VIC Family Law and Changing Final Orders?

[B77]

Background info:

Recently received sealed Children Orders after final hearing. Kids 4 & 3 yo and live with me (mum). Currently spend time with dad alt w/e (3 nights) plus 2 daytime periods. Transitioning to 5/9 fortnight. Mum & dad not communicating well. Email & SMS only.

Interim Orders weren't overly detailed, so has been a constant battle as something is always an issue, school, kinder sessions, you name it! I've been accused of withholding the kids and not informing the kids' dad about issues amongst other things. Dad threatens contravention applications against me.

Now, here we are again with unclear Final Orders which can be interpreted one way by me and another by dad. Again, I have been accused of withholding the kids. Maybe I'm doing something wrong? I don't think I am. I feel like he's building a case against me. Should I just let dad have his way to keep the peace? At the same time, I don't want to be breaching Orders.

Unfortunately there are many ambiguous clauses that in the crazy rush of a final hearing were missed. I thought getting final orders would solve some of the issues dad and I were having, but they seem to have created new ones. Dad has spent $200k on legals and can't see the damage the constant conflict is causing the kids. (I am being blamed for this, too). I'd just like to get on with my life after enduring years of a controlling relationship.

I'd like some help on the following:

1. How do I manage the relationship with kids' dad so that everything doesn't become an issue? Is it OK to outline specific clauses in the orders on this forum? Ones that I think may become an issue so I can get some help?

2. How long do I have to get changes (more like clarification than changes) made with the Slip Rule? Is there a deadline? My lawyer didn't allow any requests for changes/clarification saying I would anger the judge and would be up for costs. Dad's lawyer also refused changes under Slip Rule.

3. Can I just get a different lawyer to write to the judges' associate about what I want changed under the slip rule?

4. Or can I write to the judges' associate directly myself?

5. Can I do this independently of dad, as his lawyer is not entering into discussions about changes under the slip rule?

6. Is it even worth going to the cost/effort of amending final orders? As it will be an uphill battle with dad's legal team anyway.

7. If I don't get any changes made under slip rule, do I have any other legal avenues or will I just have to live with ambiguous orders for the next 15 years?

Apologies for the long post. Thanks in advance for any help.

 

[sammy01]

Firstly, well done. Clearly there is much conflict between you and dad. You're accepting that without blaming it all entirely on dad... You're well on your way to a happier life where you can put the hatchet down and move on. Not legal advice yet, just life experience. Holding onto the grudge after marriage breakdown causes cancer, I have no scientific evidence to support this, but I'm sure staying bitter and twisted will cause an early grave.... rant over.

1. How do I manage the relationship with kids' dad so that everything doesn't become an issue? Is it OK to outline specific clauses in the orders on this forum? Ones that I think may become an issue so I can get some advice?

Oh how sneaky - 1 question that is actually 3... Manage relationship with dad as if a business relationship. Not being able to talk is not a bad thing, having everything in writing can make it easier to be clear about decisions etc. Keep everything civil at change overs. I reached a point where i had rehearsed phrases to say...

Ex would call me an arsehole in front of the kids. I would say, thanks for the info. It is good to be kept informed OR no worries - I'll write that in my diary. It kinda became fun. She would attack because I had not brushed daughter's hair and I would smile and say something irrelevant like 'good, I will look into that and get back to you'....

Yes - putting specific clauses of the orders here and asking for a neutral third opinion is a good idea. Remove names, places etc etc. That is probably the best thing this forum can do for you.

2. How long do I have to get changes (more like clarification than changes) made with the Slip Rule? Is there a deadline? My lawyer didn't allow any requests for changes/clarification saying I would anger the judge and would be up for costs. Dad's lawyer also refused changes under Slip Rule.

My understanding is you can instruct your solicitor to write to the court and ask for amendments under the slip rule. But take solicitor's advice. If they say slip rule doesn't apply then that is their advice. Maybe once you written the clauses here you'll get more advice on that one.

3. Can I just get a different lawyer to write to the judges' associate about what I want changed under the slip rule? Yep, but same as answer to question 2.

4. Or can I write to the judges' associate directly myself?

See answer to question 2.

