VIC COVID question again... when is withholding reasonable?

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GlassHalfFull

Well-Known Member
28 August 2018
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Long story short (but there is a complex backstory to this which I will TRY to summarise at the end), my current partner has tested positive for COVID yesterday (Monday) but her son (my stepson) and I have both tested negative and have no symptoms. I am due, per court orders, to have my two children on Wednesday overnight. I already had them from Friday to Sunday, and my partner started having symptoms on Saturday or Sunday (but didn't test positive until Monday) so they've already potentially been exposed. I've advised my ex about this situation and said that given there is no longer mandatory isolation requirements and my partner is already minimising any contact with me and my stepson, I don't see why I shouldn't have the children as per the orders. She's said that she is going to effectively withhold the children until my partner is fully recovered.

While I can see both sides here, I feel that COVID at this point with previous infections and all immunisations is now quite a mild illness and in-line with other common viruses like the flu. Most families manage illnesses as best they can within the unit and take sensible steps to minimise exposure, but ultimately accept that 'whatever will be will be' and that maintaining parental contact is more important than reducing the chance of infection to zero.

In fact, you could even argue that, given the children may have already been exposed to COVID but aren't yet showing symptoms, it might actually make sense that they should come back to our house than to wait until they become infectious and then risk infecting their mother too. Because that's kind of what the isolation was intended to do back when it was mandatory.

The backstory to this is that our family (my partner, and stepson) caught COVID back in January and my two kids were staying with us at the time, but they returned to their mother and THEN tested positive along with their themselves. The kids had almost no illness whatsoever but their mother was unwell for about a week. She withheld them when they were due to return to me, saying that as per mandatory isolation they should not leave the house. Fair enough on a technicality, but we were infected too and almost certainly were the ones who GAVE my kids the COVID, so there was no additional risk in them coming back to us IMO. But because rules are rules, and rules didn't account for children in split families where both sides had COVID simultaneously, I therefore didn't have a strong legal argument even though realistically there was little risk to them staying with us. All together, she withheld the children for about 3 weeks which was even well beyond the mandatory isolation, citing the children remaining unwell when it was obviously bulls**t because they were having friends come and play, were climbing trees, having waterfights etc. My ex has a LONG history of using situations like this to withhold and minimise my time with the kids so please understand the context in which I'm posting this!

So, your thoughts, brains trust?
 

sammy01

Well-Known Member
27 September 2015
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Thoughts. The glass is half empty. Surely you're running out of optomism...

1. Give yourself an upper cut. Nope 2.... There is no requirement to notify anybody. Covid is now the same as a cold. You should NEVER have mentioned it to the ex.... Now go give yourself another uppercut.

If you had've notified her in abouther 2 weeks time, she would have stopped you seeing the kids at Christmas and I would have asked santa to give you an uppercut. And given how long she witheld them last time and her history of being a nutter, you might be spending Christmas alone again.

She has a long history of looking for excuses to minimise your time with the kids. You don't have to help her on that front.

You're not gonna see the kids for a week. She is not going to agree to make up time. This is not worth spending a dollar on a solicitor or 5 minutes on a cotravention application. And I do hope you're bruises heal from the uppercuts before you see the kids again. I also, really really hope she doesn't use this to ruin Christmas for you.... But seriously, you need to stop looking for legal advice and start looking for strategies to deal with HER better......


Not so fun fact for you, my ex has lost her licence for 8 months. She thinks I'm going to be doing all the driving for all that time... Well I will be doing all the driving, because i have a licence. She is right no that bit. But I'm not going to be travelling further because she cant drive.... So yeah, mate, I do get how exhausting it all is - but you should never have told her that your partner has covid.
 

GlassHalfFull

Well-Known Member
28 August 2018
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I expected that she would follow guidelines and understand that we're at the tail end of 2022 and nobody is keeping in absolute isolation anymore. The government has practically encouraged us to live with the virus now. But yes, she certainly does have a long history of being a nutter and I suppose I should expect nothing more.

I'm not looking for legal arguments per-se, I'm asking what the legal consensus is about what is reasonable grounds so at least I can make a case to her with a bit more confidence that I'm right to expect her to hand the kids over. This may all go into a dusty old file that is one day used to establish a long pattern of behaviour that is counter to the children's best interests. We have final orders for the time being, but I'm expecting to need to go back to court to seek more time once the kids are a bit older (a year or two) and I'm told I'll have a stronger chance at that point. She's not going to agree to it without a fight, of course, but I'm prepared to have it when the winds are blowing the right way.
 

sammy01

Well-Known Member
27 September 2015
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Yeah, sorry, forgot that to look at the post. WHY? Well I was looking at the NSW rules.... You want a govt website to reference and you want it to be from the relevant state.... Keep reading
Ok, so you're playing the long game.... Less about this visit and more about getting more time down the track. Ok, I'll go with that...
FYI
Here is a link to Covid info from the Victorian government.
Checklist for COVID contacts | Coronavirus Victoria
My advice would be to share the link with her, ask her to agree to comply with the orders, or ask her to confirm she will give you make up time. OR ask her to provide you with a reliable source to support her assertion that she can withold because the link above does not say Covid is reason to withold. FYI - But even during the lockdowns in NSW parenting orders were an exemption from getting fined for travelling. So even back then she was expected to comply.... But I'm sure we had that conversation a year or so ago....

