That's OK, you now have the various options and can consider what may work best in your situation.
QLD Variation to Parenting Order in Family Court?
- Thread starter Adam101
- Start date
So, essentially, using the contravention application method is off the table (and rightfully so).
I think you stand a good chance of having your matter heard above the Rice & Asplund threshold. The orders are nine years old, both parents have moved, neither parent has been following the orders, and the child has been spending a lot more time with you, in a long-standing pattern, for the past six years, at least. It's obvious that you and mum can co-parent effectively, with the occasional disagreement (as any parents have, married or otherwise).
File your initiating application after you move, though. Your affidavit needs to be current when the matter is heard.
I think you stand a good chance of having your matter heard above the Rice & Asplund threshold. The orders are nine years old, both parents have moved, neither parent has been following the orders, and the child has been spending a lot more time with you, in a long-standing pattern, for the past six years, at least. It's obvious that you and mum can co-parent effectively, with the occasional disagreement (as any parents have, married or otherwise).
File your initiating application after you move, though. Your affidavit needs to be current when the matter is heard.
Going briefly off-topic:
Only because of the new facts of the matter.
IMO filing a contravention is better when one exists, than filing a variation. Rice v Asplund is a hurdle test which is not needed to be passed when a contravention occurs.
Contravention -> Did contravention occur? -> yes -> What is now in best interests of kids?
Variation -> Rice v Asplund hurdle test -> pass hard test -> What is now in best interest of kids?
To me it is kinda self-evident which is better. If you believe the other way is better that's fine too, just not how I would approach solving a client's issue.
Back on topic:
What?
Apply first, then move after orders made. You move first and your ability to get a variation diminishes. Read @AllForHer posts again. You need to jump a hurdle and that hurdle becomes much larger if you move first.
Only because of the new facts of the matter.
IMO filing a contravention is better when one exists, than filing a variation. Rice v Asplund is a hurdle test which is not needed to be passed when a contravention occurs.
Contravention -> Did contravention occur? -> yes -> What is now in best interests of kids?
Variation -> Rice v Asplund hurdle test -> pass hard test -> What is now in best interest of kids?
To me it is kinda self-evident which is better. If you believe the other way is better that's fine too, just not how I would approach solving a client's issue.
Back on topic:
What?
Apply first, then move after orders made. You move first and your ability to get a variation diminishes. Read @AllForHer posts again. You need to jump a hurdle and that hurdle becomes much larger if you move first.
Perhaps I've missed something here. Dad is currently living 200km away from the mother and is looking to file an initiating application to vary the orders for 50/50 care. Why would he wait until after the orders have been made to move? If he remains 200km away from the mother as he is now, then the circumstances are essentially no different to what they were nine years ago, which means the Court is less likely to vary the orders.
Here is the essay. Great topic conversation. Others will be helped by this.
Hi T, below is a small rundown of my situation.
Mother = V
Son = J
Father - Financial Planner, self-employed, no violence, no AVO or DVO, no criminal history on my side.
Mother - Unemployed, 2 babies under 2 with new partner. Recent police intervention for domestic violence
J - 12 years old, mild autism
C - Father's partner
L - Mother's partner and father to 2 young children with the mother
I had a final parenting order stamped and sealed in court when J was 3 in 2009 as his mother was withholding access. The parenting order was for every 2nd weekend and the usual special day split. His mother and I have got along well since the court day to the point where I had him every weekend.
A a few years after the split, we both moved to Melbourne (not together) for him to attend a special school and after 2 years in 2014. V returned to Brisbane and I to the northern end of the Gold Coast. I drove 4 hours, 3 out of every 4 weekends both pick up and drop off .
In October 2017, we (C and I) moved to the north side of Brisbane to be closer, seeing as we were having him nearly every weekend and I believed the transition to shared care was in progress. For the last 6 months we have had him 3 days, sometimes 4 days a week, as well as school pick up drop off's mid-week. Emergency's (i.e. they were fighting bad), interaction with the school sports, swimming lessons, tennis.
1 month ago, my ex packed up and moved 200 kilometres away to Toowoomba for what she claimed were for financial reasons. These reasons appear to be false as she has moved in to a house paying the same rent which was her reason to move in the first place. After discussions, I agreed if I was to move there as well and have him 3 days a week. V agreed.
After 2 weeks, I was told by V not to follow her to Toowoomba and to just leave her alone. I had done nothing to prompt this reversal. I believe it was her partner, who is by her admission very possessive.
There was no relocation clause in the parenting order, however, there was a shared parental responsibility clause as the first point in the order.
What do I need help with:
I would like the order to be varied to shared care with me as the primary carer. I do not believe the decisions being made are in J's best interest. I am happy for J to live shared care, even though he has expressed over and over that he wants to live with us.
