How should we document a variation to consent orders?

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

Keeks

Well-Known Member
28 February 2019
27
2
124
Hi gang - back with another question in our family matter. I have a feeling we'll need to re-engage our solicitor for advice on this one but it would be good to get some group think so we can go into that meeting ready to share the right information and ask the right questions.

So: consent orders include a statement about where children will (and do) attend secondary school (private school, Mum's choice). Now mum has proposed changing schools to Dad's original choice, (great, right?). One child is already halfway through their secondary years, the other two have not started yet. Proposed change is that the eldest remain at the original school til the end of 2021 (and then possibly into vocational education), while the two others commence at the new school from next year.

I'm just wondering now how we go about the administration of the change to the orders. Can we get the court to revise the current orders by just removing the reference to school and re-sign? Can we request that her lawyer make all those arrangements and she pays?

Do we even need to change the orders if both parents agree? That kind of makes me feel a bit uneasy to be honest. I like having the certainty of the orders and I worry that it may be used against us in the future if things aren't water-tight after we make this change. I also don't want Mum to think she can hassle us to keep on altering the orders (if Dad doesn't agree) when we spent plenty of $$ and a good two years of our lives to get them. Don't get me wrong - we're really happy that she's proposed the change of school and she seems quite businesslike (and dare I say respectful) to deal with at the moment, but that could all change in an instant.

I understand the parents can write up a parenting plan just on that schooling issue and it will carry some weight in future if there are any problems or disagreements, but have also noted that previous posts on the forum have urged caution when entering into a parenting plan after consent orders are signed.

Anyone been through a similar experience?
 

sammy01

Well-Known Member
27 September 2015
4,929
702
2,894
how does the change in schools impact on dad's access to the kids?

Everything is 'by agreement'. Consent orders are by agreement. So if mum and dad agree to change schools then you don't need to change the orders or ask the court. You just do it.

So back in the day, I refused to divert from the orders. I was always at pick up on time, always at drop off on time. Don't budge from the orders so the ex didn't think there was any wriggle room... Eventually things improve. BUT what if what your talking about isn't gonna impact on dad's pick up's or drop offs - then stress less.
 

Keeks

Well-Known Member
28 February 2019
27
2
124
how does the change in schools impact on dad's access to the kids?

Not at all, the new school is within walking distance from both parents' houses so it's a much more convenient arrangement for everyone.

I guess I'm just wary of miss-stepping through this process and opening ourselves up to further litigation if we don't do things by the book. Mum absolutely refuses to entertain any other changes to the orders whenever we ask if the children can attend events outside of their consent-ordered time with Dad. And I'd not put it past her to change her mind about the schooling again a year or two down the track just to keep us on our feet. If we don't formally change the orders, and don't have a parenting plan, I wonder if she'd have any luck claiming that we contravened the orders by changing schools. She's always on the lookout for ways to trip us up with technicalities or her unique interpretation of the orders.

Thanks for the response @Sammy. All I can say is bring on the "improved" phase - this family law stuff is turning me into a crazy person!
 

Keeks

Well-Known Member
28 February 2019
27
2
124
is it an order or a notation at the bottom of the orders?

It's an order that the parents "will sign all necessary documents and do all necessary things to ensure the children be enrolled and attend XXX for their secondary school education."

We do have a notation on the orders regarding the payment of school fees, but the school selection is definitely an order. I understand the notation isn't legally enforceable but thought the direction for that particular school was pretty solid?
 

sammy01

Well-Known Member
27 September 2015
4,929
702
2,894
make sure you have a paper trail.... So 8 years on and I have finally put the 'NUTTER' folder in my emails into the trash. It was there with all of the corespondence from the nutter over the years. Mostly it was kept incase in needed to have a paper trail to prove this or that... Then it was just there so if the kids wanted to know the truth when they were older they could read through it... But I reckon they don't need to see all that BS. So it has been deleted.

You guys are not there yet... You want it in writing and I'd probably recommend you get her to confirm that she agrees that there will be no further changes of schools unless both parents agree.

Dear NUTTER,
I'm prepared to agree for the kids to be enrolled in ????? school at your request. I do however want you to agree that there will be no further changes in the kids schools unless we both agree. Nutter, I'd have thought with the Covid crisis you'd have gone back to your own planet.

Feel free to edit as you see fit.
 

Atticus

Well-Known Member
6 February 2019
1,870
267
2,394
All parenting orders are subject to a later parenting plan >>>>>> FAMILY LAW ACT 1975 - SECT 64D Parenting orders subject to later parenting plans
but unless the orders you currently have are quite clear in that 'such & such' is subject to 'an unless agreed otherwise' type clause , then the order is not changed merely by parents agreeing to do otherwise...

If it was me, (given what you have been through to get these orders in the first place) I would be getting any new arrangements formalised ..... That could be by having a lawyer write up new consent orders that set aside the current one, or by a parenting plan that deals specifically, & only, with the paragraphs dealing with schooling .... I would have a lawyer write it up & it's fair enough that she should be asked to pay at least half.

The wording has to be clear in that the parenting plan does not set aside the current order, but only those parts of it that you want changed.
 
  • Like
Reactions: Keeks

sammy01

Well-Known Member
27 September 2015
4,929
702
2,894
Or save the $$ on solicitors. Write it up yourself. Effectively all your doing is removing one clause (about the private school) and inserting another order (about a different school). But even that is gonna cost filing fees.

I do think if you get the nutter to acknowledge that she can't change her mind again and if you have that in writing it will suffice.
 

Keeks

Well-Known Member
28 February 2019
27
2
124
Thanks for responding @Atticus - I was thinking the complete re-write would be the gold standard, but have a feeling all we're going to be able to agree on is the parenting plan that deals specifically with the school matter. She refused to attend mediation again when Dad suggested it just after she floated the idea of removing the kids, so I don't think she'll go for new orders or anything too formalised. Traditionally she likes the rules to be quite loose and open to her terrifically creative interpretation.

If the parenting plan option is enough to give us some protection should she start making waves again in a few years, then we'd probably be happy with that. We'll suggest her lawyer write it up in the first instance and see how we go!