COVID and the legality/ethics of isolation

[Rod]

I disagree with Sammy.

Letters allow you to document what has happened. Then if something happens in the future the letter can be trotted out in support of a later change.

I still say send the letter to the lawyer. No emotion, all facts, questions, and a reasonable request.

 

[GlassHalfFull]

Sammy, from my memory of your situation, you've got primary care of your kids. Once you get to 2/3 or 3/4 of the care, you usually don't value your days with them so much. You value your days off.

I get that, I'm in that position with my step-son who I have pretty much 12 out of 14 days a fortnight. My partner and I relish the few weekends without any kids that we get. But when you're in my position, where you only have 4 days a fortnight with your own children and you want closer to 50/50, to lose two full weeks is a massive hit to your relationship with them, and getting make up time when it suits my ex and if I don't like it then she might just cancel make up time entirely (which is where things seem to be currently with my ex) is not acceptable. And it's a give her an inch, she'll take a mile situation too. If I act like I don't care, she's perfectly happy with that arrangement too. She doesn't want me to want to spend time with the kids. That's fundamentally what upsets her. That I want to be an equal and involved parent, and she tries very hard to exclude me. She wants it to be difficult for me. She wants me to give up and not care anymore. She probably hoped I would give up during our 3 years in court. I need her to understand that I'm not going anywhere, and I'm going to continue to fight for my rights (well, what little rights a non primary carer has) and for the rights of my kids to have that relationship with me.

Yes, there'll be times where it riles up my ex. Yes, sometimes the less stressful option is to concede to avoid upsetting her. But it ultimately gets me further away from where I want to be with my kids.

 

[sammy01]

hey I get it. Logic in both strategies. Mate let us know how you go. I hope time resumes as per normal asap.

 

[GlassHalfFull]

She has agreed to an extra weekend and an extra mid week overnight in make up time. However, what she has not agreed to and what we are currently in a stalemate on is my request to tack the additional midweek onto the next weekend. My issue is that I have a specific arrangement with my employer to work from home on the court ordered days that allow me to pick up the children from school and daycare at a reasonable hour. What my ex is insisting is that I not be allowed to add that additional day to my weekend. I don't have the employment flexibility to get additional work-from-home days when I want them, and even though it wasn't my fault, I've already used up a bit of goodwill there by having to isolate at home for a whole week. Now they want me back in the office as much as possible to make up for it.

Currently I have Friday 3:30pm to Sunday 5:30pm with the children on every second weekend. She has never agreed to me having a 'full' weekend despite the children being 6 and nearly 4. So, even in exceptional circumstances where she has decided to withhold the children, she won't allow them to spend a full weekend with me. Her argument, when I first proposed it, was that my daughter has a dance class on Monday that she takes her to and therefore it would not suit. I then reasonably suggested that I would be happy for her to pick up our daughter from child care to take her to her class and that effectively all it would do is allow me to have the children stay Sunday night and I would take them to child care and school on Monday morning, and although my time would 'technically' end at 3:30pm, if she had any commitments with the children, I would be happy to let her continue those and that I didn't understand what was wrong with that arrangement.

She then changed her argument to words to the effect of "I don't agree to you having the extra night on the weekend and I don't have to justify my decisions to you, make up time is a gesture of goodwill". Despite the fact that she withheld the children when she clearly didn't need to, so I don't really consider it a gesture of goodwill at all, I call the minimum she should offer to mitigate the damage caused by her decision to withhold unreasonably.

Anyway, funnily enough, it may just come down to this: If she can withhold the children, so can I. I'll already have them for that weekend so what is she going to do if I don't hand them over on Sunday afternoon? What if I keep them until Monday? What's she going to do? Is a judge going to care more about me withholding for a bit less than 24 hours to claw back make up time that morally speaking should have been provided to me/the children, than they would about her withholding the children from me during two different blocks of time for 3 overnights, all of this AFTER their Covid isolation period ended? My gut feeling is that the answer is no. The judge may chastise us and call us both 'pork chops' for playing silly games with the children. But ultimately I think I'd have a pretty fair argument for why I withheld. "I was only trying to give my children have quality time with me in keeping with my my fortnightly time as per the orders, and that their mother was dictating that I could only have the time if it was on her terms. I tried to be reasonable and flexible, your honour, and tried to find a compromise with her including allowing her to keep her existing commitments on the Monday, but she refused to even discuss it further."

 

[sammy01]

History teacher.... google the term 'brinkmanship'

If you pick the kids up from school at 3.30 on Friday then that might help your cause.

Story time. i recall back in the day having a joke with you about whose ex was the bigger nutter. At one point in time i had to blow more $ on solicitors because the ex read the orders and decided the term 'or by agreement' meant she could choose to not follow the orders ever again because she no longer agreed WTF.

Your call. But how do you think she is gonna respond? My concern is she will decide to stop you seeing the kids and it will be months before you get into court... Is it worth the risk?

