QLD How to Have Consent Orders Changed?

[JenS]

Hi,

To make this brief - father drafted consent orders late last year, hours were for our 3.5-year-old daughter. He has her for one week Saturday 5PM to Wednesday 5PM. Next week is Sunday 5PM to Wednesday 5PM, so effectively we are both equal time - 3 days on, then 4 days off and vice versa. I signed.

Now, at the time before signing the hours, he told me he was working from home in the New Year and he would be at home with our daughter. There would be no daycare, etc. This was good in my eyes as it was the same for myself at home - always with her.

After the signing of the hours he all of a sudden lost his job and had to get a new one, therefore not working from home and putting her in daycare 3 days per week. This was absolutely deliberate and the consent orders stated he is to notify me of daycare, location, etc which he refused to do and I had to find myself.

Also, he lives 1 hour away so she has to travel to and from still. Now, in the 3 months the consent orders have been in place there has been massive changes in our daughters personality, her 4 siblings have shown signs of loss and anxiety that she is away for 3 to 4 days at a time and do not hesr from her apart from 5 minute phone call.

My 11-year-old is especially upset and 'depressed'. She is tired and grumpy in the 3 to 4 days after being returned. She was a sharer and gentle with her siblings, she is now moody and violent. She gets upset when she is due to leave for her fathers and cries in the car. She is exposed to so many different people on his side as well- women men and children which she is not used to.

She cries that she misses me on the phone and her father dismisses it. She does not act this way in my care towards her father. She is upset when she has to leave. This is no longer viable in my eyes and from what I have witnessed, to have a 4-year-old go through this emotional rollercoaster, she is worn out and run down.

Background: Father took daughter at breastfed 7 months old. Instant recovery order court date the next day, child returned Monday after the weekend. Court orders made where he would be entitled to just 1-2 days per week with her for next 2 years. I however took it upon myself to ignore these court orders and allowed him thousands of hours extra time. So I am not a vindictive parent. He did me bad but I put that aside to nurture his relationship with his daughter. Now however I note he still has malicious intentions.

Just today he rang and noted that she is to be with him in a 10-day block over the school holidays! But she isn't of school age? When I signed these, I was of understanding it was for next year starting from prep? Unbelievable. He expects a 4-year-old child to be able to spend time away from her mother and siblings for ten days?

Can I change the consent orders? Do I have valid reasons? This is unacceptable. He is of the understanding and I have the text messages that he is the boss and she will do what the consent orders want her to do. Nothing about her feelings or anything.

If he takes her for 10 days then 7 days will be in daycare!

Can someone please help with what I can do?

 

[AllForHer]

Okay, a couple of things.

To have the Court even hear a matter to have orders changed, you must first convince the Court there's been a significant change of circumstances to warrant changing the orders, under the Rice & Asplund rule. Insofar as I can tell, your argument is that the father is now working from a workplace, rather than home.

Now, as I understand it, there's no order that restricts either parent from enroling the child in day care or enlisting the help of others to care for her when needed. In fact, you've agreed to an order that says you inform each other of day care details, so you've kind of said that day care is okay, haven't you?

So, the next argument you've raised is that the feelings of your older children should be considered more important than your daughter's relationship with her father, yes? You're suggesting that restricting the child's relationship with her father is the best treatment for your 11-year-old's feelings? How about counselling? Family therapy? Surely you see the flaw in the argument you're trying to make there?

It doesn't sound like there's been a significant change in circumstances that warrant the orders being changed to meet the Rice & Asplund threshold. They were only made three months ago and I assume you were well aware dad was living an hour away at that time, and you agreed then that what's in your consent orders is what's best for the child.

Also, a four-year-old's feelings aren't going to be given much weight by the Court because it's hardly considered old enough to make an informed decision about their own best interests, is it?

 

[MartyK]

To make this brief- Father drafted consent orders late last year, hours were for our 3.5 year old daughter. He has her for one week SATURDAY 5PM TO WEDNESDAY 5PM. Next week is SUNDAY 5PM TO WED 5PM, so effectively we are both equal time - 3 days on, then 4 days off and vice versa. I signed.