5. Can I do this independently of dad, as his lawyer is not entering into discussions about changes under the slip rule?

Yup.... Read Story time chapter 1

Story time chapter 1:

- After 4 years, ex went to another solicitor. This time she wanted the orders changed to minimize my time. This solicitor noticed something... There was a contradiction in the orders. It said she has the kids at Christmas in even years. It also said mum had them in odd years. I remember challenging my solicitor on that one.

He refused to accept it was a mistake and the papers got lodged. 4 years on, solicitor tells her of the mistake and she relishes telling me that I wont be seeing the kids this Christmas OR any other Christmas. I go back to my solicitor's office. They accepted there was a mistake and as they had written up the orders they took responsibility for getting it changed.

They sent a letter to ex requesting she write to them if she objected and then they wrote to the court and new orders arrived before Santa and the kids were with me Christmas day.... Now in that instance it was bloody obvious there was a mistake. The intention was always for alternative Christmas and that is what had been happening. So it was easy to change... That ain't always the case. The slip rule really does require it to be blatantly obvious that the was a stuff up...

6. Is it even worth going to the cost/effort of amending final orders? As it will be an uphill battle with dad's legal team anyway.

Look it depends on the issue. Best to explain the problem in detail here and seek a neutral third opinion.

7. If I don't get any changes made under slip rule, do I have any other legal avenues or will I just have to live with ambiguous orders for the next 15 years? No other legal options. In order to go back to court you need a good reason... A significant change in circumstance... Or seek a contravention hearing if in your opinion he breaches the orders.

Read story time chapter 2.

My first set of orders said 'half school holidays' with dad. But when do the holidays start? Friday after school breaks up? Saturday morning? Monday, the weekend after the weekend? (I'm a school teacher btw). What about student free days at the end of term? What happens if there is an odd number of days in the holidays - how do you half that? When do the holidays end? Friday before school resumes on the monday? On the sunday before school? So can you see how many different ways there are of interpreting the phrase 'half school holidays'? And my ex loved using each and everyone of those possibilities to f**k me around...

Her favorite? telling me the kids were on holidays and as such it was my responsibility to look after them on student free days (knowing I had to work).

For a few years there i fought - every step... I would send her emails of previous holidays where she had agreed to this to try and get her to understand that clearly she had now changed her mind and that all the while it meant less time with the kids. All because of ambiguity Then one day I thought fcuk it. Let it go. Like you, I wanted the orders to be precise. Completely transparent and meticulously defined. But life isn't like that and neither is my ex or me. And even if the orders were perfectly defined, there would still be arguments.

Why? well that is what me and my ex do, we argue, that is why we are no longer together. Now this is the important bit - pay attention - Bits of paper wont fix it... You have to fix it. So in my case I realised that I would lose 4 or 5 nights a year that I'm entitled to because the ex liked to play around with the fact that the orders did not clearly define when the holidays start and end.. 4 or 5 nights.... less than 1% of the year.

Worth the fight? Nope. Sometimes the kids would have to spend a day with my mum because I had to work... Oh well suxs to be me... But the kids loved their day with granny. Soon enough the kids saw the change... they saw that dad was speaking politely to mum. I went a bit crazy on that one... Really simple stuff, we would make a card and I would buy a box of chocolates for her for mother's day... This was not done for her. No no no.

It was done so the kids could see dad being nice to mum. The kids hated mum and dad fighting... So i stopped fighting. She did no... The kids saw that too... Now arguably I could have sought a contravention hearing. Basically, claim ex was breaching the orders and seek a resolution through court... My hair has gone grey... Any more court time and I reckon my hair will fall out... Worth it? all for a few nights a year? Nope.

Final thought (absolutely no legal advice - not even close) give... Yup give...Stupidity is following a piece of paper (orders). So for example... Orders say he has half holidays. Why not offer him an extra night here or there... So instead of arguing that you don't have to do this or that because the bits of paper say so... why not say, hey the bits of paper mean i don't have to give you this or that BUT I'm going to anyways...

Your kids will see you trying to be civil. That will make you a good parent. And if dad wants to argue and fight - the kids will see that too and they can will make their own judgement... But someone has to start.... I still hate my ex. But learning to put the hatred away and giving a little has made me a better person and the kids. But after 6 years, I am no longer bitter and twisted, my blood pressure is normal and I sleep at nights without worrying.

Rant over.

