new to the group..so glad to find others....

Hi Heartbreakmum

I can hear your frustration in your words. I sense you also feel like the others are ganging up on you.

As clinicalpsych suggested, get some support. There may be counselling available through a local service, best to speak to your GP about it. This will help you get the situation in perspective and think more clearly about what you could do next.

As for running a contravention, this is not something to embark on lightly. And before you can file an application in court the Family Law Act requires that you have attempted to initiate Family Dispute Resolution (mediation). The Family Relationship Centres (FRCs) were set up for this purpose. If the child's father agrees to participate, the FRCs have Family Consultants who will offer you support and guidance through the process. Family Dispute Resolution can also be provided by other registered organisations including Relationship Australia, Unifam, Interalate and many Family Law Solicitors.

The mediation provider will write to the other party inviting them to participate. There is nothing in the law that says the other party must agree to participate in Family Dispute Resolution. If mediation goes ahead and resolves the dispute, then you need go no further. If mediation doesn't work or the other party refuses to participate, then you will be issued a certificate say you made the attempt. This certificate allows you to file in court.

It does NOT mean that filing in court is necessarily a good idea. The courts respond to Contraventions in a number of ways depending on the circumstances. Everything from rehearing the entire case to dismissing the application because they feel it isn't justified.

An important legal concept with contravention is "Reasonable Excuse". If the court accepts the accused's explanation as reasonable, then the contravention is likely to fail. The father being ill is potentially a "Reasonable Excuse"

Another issue is that sometimes orders are written in such a way that it is not possible to run a contravention on what appear to be breaches of the orders. For example. some people have orders which say "xxx can happen if the parties agree". One party at first agrees that xxx can happen then changes their mind, the court would probably not consider that a contravention because agreement was withdrawn.

In you case a lot will depend on whether the orders are specific about times or written in general terms. For example if you orders specify who is to care for the childs on a particular day then there is potentially a contravention. On the other hand attempting run a contravention on the fact that somebody else collected the child on behalf of the father when the father is supposed to collect the child would may result in the orders being changes to allow the Father or his agent being able to collect the child.

A usefull place to get a better perspective on the legal process is

www.familylawwebguide.com.au

A final comment for now.

It is really important that you support your son in a constructive way through his father's illness. To do otherwise leaves leaves him more vulnerable to emotional issues because of his father's illness and also more open to any attempts to undermine his relationship with you.

Hi Heartbreak Mum,

It sounds like there is not much communication between you and your son's father? In order for shared care to work, it is vital that you are able to communicate with each other about your son. If you have court orders, they need to be adhered to. However, if your son's father is genuinely too unwell - then I do agree with D4E, compassion will get you much further than anger and resentment. Having said that, I can certainly feel your distress and desperation. As such, regardless of what anyone says....you need support! Do you have family members or friends who can support you through this? You are under enormous stress, which is totally understandable.

Instead of going through the court process, have a look at this website: www.familyrelationships.gov.au

I'm not sure if you are aware of the 2006 changes to the Family Law Act, however one of the changes involved the Attorney General's Dept funding a number of "Family Relationship Centres". The role of these centres is to provide Family Dispute Resolution - in the hope of preventing these cases from going through the court process. If you given them a call, you will have the opportunity to go and see a counsellor/mediator with specialist training in Family Law. If you agree, your ex will then be contacted to attend an appointment. Then you attend a session together. There is no cost for this either. The hope is that you both have the opportunity to be listened to. It may be the case that shared care is not working for either of you at the moment? At the very least, if there is a reason why your ex cannot adhere to a particular Order - he needs to find a way of communicating this with you. You should not be in a situation where your son is not where he is supposed to be at handover etc....in doing this he is in breach, however one must consider the circumstances before coming down too hard on him.

Hi Heartbreakmum.

I am so sorry to hear about your situation.

Unfortunately it will be very difficult to sort anything out and to even attempt it you will no doubt become the bad parent in most peoples eyes, it will take a lot of courage and strength especially if the father has a lot of local support.

First off I will play devils advocate which needs to be done in every situation we deal with as parents and not just alienated parents.

Your childs father should be allowed to keep his 50/50 contact and it should be OK to use the support of family and friends when he is ill. If you consider what happens in a family in that is together and that of a family where one or other parent does not see the child or one parent has significant care you will see that it is not unusual for a child to be vetted out to relatives if that parent becomes to ill to care for the child. There is significant benefit to the child to be part of this process and although it is difficult it could be more disruptive to stop this happening. 

In saying that we all have responsibilities as parents to keep our children's best interests at the fore and do so responsibly.

Your fathers child may be desperately holding onto the limited time he knows he has with his son, he may feel that when he is gone contact with the child's relative will stop and this is the only chance his son gets to see his side of the family and friends. Depending on his condition he may feel at the times on contact with his son that he will be able to deal with things only to find out he is unable and has to call on family to support him and look after your son.

I do agree there is a need to follow court orders to retain consistency in your sons life and I agree you should be informed if your son is shuffled off to other peoples homes.

There are many options available to you that will work, all of which means getting relatively nasty from an outside appearance but I think in this situation there is a more viable solution that you can approach your child's father with.

I have no doubt he is scared and feels hard done by and perhaps can not understand why your child can't spend more time with him because the fathers time sounds to be very limited, to the father who will be very conscious of his own mortality.

I think your best option is honesty and compassion whilst setting ground rules. Talk to your child's father and let him know your concerns but then explain your willingness to compromise aspects of things. Let him know there is a real need to let you know where your son is which will be backed up by the courts and that it is important your son be given the option of going home to mums as an alternative and that you will positively support him staying with extended family if thats what your boy wants. right now your looking for ways for your child to feel comfortable in all situations, he knows dad is really sick and may need more than just mum. 

Let him know that unless alternative arrangements have been agreed to pick up times from school will be as court orders but your willing to change things around a bit if needed as long as 50/50 is still the base structure. Make up several calendars that are highlighted for each parents contact period and with your contact number on them, let him know that you have done this for his family so they are aware when it is your time to pick up your son from school and let him know you have done the same at school as well as supplied court orders and directions not to release your son to any other person when he is with you, I suggest you keep that one till next year start of school there is no need to start a war this late in the year.

I think if you show you are supporting his time with his son all this will blow over in no time, remember this is not only about what your sons father is doing but how what is happening to your sons father is effecting your son, do not give them ammunition to use on your son.

Best of luck and remember we do not know the full story and these are only opinions on what you have posted so if there is more or you wish to speak your mind about what I have written please do just that, I'd much prefer an angry post than no reply.

D4E