If you did not agree, you should not have signed, particularly when you had previously needed to file a recovery and there were Court orders in place.

I realise what's done is done, but for anyone out there reading this, who may be in a similar situation i.e. have Court orders and the other parent wants them changed by consent, before signing anything you should always seek legal advice. A few hundred dollars could save you a lot of angst later on.

NOW, at the time before signing the hours he told me he was working from home in the new year and he would be at home with our daughter. There would be no daycare, etc.
This was good in my eyes as it was the same for myself at home- always with her.

AFTER the signing of the hours he all of a sudden lost his job and had to get a new one, therefore not working from home and putting her in daycare 3 days per week.

It happens.

Also, he lives 1 hour away so she has to travel to and from STILL.

Combined with the present time arrangement, this may not be practical when your daughter begins school. Especially if she is to attend the same school as her siblings. Again, legal advice should have been sought prior to signing.

Now, in the 3 months the consent orders have been in place there has been massive changes in our daughters personality, her 4 siblings have shown signs of loss and anxiety that she is away for 3 to 4 days at a time and do not hesr from her apart from 5 minute phone call. My 11 year old is especially upset and 'depressed'. She is tired and grumpy in the 3 to 4 days after being returned. She was a sharer and gentle with her siblings, she is now moody and violent. She gets upset when she is due to leave for her fathers and cries in the car. She is exposed to so many different people on his side as well- women men and children which she is not used to.

She cries that she misses me on the phone and her father dismisses it. She does not act this way in my care towards her father. She is upset when she has to leave. This is no longer viable in my eyes and from what I have witnesssed, to have a 4 year old go through this emotional rollercoaster, she is worn out and run down.

I expect the kinds of issues (developmental) above were taken into account (?) when the Court made these (case specific) orders ... Court orders made where he would be entitled to just 1-2 days per week with her for next 2 years. Again, you should have sought legal advice prior to signing the consent orders.

Background: Father took daughter at breastfed 7 months old. Instant recovery order court date the next day, child returned Mnday after the weekend. Court orders made where he would be entitled to just 1-2 days per week with her for next 2 years. I however took it upon myself to IGNORE these court orders

This was a mistake.

So I am not a vindictive parent.

Naive, maybe, but not vindictive. Based only on the information you have provided, the fathers previous actions and present attitude...Just to/day he rung an/d noted that she is to be with him in a 10 DAY BLOCK over the school holidays! , when my understanding is that the consent orders provide for an equal time arrangement over a two week cycle, would indicate that he is the vindictive one.

Can I change the consent orders? Do I have valid reasons?

Seek legal advice.

 

[JenS]

To have the Court even hear a matter to have orders changed, you must first convince the Court there's been a significant change of circumstances to warrant changing the orders, under the Rice & Asplund rule. Insofar as I can tell, your argument is that the father is now working from a workplace, rather than home.

He made it clear before I signed the consent orders that he would most certainly be working from home and absolutely no daycare would be needed for our daughter. I have now found out he actually was fired from his workplace and said this falsely in order to get me to sign as he knew I would not sign if there was any mention of daycare.

Now, as I understand it, there's no order that restricts either parent from enroling the child in day care or enlisting the help of others to care for her when needed. In fact, you've agreed to an order that says you inform each other of day care details, so you've kind of said that day care is okay, haven't you?

No, he CAN enrol her in a daycare but the consent orders clearly state he is to notify me of his intention to and make sure I am okay with the daycare, also to notify me of the daycare and location, etc. Which he refused to do, I never saw the daycare, he enroled her without my knowledge and refused to tell me what daycare and where it was. I had to find out myself.

So, the next argument you've raised is that the feelings of your older children should be considered more important than your daughter's relationship with her father, yes? You're suggesting that restricting the child's relationship with her father is the best treatment for your 11-year-old's feelings? How about counselling? Family therapy? Surely you see the flaw in the argument you're trying to make there?

