Just after some thoughts and advice on seeking variation to consent orders.
Orders were signed by consent late last year, following several years of disagreement about where children would go to school.
Dad conceded to ex’s choice of private school, with a notation that school fees and associated costs were solely her responsibility. Her desire that the kids would go to this particular school has been consistently (and at times, scarily) strong over the past four years, having her preference noted in the family report, in a CSA change of assessment (reason 3, CSA rejected her request) and it was top of her priorities during a year of negotiating between lawyers. We have coped quite a bit of abuse (including property damage) and some sporadic parental alienation over the years as she pushed to get her way on this matter. In the end we decided the only way to end the craziness was to agree.
Now, less than six months later, she has done a complete backflip and wants to withdraw the children and send them to a state school. She claims the school isn’t doing the job they promised so she’s not getting a return on her financial investment, and the children will be better off in the cheaper state system.
Nothing has changed since the orders were signed (other than she may have just realised the full cost of her commitment over the coming years and is freaking out). There was no information that was withheld or not available to the court and parties at the time.
She has dropped the “see you back in court” line if Dad doesn’t agree to her request for change. Dad is open to negotiation but not likely to agree entirely with the timeline or school choice of what she’s proposing, with very sound reasons, including the trauma of pulling a child out of a familiar school where that child doesn’t cope with change particularly well.
I’m hoping that between them, Dad and ex should be able come up with a solution which is somewhere between what he wants and what she wants (particularly if she has representation – much easier to negotiate with a professional), but I’m just wondering how likely it is that she could get the case back in front of a judge if they don’t agree?
If she claims she can’t afford the fees (keeping in mind nothing has changed since the orders were signed, ie, she is still in the same employment, still has the same assets etc), would a judge consider that reason enough to hear the case? Is there an expectation (Rice V Asplund-style) that she should have been aware of the financial costs at the time of signing the order, such that the current orders stand and she has to find the money from somewhere? I feel like our law matter is vanilla compared to many other families, and a judge might get very annoyed that we're clogging up the system with such a trivial thing.
If she goes down that path and her lawyer is unable to convince her it's the wrong one, I understand that we’d have to go through the whole drama again – mediation, certificate 60i, affadavits etc – and that would just be a big bag of crap, especially now that we thought we were in the clear and were able to enjoy blended family life with the certainty of the orders.
Any advice or experience with Rice V Asplund arguments and meeting the change threshold to re-open a case greatly appreciated.
Orders were signed by consent late last year, following several years of disagreement about where children would go to school.
Dad conceded to ex’s choice of private school, with a notation that school fees and associated costs were solely her responsibility. Her desire that the kids would go to this particular school has been consistently (and at times, scarily) strong over the past four years, having her preference noted in the family report, in a CSA change of assessment (reason 3, CSA rejected her request) and it was top of her priorities during a year of negotiating between lawyers. We have coped quite a bit of abuse (including property damage) and some sporadic parental alienation over the years as she pushed to get her way on this matter. In the end we decided the only way to end the craziness was to agree.
Now, less than six months later, she has done a complete backflip and wants to withdraw the children and send them to a state school. She claims the school isn’t doing the job they promised so she’s not getting a return on her financial investment, and the children will be better off in the cheaper state system.
Nothing has changed since the orders were signed (other than she may have just realised the full cost of her commitment over the coming years and is freaking out). There was no information that was withheld or not available to the court and parties at the time.
She has dropped the “see you back in court” line if Dad doesn’t agree to her request for change. Dad is open to negotiation but not likely to agree entirely with the timeline or school choice of what she’s proposing, with very sound reasons, including the trauma of pulling a child out of a familiar school where that child doesn’t cope with change particularly well.
I’m hoping that between them, Dad and ex should be able come up with a solution which is somewhere between what he wants and what she wants (particularly if she has representation – much easier to negotiate with a professional), but I’m just wondering how likely it is that she could get the case back in front of a judge if they don’t agree?
If she claims she can’t afford the fees (keeping in mind nothing has changed since the orders were signed, ie, she is still in the same employment, still has the same assets etc), would a judge consider that reason enough to hear the case? Is there an expectation (Rice V Asplund-style) that she should have been aware of the financial costs at the time of signing the order, such that the current orders stand and she has to find the money from somewhere? I feel like our law matter is vanilla compared to many other families, and a judge might get very annoyed that we're clogging up the system with such a trivial thing.
If she goes down that path and her lawyer is unable to convince her it's the wrong one, I understand that we’d have to go through the whole drama again – mediation, certificate 60i, affadavits etc – and that would just be a big bag of crap, especially now that we thought we were in the clear and were able to enjoy blended family life with the certainty of the orders.
Any advice or experience with Rice V Asplund arguments and meeting the change threshold to re-open a case greatly appreciated.
