VIC Family court orders and medical appointments

[GlassHalfFull]

Hi all,

I currently have family court orders that provide me with time with my children times a couple of times per week but no extended overnight time due to the young age of the children. There have been allegations of risk that have been essentially dismissed (on an interim basis) by the family court and previously, I had only supervised contact but this supervision has now been removed. My ex and I have equal shared parental responsibility and we are not due back at court for another 6 months or so. She also has taken out an intervention order against me so we have little to no contact with each other, although we can communicate by text message exclusively about the children by family court order.

In the mean time, one of my children has a medical issue that may require elective surgery and my ex partner has essentially unilaterally been involved in the doctors appointments. She will most likely continue to do her best to exclude me from the decision-making process in the future (eg, she has not added me to the next of kin so when I tried to contact the doctor to discuss the diagnosis, they would not talk to me about it). I am trying to involve myself more and I would like to ask that she allow me to attend appointments.

My question is, what legal rights do I have to insist that I be involved in this? Equal shared parental responsibility should mean that I have the right to be involved in important decisions about my children, but intervention orders and limited time with the children currently means that it is very difficult to be involved outside of the limited contact hours ordered by the courts. There is nothing in the court orders that refers to whether I am allowed to visit my child at the hospital following surgery for example. The most the orders say is that we should both advise the other of any medical issues, but not whether I have a right to be involved in appointments and decisions if they fall outside of my scheduled contact time. Does anyone have any advice or experience here? Is it the case that you have no rights to be involved if the orders don't specifically allow for it, and that if she does do something without consulting me, my only recourse is to essentially complain about it via an affidavit at the next hearing?

 

[Atticus]

one of my children has a medical issue that may require elective surgery.......I am trying to involve myself more and I would like to ask that she allow me to attend appointments........My question is, what legal rights do I have to insist that I be involved in this?.....

Sounds like a case of spite & vindictiveness.. I agree you should be consulted & yes equal shared parental responsibility states that you should, BUT, I expect the problem that you face, apart from her making it next to impossible anyway, is that intervention order that is in place (assuming it prohibits you from being in her vicinity?)... That would override any legal right you had pertaining to parental responsibility anyway even if there was a way to legally enforce it, which there isn't to my knowledge..

That said, hospitals are open to the public, & if the child is not a named person on the intervention order, then there is no reason you could not visit... Only problem being if mum is there you will have to skulk around in the shadows like a crim till she leaves to see your own kid... I hope there is a special place in hell for parents that stop a child from having a relationship with it's other half unless there is very solid reasons for it

 

[GlassHalfFull]

Oh it is absolutely vindictiveness. She has tried to exclude me from the children's lives at every stage. But the children are named on the intervention order, that's the problem (sorry, I should have specified). As I said, I have a family court order allowing me to see the children without any supervision, but it specifies certain times as she remains the primary carer. So outside of those times, I guess the intervention order wins, like you said. Frustrating. I have been trying to fight the IVO for almost 12 months and I am finally getting to a contested hearing shortly but it honestly sounds like even if you are innocent and have strong evidence that there are many lies and exaggerations in the allegations, you are still running the risk of losing your case which could unfavourably affect you in the family court.

 

[sammy01]

Yep, it is about picking your battles. That is why I reckon fighting AVOs is sadly a waste of time. Same with the medical appointments. Mate even without an AVO you're gonna struggle. Eventually, I worked out just to let it go... The ex would take the kids to naturopaths. Oh well. As long as they're going to the dentist etc etc I just figured the rest of it wasn't worth the fight. If you can't win the fight, then don't have it... No court order is gonna change that one. Suxs, but I do think it is accurate.

 

[GlassHalfFull]

The good thing about naturopaths is that they generally do nothing of any consequence (either good or bad), so at least no harm done there.

Yeah it seems that the problem is that the family court doesn't want to get bogged down in the minor details and won't make orders for them. But the problem is that minor details are where most of the co-parenting happens. And without orders allowing specific things, the ex gets to exclude you from them entirely without any consequence. It's a shitty system. It encourages the primary carer to treat the other parent poorly when there are no consequences. There should be more consequences for selfish co-parenting IMO.

 

[sammy01]

mate totally agree. But this is the system we've gotta work with and I reckon fighting every fight (even if you're right) will not end well. So you gotta learn to play the system. And you've also gotta play the ex. See she knows she is winning when you ask for info and she doesn't give it... She knows there is stuff all you can do.... Short version, if the kids are being treated and you don't have any concerns for their health then maybe you just have to learn to grit your teeth and smile.

 

[GlassHalfFull]

Yeah you are right. I guess I have a lingering legal question though. Lets say she does agree to allow me to attend the medical appointment or the hospital after surgery. From a legal point of view, how does it work with the intervention order, because I have read that generally speaking, even if your ex invites you over for tea, that's not actually a defence against a breach of the intervention order? Thing is, I have family court orders allowing me to have contact with her for the purpose of the scheduled handover, but of course nothing that relates to handling of a medical issue. If she agreed in writing to me coming, would/could it be a breach of the intervention order, or would it be considered to be allowed because of the family court order? It's such a messy process. I suspect it comes down to "would she call the police or not? And would the police be arseholes or not? And if both of those happened, would the judge throw it out as ridiculous?". It seems as though there are far too many situations where it is legally quite unclear and you a running the gauntlet of how authorities feel on any given day.

 

[sammy01]

you kinda answered your own question.
I will try and find the thing I was reading... But it was an article about avo's. 70% of complaints for breaches don't go past the police. So in my experience... I'd get called to the cop shop, they'd have a chat and let me go. If the ex complains, they have to investigate.
Really the question you need to ask is how hard is the ex likely gonna push? See at one point the cops told me that the ex was complaining about them not doing enough about these alleged breaches. I was worried she would complain to someone further up the ladder to try and push the cops to charge me - even though there was nothing to charge me with....

My advice - err on the side of caution. It just ain't worth the risk especially in a public place like a hospital... If she complains and makes a scene they could lock the hospital down. Trust me, as a school teacher we're trained in lock downs and the parent with the avo scenario is one that gets used in the training. MADNESS.

 

[GlassHalfFull]

Yeah, I've learned enough about family law over the last year to be able to answer most of my own questions to be honest. I guess I'm sometimes just after a second opinion as a sanity check or (best case scenario) a lawyer who has a ton of experience in navigating IVOs.

I don't really know how hard the ex is going to push. I wouldn't put ANYTHING past her at this point. There was one 'event' a few months ago, back when I had only supervised contact with the children (need for supervision has since been removed). I turned up at the daycare where we were picking them up and realised at that point that there'd been a mixup and we had previously agreed to change dates but I had forgotten. The daycare freaked out because of course the IVO didn't allow me to be there without the supervisor with me, and they called the police who advised them to write a letter informing my ex of what had happened which they apparently did. I have no idea what happened behind the scenes with my ex and the police but that was the end of it. I didn't get any contact from the police. I would have had a pretty good defence for why I was there (I had even texted the supervisor the day before to confirm the contact and they replied "yes, see you there", apparently forgetting about the date change too), but I have no idea whether an 'honest mistake' is enough to prevent being charged with a breach. It's just madness.