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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5420
Experience:  Dip Law LPAB - Sydney based lawyer
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my ex Husband has decided without consultation to go away for

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my ex Husband has decided without consultation to go away for six weeks and significantly break his parenting arrangements for the same number of weeks. He is supposed to have the children (X2) from after school on Friday to Sunday evenings. He returns early on a saturday morning ansked to take the children immediatley. However, he has forgone his visitation and I have now made plans for our time together. He is likely to accuse me of withholding access which he regulalrly does and has never been true. He just travels when he wants and uses me like a baby sitting service expecting to adopt to his time frames without agreement. I will give him the children later that day it is Fathers day and we have additional orders for these. Am I doing the right thing?
Hello and thank you for your question.

If he is breaching the orders by failing to collect the children when he should, this does not then entitled you to yourself break the orders by denying him access custody on other days which he is entitled. So if the current orders do allow him to take the children on Father's day, then he can do so not withstanding he has otherwise failed to take the children when he ought. He will not, however, be entitled to demand that lost time caused by his failure, be made up by you surrendering the children on days which he is not otherwise allocated to have custody/access.

A court might take a different view if he simply picks the children up late, such as in the circumstances you describe where he is meant to pick them up on Friday and instead comes on a Saturday. The court would likely look at how reasonable the parties are being in dealing with this situation. So in assessing whether it was reasonable for you to not make the children available for collection the court would consider why it was impractical for you to allow him to pick the children up, whether the father gave notice of the late pick up and whether the parties were reasonable in negotiating an alternate arrangement. The court won't expect you to bend over backwards to meet his expectations, but nor will it be sympathetic if it senses you are being deliberately difficult just to make things hard for him.

So, for example, if it is the case that you had made plans with the children on the assumption he was not coming and then he just turned up and demanded the children then very likely a court would likely favour you in any legal dispute over this incident. If on the other hand, he had given you notice and an explanation for the delayed pick up, and you offered no sensible excuse for denying him access, then the court might look dimly on your refusal, and make orders facilitating make up custody/access and even costs against you.

Unfortunately, because there is a certain subjectivity to what constitutes a reasonable approach to such situations it can be difficult to predict with certainty how a case will be decided. From what you describe however, I think that should issues of this sort ever come before the court, the husband's record of erratic compliance with the custody orders would likely greatly favour you. To that end, even if you do not intend to take any action at this time, you should keep a log book and record all occasions when he seeks to vary or fails to comply with the current orders, as this may prove useful evidence down the track.

I trust the above assists.

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Thanks and good luck,

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