QLD Meeting change of circumstances, to change orders

[Elliot]

Hi All,

I received a mediation letter a few months ago and ignored it because my ex threatens to take me to court every few months, so I just thought it was the usual drama.

My ex has now filed to have our final orders set aside and new ones put in place, the orders are 2.5 years old.

They want to take away my parental responsibility and have sole parental responsibility, based on the fact that I am only taking 50% - 80% of the time allocated to me in the orders. I am not the primary carer and I live in a different state.

The big ticket item in the ex's affidavit, is that they claims our kid is apparently 'self harming' after talking to me or spending time with me because they are so sad about being away from me. So apparently I am emotionally abusing my kid by not living in the same city as them or spending enough time with them, but the ex is the one that unilaterally relocated!

Anyway, my ex wants me to be 'fined' when I don't see my kid as allocated in the orders, regardless of how much notice I give, and they want to decide if it's in my kids best interests to see me at all. So basically they want complete control of me and my relationship with my kid.

I am in constant contact with my kid and am doing everything I can to maintain that relationship. I have not abandon them, I just can't afford the huge cost of travel every school holidays + child support. It is too much. I have expressed this to the ex, and have made efforts to take more time. I am also doing nice things in between this time to show my kid that I am thinking of them. Like sending letters, gifts, surprises in the mail etc.

The ex has a whole bunch of health practitioners who I have never spoken to and never met saying that my kid is really distressed by being away from me, and this is a big part of their emotional and education problems. Again, the ex relocated, not me.

The ex has now stopped all phone contact saying it is for the safety of our kid. apparently my kid doesn't want to talk to me because it makes them sadder that I am not with them. I usually get this about once a month,my x will say they don't want to talk to you, but now I haven't spoken to my kid for 4 weeks.

My ex also claims, I don't engage on parenting matters, and that's not true. It's just that when I do have an opinion or give my thoughts, I am abused and told my opinion is irrelevant.

I am at my wits end, because I have been jumping through hoops for the last two years trying to make the ex happy so I can just spend time with my kid without drama, but it never ends. There's a new drama every week.

My kid and I have a great relationship, and we love each other very much. When we do spend time together, it's awesome, there are no issues. There is also no history of domestic abuse, drug use, alcoholism etc etc.

I am baffled about where to start with my response...

What would be my chances of getting this dismissed?

I have piles of emails from the ex abusing me and telling me I'm a piece of sh#%. There is obvious resentment there, would the court see that? The ex has told me they want to destroy me, for me to go to hell, yadda yadda.

Is a child's emotional distress at not spending enough time with a parent, a good enough reason to change orders? Is anything my ex is saying a good enough reason to change orders?

Are there similar cases anyone can site?

 

[AllForHer]

This should be very easy to have dismissed.

The orders you want to seek is that the initiating application be dismissed and that the orders date [whatever date they were sealed] remain in full force and effect.

Have a read of this case to get an idea of how it should run: Isaac & Isaac (No.4) [2015] FCCA 1845 (25 June 2015)

Mum's rhetoric here is backwards - the kid is apparently suffering because they don't see you often, so her solution is...to minimise contact even further? That doesn't make any sense.

If I may, though, did the Court allocate the cost of travel exclusively to you? Have you talked to Child Support about having your travel costs included toward your child support obligations?

 

[Elliot]

God I hope you are right!

Ex pays one flight, I pay three. Also the ex wont let the kid fly alone, so in order to see my kid, I have had to pay for an adult as well.

We have a binding child support agreement, and I forgot to mention that they are trying to Wiesel out of that too! it's only been two years!

I should add, that the orders and binding child support agreement were my ex's idea, they are almost identical to what they sought in the original proceedings, I agreed to end the conflict, now they want to change their own orders and own binding agreement. The madness will never end.

 

[Elliot]

Another thing I should mention, the orders state that our kid fly unaccompanied to see me, the ex now refuses this so I have to pay for an adult to travel with them. So the cost of seeing my kid is considerable and is not what I had expected as I thought the ex would follow the orders.

 

[AllForHer]

The orders explicitly state that the child can travel unaccompanied? Mate, don't pay for an adult fare. Insist that the child travel unaccompanied in accordance with the orders, and if mum doesn't send the child, then file for contravention orders. Represent yourself, it's not as daunting or difficult as you might think.

 

[AllForHer]

Sorry, I didn't say it above, but the principle you'd be relying on to have the application dismissed is Rice & Asplund. R&A holds that the Court should not reopen a matter to vary existing orders unless there has been a significant change in circumstances.

Kiddo feeling sad sometimes isn't a significant change in circumstances. You moving to where the child lives, or mum moving with the child to where you live, is a singificant change in circumstances. If everything is now as it was two years ago, then the Court is unlikely to hear an application to vary the orders (provided you ask it not to).

 

[Elliot]

I know, I know. I contacted my lawyer when it first happened and he said not to set a precedent. But the only reason I didn't file a contravention was because we had just done the orders and I was shattered. I have never been so broken in my life. My kid was relocated and I was basically told to suck it up, so I choose to just pick my battles. My ex claims our kid is too sensitive and anxious to fly alone, I don't buy it but they have 'doctors' agreeing to it.

The other main reason is, my ex would have loved it, they love taking me to court etc. They want this drama to continue, they feed off it. And as we all know, nothing happens to people like that, the court allows this crap to go on with nothing more than a slap on the wrists, if we're lucky.

So if I can just get this dismissed, maybe this time they'll stop....

 

[Elliot]

Sorry, I didn't say it above, but the principle you'd be relying on to have the application dismissed is Rice & Asplund. R&A holds that the Court should not reopen a matter to vary existing orders unless there has been a significant change in circumstances.

Kiddo feeling sad sometimes isn't a significant change in circumstances. You moving to where the child lives, or mum moving with the child to where you live, is a singificant change in circumstances. If everything is now as it was two years ago, then the Court is unlikely to hear an application to vary the orders (provided you ask it not to).

What about the kid apparently self harming? This is apparently like hitting themselves after they speak to me because they are so sad.

 

[AllForHer]

They won't be so willing to flout the orders if they wind up having to pay your legal costs and all of your travel.

Seek two sets of orders - the first being that it's dismissed; the second being that mum a) ensures the child is not restrained from flying unaccompanied or that mum otherwise covers all costs associated with the adult supervisor, and that mum pays 50% of travel fees to ensure the child is able to spend as much time with you as the orders allow.

As to the kid self-harming, that's mum's report, isn't it? Has mum taken the child to see a psychologist? If not, why not?

At some point, mum has to take responsibility for parenting this kid. She can't blame you for everything that happens when the kid is in her care, just as you can't blame her for everything that happens when the kid is in your care.

 

[thatbloke]

This should be very easy to have dismissed.
The orders you want to seek is that the initiating application be dismissed and that the orders date [whatever date they were sealed] remain in full force and effect.

Having said that i was a Mckenzie's friend for someone a couple of months ago who ended up in serious trouble for not taking the time they were meant to be taking with their kids. It was an interstate thing too. The Judge AND the ICL barrister made them pull out 2 years worth of bank statements and the Judge basically said "well on this date you spent x on x but you claim to not be able to afford tickets how does that work?. It was not pretty I can tell you

Jetstar do afterpay. You can pay flights off over 4 x 2 week payments. Flight centre do an interest free thingy.

Just be careful, I am not so sure this will be struck out easily, and maybe you dont want it to be if you can get some kind of shared cost for the flights order