 

[B77]

Thanks for responding, sammy01. I really appreciate your time and take head of your advice. Hard to not become bitter. I'm sure you know behind the few paras here lie a long line of other "stories" we all have. Don't know why I thought things would change post-sep!

We are the same two dysfunctional people when we try to make decisions now as when married. The very reason we're not together. I also wholeheartedly believe (no medical background here) that this brand of stress brings about cancer/disease in the healthiest of people. If you haven't been through it, it's hard to understand.

Luckily, no "exchanges" at changeovers. I do feel the pressure that for the kids' sake I should speak to dad in person, but I just can't. Not even "hi/bye". Not yet anyway. I look forward when changeovers will be at school. With pre-school kids, it's tricky. Would that work against me in court in future? That somehow dad could prove I am the one stalling communication or something? Or am I doing the right thing by avoiding risk of conflict in front of kids?

I often get texts stating that clearly he is the only one doing right by the kids, and the only one trying to make things work between us and that I am wrong, just like last time, blah, blah, blah. Anyway...

Would like to put specific clauses from final orders up here to get opinions, but some of the issues are quite specific to our case that I don't want it to identify us (even with removing dates names).

Sure it will be OK?

 

[sammy01]

Look I think the best thing this site can do is give a third party opinion. None of us (mostly) are solicitors. I've self represented through some of my stuff and as a result I have read up on the law.... Same with most of the other punters here.

You probably have something in your orders about not discussing stuff that is in the orders with family or with the kids. But if you are smart enough to work out how to write the orders here without names places etc etc even if the ex did come across it. Really what harm can it do? Especially given that you've been gracious enough to not denigrate him and especially since you're nick name 'B77" is pretty neutral.

Final thought. a forum like this would not exist if the family law system was THAT restrictive in regulating this sort of communication. True?

If you're still not sure read the post at the top of the page
Reminder - Family Law Act and Restriction on Publication of Court Proceedings

I interpret this as you being able to write the details of orders as long as you don't mention names etc... so you wont have broken the law... Concerns about the ex reading it? depending on the answers it might just help. Or at least it could help you... If you write the orders that seem to be the problem and the good folk that post here give you an answer that you don't want to hear, you might just have to suck it up... It is ok to be wrong... But if you get some answers that support your perspective well that should give you a bit of confidence moving forward... and that is good too.

 

[B77]

OK. Thanks for explaining all that. Much appreciated. So I did request clarification/change after sealed Final Orders were sent to me, but my lawyer/his lawyer said no, it's fine. Don't annoy the Judge or you'll risk costs. But I base the need for clarification on past experience. e.g. during an application in a case (which dad instigated a month before final hearing), the words "...with regular time to be suspended during school holiday time" in the Minute of Orders was inadvertently omitted.

We had agreed for kids to spend time with dad for 2 x 3 night block periods in each week over school hols. You can imagine what happened weeks later when we realised dad's regular w/e fell in middle w/e of school hols. (Yes, I could have let it go in hindsight). But remember kids are young, and at that stage they only had one o'night per fortnight with dad. Not that dad's lawyers allowed any negotiation between us to sort something out.

Straight to accusations of withholding and threats of contravention application two weeks before final hearing. Could have been handled better all round. That oversight I blame on two sets of lawyers and two sets of barristers (and I should have been more careful). Our legal teams made a pretty penny over that argument. I wonder whether they all keep themselves in work (with crazy clients like dad and me) by ensuring Orders are ambiguous? Sigh.

Apologies for venting. I know not technically legal in nature, but at least gives background to questions I ask.

So back to our sloppy orders. Please let me know if the following are worth pursuing with current lawyer, new lawyer or as self-rep. I'm sure there are other clauses that will cause problems in future if one of us doesn't back off, but these clauses I know definitely will be issues.

As background, currently transitioning kids to 5/9 split. Next change in Orders will be as follows:

BY CONSENT:
That during the Gazetted School Term, the children live with the Mother and spend time with the Father:
a) From 1st of x-month 201X to 1st of y-month 201X, from the conclusion of school Kindergarten/School on Friday to the start of Kindergarten/School on Monday in each alternate week and from the conclusion of school on Monday to 5pm on Tuesday in each alternate week, and from 10am to 5pm on Tuesday in the other week.
Do you think a change could/should be made under slip rule to give a specific start date of when the first weekend starts and when the second block of time starts, and go from there. Or maybe there is another way to word this?

