QLD Consequences of Breaching Family Court Orders?

[Alias77]

My ex and I had 50/50 custody of children on family court orders in place for our three children. We have always stuck to everything in the family court orders and there has never been any negotiating on anything outside of the family court orders.

Recently, I accepted a temporary position overseas due to the bad economic climate where I was living. The ex agreed I could go and she would have the kids 100 percent. We discussed initially that I would return after a month for my four days off and see the kids and just play everything by ear. She seemed really amicable.

However, two weeks into my stint, she informed me she had spoken to a lawyer and wanted to put new care orders in place. have stressed over and over, that I don't want to engage lawyers or re-visit the family court orders as this is probably only temporary. I have also explained to her, that I only left as I was near possible bankruptcy and I want the kids to stay in their private schools and hopefully secure a better future for them. She has sent through what looks to be a kit, that both parties fill out to change orders. She has proposed that upon my return, I see the kids every fortnight for three days. She has given me two weeks to sign the documents or she will apply through the courts.

What are the repercussions for me, if it goes to family court, with breaking the family court orders? Will they take into account the fact that she agreed to let me go overseas and work?

I'm not ready to sign my children over to her 100 percent as this work is probably only temporary.

 

[sammy01]

I wouldn't sign.

I'd write back to her. So write:

...
As per our discussions, we agreed that we would temporarily pause the consent orders dated XXXX until such time as I (you) return to Australia. I expect that agreement to be maintained. Hence, I will not be signing your proposed changed consent orders.

I understand that you intend to apply to court in the event that I don't sign. I would like to propose upon my return to Australia we will resume the consent orders.

I would also like to suggest that if you would like to discuss possible variations to the orders then you could seek the assistance of Relationships Australia to coordinate mediation between us. I feel this would be a more amicable and less expensive approach. ...

For what it is worth, I reckon she is using bullying tactics. But I also reckon you want to either get yourself back to Australia ASAP. How long were you thinking of staying OS? If you stayed away for more than a few months, you are giving her case some credibility

 

[Alias77]

Thanks for your quick response!

I have sent all those message back and some more! Unfortunately, it is a bullying tactic and it's all about money. Knowing her very well, this will give her child support from me for the next ten years. I haven't even been paid yet for the work over here and she is getting the kids to ask me 'how much I'm on'.

I have been paying her an ample amount of money out of my savings thus far, obviously, as she has 100 percent and needs it to take care of the kids. I have been away for six weeks and probably will be for another six. Three months all up.

If I was to stay away, sure, I would revisit the orders. But at the moment, this is just temporary. So, should I ignore the forms, etc.? Let her lodge on her own, possibly buying me more time? So upon my return, the current orders will resume?

 

[sammy01]

Mate, if you're only gonna be away for another 6 weeks then forget it. I'd have a chat to child support or use their online estimator and pay her accordingly. If you're not working for an Aussie company, you probably could scam the child support, but don't just in-case it goes to court and because it is the right thing to do.

But yep, you'll be back in the country before she can get to court. But it's bloody important that there is a clear paper trail to show the agreed intention. If there is a next time, get a written agreement from her before going.

One more thing you could add...

1. Suggest that upon your return you'll happily take the kids for 12 weeks straight as make up time for the time lost.

And the second thing, well use your imagination, but the second last word would be off.

Oh, I am funny.

 

[Alias77]

Yes! Yes! You are funny!

I was just worried that she has been told by a lawyer if she drags me to court over this I will be up for all her expenses. Then obviously this whole exercise of leaving my family in search of money, would be a complete waste of time.

Unfortunately, knowing my ex and the previous lengths she went to, to drag every last cent from me. she will take this all the way. She has never worked. All the money from the settlement has been burned by boob jobs, etc. So, unfortunately, I know she is desperate to obtain more care of the children, hence receiving more child support. I actually have no problem paying child support whilst I am earning better money. But I am not ready to lose my kids.

 

[AllForHer]

Some legal clarification for you.

First, you're not contravening the orders by going overseas. The orders you have impose an obligation on each of you to make the children available to spend time with the other parent at the times specified in the orders. If the affected parent chooses not to spend time with the children during that time, that is their prerogative. Essentially, the court can't force a parent to spend time with the children, it can only force a parent to make the children available to spend time with the other parent in accordance with the orders.

