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QLD Ex Left Me with Custody of Children - Change Family Court Orders?

Discussion in 'Family Law Forum' started by Cairnsdad, 4 February 2016.

  1. Cairnsdad

    Cairnsdad Active Member

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    I have been reading this site for a long time and this is my first posting, so please be gentle :)

    I see no point in going into a tit for tat contest spruiking how bad my ex, the mother of my sons, is as opposed to many others who have talked openly about how terrible their exes are, but suffice to say if there was a scale of 1-10 with 1 being a good parent throughout separation and putting the children first and foremost and 10 being the worst of the worst in every respect that does not need to be dredged up here, then sadly my ex is a 10.

    However, I had the fortunate opportunity right from the separation of a close family friend who had been through the proverbial *wringer* and her words of wisdom were to always, always focus on the children and your love for them no matter what the ex does and although this was the most incredibly hard thing to do many times, it does pay dividends as your children grow older and start to see what is going on.

    Now for the super fast version of my background in post-separation with the focus on my sons only, not the financial as it is another overly dredged gory topic that many have been subjected to.

    We split in early 2011 as she had been having an affair for 12 months when my youngest was only 3 months old. I found out, she confessed, I kicked her out and fast forward through 3 years of family court over custody od children as she opposed to pretty much everything (she had Legal Aid in Federal Family Court and I used my superannuation to pay for solicitors). I pushed for 7/7 and finally got it after 8 appearances and enough money to make people here lose heart so not for mention.

    In a normal world where a Federal Judge has made family court orders pertaining to custody of children for 7/7 with all the standard trimmings of equal responsibility, shared holidays, etc., things would likely gravitate to peace shortly after as the battle has been ended but alas I refer back to the LVL 10 ex I sadly have.

    Rapid fast forward through all the things so many endure with the inability to contact your children when they are in the ex's custody, even though it's perfect when they are in yours vice versa, missed birthday's, etc, missed sporting events, etc, all sadly seem too common reading other's experiences.

    She today informed me via text message she is leaving Cairns and moving down south where her father is about 14 hours drive and for the *several months she needs to be there*, I will have full custody of children, obviously as she has tried previously to leave town with my little men and failed in court.

    Long winded essay over but I needed to paint a picture for the best help;

    1. She has asked that the 7/7 agreement remain so that whenever she moves back to Cairns (no expected time frame) that she can resume doing 7/7 with my sons.

    2. How long does she need to be gone before I can apply to the court to have a new agreement made based on the fact she left the area?

    Sadly, this has turned out to be a long-winded posting but I have put all of my lawyer's children through private school for life, based on what I paid him from what has happened and I was hoping to deal with this myself.

    I look forward to your replies.:)
     
  2. sammy01

    sammy01 Well-Known Member

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    Mate, basically same thing happened to me. So I reckon I'm an authority.

    Once she comes back, the orders come back into effect. I'm assuming there is something about 'or by agreement' so she is leaving, you agree when she comes back the orders become the default. So my thinking is avoid court at all costs (but you've learnt that the hard way...)

    So enjoy the break from her weekly craziness. Enjoy the extra time with the kids. She might not come back. Nice idea, hey.

    But even though you might think she is a shocker, well based on your scale, my ex is a 15. So my thinking goes. Just wait. Give her 6 months. If she wants to see the kids in the holidays, make it happen. Wait then Wait some more.

    So maybe in 12 months if she hasn't returned and isn't likely to, then suggest new consent orders that reflect the change in circumstance for the purposes of holiday travel, etc. Offer her 60% of holiday time as an inducement. Why? well if she moves back in 18 month, 2 yrs...the courts will still let her see the kids because the tyranny of distance will no longer be a factor and they are likely to re-instate the old orders. So don't bother spending another small fortune in court.

    Enjoy the extra time with the boys and spend a few moments each day praying she don't come back...
     
  3. AllForHer

    AllForHer Well-Known Member

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    Agree with the above. Don't waste time going back to court, just let her move and then return to the original orders when she moves back.

    I would still ensure the kids are available for holiday time though, but it should be at her expense.
     
  4. Cairnsdad

    Cairnsdad Active Member

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    Thank you for your replies so quickly.

