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WA Issues with Family Court Orders Regarding Son's Travel Abroad?

Discussion in 'Family Law Forum' started by Leda, 1 September 2016.

  1. Leda

    Leda Member

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    Hi,

    I have family court orders in place about my son's residence, travels, and visits. The family court orders say that whenever I want to travel abroad with my son, I have to ask his father for consent and that he is to give me consent once I send him the itinerary of my proposed travels. The consent or no consent is to be given in 14 days from the request.

    The father not only did reply with verbal consent but when I required written consent he started to put his own conditions, requesting information that I did not have to supply before consent was given and even personal details and ridiculous requests (like complaining about not knowing how to dial an international phone that was provided and thus requesting a document with the instructions to do so).

    I was running out of time to prepare for the travel overseas and after complying with his fourth request, I feared he would never give me consent and I looked for legal advice and was told that effectively he was contravening the family court orders we had in place. So I initiated an application.

    I had a hearing and the following happened:

    I was treated very poorly and basically told off because I took this case to court because the moment the magistrate asked the father whether he was willing to give consent he said "yes", when all the time prior to the court proceeding, the answer had been "no". Then the magistrate asked which were his conditions to give consent.

    I tried to talk because we actually have family court orders he did not comply with and he denied consent unreasonably. However, I was silenced without being given the chance to speak by the magistrate. The father told the magistrate the conditions for his consent and she said she would make orders in which I have to comply with such conditions to get consent. I tried to talk in a couple of occasions and I was told off without a chance to speak clearly about anything.

    On the other hand, the father was given free speech and even when I tried to say something because he was giving false information, I was scolded as if I were a little girl having a tantrum.

    Now, I decided to stop trying to bring up my point, as after a third try I realised it was absolutely pointless: the magistrate didn't seem willing to listen to me. Now I have another court order that says the father is to give me consent upon compliance of his conditions.

    First of all: we already had court orders in place that he did not comply with and in which he was to give me consent upon certain conditions, which I complied with. So now I am not sure what this means to me and whether this has been solved. He already had the power to give or deny consent under certain conditions that were already specified. Now he also can give or deny consent according to his whimsical conditions which a magistrate has approved.

    So from my point of view, I am in the same situation before the hearing and with new court orders that do as much as the ones I already had. I don't see where the solution is.

    Second:

    The way I was treated in comparison with the treatment he received it is outrageous. So my question is:

    Is there any way I can put a complaint with any practical result in my favor against the magistrate that dealt with my case? Providing that:
    • I wasn't given a real chance to talk
    • The other party had not filed a single document in response to the application
    • The other party was allowed to express his point while I wasn´t.
    • The magistrate gave more weight to the other party´s word in that very hearing than to all the written proof I had provided in my filed affidavit.
    • Whenever I tried to talk I was silenced, whilst whenever the other party talked the magistrate would listen attentively.
    I feel very frustrated, disappointed and impotent with the system if after spending hours preparing my case and offering physical proof to support it, not only I am not listened to but the word of a person who not only has not responded as it is legally required but also contravened orders has more weight in a hearing than all proven facts. It doesn´t make any sense at all.

    Thanks!
     
  2. AllForHer

    AllForHer Well-Known Member

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    Of course you feel frustrated and disappointed. The losing party in adversarial Court proceedings usually does.

    The legal guidance is that you can appeal the decision about the contravention within 28 days of the decision being handed down, and you'll need to show the judge had made some error of fact or law to be successful.

    Otherwise, if your case is still ongoing, you can file a request for the judge to recuse himself from your case on grounds of apprehended bias.

    Likelihood of success in either direction? I'd say probably zero, because feeling frustrated and disappointed in the outcome of your contravention proceedings isn't an actionable error.

    Now, based on the information provided, I cant actually tell if your travel plans were interrupted or not, but I also can't see how it could be reasonably concluded that he contravened the orders by refusing consent to travel, because consent, in all circumstances and by every legal definition, must be voluntarily given. If the orders grant the freedom to give consent, then they also grant the freedom to refuse consent, which would suggest that whether he gives consent or not is a matter for his discretion and does not place him in contravention of the orders.