But I see a few problems here as far as playing the long game or for that matter reasonable grounds to withold... So please read on.
1. A judge could accept that she had reasonable grounds. After all the messaging on Covid rules have always been confusing. After all, she is being precautious, not reckless. After all, she has aunty Agnes coming for Christmas and Aunty Agnes is 70, a pack a day smoker and has emphesima and with Christmas around the corner, she doesn't want Christmas ruined because of covid.... Fair enough? And it isn't like she is refusing access for months - that would be unreasonable. So this is a small fish in comparision to what judges hear on a daily basis.
2. This isn't good ammunition to support your case that you should have more time down the track. It just shows that you're both playing tit for tat. And you might not think so.... But that is what it looks like from here.... "She's not going to agree to it without a fight, of course, but I'm prepared to have it"... See my point. You'll do better in the long run if you demonstrate you can play nice even when she is in the wrong.
 

GlassHalfFull

Well-Known Member
28 August 2018
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Playing nice when she is in the wrong is how you get nowhere at all though. It's how you get walked all over and you demonstrate that your relationship with the children is less important than standing up for the orders that the court granted you in the first place. And the reason why they granted them? Because she would have withheld them indefinitely and completely if I hadn't filed in the family court for time with the kids.

The fact is, when one parent is refusing to agree to a reasonable parenting arrangement and the court intervenes to provide it, the reason for the orders isn't to put in place limits of the time with the applicant parent, it's to force the respondent parent to do what is best for the child because they clearly won't do it voluntarily.
 

GlassHalfFull

Well-Known Member
28 August 2018
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*Demonstrate that your relationship with your ex is more important than than standing up for the orders, is what I meant to say.
 

sammy01

Well-Known Member
27 September 2015
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U'm you came here. You asked for our thoughts on how to deal with an ex who is using the fact that your partner has covid as an excuse to withold.... I gave you advice, I even went to the bother of finding a link to the rules relevant to your state. Why you could not do that yourself makes for an interesting question because it is the bloody obvious thing to do.... Your response? Tell me I'm wrong. Yeah, ok. Good luck with that. Next time you want opinions, just write the opinion you want to read and then read that...

In my opinion.... The worst cases in family law is when one parent enotionally abuses the kids so much by telling them how bad the other parent is that a judge is forced to decide that the emotionally abusive parent needs to be given 100% care because to force the kids to spend time with someone who they're genuinely scare of would not be in their best interests. They are the saddest cases...

The second saddest cases are the ones where mum and dad are constantly in and out of court. He said, she said... And eventually the judge decides to use the dot point below in making a decision.... Invarably the only decision to be made is whether or not the mother or the father should have 100% care. You're risking fitting into this category.

  • whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

Your ex is a nutter. So is mine. No court order is gonna change that. What you need to do is learn to live with that reality and find peace. The ongoing conflict is not good for you and it is impacting your parenting. It will probably cause you to die sooner, due to a stress related illness. Woth thinking about.
 

GlassHalfFull

Well-Known Member
28 August 2018
544
51
2,289
In my opinion.... The worst cases in family law is when one parent enotionally abuses the kids so much by telling them how bad the other parent is that a judge is forced to decide that the emotionally abusive parent needs to be given 100% care because to force the kids to spend time with someone who they're genuinely scare of would not be in their best interests. They are the saddest cases...

Yeah, absolutely. I had to attend a parenting course a few years ago as part of the directives from the court (mainly intended for my ex's benefit, but we both had to attend one in order to not be seen as blaming her). One of the guys in there was just so sad and defeated. He was attending what I recall was something like his 5th course, and none of the previous ones made any difference, because his ex had effectively turned his son against him to the point where he hadn't seen him for years. When we were asked to introduce ourselves and what we are expecting/hoping from the course, he just said he had zero expectations whatsoever. Obviously there's no easy solution to 'fix' the programming of a young child's mind against a parent, and it's difficult for the courts to differentiate between genuine reasons to fear someone and irrational fear that a child has developed because of their parents' neuroses.

It's hard to be sure how these cases have progressed to reach that point. I feel like my relationship with my children is so close that it could never happen, and sometimes I wonder whether it's because the parent didn't fight hard enough to maintain the relationship in the first place after separation, but I appreciate that there are sometimes factors outside of a parent's control, like geography and practicalities making regular contact difficult.

Invarably the only decision to be made is whether or not the mother or the father should have 100% care. You're risking fitting into this category.

I disagree. Despite clashing horns with my ex on occasion due to her pigheadedness and selfishness, the vast majority of time with the children proceeds without hitch. We're thankfully now at a point where neither of us has any need to see each other in person, as almost all handovers take place at school. The exception is school holidays or where illness or pupil-free days are concerned. Even then, we manage to conduct handovers without incident. If it ever did reach the point where a judge were tempted to order 100% care to one parent, I can't see how it wouldn't be me. The history is so rich of her making decisions that weren't in the children's best interests, and were, if a pattern of behaviour is established, intended to be selfish, vindictive and showing little respect for the children's rights to maintain a relationship with their dad. While I may argue with her (by email, primarily, not in person) about parenting and our roles and why I feel we should strive for a less acrimonious relationship, it is easily demonstrable IMO that she is the root cause of most of the conflict and the main reason why discussions escalate into heated arguments.