QLD Family Law Act and Custody of Children - Changing Final Orders?

[Kyrra]

Hi,
My husband and I have final order for custody of his son (age 11). The orders state that he live with us and see his mother every second weekend and holidays. She can also call each week.

He has lived with us going on 5 years and is excelling in school, outside school activities and is a happy well balanced child. We have had these final order since September 2013. To date she goes months with out seeing him and he will only see her for the day he won't stay over night. She rings irregularly often monthly to 6 weeks apart. We don't even know where she's living to be able to take the child to see her.

Anyway, tonight we got served with documents to attend court regarding a parenting order for the child. From what I've read and also understood of the family law act, once you have final Orders you can only apply to vary them if you have reasonable grounds not apply to change the whole order. Am I correct in thinking this?

We're also concerned about what step we should take next as our lawyer cost us everything and we are just worried we will have to pay more and have it thrown out. FYI she got all legal aid funded.

Any help would be great. Thank you.

 

[AllForHer]

Interesting. Did she attempt mediation before filing an initiating application?

If final orders have already been determined by the court (rather than by consent), then the mother will need to meet the requirements of Rice & Asplund before the court will grant leave for proceedings to change final orders. Those requirements are that there has been a significant change in circumstances such that the child's best interests are no longer being met under the existing orders.

If you are unable to acquire representation, then your partner could consider self-representing. If mediation has not already taken place, then I would strongly suggest requesting the court to order mediation in the interim, if not only to work out what the mother's concerns are and whether they can be negotiated to reflect the child's best interests. What is it that she's wanting to change about the existing order? Residency, time spent with, etc?

 

[Kyrra]

Interesting. Did she attempt mediation before filing an initiating application?

If final orders have already been determined by the court (rather than by consent), then the mother will need to meet the requirements of Rice & Asplund before the court will grant leave for proceedings to change final orders. Those requirements are that there has been a significant change in circumstances such that the child's best interests are no longer being met under the existing orders.

If you are unable to acquire representation, then your partner could consider self-representing. If mediation has not already taken place, then I would strongly suggest requesting the court to order mediation in the interim, if not only to work out what the mother's concerns are and whether they can be negotiated to reflect the child's best interests. What is it that she's wanting to change about the existing order? Residency, time spent with, etc?

Hi,

Thank you for your help. Yes we have been to mediation to which she was late and nothing was resolved.

She wants to change everything in the final orders. She wants the child to live with her and have sole parental responsibility and that we see him every second weekend and school holidays and call weekly for 15 min during a set time which I might add is while we are at work. I thought she would need to show reasons to make the change.

Honestly he would go backwards if he were to live with her. 1. She's doesn't any even have her own place; she is living with some guy she meet which is on the rocks so she'll be on the street again. She doesn't work so only wants him for the money and lives over an hour away. So she would be changing him schools in his senior year and also having to sort high schools. We have already done this and advised her of what we have chosen based on his needs. We had to apply early as he had to do testing due to being advanced in some subjects and having already completed year 7 work in these subjects.

She would also be pulling him out of his sports activities, swimming and all. She wouldn't take him to these. She is also trying to change the orders so that we pretty much have no say and can't contact the school to see how he's going or anything. At present we have equal shared custody and we advised her of all the big items and she can contact the school for parent teacher interviews and such. She has never done this.

She also had a 3 year old that she only had 2 days away due to not being able to handle him. He lives with his dad the remainder of the time.

We were wondering if it's worth representing ourselves? But don't we need to lodge a response?

They also haven't referenced the final orders anywhere in what we were given and they haven't said they want to make a change, it's just like a whole new order.

 

[AllForHer]

Are the current orders final orders, made after a trial, or are they consent orders made by agreement of the parties?

 

[Kyrra]

They were made after a family report was completed didn't get to trial but judge made the orders.

 

[Kyrra]

It states on them final orders.

 

[AllForHer]

I'm fairly certain she will still need to meet the requirements of Rice & Asplund, then, but I really strongly suggest getting legal advice to confirm. Without seeing the orders or knowing the full facts, it's hard to make completely accurate comment from here. Legal Aid offer free consultations for family matters.

You will need to file a response, and it might be wise to include a brief history of proceedings, as well. If the child has lived with you and your partner for five years, and you have at all times encouraged and facilitated the child's right to have a relationship with the other parent, then the court will likely be reluctant to order a change of residency, and even more reluctant to order sole parental responsibility, but it's not something anyone here can predict because we don't know the full facts of the case.

Try and remember that you're not arguing why it's not in the child's best interests to live with the mother. You're arguing why it's in the child's best interests to continue living with the father. This means approaching the case in a positive manner that highlights how the child has flourished in your household, rather than a negative manner that highlights how the child would, to borrow your words, go backward if he were to live with the mother. After all, you can draw fact from the past, but you can only draw speculation from the future.

There will likely be several mentions and mediation before any determination is made, and you're probably safe to self-represent through these, but if it ends up at final trial, then it might be better to get a solicitor if your partner is not confident self-representing. That's a long while away and it's more likely the mother will settle by consent before then, as 95% of cases do.

That's just my view, though.

 

[Kyrra]

I'm fairly certain she will still need to meet the requirements of Rice & Asplund, then, but I really strongly suggest getting legal advice to confirm. Without seeing the orders or knowing the full facts, it's hard to make completely accurate comment from here. Legal Aid offer free consultations for family matters.

You will need to file a response, and it might be wise to include a brief history of proceedings, as well. If the child has lived with you and your partner for five years, and you have at all times encouraged and facilitated the child's right to have a relationship with the other parent, then the court will likely be reluctant to order a change of residency, and even more reluctant to order sole parental responsibility, but it's not something anyone here can predict because we don't know the full facts of the case.

Try and remember that you're not arguing why it's not in the child's best interests to live with the mother. You're arguing why it's in the child's best interests to continue living with the father. This means approaching the case in a positive manner that highlights how the child has flourished in your household, rather than a negative manner that highlights how the child would, to borrow your words, go backward if he were to live with the mother. After all, you can draw fact from the past, but you can only draw speculation from the future.

There will likely be several mentions and mediation before any determination is made, and you're probably safe to self-represent through these, but if it ends up at final trial, then it might be better to get a solicitor if your partner is not confident self-representing. That's a long while away and it's more likely the mother will settle by consent before then, as 95% of cases do.

That's just my view, though.

Great thank you and that's what I thought the case would be. Do you know if it has to go back before the same judge?

And yep trying to keep a positive spin and work out the best way to do it. Hopefully our lawyer can help us a little and we can self represent in court.

Thank you for all your help.

 

[Kyrra]

Also are you a local or know of a lawyer local that could assist and won't cost everything as we have put everything we have in already and we aren't entitled to legal aid.

 

[AllForHer]

You can be connected here: Get Connected with the Right Lawyer for You
You may be eligible apply for Legal Aid, even if you think you won't get it. It's worth a shot.

I am not sure if it will go before the same judge, but there's no guarantee that it will.