VIC How to Vary Existing Consent Orders?

[Corinne]

Hi all,

I'm seeking help, please, on how to vary existing consent orders by meeting the Rice and Asplund threshold.

Background:

My partner's ex broke up with him after 5 years, in January 2014, when their son was 3 years old. He then moved into his mother's house in a town 90kms away, as this was where he was already working whilst in the relationship. They then began an arrangement where my partner spent time with their son 4 nights a fortnight (every weekend) and one or two week blocks here and there whenever he could take leave from work.

My partner did all the travelling, picking his son up from day care every Friday afternoon and dropping him to his ex's place on the Sunday afternoon. If she was going to be out of town, he would stay at the house to look after her pets and avoid the long distance driving to and from his mother's house. He also started paying her weekly maintenance straight away, which ended up being four times the amount child support would later assess him as having to pay.

In March 2015, the ex moved 400kms away with their (then 4 year old) son, her newborn son and her new partner. An initiating application was filed by us in November 2015 after she failed to fulfil a verbal/text agreement made before the move. Consent orders were signed in March 2016, altering my partner's time to 2 nights a fortnight (every second weekend) and half school holidays.

Six months after the consent orders were signed (September 2016) the mother and son moved back to the home town, so we wrote up statements to amend the sections of the orders where the locations had changed. The minimal visitation remained the same as we still lived too far away to take part in weekday life (50 minutes).

During the time they've been back, we haven't made any effort to move closer or officially amend the orders because the mother then entered into court proceedings with her most recent ex which involved property settlement and a custody battle over their son (my partner's son's half brother). So we were waiting to see what happens there, but that is now proving to be quite messy and won't be resolved for some time.

She's now saying she'll have to sell the house and move away again blah blah which I've made a separate post about. Whether this is actually true or not at this point we don't know, as she was only with this guy for just over two years so the likelihood of him being successful in making a claim on her property seems extremely low.

Current situation:

So now we're thinking of moving to the town they're living in and applying to restore my partner's initial time with his son, whilst also increasing it, to preferably seven nights a fortnight. But we're not confident the mother will agree as she is very cautious about keeping the care percentage to an absolute minimum. Therefore, it's likely it will go back to court where we will use the proof of a significant change in circumstance being that the mother and son no longer live 400kms away, making the minimal visitation no longer appropriate and the orders don't apply to the current situation anymore.

Does anyone think this would be a legitimate case to be re opened by the court?

Will this involve mediation, a s60I certificate and a new initiating application? Can we use the affidavit from the first application and just add the extra events onto the end? My partner will be self representing as we have extremely minimal funds.

Thank you for reading, these things get to the point where they're not easily explained briefly.

 

[AllForHer]

Generally speaking, the relocation of one parent closer to the child's residence is usually cause for an application to vary orders, particularly in circumstances where time was once very generous and was only reduced because on parent moved away.

It is an initiating application and you do have to follow the same process as before.

Don't do it until you've actually moved, though, and make sure your partner makes it clear immediately that he's not agreeable to the mother relocating again.

 

[Corinne]

Thanks all for her.

Does reference need to be made somewhere in the new initiating application about the significant change in circumstance re Rice and Asplund or the court figures that out themselves once reading through the material?

 

[AllForHer]

Well, it's up to the other party to dispute the application based on the Rice & Asplund threshold, but it would be prudent to explain in your affidavit that you have relocated significantly closer to the ex and believe the circumstances facilitate more time for the child to spend with dad, particularly during the week when the child will benefit from dad's involvement in the school day routine. You don't have to specifically mention Rice & Asplund in your initiating application.

 

[Corinne]

Thanks again AllForHer.

I was wondering if you have any examples of what some proposed orders for gradually increased time would look like, say from four nights to seven a fortnight?

 

[AllForHer]

Well, ours looked roughly like this:

1. That the child spend and communicate with the father at all times as can be agreed and failing agreement as follows:
a) Each alternate weekend from after school Friday until before school the following Monday;
b) From [date], Order 1(a) shall be suspended and the child shall spend each alternate weekend from after school Friday until before school the following Tuesday with the father;
c) From [date], Order 1(b) shall be suspended and the child shall spend from after school Friday until before school the following Wednesday with the father;

And so on until it reached equal time.

Ironically, things didn't start to become amicable until after we reached equal time. Now, my husband and his ex don't follow those orders at all. Changeovers have changed by agreement to Mondays and they have done away with holiday time all together so week-about just continues year round.

But we wouldn't have reached that level of amicability without orders that were very clear and rigid to start with.