The Question:
Contravention of order or vary the order?
Why is it in J's best interest?
- J may have autism, but he is very smart and knows that he wants to live with his dad.
- V is a very volatile person where aggressive fights are a daily occurrence that is not good for J’s development.
- V, I believe, has contravened the final order by not working with me in the “shared parental resposability's care “model".
- V uprooted J from an amazing special needs high school that he loved that had a dedicated special needs unit. The school she moved him to has no facilities for students with J’s needs.
- J has informed me that her new partner has a fast-loud car that scares him when he is in it. I worry as I have personally seen him do over 100 k’s per hour in our 50k street
- I am well educated, and I help tutor Jett after school with his grammar and spelling and scholastic needs.
- J’s dental hygiene is suffering. We supervise the brushing of the teeth twice a day. I believe he brushes his teeth twice a week at home now.
Anyways, i went on a bit there, can you help?
Hi T, below is a small rundown of my situation.
Mother = V
Son = J
Father - Financial Planner, self-employed, no violence, no AVO or DVO, no criminal history on my side.
Mother - Unemployed, 2 babies under 2 with new partner. Recent police intervention for domestic violence
J - 12 years old, mild autism
C - Father's partner
L - Mother's partner and father to 2 young children with the mother
I had a final parenting order stamped and sealed in court when J was 3 in 2009 as his mother was withholding access. The parenting order was for every 2nd weekend and the usual special day split. His mother and I have got along well since the court day to the point where I had him every weekend.
A a few years after the split, we both moved to Melbourne (not together) for him to attend a special school and after 2 years in 2014. V returned to Brisbane and I to the northern end of the Gold Coast. I drove 4 hours, 3 out of every 4 weekends both pick up and drop off .
In October 2017, we (C and I) moved to the north side of Brisbane to be closer, seeing as we were having him nearly every weekend and I believed the transition to shared care was in progress. For the last 6 months we have had him 3 days, sometimes 4 days a week, as well as school pick up drop off's mid-week. Emergency's (i.e. they were fighting bad), interaction with the school sports, swimming lessons, tennis.
1 month ago, my ex packed up and moved 200 kilometres away to Toowoomba for what she claimed were for financial reasons. These reasons appear to be false as she has moved in to a house paying the same rent which was her reason to move in the first place. After discussions, I agreed if I was to move there as well and have him 3 days a week. V agreed.
After 2 weeks, I was told by V not to follow her to Toowoomba and to just leave her alone. I had done nothing to prompt this reversal. I believe it was her partner, who is by her admission very possessive.
There was no relocation clause in the parenting order, however, there was a shared parental responsibility clause as the first point in the order.
What do I need help with:
I would like the order to be varied to shared care with me as the primary carer. I do not believe the decisions being made are in J's best interest. I am happy for J to live shared care, even though he has expressed over and over that he wants to live with us.
The Question:
Contravention of order or vary the order?
Why is it in J's best interest?
- J may have autism, but he is very smart and knows that he wants to live with his dad.
- V is a very volatile person where aggressive fights are a daily occurrence that is not good for J’s development.
- V, I believe, has contravened the final order by not working with me in the “shared parental resposability's care “model".
- V uprooted J from an amazing special needs high school that he loved that had a dedicated special needs unit. The school she moved him to has no facilities for students with J’s needs.
- J has informed me that her new partner has a fast-loud car that scares him when he is in it. I worry as I have personally seen him do over 100 k’s per hour in our 50k street
- I am well educated, and I help tutor Jett after school with his grammar and spelling and scholastic needs.
- J’s dental hygiene is suffering. We supervise the brushing of the teeth twice a day. I believe he brushes his teeth twice a week at home now.
Anyways, i went on a bit there, can you help?
A move closer to the residential parent does not in and of itself guarantee any variation to the existing orders. As sammy01 rightly points out, even at 12 years, any weight that might be given to the childs views, is likely to be further diminished due to the child being on the Autism Spectrum.
Without knowing all of the facts, and basing this on the information you have provided, I would file first and argue against mums unilateral relocation with the child and for the existing 50/50 arrangements to continue (I’m making an assumption there is evidence of this?). While this could be viewed as the more aggressive option, you have stated mum will “fight like hell”.
Even if you are willing to move, again, this can be raised during the course of proceedings.
Without knowing all of the facts, and basing this on the information you have provided, I would file first and argue against mums unilateral relocation with the child and for the existing 50/50 arrangements to continue (I’m making an assumption there is evidence of this?). While this could be viewed as the more aggressive option, you have stated mum will “fight like hell”.
Even if you are willing to move, again, this can be raised during the course of proceedings.