No, my 11-year-old's feelings are not more important than her relationship with her father, if I felt that way I would not have given him thousands of hours extra time BUT these change of hours were done immediately so they went from seeing her often to days where they do not see her at all. I've now discovered this is not only taking a toll on my other children but myself and our daughter as well. I could not foresee this toll as I have not had to deal with a custody agreement with any of my other children. Her relationship with her siblings is also paramount as well.

It doesn't sound like there's been a significant change in circumstances that warrant the orders being changed to meet the Rice & Asplund threshold. They were only made three months ago and I assume you were well aware dad was living an hour away at that time, and you agreed then that what's in your consent orders is what's best for the child.

His workplace was close to where I lived, only after the hours were signed did he not only stay northside where he lives but he also changed his workplace an hour away and the daycare to ensure he was an hour away in every aspect. He told me he would be moving closer to myself this year but after the hours were signed, changed this.

Also, a four-year-old's feelings aren't going to be given much weight by the Court because it's hardly considered old enough to make an informed decision about their own best interests, is it?[/QUOTE]
I agree, she has no say, however I have now discovered that this is simply not working for a small child, it is too much travel, her personality has changed, she is more sick and tired than she has ever been.

I've always nurtured and made sure she has an exceptional relationship with her father and ensured the bond was well and truly placed between them at a time it would not have been seeing his child so little in the original court orders. But the court orders in place now are just not working from what I can see. Whether it is enough to warrant a change, I don't know but I need to see what can be done, am I right to seek this out?

 

[JenS]

If you did not agree, you should not have signed, particularly when you had previously needed to file a recovery and there were Court orders in place.
I realise what's done is done, but for anyone out there reading this, who may be in a similar situation i.e. have Court orders and the other parent wants them changed by consent, before signing anything you should always seek legal advice. A few hundred dollars could save you a lot of angst later on.
Very foolish of me, I am so unhappy about having signed now but I thought after being so wonderful by giving him extra time all those years he would look after me. I didnt read the orders correctly. I thought school holiday hours were in place for NEXT year, not this year! The change in her is a completely different child, she is run down and tired, these hours are just not viable.



Combined with the present time arrangement, this may not be practical when your daughter begins school. Especially if she is to attend the same school as her siblings. Again, legal advice should have been sought prior to signing He knows once she starts school HE MUST MOVE CLOSER. We cannot expect her to get up at 6am one home and travel an hour and 8am at the other home and travel 10mins. That is completely unacceptable for him to think she will be okay with that. At no time is he thinking of our daughter.

I expect the kinds of issues (developmental) above were taken into account (?) when the Court made these (case specific) orders ... Court orders made where he would be entitled to just 1-2 days per week with her for next 2 years. Again, you should have sought legal advice prior to signing the consent orders. Those court orders were for when she was 9months to 3 years I believe. I took it upon myself to give him MORE time though. Those times were very different as they allowed viable time with mother and siblings. These orders now are equal but have her going backwards and forwards and by the time she has settled into a routine at one home, a couple days later its a new routine. Im trying to tell him we need to have similar worlds so she doesnt feel like shes living two separate lives but he wont listen.



This was a mistake.
It was. But I was only thinking of our daughters best interests.



Naive, maybe, but not vindictive. Based only on the information you have provided, the fathers previous actions and present attitude...Just to/day he rung an/d noted that she is to be with him in a 10 DAY BLOCK over the school holidays! , when my understanding is that the consent orders provide for an equal time arrangement over a two week cycle, would indicate that he is the vindictive one. He is very very difficult to work with. I just want her to be relaxed and rested and set in a routine that doesnt end in 3 days only to begin a new one for 4 days. I want her to be happy and healthy, not anxious and angry when she knows she has to leave to go to her fathers and upset and asking for her brothers and sister.



Seek legal advice.

I will, thank you.

