VIC Changing retrospective custody orders

[Dpj]

Hi All,

Be great to get some opinions here.

**Summary**
1) Final Custody Orders - Aug 2021
2) Subsequent Parenting Plan (SPP) - Jan 2022 (Pursuant to Section 64D of the Family Law Act 1975 (Cth))
3) This Parenting Plan essentially changed 2 things. It gave me (the father) an addition overnight custody of 2 of my children. So 1 extra day per fortnight
4) One of those children (3 yo) is currently court ordered to be in my care 5 nights per fortnight. He has infact been in my care more and DHS (Child Support) have his care level at 46% to me. The SPP was for him to be in my care for a 6th night.
5) The extra night was subject to the Mother doing a Review to determine if her was coping and not suffering adversely from Separation Anxiety. It was the only way I was going to get the SPP. The Mother, as expected, has since used her power of determining this extra night to benefit her in unrelated negotiations.
6) The Review is to be done at the conclusion of term 1 vic school year (6th April 2022)
7) I got a letter from a psychologist experienced with family court and in her words my judge 'loves her'. In this letter it says that only a Pediatrician, Psychologist or Psychiatrist is able to determine whether the child is coping.
8) My Application to the Court is to take the Review out of the Mothers hands.
8) Due to the urgency is timing, I requested an Urgent Hearing. It is an Initiating Application. I also proposed Interlocutory Orders on an ex-parte basis if the matter could not be seen urgently.
10) The Registrar rejected the application for an Urgent Hearing and the matter in listed for the 5th May 2022 which is after the Clause triggers for the Mother's review

***My Questions is***
1) Can the court make orders that affect an event in the past? Ie, can the judge make an order to allow the child to come back into my care pending the outcome of a Psychologist report? The hearing is after the date the Review is suppose to be conducted.

Any assistance would be great. Also, opinions are welcome.

 

[CSFLW]

I got a letter from a psychologist experienced with family court and in her words my judge 'loves her'. In this letter it says that only a Pediatrician, Psychologist or Psychiatrist is able to determine whether the child is coping.

Is the mother's report?

 

[Dpj]

The mother does not have those qualifications.

The mother has not done a report. She refused in put from myself or daycare.

The 'judge loves me' was obviously verbal. I only added it above as the letter is important as it is the main persuading factor for the order to be changed

 

[CSFLW]

You filed an urgent application?

 

[Dpj]

I requested it be heard urgently and filed as such.

 

[Dpj]

To have an Initiating application be considered for an urgent hearing it has to be put through as interlocutory orders. When I filed, I ticked that box. My orders sought had standard orders, but also interlocutory in the even the judge wanted to make such orders. In this matter, as my sought orders were minor, interlocutory orders were almost unnecessary. When I rung the court, they said put info on the cover letter and the registration will determine how it is seen.

Do you know whether orders can be made to affect the past?

My experience is registrars are very considerate of self represented applications. Do you think this matter should be seen urgently?

 

[sammy01]

Im confused.
How much time do you have with the kids?
How much time do you want?
What is mum offering.

BTW - I see nothing urgent here. Nobody is looking at leaving the country? nobody is at risk of harm?

 

[Dpj]

Subsequent Parenting Plan (SPP)has provided an extra night per fortnight of my 3yo and 1yo. The 3yo had a clause for a Review to be done after Term 1 to see if child is coping with the extra night. That Review determines if the night will continue. This clause is in the SPP. I just want the court to change the clause from the Mother to do that Review to a professional (ie, psychologist).

The clause triggering that Review means Review should be done prior to the allocated Hearing date.

Does that help?

 

[Atticus]

can the judge make an order to allow the child to come back into my care pending the outcome of a Psychologist report?

Registrars powers are limited, a judge can make fairly much any order if satisfied it's in the best interests of the child/ren, or will assist the proceedings.

So you are currently having the 6th night as per the SPP?
Will you have the opportunity to see the 'review' prior to hearing date?

My thoughts are that if the mother does not provide a review, then there is no basis to discontinue the 6th night. That said, PP's are not legally binding anyway. so if she were to withhold the 6th night she is not breaching anything.

A judge must however 'give regard' to any SPP when considering dealing with orders, so having a date set to consider this in the near future is a good thing. If the mother doe's not provide a review, or the review is negative (hard to see how she could say 5 nights is working but a 6th causes separation anxiety) then your request for a professional opinion is not unreasonable. Just have your arguments well thought out & a name ready that you can put forward

 

[Dpj]

Hi Atticus,

Thanks for your reply.

I do have the 6 nights as per the SPP but end of term is this week. The Mother has not done a Review Or at least not provided me with one. I did wonder when drafting the SPP whether a court would have expectations of what a 'Review would entail.

Her Review thus far was a text saying 'then you won't continue the extra night' when I didn't want to negotiate holiday period away from orders. The Review was really just a way for her to have some control. I doubt she actually wants what's best for the kid in regards to separation anxiety coz I'm pretty sure she knows there won't be any. more so she sought power in this matter to negotiate other matters with me.

The other child I have an extra night as part of this SPP is a 20month old born after I separated (i now have 4 nights) and if she really had concerns about separation anxiety the Review clause would have been for this child. Two factors in why I believe she put the Review clause only for the 3yo is
> that an extra night with the 20 month old has no ramifications to me paying less child support and
> the fact she knows how much I love time with my 3yo and she figured such a clause would help her in other negotiations (like a threat. If you don't do X then you lose the night)

SPP are binding if done after Final Consent Orders which is the case in this situation (see Section 64D of the Family Law Act). That's a very important consideration here. I made certain the SPP would pass the test.

I have a letter from a psychologist that deals with family law. In my orders, I requested a simple change. Rather than the mother conduct a review, to say 'a psychologist, paediatrician or psychiatrist as agreed by the parents and in the event the parents can't agree then XYZ will be used. Costs to be paid for by the father'. XYZ is the psychologist I got the letter from.

The mother wanted a review at the end of each year til 2025 to determine if the extra care continued for the 3yo for the following year (ie. Review at end off 2022 to determine if night stays for 2023). The end of term 1 Review was just for 2022. I have sought in my orders that a review be done now (end of term 1) and if deemed appropriate/necessary by the Reviewer, a further review be done at the end of 2022. So not reviews each year.

In 2026 I get 6 nights per fortnight of all my kids as per Court Consent Orders.