I'm still of the view that an application to vary the orders is your best option, here.
In contravention proceedings, the Court has jurisdiction to amend primary parenting orders, and it has jurisdiction to grant leave so the parents can apply to amend primary parenting orders in the course of contravention proceedings, but it also has many other options, too, many of which are probably going to be more attractive to the Court than amending the primary orders in favour of equal care. For example, if all mum did was change the child's school without your consent, the Court will probably make an order for which school the child attends and order mum to enter into a bond. Or it might grant mum sole parental responsibility for education matters. Or it might order you both to attend a post-separation parenting course, or mediation to discuss the child's schooling options.
But a contravention application does not guarantee the Court will consider varying the primary parenting orders to what you're seeking. It's an option for the Court to consider, but not one that it is at all obliged to follow, and in my experience, it's not one the Court does follow in the magnitude that you're suggesting (ie going from orders for every other weekend to equal time just because there was no agreement on the change of schools).
Before the Court even gets to considering what outcome is appropriate in the contravention matter, it first needs to be satisfied that a contravention has occurred without reasonable excuse, and frankly, that's not a walk in the park, especially around matters of parental responsibility. Parental responsibility requires a genuine effort to reach agreement jointly about major long-term decisions affecting the child, so just because there hasn't been agreement, doesn't mean they haven't met their obligations of shared parental responsibility.
The Rice & Asplund threshold for a variance, however, is probably more attainable than proving a contravention without reasonable excuse in your case, because the orders are so old, both parents have moved and both parents have agreed to different care arrangements anyway. Mum would have to raise a Rice & Asplund argument against the application to even invoke the threshold test, and she may not do that anyway, given how vastly different the circumstances are now since the orders were first made.
If it were me - and I'm just a stranger on the internet, remember, but if it were me - I would attend mediation and try and negotiate agreement by way of parenting plan that when you move to where mum is, you see the child more often. If she doesn't agree to any variance, then move to where mum is, and file your initiating application as soon as possible thereafter.
The suggestion to seek equal care before moving just seems obscure, to me - why would the Court consider equal care when you're still living 200km from the child and the child's school, just the same as you were nine years ago?
I think you would benefit from legal advice, because I think the various opinions here may lead to more confusion than assistance. Legal Aid does offer three free consultations per family law matter. It would be worth sitting down with them just to decide what your best course of action is, even if you intend on representing yourself.
In contravention proceedings, the Court has jurisdiction to amend primary parenting orders, and it has jurisdiction to grant leave so the parents can apply to amend primary parenting orders in the course of contravention proceedings, but it also has many other options, too, many of which are probably going to be more attractive to the Court than amending the primary orders in favour of equal care. For example, if all mum did was change the child's school without your consent, the Court will probably make an order for which school the child attends and order mum to enter into a bond. Or it might grant mum sole parental responsibility for education matters. Or it might order you both to attend a post-separation parenting course, or mediation to discuss the child's schooling options.
But a contravention application does not guarantee the Court will consider varying the primary parenting orders to what you're seeking. It's an option for the Court to consider, but not one that it is at all obliged to follow, and in my experience, it's not one the Court does follow in the magnitude that you're suggesting (ie going from orders for every other weekend to equal time just because there was no agreement on the change of schools).
Before the Court even gets to considering what outcome is appropriate in the contravention matter, it first needs to be satisfied that a contravention has occurred without reasonable excuse, and frankly, that's not a walk in the park, especially around matters of parental responsibility. Parental responsibility requires a genuine effort to reach agreement jointly about major long-term decisions affecting the child, so just because there hasn't been agreement, doesn't mean they haven't met their obligations of shared parental responsibility.
The Rice & Asplund threshold for a variance, however, is probably more attainable than proving a contravention without reasonable excuse in your case, because the orders are so old, both parents have moved and both parents have agreed to different care arrangements anyway. Mum would have to raise a Rice & Asplund argument against the application to even invoke the threshold test, and she may not do that anyway, given how vastly different the circumstances are now since the orders were first made.
If it were me - and I'm just a stranger on the internet, remember, but if it were me - I would attend mediation and try and negotiate agreement by way of parenting plan that when you move to where mum is, you see the child more often. If she doesn't agree to any variance, then move to where mum is, and file your initiating application as soon as possible thereafter.
The suggestion to seek equal care before moving just seems obscure, to me - why would the Court consider equal care when you're still living 200km from the child and the child's school, just the same as you were nine years ago?
I think you would benefit from legal advice, because I think the various opinions here may lead to more confusion than assistance. Legal Aid does offer three free consultations per family law matter. It would be worth sitting down with them just to decide what your best course of action is, even if you intend on representing yourself.
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