NSW Right of First Refusal in Consent Orders?

[Rick O'Shay]

Can "Right of First Refusal" be applied to consent orders in Australia?

 

[Rob Legat - SBPL]

You’re going to need to give more information than that.

 

[Rick O'Shay]

You’re going to need to give more information than that.

Daughter is constantly palmed off to anyone available except me to accommodate ex's desire to work double shifts,work shift work etc. I have stressed many times I am in the position daily to be there for my daughter. However I am refused in favor of anyone else. Daughter has no structure, she doesn't know if she will be seeing mum, sleeping in her own bed, where she's eating dinner, who's doing her homework, when will she see mum, etc etc.

 

[AllForHer]

So, if you have the agreement of the other parent, then yes, you can include an order for first right of refusal in consent orders. They usually read something like this: That when the parent with whom the child is spending time is unavailable to care for the child, that parent shall offer first opportunity to care for the child to the other parent. You can also seek this as part of your interim and final orders.

However, you really need to consider if this is a good idea when you and your ex are obviously high conflict. It's just another thing that you and your ex would need to communicate about, which creates more opportunities to fight.

We had this order entered into consent orders, and it resulted in a domestic violence order application not 12 months after the consent order was made. On one occasion, when we had organised for my stepdaughter to spend time with her grandparents by way of a sleepover, her mother called her solicitor, the grandparents, three different police stations and the federal police, then requested a welfare check, all because she felt it contravened the order around first right of refusal. Not exactly an order that reflects the child's best interests when it results in police intervention any time she goes to see her grandparents, is it?

 

[sammy01]

It is something I had in my orders... The ex never offered, or would offer when she knew I was working or what ever... But worse, she would organise the kids to go else-where... Anywhere but with me... It sucked - I would find out, kids talk. I would e-mail the ex to tell her... She would email back telling me it was a play-date, or some other crap and then accuse me of stalking her...

Pick your battles and learn you'll win more of them by having less of them. Not legal advice, but worth spending a few moments thinking about.

 

[Rob Legat - SBPL]

As well as what AllforHer and sammy01 have said, there are other practicality issues with this. How will you know what is a valid situation for the right of refusal to arise, and what is something that falls outside (eg your daughter is invited to play at a friend's house or for a sleepover)? Then, in the event there is a 'contravention' how will you deal with that given the previous question? I would the third party is not going to feel comfortable being pulled in to a dispute to give evidence; and I doubt you'd want your daughter being shunned because of the situation.

If your ex easily agrees to it and you see it as more of a 'principle' thing, then no problem. However, if it's going to be a battle getting it in in the first place then there are probably better battles to pick.