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QLD Changing Sole Custody of Children Agreement?

Discussion in 'Family Law Forum' started by Amy5, 17 October 2016.

  1. Amy5

    Amy5 Member

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    My husband's ex has sole custody of children, which he unfortunately signed 2 years ago after pressure from the ex's lawyer during a bad time, living interstate, and limited income, so no representation. He moved back one year ago and unofficially sees the children overnight on weekends for a total of 20 hours, and half of all school holidays (sometimes- she occasionally says no).

    He pays full child support and half of all school and sport-related fees, as well as other costs in cash as she requests. The children consistently ask for more time with him and the eldest has asked to live with us repeatedly, asking when he can legally choose to be with us. He has been asking to live with his father for years but now he is almost 12.

    Can anyone suggest how we can get more time? The issue for my husband is that if he doesn't give the extra money or agree to everything she demands (ie she dictates the kids' bedtimes to us and when they have to shower, etc) and if we don't do exactly as she says, he doesn't see them... (I have two children of my own and can attest that he doesn't need to be told how to parent).

    Anyway can we revisit the family court orders to get joint or more custody? Can the oldest spend more time with us and if so, how do we get the court to hear his request?

    I personally don't want to take him from his mother or brother full-time but more time, ie 50/50, would be nice for him and us. Also, what about the brother who is two years younger? How would the court look at that sort of separation, ie would we have to wait until they are both over 12?

    We are beginning to see some issues with the older one in terms of his home life so we want to act sooner.

    Thank you!
     
  2. AllForHer

    AllForHer Well-Known Member

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    Since you have orders, you need to meet the Rice & Asplund threshold, which states that the Court will consider varying parenting orders where a significant change in circumstances has occurred, such that the child's best interests are no longer being met by the existing orders.

    "He moved back one year ago" is, in most cases, a significant change in circumstances.

    First step is to organise family dispute resolution with the other parent. It's a mandatory pre-procedure step before you can file an initiating application with the Court. If you're unable to negotiate a change to current care arrangements at mediation, your next step is to file an initiating application with the Court.

    Contact Legal Aid first for legal advice if you don't have the means to engage a family lawyer, then contact Relationships Australia to organise a family dispute resolution conference.
     
  3. sammy01

    sammy01 Well-Known Member

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    Yup, agree- but you might wanna think about the approach. Firstly - try and make all communication via text messages and learn to download them.

    Is this likely to wind up in court? If so, you want all the evidence and a kitty to pay for legal advice. Self-representing is also an option. My concern is once you organise mediation and she will tighten the screws and make things harder. You need to be prepared for that...

    Once the 12-year-old is 13 and younger is 11, you'll have more chance of the kids being kept together and your time increasing. So really, now is the time to get started because it will take some time to get to court.

    You've got a tough road ahead - but there are some good folk here that will help a good bit.
     
  4. Amy5

    Amy5 Member

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    Ok, thank you both. That's very helpful. I was thinking of suggesting to her if we can get her to mediation that we continue to give full child support and she can continue to bank the govt FTB, etc, as money is important to her.

    They only interact by text which is good but my partner unfortunately has deleted most of the correspondence (including her abusive drunken texts) but we will keep them going forward, esp as she is often asking for money.

    So is it better to talk to legal aid first or just go directly to a lawyer?

    I think it's worth paying someone, as I am also afraid she will reduce contact in retaliation once we start this. But I have no idea of the cost. Would it be under $10,000?

    Thanks again. It's nice just having moral support.
     
  5. sammy01

    sammy01 Well-Known Member

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    If you're smart you should be able to do it for less than $10 000. Now, if hubby works and earns more than about $30 000 (not sure of the exact amount) then legal aid is a waste of time.

    Keep paying, keep reciepts, keep records - keep records of how much time you have with the kid. Have 6 months worth of good paperwork.

    Now does mum work? If she does she probably wont get legal aid either. IF she doesn't she will - but they will only help so much and the wont help her if it is obvious she is a scammer. So there is some good news.

    So most cases don't wind up in court - most of the time one parent is forced to concede - but you have to apply pressure
     
  6. AllForHer

    AllForHer Well-Known Member

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    About 95% of cases that are initiated in Court are also settled by consent on or before the day of trial, but unfortunately, parents often find they have to go through many months of competing in Court at enormous cost before realising that settlement is the better option.

    If mum is money-focused, that will work to your advantage. It's not the same for everyone, but in our case, the child support mum stood to gain from an every-other-weekend regime was just a tiny percentage of what it actually cost her to try and have those orders made by the Court. She ended up with a $30,000 debt, and my husband ended up with 50/50 care of the child.

    Your partner will stand the best chance if he can show that he's been spending regular time with the child, though, so any written agreement he has about pick-ups and drop-offs or anything of similar nature needs to be compiled and annexed to an affidavit as evidence.

    Hopefully, though, you won't have to file at all and mum will negotiate an agreement in mediation.

    Final note regarding child support and FTB, I don't think you should try and do the government's job for them by agreeing not to inform DHS of any change to care arrangements. First, it's fraud, and second, those are legal obligations, not just moral ones. Some parents can't help it, but you should try to keep money and child care arrangements separate. If she has issue with it, there's a whole Department designed specifically to deal with it, but if you agree not to notify DHS of any change to care so she keeps receiving benefits, you're making her liable for fraud.
     

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