VIC Changing retrospective custody orders

[Dpj]

Atticus.. if you google Subsequent Parenting Plan you'll find some articles describing when they override court orders. My SPP was written to expressly override the orders in the Consent Orders.

Parents should however be aware that they can vary a Consent Order by entering into a subsequent parenting plan, unless the Order expressly provides for it to have precedence. Parents should be cautious of doing this as once they have entered into a subsequent parenting plan, the previous Consent Order is unenforceable so far as it is inconsistent with the parenting plan.

 

[Atticus]

if you google Subsequent Parenting Plan you'll find some articles describing when they override court orders. My SPP was written to expressly override the orders in the Consent Orders.

A PP that meets the requirements of 63C(1) will always override a consent order (unless the order is worded to specifically prevent it) That's not the point I was making when I wrote >>> PP's are not legally binding anyway. so if she were to withhold the 6th night she is not breaching anything. <<<

When you enter into a SPP, (as you have quoted above) >> the previous Consent Order is unenforceable so far as it is inconsistent with the parenting plan. <<<<

BUT, the SPP is not legally enforceable either. I believe that is why they advise caution when considering a SPP that is inconsistent with an order.

What you really need is to enter into a new consent order that includes the 6th night now instead of waiting till 2026.... Just be aware that when you bring this stuff back before a judge, they do have the power to set aside, vary or revoke a current order in whatever way they see fit.

 

[Dpj]

BUT, the SPP is not legally enforceable either. I believe that is why they advise caution when considering a SPP that is inconsistent with an order.

Thanks Atticus. Do you know for sure a SPP as per 60D doesn't constitute an enforceable order? 64D reads to me that it (Parenting Plan post Consent Orders) then becomes/constitutes a Parenting Order. But i could be wrong. I think they advise caution as a parent may inadvertently change orders. I suppose Ill see what happens in court.

This is also from legal aid. Says to me that a SPP constitutes an order (unless formalised by intimidation). In my case, the mother proposed the additional night to me so the intimidation line won't be relevant.

Parenting plans are not legally enforceable. However, if you have a parenting order a court will say that any later parenting plans change this order. The court would expect you to act in accordance with the latest parenting plan unless you can show that you agreed to the plan because of threats or intimidation.

and the following which uses the words 'must be followed'

If you have an order that was made on or after 1 July 2006 you can make a parenting plan with different arrangements and this plan must be followed in the parts where it is different to the order. Or you can change that order by another court order. Orders or registered agreements made before 1 July 2006 have to be changed by another court order.

What you really need is to enter into a new consent order that includes the 6th night now instead of waiting till 2026.... Just be aware that when you bring this stuff back before a judge, they do have the power to set aside, vary or revoke a current order in whatever way they see fit.

Yes. Agreed. I have asked for a revised set of orders to be stamped by the court incorporating the SPP with my proposed change of allowing a professional to do the review.

 

[Atticus]

Do you know for sure a SPP as per 60D doesn't constitute an enforceable order?

As per 63C(1)? .... Enforce-ability in this context means the ability to bring a breach or contravention of an order to court. In that regard I don't believe a breach of a SPP can be dealt with in the same way as an order ... Happy to to be corrected by anybody that can definitively show otherwise, but looking at the section of the act dealing with contraventions, it only refers to SPP in S70NAC as >>>

Note: Parenting orders may be subject to any subsequent parenting plan (see section 64D). This means that an action that would otherwise contravene a parenting order may not be a contravention, because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order.

Also in S70NBB (dealing with a courts power to vary an order) >>>

the court must, in exercising its powers under section 70NBA:

(c) have regard to the terms of the parenting plan; and

(d) consider whether to exercise its powers under section 70NBA to make an order varying the parenting order to include (with or without modification) some or all of the provisions of the parenting plan.

That also suggests to me that if a SPP was enforceable in the same way as an order, there would be no need to vary an existing order to include terms of a SPP.

I think the best outcome for you would be to have mum agree to a new consent order including the 6th night. I think you mentioned that it was her suggestion anyway? ... That may mean that you have to capitulate on something to get it done though.

 

[Dpj]

As per 63C(1)? .... Enforce-ability in this context means the ability to bring a breach or contravention of an order to court. In that regard I don't believe a breach of a SPP can be dealt with in the same way as an order ... Happy to to be corrected by anybody that can definitively show otherwise, but looking at the section of the act dealing with contraventions, it only refers to SPP in S70NAC as >>>

Note: Parenting orders may be subject to any subsequent parenting plan (see section 64D). This means that an action that would otherwise contravene a parenting order may not be a contravention, because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order.

Also in S70NBB (dealing with a courts power to vary an order) >>>

the court must, in exercising its powers under section 70NBA:

(c) have regard to the terms of the parenting plan; and

(d) consider whether to exercise its powers under section 70NBA to make an order varying the parenting order to include (with or without modification) some or all of the provisions of the parenting plan.

That also suggests to me that if a SPP was enforceable in the same way as an order, there would be no need to vary an existing order to include terms of a SPP.

I think the best outcome for you would be to have mum agree to a new consent order including the 6th night. I think you mentioned that it was her suggestion anyway? ... That may mean that you have to capitulate on something to get it done though.

Thanks Atticus. I meant 64D not 60D too, sorry for confusion. Cheers for those other sections, I had a read.

The note in S70NAC is moreso saying that an order may not be breached if a Parenting Plan renders it not an order (SPP having superseded it)

I see what you mean in S70NBB

Mother won't consent imo, I highly doubt it, because then she loses the control/power she wants to wield. I stroked while the iron was hot and she was having a tough time with the 3yo. She is very up and down. She was diagnosed by the court psych as having strong traits of of not borderline personality disorder. So I'm dealing with a person that wants control and can be emotionally unstable (wanting to give me time one minute then portraying the opposite the next). If I asked for the SPP to be formally court consent orders then she would be suspicious of my motives. And rightly so as if they were court consent orders then I would almost surely get her removed from doing the review.

I think I'm better off taking my chances. I'll try and get her to express her opinion on the additional night (ie, the review) and if she says she is pulling the extra night then I'll go to court. If she doesn't pull the night and agrees that I keep the night, I don't think it's unreasonable for the court to incorporate the SPP into court orders and change who the reviewer is at the end of 2022. I don't want to have her threat to pull the night everytime we have a disagreement about unrelated matters. I'd rather sort it out now and take my chances with the judge.