NSW How to Have Consent Orders Changed?

[Kyl]

18 months ago, we agreed on consent orders, court sealed, etc.

My older children went with their dad under sole parenting (estranged from me 13 & 16 years old) and the youngest lives with me under my sole parenting.

Just before Christmas, the other party threw the older kids out of his house. They found their way back to me and have lived 100% with me since. Eldest is 17.5 and full time working, the other child is 14.5 now, the youngest remains living with me.

Ex obviously enrolled 14.5 child in a private school and didn't consult with me (technically he has sole responsibility). Since throwing the kids out, he has un-enrolled my 14.5-year-old from the private school and told them as he has some responsibility he will not consent to me keeping the child in the private school.

I want to keep her there as she doesn't need any more changes. The alternative is she goes back to the public school and she isn't keen on that. If she is now living with me 100%, what options do I have in regard to school choices?

If I want to have the consent orders changed to reflect the kids living with me so I need to be able to make decisions for them, what process do I need to look at going through? The ex won't agree to anything. He just messaged me saying he has the authority over my 14.5 and I will do as he says.

Do I have any options? Does my 14.5 have any rights in relation to staying enrolled in the private school?

 

[Rod]

If you used a lawyer to make up the original consent orders go back to them for advice before taking action. I don't think this matter has a straightforward yes/no solution. For example, other things like child support can come into play, is there a chance the children may return to him etc etc.

 

[AllForHer]

Are you willing to pay for the private schooling on your own? Schools don't need the consent of both parties for children's enrolment, but you won't be able to enrol the child unilaterally and then pass expenses on to him without his consent unless there's something in the orders about this.

You need to attend mediation first, but if that fails, you can file an initiating application with the Court to have the consent orders varied. Rice & Asplund threshold will most likely be met because of the change in residency.

 

[Kyl]

Are you willing to pay for the private schooling on your own? Schools don't need the consent of both parties for children's enrolment, but you won't be able to enrol the child unilaterally and then pass expenses on to him without his consent unless there's something in the orders about this.

You need to attend mediation first, but if that fails, you can file an initiating application with the Court to have the consent orders varied. Rice & Asplund threshold will most likely be met because of the change in residency.

Thankyou for this.
Child support informed me that because there are
Court orders I have to continue to pay my ex for 14 weeks even though the kids are in my care. They said all he has to do is call the police and get a report number to claim he is trying to get them back. They are 14.5 and 17 and are refusing to live with him. He also told CSA he is beginning a recovery order, I can prove he threw them out then after about 3 weeks my 14.5 met with him and he told her she must live with him to be able to continue to go to the private school and she can only see me every 2nd weekend. She went back to him 3 days later at the time he saI'd, the 3rd night there my 14.5 contacted my 17 yr old through social
Media (the ex took her phone away so she used my 10yr olds who was visiting the ex for the holidays) and asked him to get me to come and pick her up, she then rang me and asked the same and my ex was yelling and swearing at her in the background. So my 17 yr old and I drove there to find her walking out with all her belongings, my ex closed the door behind her and that was it. She hasn't been back. I got the 14.5 a phone so she can contact her dad and have been taking her to counselling but she just says if I'm forced to go back I'll run away, my 17 will not even discuss it and my ex makes no effort to contact him. I can't and won't have my kids living on the street for the sake of the court orders so I feel I don't have a choice and that they will physically refuse to go to their father, am I breaching the orders even though I don't have much choice? If my ex seeks a recovery order will I have any chance of having the consent orders modified to shared parenting with the kids living with me. My 17 won't go to his father regardless, but my 14.5 who's almost 15 might agree to a slow transition of some sort if given time to emotionally heal first. Will the court consider any of these circumstances and tk what degree?

 

[AllForHer]

Look, this is difficult to predict.

On the one hand, you have a 14-year-old refusing to return to her father. The views of kids that age are usually given quite significant weight by the Court, and indeed, the Court will often make orders that reflect the child's wishes or simply state that the child spend time with the parent in accordance with their wishes.

On the other hand, your consent orders are only 18 months old, and getting final orders changed without a significant change in circumstances (which is the Rice & Asplund threshold I mentioned earlier) is not an easy feat. My concern here is that the assertion dad threw the child out is speculation, not fact - you don't know what exchange occurred between the father and the child that led to the child leaving, and you're only getting one side of the story instead of speaking to the father directly.

Indeed, I had many a fight with my parents at the ripe age of 14.5 and left the building in protest religiously because I didn't get my way about one thing or another, and if you had me asked then why I left, I would have said it was because my parents were abusive and controlling (especially if I'd had another parent household letting me get my way, all the better for me) but they weren't abusive and controlling at all. They were just parents trying to do what was best for their very obnoxious and self-centred teenager.

You do have an obligation to follow orders though, and there is a correct procedure to follow to get orders changed if necessary, but in light of the child's age, contravention proceedings by the father might succeed or they might not. Likewise, an application to vary the existing orders might succeed or it might not. There is no way of knowing.

But at present, there's no proceedings on foot, so the first thing you should do is attempt mediation with the father to try and find a solution. Consider a child-inclusive mediation conference so the child's wishes can be both known and considered by you and dad when discussing outcomes.

And also, get legal advice.

 

[sammy01]

ok so dad can apply for recovery orders. In your response you can request court orders be made to vary the current consent orders as clearly they are not working.
Child may have to cop changing schools as a result of all this unless you're prepared to pay the fees....

the cheapest option. Public school and hope that dad doesn't apply for recover orders and in 14 weeks you can apply for child support. (I think) but you need to check, but I think that if he doesn't apply for recovery orders OR is unsuccessful CSA could pursue him for the 14 weeks back pay in child support.

Alternatively, if this goes to court you either self rep OR spend $$ on a solicitor / barrister etc