I think it's not clear which is the alternate week (i.e. are the 2 alternate weeks the same week?) and then which is the other week? In cross-examination, the Judge explained week one was to be Fri-Mon with the Tues 10am-5pm also week one, and then week two would be Mon-Tues. This transition period is for 9 months, so a decent amount of time for it to be an issue. Same problem will occur again in final transition later next year. See below.

Also (not so important, but still will need to work out with dad regardless) the weekend before the 1st of x-month, dad has kids. Does that mean the rotation of weekends changes from the 1st of x-month, so that dad gets 2 weekends in a row to accommodate the change? Or does the rotation stay same and we wait for the next weekend for the new change to kick in? Not fussed about the kids getting to spend a one-off "extra" w/e with dad, good for him/them! Moreso it's mucking up rotation for planning.
And then the final transition, I foresee the following issue in the Final Orders:

BY THE COURT:
That during the Gazetted School Term, the children live with the Mother and spend time with the Father:

b) From 1st y-month 201X, from the conclusion of school on Friday to the commencement of Kindergarten/School on Monday in each alternate week and from the conclusion of Kindergarten/School on Monday to the commencement of school on Wednesday in each alternate week.

1. Again, as above, which is which alternate week and which is the other week? I am more concerned about this one than the above transition period, as this is final transition. But I gather whatever precedent we set with the upcoming transition period will set the tone for the final endpoint?

Lastly, a change was made from engrossed orders to the sealed orders as follows (by consent):

From this engrossed:

"That from the 2019 school holiday period, the children live with each of the Father and the Mother for one half of each school holiday period as agreed, and failing agreement the first half with the Father in even numbered years and the second half in odd numbered years save that the children return to the Mother at 4pm the night before the first day of each school year with Father at liberty to attend first day of school each year."

To this sealed orders:

"As and from 2019, the children spend school holiday time with the parties as follows:
During the long summer school holidays, for one half of such long summer holiday period as agreed, and failing agreement, with the husband for the first half in even numbered years and the second half in odd numbered years (save that the children shall be returned to the care of the wife by 4pm on the day preceding the first day of first time, but nothing in this order shall prevent the husband from attending at the children's school on the first day of the school year)."

1. It's the last part of sealed orders that gets me, what does "first day of first time" actually mean? Esp if dad chooses to stick to orders rather than be reasonable? I have no idea why this change was made.
2. What do I do now that the words "before the first day of each school year" have been removed? This was verbally outlined by Judge who stated it was beneficial for the kids (the engrossed way) but ended up back with Judge sealed differently? Something that was clear is now non-sensical! Or am I over-thinking it?

So, is any of the above worth pursuing? Or do I leave it all alone for my (and the kids') sanity/bank accounts and play it by ear/suck it up? Given the acrimonious nature of our relationship, I doubt I can appeal to dad's better nature. I would hope one day we get to that place, but realistically it's not going to be anytime soon.

Thanks again in advance for the help.

 

[B77]

Just to clarify, that last part where I state "Lastly, a change was made from engrossed orders to the sealed orders as follows (by consent)", I mean the content was by consent on day of final hearing, not that the change from engrossed orders to sealed orders was by consent.

The change just suddenly appeared out of nowhere and my lawyer says they don't know where that came from.

 

[sammy01]

The expensive way to get things changed - go see your solicitor... If he won't do it go see another solicitor. You'll find a solicitor prepared to take your money, then write to the ex's solicitor.

Now I think the school time weekend rotation is pretty obvious (kinda). Dad has the weekend Fri-Mon. Monday night they stay with you and continue staying with you until the following Monday and then they have a night with dad... Or to put it another way...

Following the weekend when the kids are with you - they then spend the Monday with dad. Come back to you on Tuesday then go back to dad on Friday. That all seems pretty obvious to me. I'm thinking that isn't the problem... The problem is when the thing starts...

Look I see there being another long term problem... What happens at the start of each term? So my orders stated that I had the first weekend after the commencement of each school term... so that saved there being an argument every 10 weeks about who that the first weekend. I guess that problem is a bit like the problem you have mentioned about when it starts?