 

[GlassHalfFull]

Is it worth the risk? Good question, I'm not sure that anyone can really predict how it will end. I know if I withhold in what is seen by her as retaliation, it could well be the start of a downward spiral in relations and she might withhold (but it would only look worse for her if she did, and maybe the long term effect of that would be worth it?!), not that things were ever 'good' between us to begin with. I know she will probably try to punish me with something she has the power and control over. But it's like this... Either I stand up for myself and we end up in a battle of who will blink first in which it's likely that the children will suffer either directly or indirectly from their parents' disagreements (and we look like pork chops, but more likely her more), or I continue to let her walk all over me and breach the orders when she feels like it because she knows from experience that I'll back down and not take the matter back to court.

I just hope that at some point in the future, someone in a position of power wakes up to what has been going on for years and notices that this isn't just two parents who can't agree and are both as bad as each other. This is about one parent who admittedly isn't perfect but tries really hard to offer compromises and child-focused solutions, and another parent who simply responds to solutions with more problems and isn't willing to discuss, engage or even fundamentally respect the other parent's role in her children's lives.

 

[GlassHalfFull]

One minor update. As mentioned, she agreed in principle to make up time but would not agree to my request to add an extra 24 hour period to my weekend time (so that it would last until Monday afternoon instead of Sunday afternoon, but in practical terms I would drop the children at school and child care so it would only be an overnight period and not a full day). She then directed any further correspondence on the matter to her lawyer.

I wrote to her lawyer and explained in detail what has happened on Friday 25 February and then again on Monday 28 February (update since Friday) and Wednesday 2 March (asking for a response and providing a summary of the main outstanding issue). Her lawyer responded on 2 March to say that they would speak to her and respond early this week. They have now written to me today to say the have met with her and will respond but that they will be on leave until early next week and don't anticipate responding until late next week. This will mean a delay of 3+ weeks.

I'm not suggesting this is vitally urgent since it's about catch up time (although clearly the issue of her deciding to withhold against court orders is part of the necessary discussion), but what is a reasonable time period to expect a response? First she withheld the children in circumstances that I feel were unreasonable, then she agreed on providing make up time but only if it was on her terms and not mine, and now I'm unable to make any progress in reaching any kind of resolution for 3+ weeks. Ultimately I understand that lawyers are busy people too, but when a client refuses to discuss a matter except through their lawyer, and their lawyer cannot or does not provide a response in a reasonable period of time, who is to blame here? The client or the lawyer? Does a lawyer have any kind of ethical obligation to handle a matter on behalf of their client in timeframes that are reasonable or can they just elect to prioritise however they want to? If I were to take this to a contravention hearing (unlikely, but let's say down the track I do if it continues or escalates), would you think a judge would frown upon being made to wait even to get a response from a lawyer for matters like this? Or is it just the kind of crap you have to put up with where everyone shrugs and says "eh, s**t happens!"?

 

[GlassHalfFull]

One further follow up question (in addition to the above if anyone wants to respond?). At what point is a delay in a lawyer's response to a letter unreasonable?

* As mentioned in the post above, I wrote to her lawyer on a couple of occasions in late Feb/early March to query her rationale in withholding the children, and went into considerable detail.

* On 8 March, I received a response from her lawyer advising that he had met with her to discuss my emails, and would prepare a response by letter, anticipating it would be provided by the end of the following week (18 March).

* I waited. And I waited some more. Already I felt like 10 days was quite a delay in circumstances where an issue of withholding and disagreements relating to make up time were concerned. 18 March came and went.

* On 22 March, I wrote a follow up email expressing my frustration at the delay. By then, it had been 25 days since I first wrote to the lawyer and I had no response other than that he had met with his client and would prepare a letter in response.

* The following day, (23 March), he responded, basically dismissing me and stating that he did not consider the delay unreasonable. He went on to say his client had a "right to consider her position and provide her response to the allegations made against her in a meaningful and thoughtful manner". This of course didn't explain why 14 days had gone by since his client had provided her instructions to him and he had not responded. Anyway, I waited some more.

* It's now March 29 and it's been more than a month since I first wrote to the lawyer. All I've had is lip service in response. Are my expectations around a timely response unreasonable? Am I just being treated with a lack of respect because I'm a SRL and lawyers tend not to take us seriously? Tempted to fire a shot across the bow and threaten to file a contravention if he can't provide a satisfactory response in a satisfactory period of time. 🤷‍♂️ It's still unclear to me whether I would need to go through the BS of mediation and a certificate first? My understanding was that if the alleged contravention was within 12 months of the orders being finalised (it is), then you can bypass that requirement?

 

[Complex3]

Did she end up providing make up time for the withholding?

 

[GlassHalfFull]

Yes and no. She provided some of it, but we reached an impasse about one of the days because she refused to allow me to tack a day onto my weekend so that I could have the children until Monday morning instead of Sunday afternoon as it normally is. I explained to her that because my employer doesn't allow me to have additional WFH days beyond what I already have negotiated for the days I have the children as per our court ordered routine, I can't easily just facilitate whatever make up day she wants me to have. In order to cover school and daycare pickups and dropoffs, I would need to be working from home as I can't do them while working a full work day in the CBD which is 45+ minutes from home and would cut into the middle of my work day. Anyway, her response was basically that she didn't agree and didn't have to justify herself to me and that make up time is a privilege not a right and that I should speak to her lawyer for any further discussion on the matter. So I did, and got doughnuts. That was over a month ago.