VIC Travel child access

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Rod

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... it's a fact that parenting orders create a legal obligation, & that obligation is that BOTH parents abide by the orders ...
Obligations are different to rights. Depending on orders, one parent often has an obligation to facilitate access for the other parent. The person with the right of access can elect to take up that right or not. Their choice and in most situations there is no breach if they do not access their right.

Travelling from NSW to QLD to see a child is not a legal duty or legal obligation in most situations. It is a legal right.

How the QLD public service views the travel is up to them. They may allow the travel, they may not. Their choice. Disease does not respect family court orders and I do not see why QLD should make any exceptions for family visitations. I'd hope QLD keeps their citizens safe by being careful. We've already seen in Vic how people lie when told they must self-isolate, do you think some people missing their children will not do the same thing?
 

Atticus

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6 February 2019
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I understand the point of view, but still not totally convinced over the whole legal obligations created by a parenting order (fact) only being accepted as a right in this situation .... Have to see if I can find anything definitive when I have time..
We've already seen in Vic how people lie when told they must self-isolate, do you think some people missing their children will not do the same thing?
Sadly, possibly but that is a different argument .... But this question was always 'assuming' that people do the right thing & was more about the current restrictions
 

Atticus

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How the QLD public service views the travel is up to them. They may allow the travel, they may not. Their choice. Disease does not respect family court orders and I do not see why QLD should make any exceptions for family visitations.
Maybe, but the fact is that QLD has made an exception

For families caught up in this, the family court says they should be guided by the relevant states restrictions ….. The relevant state (QLD) has decided that they WILL make an exception for a person to fulfil a legal obligation relating to shared parenting or child access, even from a nominated hotspot (that person will however still be subject to quarantine requirements)

The family court says that a parenting order creates a legal obligation to ALL who are affected by it, & that not complying has legal consequences, right up to & including imprisonment
Thing is, visiting a child is not a duty (what you called a "legal obligation relating to child access").
Rather, It's a right - a right created by the Parenting Order.
Obligations are different to rights. Depending on orders, one parent often has an obligation to facilitate access for the other parent. The person with the right of access can elect to take up that right or not. Their choice
I understand that the weight for compliance is heaviest on the lives with parent, but BOTH parents need to be able to rely on the orders & there is no differentiation in the act between parties to an order, not in their legal obligations nor their ability to file a contravention …. Consider for example, a lives with parent who structures their work/travel/caring for another family member etc, around their child spending time (as ordered) with the other parent, & that parent just decides when they will choose to ‘take up that right’ …. Would love to see how that argument would go down in a contravention hearing.

So help me out here …. Are you chaps seriously saying that where a parenting order exists, the primary carer (lives with) parent is the only party that has a legal obligation, & the other can just choose to either follow the orders …. or not? ..... Because that’s what I’m reading…

Now I can direct you both to any number of sections of the family law act that will totally rebut that idea …… but rather than that, if the suggestion that in parenting orders there is no legal obligation that applies to both parents is more than a mere opinion, I (and I’m sure others with orders) would love to be shown a link or two to any piece of legislation, law, principle?, that you chaps are drawing this notion from… TIA
 

Tim W

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So help me out here …. Are you chaps seriously saying that where a parenting order exists, the primary carer (lives with) parent is the only party that has a legal obligation...
No, that's not what either of us is saying.
Now I can direct you both to any number of sections of the family law act that will totally rebut that idea …… but rather than that, if the suggestion that in parenting orders there is no legal obligation that applies to both parents is more than a mere opinion, I (and I’m sure others with orders) would love to be shown a link or two to any piece of legislation, law, principle?, that you chaps are drawing this notion from… TIA
How do you propose to rebut something... that we're not actually saying?
 

Atticus

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No, that 's not what either of us is saying.
That is exactly the notion that you are proposing ..... & it's not ME calling it a legal obligation BTW, it's the act (as I'm sure you must know)
Thing is, visiting a child is not a duty (what you called a "legal obligation relating to child access").
Rather, It's a right - a right created by the Parenting Order.
Obligations are different to rights. Depending on orders, one parent often has an obligation to facilitate access for the other parent. The person with the right of access can elect to take up that right or not. Their choice
 

Rod

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Where in s65M or s65N does it say a parent has on obligation to pick up a child?

s70NAC is of no assistance to you unless the actual orders say a parent MUST pick up the child. Most orders are not framed this way, and for good reason.

Returning a child is different and not what the OP is suggesting. If someone in NSW had to return a child to QLD, that is likely an obligation that has to be fulfilled and is likely allowed by the QLD border law.
 

Atticus

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6 February 2019
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Where in s65M or s65N does it say a parent has on obligation to pick up a child?
It doesn’t need to….. The obligation is created by the existence of the order itself …. If an order states that xxxxx will be picked up at 3.30 at xxxxx, then the lives with parent has an obligation to have the kid available at that time & place, & the other parent has an obligation to pick up…

The court goes to pains to make sure (as per s65DA) that ecah party to the order knows about the obligations that the order creates & the consequences that may follow if a person contravenes the order…. There are also prescribed handouts to make double sure that ALL parties to the order KNOW that they must follow the orders..
s70NAC is of no assistance to you unless the actual orders say a parent MUST pick up the child.
Again, the obligation is created by the existence of the order… Why should it have to say MUST pick up?... It doesn’t say MUST provide access either

Section 70NAC
Meaning of contravened an order
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

(a) where the person is bound by the order--he or she has:

(i) intentionally failed to comply with the order; or

(ii) made no reasonable attempt to comply with the order



ALL parties are BOUND by the order…… The fact is that both parties are entitled to make a contravention application if the other is not complying with orders, & if the visiting parent chose not to comply with their obligation often enough, the lives with parent has every right to file a contravention which may well result in those ordered visits being amended or removed altogether if there was no reasonable excuse

Look it wasn’t me that went down this sidetrack & said “The person with the right of access can elect to take up that right or not. Their choice”…. I guess you are correct in as much there IS a choice… The choice is to comply with a court order or disregard it & risk legal consequences if the other parent files a contravention..

But if you are ever going into a contravention hearing using the argument that my client decided on those occasions not to take up the visits as per the order, after all, section xxx doesn’t say he MUST …… Please flick me a PM, because I want a front row seat at that show

Getting back to the actual question of travel into QLD that was the subject of this .... I provided the OP with all the relevant info from family court & the latest border restrictions/exemptions as provided by that state to assist him in making an informed choice .... What the cop at the QLD checkpoint may or may not do who knows
 

Rod

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