WA Application under Change of Circumstances: children's living arrangements

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leah2007

Active Member
13 May 2021
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Can someone pls assist me regarding the most appropriate method of filing an application in our children's matter, (Form 1 New App or Form 2 App in a Case), given the following facts:
  1. childrens' matter finalised June 2020 by way of Final Orders for their living arrangements awarding custody to Father & sole parental responsibility to Father (default, I stopped participating as part of a side deal he struck with me via our middle son to commence sleepovers)
  2. eldest son, now 13, had his wishes heard & granted by the Court at age 10yrs3mths re: living arrangements ( I haven't seen him since)
  3. youngest daughter, now 8, stopped visiting me in Dec2019 aged6, against Interim Orders (not before the Court)
  4. Middle child, now 10yrs10mths, wishes to live with me & spend time with his father as per his wishes
  5. Significant Change of circumstances has occurred similar to that of Rice & Aplsund (1979), my housing has stabilised & I've since remarried, we reside 700mtrs from the marital home & children. I have texts from last wk from the Father confirming his approval of my current living arrangements & also my partner, & offering extra 1 night per week sleepover for middle child on condition I sign his Property Settlement Offer, which is considerably less than it appears I will receive if proceeding to Court
  6. Conciliation Conference in 2 wks for Property
  7. Much pressure being placed on middle child, he's begging me to take the offer to stop his father pressuring him & sending messages via him to me
  8. Evidence of Neglect of children by the Father exists which may warrant a Form 4 & Urgent Hearing
  9. Middle child expressing signs of anxiety & talking of running away from his fathers. The distress appears to be increasing each visit, all of his requests for extra time with me are rejected by the father.
Qus: I believe I satisfy the change of circumstances frequirement in order to file an application per (5.) Do I qualify for FDR Exemption Form on grounds of urgency? Also, our Property proceedings (ongoing) is the same case number as children's matter (finalised), do I file Form 1 New Application or Form 2 Application in a Case?
 

Atticus

Well-Known Member
6 February 2019
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childrens' matter finalised June 2020 by way of Final Orders for their living arrangements awarding custody to Father & sole parental responsibility to Father (default, I stopped participating as part of a side deal he struck with me via our middle son to commence sleepovers)
So you reached a compromise & agreed to final orders by consent, or you just stopped showing up & the court handed down those orders?
Significant Change of circumstances has occurred similar to that of Rice & Aplsund (1979), my housing has stabilised & I've since remarried, we reside 700mtrs from the marital home & children.
I'm not sure just that alone, & with such a short history (11 months) would be enough to get you over the line as a significant change, best talk with a lawyer & go over all the details

Are the final orders that were made in June 20202 being complied with? .... If there are serious breaches you can apply for a contravention without going through FDR as long as that application is within 12 months of the order being made .... The affect of that is that any such application bought before the court gives a judge discretion to amend or even set aside a current order. If there are serious breaches, again ,best to talk with a lawyer about how to proceed.
Evidence of Neglect of children by the Father exists which may warrant a Form 4 & Urgent Hearing
These would need to be SERIOUS occurrences of ongoing neglect backed by some decent probative evidence, otherwise you risk just bogging your case down.
 

leah2007

Active Member
13 May 2021
6
0
31
So you reached a compromise & agreed to final orders by consent, or you just stopped showing up & the court handed down those orders?

I'm not sure just that alone, & with such a short history (11 months) would be enough to get you over the line as a significant change, best talk with a lawyer & go over all the details

Are the final orders that were made in June 20202 being complied with? .... If there are serious breaches you can apply for a contravention without going through FDR as long as that application is within 12 months of the order being made .... The affect of that is that any such application bought before the court gives a judge discretion to amend or even set aside a current order. If there are serious breaches, again ,best to talk with a lawyer about how to proceed.

These would need to be SERIOUS occurrences of ongoing neglect backed by some decent probative evidence, otherwise you risk just bogging your case down.
To answer your queries above: no compromise reached nor consent orders, I stopped participating in court proceedings last year due to health issues & underhanded offer from ex husband via our 9 yr old son of whom hadn't slept over in 3 years due to interim orders; our son was beside himself with excitement to tell me that "dad said I can start sleepovers each Mon if you let his orders sought go through this month and don't put yours in". Our son begged me to take the offer so I did, & Mon sleepovers ongoing thereafter. However, our son is adamant he wants to live with me & spend time with father in accordance with his wishes. Layers are added here due to his elder brother being given the same right by the Court when same age (10). And younger sister allowed to stop visits with me (by her father, not before the court) at age 7. I havent seen or heard from the eldest & youngest children in 3 yrs. So middle child is now of age whereby he's aware the court gave brother choices for living arrangements, and wants the same.

The orders are those that the father sought; children to live with him & spend time with me as agreed between parties (there's no agreements ever made unfortunately as he doesnt ecourage a relationship, denegrates me to children etc), and he has full parental responsibility too.

