that the father will collect the child at 5pm on [date], in accordance with the orders.

Attend on the mother's address to collect the child, if she refuses to facilitate the child's time with the father, then calmly leave, document what happened, then wait two weeks and do the same again, and then again two weeks after that, and then file for contravention orders on grounds the mother has failed to facilitate the child spending time with the father in accordance with the orders.

Even if the mother can establish a reasonable excuse that removes her from wrongdoing, the Court can still exercise its power to amend orders as part of contravention proceedings, and again, I think the Court will be unlikely to allow the parties to leave without clarity that might reduce the likelihood of them ending up in Court again.

I do suggest getting legal advice on this before acting, but those are the paths I, personally, would consider were it me in that position.

 

[sammy01]

Yup, but in my experience...dang. No matter what the orders said, the ex would interpret them whatever way suited her.

So I'm a teacher, she always found it fun to tell me that the student free days were part of the holidays and as such she expected me to look after the kids when she knew I had to work. Unless, of course, the student free days fell during her time. Then they were considered normal time and not part of her allocated holiday time with the kids.

So none of this is worth going to court over. Not legal advice - just opinion.

Now if she wants to half the holidays based on the school the kid attends - isn't that a win. It means you get half of the kid's holidays....

 

[AllForHer]

I don't think this is about school holiday time, more about the reversion to alternate weekends after school holiday time because the father's roster means he won't be able to see the kids if the current pattern of alternate weekends is swapped around, is that right?

 

[Louisa Smith]

I don't think this is about school holiday time, more about the reversion to alternate weekends after school holiday time because the father's roster means he won't be able to see the kids if the current pattern of alternate weekends is swapped around, is that right?

Yes that is right

 

[AllForHer]

In my view, I think that's worth actioning.