VIC Primary Carer Relocating Interstate

[StuckinVic]

Hi,

I'm after some clarity regarding moving interstate from Victoria to Queensland.

At present I am the and have been for the last three years a the primary carer of our three children. Their father used to see them every other fortnight and one week night a fortnight.

I sought parenting orders to increase his time to include half school holidays as I work full time and the costs and extra sporting activities training sessions was placed completely on me when their father had registered them with my support.

Their father then moved 25km away from them and their school. During court mediation the judge told him that due to a high court precedence the courts could not force a father to spend time with his children. He then agreed to only half school holidays during terms 1, 2 & 3 and alternate years from the 24th December to the 7th January and even years from the 26th December to 7th January. This reduced his current care from 110 days per year to 74.

He had my back against the wall in court and I had no choice otherwise I would have them full time. The hand written orders were signed by both of us but not sealed by the court. I currently only have phone evidence of these papers.

I'm at my wits end, the burden of having to pay 50/50 private school fees, sporting, all uniforms, child care after school and during holidays. I have no respite and can only get 6 days off during school holidays which I have to work as it is too expensive for me to get away to re-charge. He sends me email stating I have to take the children to sports training mid week which souls mean I have to leave work early 3pm once a week. I'm already working 8.30 - 5.30 pm for a firm that is understaffed and I'm performing three job roles at present. At present the CSA calculates his income as 73% when our income are combined.

I do not have any support here in Australia as my family reside in the UK where I am originally from. My partner is from Queensland and we have a support network there with family and friends.

My eldest id due to start high school in a year and a half, their father has requested he attend a state high school that I am not in the catchment area for which would mean moving into an expensive area with high costs of rent and moving costs. He lives as stated 25km away from the area. I cannot afford do to this. My eldest friends have already left primary school to attend private school leading to high school and only has 1 or 2 friends in his year.

I have requested to move to Brisbane and have the children during term time and he has holidays with communication during the week with christmas alternated.

He works in a senior management role, travels he also has family in Sydney where he is from. His partner often cares for the children in his absence.

He has advised that should I move he will get recovery orders and only allow me to see the children with his grace which could be never.

I have spent so much money on lawyers I cannot afford to go down a journey that sees me yet again doing all the parenting and stuck in a situation because it suits him.

Any advice or instructions would be great, i.e. is the signed but not sealed parenting orders binding legally?

Many thanks

 

[AllForHer]

I'm a bit confused here, why were you in Court in the first place? Which one of you was the Applicant and which one of you was seeking more time with the kids?

 

[StuckinVic]

I'm a bit confused here, why were you in Court in the first place? Which one of you was the Applicant and which one of you was seeking more time with the kids?

I was the applicant, after trying mediation 4 times he refused to share school holidays. I was given bad advice by a law firm that said we could get parenting orders and a fairer split. However this was not the case and he now spends less time with them.

 

[AllForHer]

Okay, so again, just clarifying, dad currently sees the kids every second weekend and one night each week, plus half the Term 1, 2 and 3 holidays and for two weeks (or thereabouts) during the long summer break?

And you'd like to relocate to Brisbane?

So, first, I can't say whether the 'orders' you have are binding. Usually, when parties sign a parenting agreement while proceedings are on foot, that agreement is lodged with the Court as consent orders along with a request to discontinue proceedings. It may be a case of having a handwritten copy yourself, but there might be a sealed copy sitting with the Court. It may be best to contact your legal representative or the Family Law Registry to ask.

Regardless of the orders, though, relocating without either dad's consent or orders from the Court is a bad idea. Even if dad only sees the kids 74 days a year, he may still have grounds to get a recovery order, and the last thing you want is a situation where you've spent all that time and money moving, only to have the Court order the kids (and by proxy, you) move back to the town of origin.

With that said, dad's assertion that he'll get a recovery order and only facilitate the kids' time with you as he chooses is, frankly, absurd. You previously sought orders for him to see the kids more, and he agree by consent to see the kids less. The likelihood of him getting residency of the kids (as would be required in this scenario) is pretty narrow.

I would say your best path for resolution is mediation (as always, you have to attempt this before filing for Court), and if you can't reach an agreement, then file an initiating application for parenting orders that allow you to relocate.

Prospects of success?

Probably not too bad, actually. In my view (and there's obviously a whole other side to the story that we don't get on this forum), you are showing that you will support and encourage the kids' relationship with dad if you do relocate, and I think what you've offered is reasonable.

But I think it's a bad idea to move without dad's consent, and if you can't get dad's consent, then you can risk it and see if dad actually does pursue a recovery order, or you can apply for Court.

 

[StuckinVic]

Okay, so again, just clarifying, dad currently sees the kids every second weekend and one night each week, plus half the Term 1, 2 and 3 holidays and for two weeks (or thereabouts) during the long summer break?

And you'd like to relocate to Brisbane?

So, first, I can't say whether the 'orders' you have are binding. Usually, when parties sign a parenting agreement while proceedings are on foot, that agreement is lodged with the Court as consent orders along with a request to discontinue proceedings. It may be a case of having a handwritten copy yourself, but there might be a sealed copy sitting with the Court. It may be best to contact your legal representative or the Family Law Registry to ask.

Regardless of the orders, though, relocating without either dad's consent or orders from the Court is a bad idea. Even if dad only sees the kids 74 days a year, he may still have grounds to get a recovery order, and the last thing you want is a situation where you've spent all that time and money moving, only to have the Court order the kids (and by proxy, you) move back to the town of origin.

With that said, dad's assertion that he'll get a recovery order and only facilitate the kids' time with you as he chooses is, frankly, absurd. You previously sought orders for him to see the kids more, and he agree by consent to see the kids less. The likelihood of him getting residency of the kids (as would be required in this scenario) is pretty narrow.

I would say your best path for resolution is mediation (as always, you have to attempt this before filing for Court), and if you can't reach an agreement, then file an initiating application for parenting orders that allow you to relocate.

Prospects of success?

Probably not too bad, actually. In my view (and there's obviously a whole other side to the story that we don't get on this forum), you are showing that you will support and encourage the kids' relationship with dad if you do relocate, and I think what you've offered is reasonable.

But I think it's a bad idea to move without dad's consent, and if you can't get dad's consent, then you can risk it and see if dad actually does pursue a recovery order, or you can apply for Court.

Thanks for your detailed response. At present their father sees them every other weekend on a Friday and Saturday night returned Sunday at 6pm because he moved away and doesn't want to drive them to school on Monday morning. He also dropped the one night during the week for the same reason.

I can try mediation but he has point blank refused to negotiate on any previous issues (6 times). I have then had to initiate and application, he hires a top law firm and then turns up to court self representing meaning my lawyer has to do the work and he is awkward and refuses to come to agreement. I haven't got any more money to file an application, I'm already in debt from the last time.

 

[AllForHer]

I understand. I’m not suggesting mediation because I think it will work, it’s just mandatory for all family law applications.

That said, your choices are basically as I outlined them: take the risk, relocate and let Dad decide if he wants to take you back to court; or follow the Court avenue yourself.