VIC Change to Family Court Orders?

[Bluey]

Currently in place there are family court orders which were ordered in 2012 and there was no issue with them at all from my ex-husband with him having 12% care. I have had to have medical procedures whereby he had to take the full care of our child as I was unable to due to restrictions imposed on me. I received clearance from the specialist to have the child back and he does not want to go back to what the court orders were and will take me all the way back to court to have 50%/50% custody. Can this be done?

When he phoned Child Support and Family Assistance he lied to them about the date in which he took over 100% care and I feel that he will do the same thing again to gain control of the child so to get back at me. As in his original Affidavit he lied in it.

Thank you to anybody who is able to help out with this problem I am facing.

 

[AllForHer]

I'm not sure why you had to get court orders then, if he 'had no problem' with 12% care. Wouldn't that lead to just a parenting plan or consent orders?

He can seek changes to the orders provided they meet the principles under Rice & Asplund - that there has been a significant change in circumstances or the orders no longer meet the child's best interests. A change of residence may constitute a significant change in circumstances.

He would have to follow the same procedures as before - mediation first, initiating application, etc, and would need to show why the changes he's seeking are in the child's best interests.

But summarily, yes, he can seek changes to a final parenting order, provided the above principles are met.

 

[Bluey]

Thank you for your reply. We had to get court orders previously because he took me to court over our child as he said I denied him access, which I did not and which was a lie.
No significant changes and neither of us have changed address. It's just that he wants to spend more time with the child and that is his only reason because he has enjoyed it so much because of my medical procedure.
Can I view the Rice & Asplund case from the Family Law Court registrar?

 

[AllForHer]

It's available on Austlii.

If the court gives leave for the orders to be amended, you'll need to show why it's in the child's best interests for him to continue spending 12% time with his dad.

Playing devil's advocate here, you might struggle showing this - it's clear you don't believe there to be any significant detriment to the child in spending more time with dad because you already sent him to live there while you were undergoing medical procedures. His argument is probably going to be more substantial than "because I want to spend more time with the child" - for example, psychological studies on kids who grow up spending only alternate weekends with the other parent consistently report higher levels of anxiety and depression and suffer more fractured relationships with both parents than if they spend at least 10 days a month with the non-residential parent. He may argue the child is showing signs of same, and therefore, would benefit from spending more time with him. He may argue the relationship is at risk of breaking down if time is not increased.

It's unusual for the court to order less than alternate weekends and one overnight a week as well as half holidays where the relationships between the parents and the child are healthy. It may be better avoiding the cost and strain of court by attending mediation and maybe even a child consultation to reach consent orders that are a middle ground.

 

[Bluey]

There was absolutely no problem before with how the arrangement had been before. The orders were that he phoned every Monday night, saw the child and had dinner with her every Wednesday plus every second weekend. There were also school holidays involved in this as well to coincide when he was off work with holidays as he had fixed holidays.
A lot of the time whilst he has had the child his parents have been there as well. The child went back this morning and they asked their father tonight when I phoned if they could have a shower and he said only if Grandma is in the room as well. So really the child is being raised by three people instead of just him. His parents have their own place and live a good 50 minutes away from him. When I had the child I didn't have anybody else here unless they were staying over to stop driving home really late at night after a catch up.
The child has told me that they have to watch TV in the front room and must stay there while "daddy watches TV on the kitchen TV" and do not move.
Whilst I was sick and recovering I phoned the child every night and one night after the surgery I didn't ring them and they said that I didn't love them anymore and this is what Daddy had told them because I didn't ring. When they have been with me over night, the father has not phoned to say hello to their child at all.

 

[AllForHer]

I don't mean to stir the waters - parenting matters are always very delicate and it's hard to take an objective point of view when it affects you and your family so directly.

It's probably better not to be too critical of the father's decisions regarding parenting. What the court sees is a single dad, and if a single dad feels he can parent better with the experienced guidance of his own parents, the court isn't going to see that in a negative light. As for him not calling when the child is with you for an overnight, a court is just as likely to see as the dad not wanting to interfere with the child's time with you. Further a court may even see the child's comments as flippant ways of playing mum and dad off each other, but that would be one for the expert witness to comment on.

Again, I don't mean to stir the pot. In law land, it is a bitter pill to swallow when you don't get the advice or support you were hoping for from your representation. It's just that in my experience, many parents enter court focusing on criticism of the other parent, rather than what's in the best interests of the child.

At the end of the day - if he calls when he can and sees the kids when he can and poses no risk to the kids, the courts will need more evidence to say the time should remain minimal.

Perhaps as a compromise you could consider pitching that instead of mid-week dinners, they become mid-week overnights?

 

[Bluey]

I understand parenting matters are always very delicate, in more ways than one, as it deals with so many emotions.
One thing that I don't like is that his father yells all the time at his wife and it's not in a nice way at all. Somebody once said it me that she gets a lot of verbal abuse from her husband and now my child is in that situation as well.
One thing that I have noticed since he has had our child that they have gone back to talking like a two year old with their father as this is the way he talks all the time now and not like an adult. He spoke like an adult whilst we were together.
He didn't hesitate to call every Monday beforehand because it was in the court orders. If it wasn't in the court orders, I have had several friends who know both of us, said that he would not call at all. He is only doing it because he is obliged to do it.
The child has said on several occasions whilst I was recovering when are they coming back to live with me as they didn't want to live with him. The child has also told my friends this as well when I haven't been in the room.
He has also said that when I had our child's friends over who wanted to catch up for Christmas once I was home again that I was having her far too many days and he didn't like it at all and dictated which days I could and couldn't have the child over.
I did put that pitch to him about the overnight midweek stay and he said a flat "no" and only wants 50/50 and nothing else will do. If this does occur what happens with the payment of ambulance subscription, health insurance membership, swimming lessons etc as I have been paying all of these with no contribution from him whilst he has had her.
He has a big habit of saying what will suit him at the time and does't care about consequences later. I have a few examples of this, that's for sure. This goes to show what his character is like as a person and nothing else.

I really appreciate your help with my questions and a very big thank you goes out to you.

 

[Bluey]

One thing further please, if possible, does he have to comply with the current orders as they stand at the moment now I have received clearance from the specialist. If he does, he is not allowing that to occur.

 

[AllForHer]

Summarily, yes, but there is a general rule that final orders apply in place of mutual agreement. If there's been an agreement that the child live with the father, he may have reasonable grounds to defend a claim for contravention. You could seek a recovery order, but the father may respond seeking a change to orders anyway.

 

[AllForHer]

I realise I've stamped out nearly all avenues of remedy unintentionally.

I would bring the father to mediation, with a proposal that is reasonable. Perhaps a gradual increase in time the child spends with the father, from two nights to four nights (e.g. the Wednesdays) to five nights to six nights to seven nights over the course of say, a year. You haven't really given any sound reasons why 50/50 is not in the child's best interests - so far, most of what's been provided here is simply criticism against a different parenting style. I know it feels like those things are detrimental to the child, but the court is unlikely to agree.

If your proposal is reasonable, it looks better if things do end up in court again, but I really would try and avoid it. Courts hate long, drawn out litigation between parents because the only thing it really achieves is hurt for the kids.