Solution? Ask him... Seriously, this ain't worth the fight. Maybe make the suggestion that the person who doesn't have the kids in the second half of the holidays gets the first weekend... Why? Well down the track you'll have the kids for the second half of the summer break. So that is 3 weeks they don't see dad... He would then have the first weekend. School doesn't always go back on a Monday, so it is entirely possible he could go 4 weeks without seeing the kids... But this one is not worth spending money on...

You seem smart enough, you've even said that you don't mind dad having an extra weekend at the start of the rotations... So - lets try this... write to dad. Ask his opinion on how he thinks it should start and make the suggestion that you are good with him having two weekends in a row to start with as a gesture of good-will...

Go on, dare ya.

The second one is clearly a slip rule candidate. It doesn't make sense. Worth pursuing? nope. Why? you're talking about 1 day every second year. Clearly it is meant to say the kids come back to you on the last day of holidays. So if dad drops the kids off at school for the first day of the year, you can be there... I'd go one further, let him be the one (if he wants) to take little Timmy to the first day of school... My thinking... Things will get better if you want them to and if you try. So the orders are there as a guide, you seem pretty sensible. Lose a weekend here or there and don't wind up with grey hair...

So when I got mine changed under the slip rule, it meant the kids would see me every second Christmas.. Christmas is a big deal. Letting the kids grow up without ever spending Christmas with me would suck... It was worth the fight..

Story time - my orders say I have the first weekend of every term. Save a fight at the start of each term... Ex realizes that generally there are 41 or 42 school time weekends a year AND the way my orders are worded means I get one or two extra weekends than she does each year. Now she has the kids 60% of the time. So she has more time overall than me. BUT she spent money on solicitors to write to me about the cruel injustice of me having 1 or 2 more weekends than her over a year. Now that little argument would have cost her a few grand. Meeting with solicitor $500. Solicitor writes letter $400. I write back and solicitor reads it $400.... Solicitor has a meeting with the ex about my letter $500.

STRESS LESS - when the time comes ask dad to tell you which way he thinks it should go. Just agree. WHY? well nothing bad will happen if you agree. It isn't gonna impact on your life in any grand way, true? and the mistake does not mean that the error will cause conflict every other week. look it all comes down to common sense.

 

[B77]

Thanks again sammy01.

There are also provisions stating:
With the time in paragraph x being suspended in school holidays, otherwise continuing in the same rotation as if the holidays had not intervened.

And also:
For purposes of calculating school holiday time the first day of holidays is the day school breaks up and the last day is the day school resumes.

Does that help any with my concerns?

I'll have a think and see whether it's worth the angst to pursue any of it. Really good to get another opinion, so thank you. Sometimes clear thinking goes out the window when it comes to this stuff!

One last thing...I noticed in some other posts recently advice was given about the cost involved to go the court route being max $50-60k. That seems cheap(!) compared with our case. I guess depends on how complicated the case is - how long a piece of string? We had interim orders, family report, barrister-led mediation, a mention, an application in a case and the final hearing. Dad spent about $200k and I close to $80k. Took almost 2 years. I am relieved that part's over, but have we been taken for a huge ride round the circuit court???!! Or are our costs normal for cases with some conflict?

 

[sammy01]

Long answer.... I am a teacher. I do after school tutoring. If I get a call for a job and when I get to the house I see a pool, a BMW and a gardener. I charge more than if I see a tarago... Solicitors I reckon are a bit the same...

But the $ you mentioned are plausible... I spent $25k without ever going to court. I hope this stupidity can end soon... think about what you guys could have achieved/ provided for the kids with that sort of $.

But good to hear that the orders are clear about the holiday stuff. I have to tell you some of the crap i have seen well paid solicitors write makes me cringe....

Best suggestion I can give? Stay away from solicitors. Life is too short...

So nope -you have not been ripped off. You and him made some bad decisions along the way... live and learn..

 

[B77]

Yes. I know. I get it now. Hope dad does too. However, in my situation, dad gave me no choice but to go down this path. (That's as much denigrating that I'll do). I should've stopped after mediation and settled. Glorious hindsight. What it cost me (financially & emotionally) beyond mediation to get to final hearing - and the end result just wasn't worth it. For property and children matters.

My advice to anyone else wondering whether they should stop, or keep going because they think they'll get a better outcome at final hearing? Just stop.

Especially as you can't put a $ value on all the hours you'll miss away from your children preparing for a final hearing. You'll never get that time back.