VIC New Initiating Application - What to Include in Affidavit?

Discussion in 'Family Law Forum' started by Corinne, 16 May 2018.

  1. Corinne

    Corinne Well-Known Member

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    Hi all,

    Been a while since posting.

    Long story short, my partner wants to file either an initiating or contravention order application to increase the time his son spends with him. Currently, court ordered visitation is every second weekend, 10 days and 10 nights of end of term holidays and half of Christmas holidays.

    These orders were created and signed when his ex and son lived 400kms away, hence the minimal visitation.

    5 months after orders signed in 2016, the mother informs us of her wish to move back to their hometown. One of the orders requires written consent from the father or a court order to move their son more than 20kms.

    Father gives written permission for her to return. Orders aren't updated, visitation stays the same as we still live too far away to do school run (an hour). It was our intention to possibly move closer, but they live in a tourist town with minimal long term work or rental options. So although we were always on the lookout, nothing had eventuated thus far.

    Fast forward to now. Mother has announced her house is on the market and has bought a property 84kms away. No consultation had with the father about moving their son yet again, nor does she have written permission or a court order to do so.

    The distance in time from our house to the new property is the same, however it means their son will have to change school again. Depending on which school he ends up attending, it will potentially be more easily accessible from our current residence, however if it's not, we will definitely be moving.

    So we're trying to get a start on the paperwork early. Their son is 7 years old. We'd ask for 50/50 but would settle for 5 nights a fortnight as a minimum.

    Would it be better to file an initiating application to vary the orders with the Rice and Asplund threshold being met by the initial move back to their hometown? And outline the breach of orders here (being the unauthorised relocation) or would filing a contravention application be more effective?

    Also, can the new affidavit be a copy and paste of the previous ones then a continuation of the timeline?

    Sorry for the long post.

    Thanks in advance.
     
  2. thatbloke

    thatbloke Well-Known Member

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    Ok, so here are my problems with this

    1: If you let her move before then why the big fuss about moving again?

    2: If the distance is the same as the previous move to your house and that is the reason you did not negotiate more time when she moved before, then what has changed? Why has an hour (which in my opinion is not too far for a school run at all) suddenly become a non-problem?

    3: Does the proposed move allow you to move closer or is it still in a non-rental area?

    You will have to answer these questions if you even try to initiate proceedings again and I have a feeling that if you file a contravention on not getting an order or permission for the move, and it is a move to relatively the same distance as you allowed before, you will be on a losing wicket. I understand the change of school thing but you do not seem to be proposing the kid/kids stay at the current school, do you?

    As for copy pasting affidavits from previous proceedings, why on earth would you want to do that? It's 2018, two years have passed. Of what relevance is anything from 2016 and before to your application when it was already finalised?

    Also, of course, the basics.., Do you have a certificate? aAd you also have to consider RIce Asplund. You can't just walk back into court.
     
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  3. Corinne

    Corinne Well-Known Member

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    Um, the entire timeline of events relating to the parents' relationship is relevant. You can't just start an affidavit from a random point in time, how is the judge to know what occurred previously?

    The fact that an initial move was allowed was based on the fact they were returning to their son's hometown.

    I have already addressed rice and asplund in the initial post. Feel free to read it properly before responding with such a condescending attitude.
     
  4. AllForHer

    AllForHer Well-Known Member

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    First, I would probably suggest waiting until all the movements actually come to pass before filing any paperwork. At the moment, everything is speculative - mum might move, she intends on moving, she has said she will move, you intend on moving, but nobody has actually moved yet. The Court will probably throw the matter out immediately if the only evidence to support the application is statements about future intentions, rather than actual changes in the circumstances. What you should do now, though, is organise mediation so you have the s 60I certificate ready to go if an agreement can't be reached outside of Court.

    Second, I think an initiating application to vary the existing orders stands a far better chance of getting the outcome you want over a contravention order application. The Court generally won't order an equal time arrangement if the parents can't get along well enough, and an application for contravention orders is pretty good evidence that you can't get along well enough. Additionally, a contravention application still has to seek orders that try and resolve the contravention. An order for equal time doesn't really address mum's decision to relocate without consent, does it?

    In regards to Rice & Asplund, relocation often passes the threshold test for what constitutes a significant change of circumstances. You can probably justify the decision to wait before filing an initiating application after the first move as the orders still being so recent and wanting to let things settle before seeing if you could work together with mum to negotiate new consent orders, along with your recognition of the two-hour round trip for school days not really being in the best interests of the child.

    Regarding the child's school being a bit of a pivot point in your argument, I'm not sure how much gumption this will have over the distance between the households (rather than between the households and the school). What would be the distance between you and the school if the child is moved to the preferred school? What's the distance between you and mum, in those circumstances? If you moved, how close would you be to the school? Who would be doing school pick-ups and drop-offs if dad had more time with the child? Has mum talked to you about school options yet?

    If it were me in your position, I'd start making a track record of trying to negotiate a change to the care arrangements through mum, first. Try and work out the trajectory of the child's school enrollments in both primary and high school, and work out what your own moving situation will be. See if mum is open to changing the orders if you did move closer. If mum agrees to facilitate more time and enrol the child at school X, then you'd be less inclined to file an initiating application, correct? Perhaps you can use that as leverage.

    In the first proceedings, was the matter settled at trial, or by consent?
     