Second, the orders remain in force until either a parenting plan is agreed between the parties to override the orders, or a different order is made by the court. Summarily, if you go overseas for three months and see the children twice in that period in accordance with your agreement with your ex, that's all well and good, but when you return to the country, and you state that you're no longer in agreement about the time that you were spending with the children while you were overseas, then you and your ex go back to being bound by the orders.

If you were to go overseas for a year or two, and not see the kids at all in that time, then your ex would likely have grounds to seek that the orders be changed under the rule of Rice & Asplund, but if you're only away for three months, and see the kids twice in that time, then it is unlikely be considered a significant change to circumstances such that the court would change the existing orders.

The best way to look at it is what you have agreed to change, and what you have not agreed to change. If you an agreement about a change, great, but if that agreement is later revoked by one party or has a time limitation applied to it, then you no longer have an agreement, which means you both revert to the orders.

So, my suggestion is don't sign anything, don't even enter negotiation about anything. Let her do the work, if she must. I would wager you'll be back in the country before she even has her matter heard at first mention.

 

[Alias77]

Thank you for your response!

So basically, upon my return, current court orders must be imposed?

And there would be big ramifications for her, if she keeps the kids from seeing me?

What happens if I need to leave to seek work elsewhere again? Can she say no to taking the kids full time? Just curious. As I know, if I don't sign the new orders she's proposing, all hell will be unleashed in the future.

 

[AllForHer]

Unless there is a parenting plan or more recent orders sealed by the court that state otherwise, then yes, the original orders will be imposed, and she will be contravening the orders if she refuses to facilitate the children's time with you at the times specified in the existing orders. The court does not accept 'Well, he left the country for three months' as a reasonable excuse for contravening the orders on your return to the country. Fundamentally, the orders are not conditional on you both being in the country.

Would there be big ramifications? Look at it this way - the more frequent and numerous the contraventions, the more serious the ramifications become. At the start, the court might make orders to make up for the time lost because she withheld, or it might order you both to attend mediation or a post-separation parenting course, or it might place her into a bond, which is basically the court saying 'strike one' and banging the hammer.

If she continues to contravene, then the court might order a fiscal penalty, or it might change the consent orders in your favour, or it might order that she her time with the children be supervised. I'm only aware of one instance where a parent has been jailed for contravening orders, but hey, it has happened.

If you need to leave to seek work elsewhere again, then the same rule applies, but the more often you leave and the longer you leave for, the better her case will become in seeking that the orders be varied due to a change in circumstances. Can she say no to taking the kids full time? Sure, but what is she going to do? She can't force you to take them when it's their time with you, just the same as you can't force her to take them when it's their time with her.

The only real way in which your orders will become very complicated is if you leave the country with the kids and without her consent. Otherwise, she will need to go through the motions of getting the orders changed herself, which is costly on all fronts and at this stage, have a fairly low likelihood of success.

 

[Alias77]

I must thank the both of you for replying to my question. I really appreciate it ! You've really shed some light on things !

 

[Alias77]

I have one more question for you both in regards to child support.

I've been overseas for 6 weeks. When I left I was paying the minimum amount of child support as I was not earning a great deal through my business. However, we did have 50/50 care of the children. Before I left, we liaised via sms, I told her I would take care of her and the kids and take over paying the entire school fees for the duration of my time away.

Current court orders state 70/30 shares of school fees, 70 is my share. As in previous messages, she has been asking the kids to ask me 'what I'm on' and told me I had to contact CSA immediately to update my details as the kids were so unsettled due to CSA not having my new income estimate (eye roll) . I have contacted them and left everything as is.

I have not been paid yet for my work here. So my income hasn't increased thus far. I have kept to my promise of paying entire school fees and have been giving her $1150 per month out of my savings. My point is, she will go nuts when informed the assessment hasn't changed. Will it be taken into acc the money I have paid her so far and the school fees?

I have the evidence in a text - labelled 'private arrangement' and, of course, there is the paper trail of the bank transfers. What can CSA do ?

My ex did an online estimator, provided by CSA and has based my income in a guess. It came out that I should pay her $2400. Unfortunately, this would be stuck in her head and that is what she thinks she is entitled to.


P.s. the estimator also doesn't take into acc my expenses etc. However, the figure she was given will be clear motivation for her to launch a full blown attack.

Please help