He breached the Interim Orders from Dec 2019-Aug2021 (Final Orders) by not making our youngest child then aged 7, available for handovers. He'd send middle child to my car to deliver msg that sister doesn't want to come and is crying. I don't think its right to involve him as messenger so had no choice but to just take him for visits and not her. I didn't file any contravention notice as was unaware of any such option. I filed recovery order 2018 as he breached consent order and removed kids from school on day my week was to commence with them. that hearing didn't go well for me as i was unrepresented and he was.

Anyway, is there any basis for application based upon not having seen youngest child since Dec 2019? This isn't before the Court.

I thought Rice & Appsland (1979) established that change in mother's living circumstances was enough to apply for changed final orders?
 

leah2007

Active Member
13 May 2021
6
0
31
To answer your queries above: no compromise reached nor consent orders, I stopped participating in court proceedings last year due to health issues & underhanded offer from ex husband via our 9 yr old son of whom hadn't slept over in 3 years due to interim orders; our son was beside himself with excitement to tell me that "dad said I can start sleepovers each Mon if you let his orders sought go through this month and don't put yours in". Our son begged me to take the offer so I did, & Mon sleepovers ongoing thereafter. However, our son is adamant he wants to live with me & spend time with father in accordance with his wishes. Layers are added here due to his elder brother being given the same right by the Court when same age (10). And younger sister allowed to stop visits with me (by her father, not before the court) at age 7. I havent seen or heard from the eldest & youngest children in 3 yrs. So middle child is now of age whereby he's aware the court gave brother choices for living arrangements, and wants the same.

The orders are those that the father sought; children to live with him & spend time with me as agreed between parties (there's no agreements ever made unfortunately as he doesnt ecourage a relationship, denegrates me to children etc), and he has full parental responsibility too.

He breached the Interim Orders from Dec 2019-Aug2021 (Final Orders) by not making our youngest child then aged 7, available for handovers. He'd send middle child to my car to deliver msg that sister doesn't want to come and is crying. I don't think its right to involve him as messenger so had no choice but to just take him for visits and not her. I didn't file any contravention notice as was unaware of any such option. I filed recovery order 2018 as he breached consent order and removed kids from school on day my week was to commence with them. that hearing didn't go well for me as i was unrepresented and he was.

Anyway, is there any basis for application based upon not having seen youngest child since Dec 2019? This isn't before the Court.

I thought Rice & Appsland (1979) established that change in mother's living circumstances was enough to apply for changed final orders?
 

leah2007

Active Member
13 May 2021
6
0
31
i just had another thought... could i apply for changed final orders based upon court not having all facts before them? ie. my affidavit and final orders sought, and readiness hearing docs all of which i didn't file due to the deal? am i allowed to refer to the deal in proceedings as i don't think its without prejudice as was just done bia son verbally. FYI we are scheduled for consiliation conference 2 wks for property, he lives in our marital home and due to pay me about 300k for half the equity etc,but has put fwd a written offer to my lawyer for 70k, he texted and told middle child to tell me to sign the offer and he can start sleeping each tues night too. He's used our children entire way thru to be messengers and manipulate to make me look like the bad parent if i turn down his proposals.eg. mothers day 2021 he said to middle child well you'd be sleeping at mums tonight if she had chosen but she chose not to have you.
 

leah2007

Active Member
13 May 2021
6
0
31
middle child is now demonstrating anxiety, digestion problems (again) , 2 days of school last wk, talks of running away from dads to here
 

Atticus

Well-Known Member
6 February 2019
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Anyway, is there any basis for application based upon not having seen youngest child since Dec 2019? This isn't before the Court.
You can't apply for a contravention of an order that no longer exists, ie, those interim orders were replaced by final orders in June 2020
I thought Rice & Appsland (1979) established that change in mother's living circumstances was enough to apply for changed final orders?
It is possible if there has been a material change in circumstances, but the bar is set reasonably high otherwise the court would be flooded with these R&A applications... I *think* (just my opinion & I'm not a lawyer) that if your circumstances have changed significantly to the point where you can now demonstrate a favourable pattern of behavior & living arrangements then 11 months is not enough. I think if you are able to make an application based on 2- 3 years of favourable history you would have a much better chance of a R&A being accepted... The upside of that is that the 10 year old would then be at an age that his wishes will be given some weight.
we are scheduled for consiliation conference 2 wks for property, he lives in our marital home and due to pay me about 300k for half the equity etc,but has put fwd a written offer to my lawyer for 70k,
I reckon this property stuff is clearly adding to the argy bargy around sleeping arrangements & time spent with you, & the attempt at coercion by dad is abhorrent

First off, are the figures you've quoted just pulled out of the air or are they based on an actual property valuation & taking into account relevant adjustments that may apply under the act?