    I guess I was looking more towards the long term future not the short term thinking that maybe there was a legal precedence based on a time frame for example that after 12 - 18 months then it was normal for orders to be changed meaning that after that time if a parent suddenly moved back after voluntarily moving away the children wouldn't instantly be forced to change routines again back to 7/7 if they had spent 2 years living with one parent and remained happy to do so.

    I have done some reading through the Austlii database last night and it seems to be on a case by case basis because circumstances can be unique.

    Just planning forward because I have to decide which high school to enrol my eldest son in shortly because he starts next year and I may have to move suburbs etc if I send him to private school and I know that she will still have equal parental rights in decisions even though she lives away it will make it harder for her to argue which school she wants him in if it is different (which she likely will) if she actually doesn't live here.

    Again I appreciate the replies

    Cheers
     
  5. AllForHer

    AllForHer Well-Known Member

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    Family law cases don't generally refer to precedent cases because the legislation governs this field of law. The exception is authority cases where no legislation really exists, like Rice & Asplund, which states that final orders should not be changed unless there are significant changes in the parties' circumstances such that the orders no longer meet the best interests of the children. If the mother was insisting that week-about continue while she's living 14 hours away from you, then you'd be looking at getting the orders changed, but it sounds like she's agreed that week about is impractical, so you're better off just doing things as agreed and leaving the orders alone until they really do become impractical on a long-term basis.

    With schooling, you should try and consult with the mother about which school the child should be enrolled in, but realistically, if she doesn't agree, she's not going to be able to do much about it while she's living 14 hours away, and it's going to be an upward battle for her if she returns and tries to change their enrollment after they've already settled in the school and are getting to an age where they can vote with their feet. Deal with that issue if it comes to it, but if you go with a primary school, just be aware that you may have to foot the bill on your own.
     
  6. Cairnsdad

    Cairnsdad Active Member

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    Thank you AFH.

    I have always paid for everything on top of CS because if I didn't, they would suffer so I don't mind paying for their tuition which I have always been prepared to do anyway.

    I guess on the precedent point it would be depending on the individual Judge as to how they rule so I can see your point. We have only one Judge here on the Federal circuit and she is the mention queen basing everything on a 30 second synopsis of what *normally happens in other cases* (her favourite statement) which as you might know in a mention is a rushed comment based on merely the daily case churn not the actual circumstances to postpone everything to another future date in the vain hope it will be negotiated out. Awesome for 90% of mutually agreeable parents who put children first but a disaster for those who have ex's who believe due to their anatomy they hold all the cards and can make demands outside of common sense.

    Thank you again, I got some useful feedback from my initial question which is exactly what I wanted :)
     
  7. Sweeney Todd

    Sweeney Todd Well-Known Member

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    I think you, me and sammy01 would have to compare notes to determine who has the most un-agreeable an unreasonable ex ;)

    Like what already has been said, don't waste your time or money going back through the courts. In my Final Orders I had the children 4 nights a fortnight, as I had the flexibility of my workplace that allowed me to pick and drop off the children to school. (This had the wonderful side effect of not having to deal with my ex for handovers - I'd pick them up and drop them back directly from/at school.)

    When I moved jobs, I lost that flexibility and, after family mediation failed to progress discussions with my ex about putting the kids on a 11 min bus ride (my kids are in their teens) to make their own way to and from my house, I more or less adopted a 2 nights a fortnight arrangement simply because I didn't have the heart (nor the cash) to take the fight back to court. So the Orders were changed 'by agreement' between myself and my ex in that regard.

    (It will be another story entirely if she refuses to adhere to the Orders if, in future, I regain that original flexibility.)
     
  8. okanynameyouwishthen

    okanynameyouwishthen Well-Known Member

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    I think you, me and sammy01 would have to compare notes to determine who has the most un-agreeable and unreasonable ex ;) "

    I couldn't resist "bragging"o_O.....but even rating your ex equal on 15 & adding that to the other 2 lucky bruvva's....I can, hand on heart, say that number would be 50% capacity of bat sh*t crazy potential possessed by "the best thing that ever happened to me".

    Ah those wacky zany days, hey?
     
  9. fbueller

    fbueller Well-Known Member

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    Hey @Cairnsdad I had a friend who was in a similar situation and in the end they just let it go, the "craziness" did resume once the ex came back on the scene and did cause some more issues
     

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