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  5. thatbloke

    thatbloke Well-Known Member

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    Well if you think you already know the answer then why ask the question! Why are you not off to the court to file your paperwork right now if you know so much?

    You asked if you should copy and paste your previous material into new material, you did not mention specific parts did you? Am I meant to be a mind reader? If I was, I would be winning the lottery every week and not giving sensible opinion to people like you 24/7.

    I'm sorry but a history of the parents is a tiny part of an affidavit, if you think otherwise go ahead knock yourself out. I would be reading the new rules on affidavits and applications that recently came into force if i was you before you comment again. But then again, you probably know all about that yes?

    You say an hour is too far, yet you want to get more time based on a move that is the same time/distance away...Your argument is on a hiding to nothing.
     
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  6. Corinne

    Corinne Well-Known Member

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    Thanks AllForHer, I was waiting for your input, your opinion is always a lot more grounded than the idiots that pipe up on this page these days.

    The main reason for waiting so long is that as soon as the mum moved back towards the end of 2016, she entered into court proceedings with her most recent ex regarding property settlement and parenting orders with their son. And that case has only been finalised in February this year, so we didn't want to interfere and have her juggling multiple cases.

    I understand that an order for equal time doesn't really address her decision to relocate, however by securing significant and substantial time i.e weekdays, she won't be able to relocate again unless weekday access can still be adhered to, if the orders are changed to reflect this.

    The new location is only slightly more convenient, in that it's kind of in-between mine and my partner's workplaces, so to move to the general area would ensure we could still keep our jobs and still be present at home. However, the school hasn't been decided yet so it's all still up in the air. If he goes to the preferred school in a nearby town, the distance would be 30 minutes from our current residence. But we would move closer.

    The town also has a high school which he could then attend. This area is quite rural and has several small towns with primary schools but few have high schools. There are two major rural cities nearby that the buses funnel high school kids into.

    My partner mentioned wanting more time at pick up last weekend, however she implied she'd only be willing to give one extra night a fortnight, although she mentioned finding bus routes for us to the schools she was going to look into. She's very aware of the magical 35% care percentage and is also a compulsive liar. Lots of issues had with this over the years.

    In the first proceedings, the matter was settled by consent at the interim hearing. We tried to get their son moved back during these proceedings because there had been a verbal agreement (useless I know) that their son would commence schooling back in their hometown, however she produced a letter from a specialist stating that her son to the new bloke couldn't live an hour away from a major hospital. Yet 6 months later she's back living in the middle of nowhere. All lies as I said.

    She has stated that they will be moving during the school holidays, so will probably spend that time booking in mediation and typing away.

    Thanks again AllForHer.

    thatbloke, shut the hell up you're an idiot.
     
  7. thatbloke

    thatbloke Well-Known Member

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    I might be an idiot, but guess who was self-represented and is tucking his kids into bed tonight knowing they live with him and not worrying about having to fight for scraps at the dinner table in court. Not only that, I have helped at least 15 other people do the same. Good luck for the next 3 years based on your flimsy argument. Oops, i mean your partners. I think he is going to need all the luck he can get. In more ways than one

    Let me translate this into English. "I want everyone to agree with me and that is all and if you don't, I'll scream and scream and scream until you have to agree with me."

    Any decent lawyer would knock your case out of the equation in 3 or 4 questions, even if you managed to get over the Rice Asplund line (which I don't think you will because you allowed the last move and therefore this is not a drastic or significant change in circumstances)

    The Questions:

    1: Why did you not do anything about the previous move?
    2: Why did you not ask for more time after the last move?
    3: If the travelling time was an issue and is the same now as after the previous move, why is it suddenly not a problem?

    And there ends your case.

    But please continue insulting me and ignoring the facts. Why are you posting for a grown man anyway? Surely he should be asking the questions and throwing about the insults :-D
     
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  8. thatbloke

    thatbloke Well-Known Member

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    Seems to me you are just clutching at straws to do whatever you can to try to change things you cant change.

    VIC - Affidavit for varying existing orders

    That's you last year yes? I can't see anything about the ex moving being posted there,

    This is from this thread. You mention now, not last year. So this is a constant thing in your head, yes? You keep looking for reasons that are not actually there, yes? You even got your affidavit answer last year didn't you?
     
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  9. Nonfiction

    Nonfiction Well-Known Member

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    thatbloke raises an interesting point with regards to the mother’s previous move and the distance of her proposed move being similar. Not further.

    The mother has placed her house on the market so will definitely be moving. Will the move to proposed destination result in the child attending a 3rd primary school in less than 3 years? Have you consented to the new school? You could possibly file for orders, in a limited capacity, citing welfare concerns as the basis of the application. See what happens in Mediation first.
     
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  10. thatbloke

    thatbloke Well-Known Member

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    Of course by you, you mean the actual parent, not just the mouthpiece.

    I find it bizarre that someone thinks that they have to get their partner to give permission for the ex to move house.

    I can understand if it was a further distance away from where they lived when the orders were made, but to move from the same distance to the same distance and expect an ex-partner to have to agree before it can happen just stinks of wanting wanting to control someone's life by stealth

    If this persons partner was so concerned about school changes, when the orders were made there should have been some orders put in rather than or in addition to the moving ones

    As for mediation, I can't see anywhere in this persons post that they are saying they have even attempted it since last November they are just asking the same stuff over and over again
     
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