 

[AllForHer]

If you signed on the proviso that the child not attend day care, why didn't you include that restriction in the orders?

And you're incorrect about the relationship with the other siblings being paramount as well. The child's best interests - that is, the subject child; the child who the orders pertain to - are paramount. Nobody else's.

I would wager that mediation is your best bet for getting the orders changed. I don't think the Court will agree there has been a significant change in circumstances to warrant a change to the orders. The reality is that the Court understands, even encourages parents to work and make arrangements for their children's care so they can provide for their family. Lots of kids attend day care, from as young as six months old, and it has no adverse effect on their development.

Prolonged litigation and parental conflict, however, does have an effect. I think you have a much better chance in mediation than at Court.

 

[MartyK]

@JenS - The circumstances you describe would not likely meet the R&A threshold. However, the Court does have broad discretion, which they do use, to revisit certain orders, at times. Schooling issues, especially when your child was not school aged when the original Court orders were made, or consent orders agreed to, if not practicable, could pose a long term welfare issue for the child, thus requiring revisiting.

As I said previously, you should seek legal advice.

 

[JenS]

If you signed on the proviso that the child not attend day care, why didn't you include that restriction in the orders?
I went on his word that there would be no daycare. Foolish in hindsight but I can now see some parents are malicious characters and they dont change.

And you're incorrect about the relationship with the other siblings being paramount as well. The child's best interests - that is, the subject child; the child who the orders pertain to - are paramount. Nobody else's. Absolutely, I know this, hence why I did what I did with herself and her father and ensured they had a loving relationship. But is it not in her best interests to have a loving relationship with her siblings? Next to parents this is the most important relationship she will have family wise, or in general. She lives with them, will go to school with them, eats plays and sleeps with them 3 and 4 days of each week.. It is certainly in her best interests to have that relationship kept intact. The father has no children on his side and if we have to accept he needs reasonable and good time with her then that should be the case with her relationship with her siblings.

I would wager that mediation is your best bet for getting the orders changed. I don't think the Court will agree there has been a significant change in circumstances to warrant a change to the orders. The reality is that the Court understands, even encourages parents to work and make arrangements for their children's care so they can provide for their family. Lots of kids attend day care, from as young as six months old, and it has no adverse effect on their development. I have no problem with daycare I have a problem with falsehoods pertaining to daycare arrangements and the father not advising me of daycare arrangements.

Prolonged litigation and parental conflict, however, does have an effect. I think you have a much better chance in mediation than at Court.

I will seek legal advice.

Thank you for all your information.

 

[JenS]

@JenS - The circumstances you describe would not likely meet the R&A threshold. However, the Court does have broad discretion, which they do use, to revisit certain orders, at times. Schooling issues, especially when your child was not school aged when the original Court orders were made, or consent orders agreed to, if not practicable, could pose a long term welfare issue for the child, thus requiring revisiting.

As I said previously, you should seek legal advice.

She is not of school age to be following school holiday hours, so when reading those consent orders of course I am going to think that is for Prep and beyond, not for the year she turns 4. Ridiculous he is expecting a four year old child to up and go to her fathers for 7 to 10 days? No contact with mother or siblings? She will be wondering where we are and what is going on? She is only used to 4 days at the most away from father and then her mother, not 7 to 10 days, that is a massive change. I will definitely be looking into this.

 

[MartyK]

Ridiculous he is expecting a four year old child to up and go to her fathers for 7 to 10 days? No contact with mother or siblings? She will be wondering where we are and what is going on? She is only used to 4 days at the most away from father and then her mother, not 7 to 10 days, that is a massive change. I will definitely be looking into this.

Can I just add? While they are much older now, my youngest child started half of school holidays when he was 9 months old. Granted there were older school aged siblings, but he coped quite well. You will not be able to use "the child misses her mum" and/or siblings, as your primary argument.

What I have said in terms of the orders possibly not being practical, has to do with distance from a parents home to school (early primary). Especially if before care is also required.