    But ignore the orders for a moment and apply some logic here. You want to take the children overseas. Parents have difficulty leaving their kids at day care for 8 hours, and ask all manner of questions to appease their discomfort about doing so, so have some empathy for a parent whose children are being taken to another country by someone whom they obviously trust even less than the stranger running the day care. To me, it seems reasonable for a parent to ask a lot of questions about such a trip, and I imagine if roles were reversed, you'd have a lot of questions, too.

    But instead of simply seeing it from his point of view as a parent and doing what you could to appease his anxieties, you've essentially determined he was just being a thorn in your side and therefore in contravention of orders.

    The Court, like me, didn't agree and I would dare say has implemented the new orders to enforce the application of logic that I mentioned above, in the hopes you will consider other options for resolution before bringing such a dispute before a heavily over-burdened and under-resourced adversarial Court.

    Sorry if this isn't what you want to hear. You're not the first person to have lost their case and to feel wounded by the system, but the error a lot of those people make is thinking 'If I just had a fairer judge, I would have won' or 'If I just had a chance to speak, I could have persuaded the judge otherwise'. That's not how it works. You had an opportunity to speak in your affidavit, and unfortunately, it didn't persuade the Court in your favour. As in any adversarial system, one party must always win and one party must always lose.
     
  3. Leda

    Leda Member

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    Thanks for your reply. So to make it clear, I did not lose the case. The outcome was the expected in my favor. But that doesn't justify anyone treating me in a humiliating and degrading manner.

    First of all: The reason I want to appeal or put a complaint it is not for the decision of the magistrate but for her treatment of the case and the one I received.

    I am not disappointed about the outcome of the hearing, I am disappointed about the lack of respect I suffered and the fact that his word had more weight than the evidence that was presented with all the facts mentioned above and lots more. If I am to be treated like a girl having a tantrum, let´s say that I actually did all my homework deserving a distinction when the other party didn't even submit his work and I wasn't allowed to talk in class for what reason, when obviously expressing our point was allowed as he did it without interruptions at all and freely.

    There is a lot of more to that case that I had not explained here, of course, but my question was about the treatment in court and I exposed some of the facts to make understand that it wasn't a capricious tantrum that I was having, but that I actually followed carefully everything that was required from me and yet the treatment I had was humiliating and degrading for no reason whatsoever (although I don´t think there is any reason that justifies that anyway)

    You'll think why I care if I got what I wanted? Well, I think it is important she doesn't treat any other person like that. Thanks
     
  4. AllForHer

    AllForHer Well-Known Member

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  5. sammy01

    sammy01 Well-Known Member

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    You're wasting your time. If the magistrate made orders against you and you could prove (for example) that the magistrate took money from your ex. That would be worth pursuing.

    Courts have rules and structures - you didn't follow them. Each person gets a turn to talk. Interruptions are not appreciated and that is where you went wrong.

    Next time, just comply with the ex's stupidity.

    So let's play...

    You - Dear ex - I wanna take the kid OS?
    Him - Nope - not unless you give me instructions, information and a box of chocolates...
    You - No worries, here are the instructions you requested, here is the information you requested and the box of chocolates is in the mail.

    You then go and book the holiday and you leave. Easy. Now once you've given him what he wanted, there is implied consent. Never, ever write back and ask. Just assume that consent is granted because you've jumped through the hoops.

    Once you get back from holiday, give him a gift from your travels and smile. If he has a problem with it, he can take you to court.

    So the magistrate treated you poorly because you interrupted,and, more importantly, this could have been resolved without wasting the court's time. Those magistrates think they're pretty special, so they want to work on important stuff and probably see this as nonsense.

    But now the problem you have is that you need expressed written permission to travel and he only has to grant it once you've met his rules. Now once you meet his rules, he can still say nope. So you needed to play smarter from the outset.

    If it were me - Next time, simply do what he asks. Then go on holidays. Let him take you to court for contravening if he wants.
     

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