ACT variation of custody order

[Joe Black]

Hi,
Quick background - acrimonious divorce in 2019. Two children aged 12 and 10 years old. 10 nights with mother and 4 nights with dad in the custody order.

I am the dad and have been with the children on a regular basis but in June had to take a contract interstate for 3 months. I let the mother know and have been able to see the kids one night per week since June (2 nights per two weeks) She was accepting of this.

Mother has now changed her mind and wants to return to the original order of 4 nights per two weeks or she will take this to court and vary the order.

I believe there is some secondary gain to be had in the way of a change of assessment for the child support.

I have let her know that the contact will end in 4 weeks and I am more than happy to have the kids for make up time but the ex has said no.

Realistically what are the options here? could she take this to court/get a change of assessment from CSA?

Thanks

 

[Atticus]

Mother has now changed her mind and wants to return to the original order of 4 nights per two weeks or she will take this to court and vary the order.

I believe there is some secondary gain to be had in the way of a change of assessment for the child support.

I have let her know that the contact will end in 4 weeks and I am more than happy to have the kids for make up time but the ex has said no.

Realistically what are the options here? could she take this to court/get a change of assessment from CSA?

She will need to show proof that she has attempted family dispute resolution before she can apply to court.
FDR is not normally a fast process, so your contract will almost certainly end before that.

Make sure you have hard evidence (text, email) of your offering make up time & of her refusal.

 

[GlassHalfFull]

Just to clarify though, your orders still say you are to have 4 nights, right? You mentioned that the mum is threatening to go to court to 'vary' the order, which implies that it was changed, but an informal agreement that you've reached between yourselves doesn't technically supersede the existing court orders, and the original order can still be enforced even if you have agreed to something else.

Realistically, I think you're in the advantageous position given the courts would be unlikely to force any parent to take on more nights than they feel capable of/comfortable with, and you have a legitimate reason for the temporary reduction of time, along with a sensible suggestion for make up time. As Atticus said, by the time she gets it to court, you would be offering her what she is seeking... My only concern might be whether she would have grounds for a contravention against you though, which (in some cases) can be heard quite quickly, I believe. I think that even if she 'won' that contravention, the 'punishment' would probably be little more than ordering the make up time you were prepared to do, but I don't have any practical experience with contraventions and am only guessing.

 

[Dpj]

Just to clarify though, your orders still say you are to have 4 nights, right? You mentioned that the mum is threatening to go to court to 'vary' the order, which implies that it was changed, but an informal agreement that you've reached between yourselves doesn't technically supersede the existing court orders, and the original order can still be enforced even if you have agreed to something else.

Realistically, I think you're in the advantageous position given the courts would be unlikely to force any parent to take on more nights than they feel capable of/comfortable with, and you have a legitimate reason for the temporary reduction of time, along with a sensible suggestion for make up time. As Atticus said, by the time she gets it to court, you would be offering her what she is seeking... My only concern might be whether she would have grounds for a contravention against you though, which (in some cases) can be heard quite quickly, I believe. I think that even if she 'won' that contravention, the 'punishment' would probably be little more than ordering the make up time you were prepared to do, but I don't have any practical experience with contraventions and am only guessing.

A Subsequent Parenting Plan can't be enforced but it also can render the clauses in final orders unenforceable insofar as they are contradictory to the Subsequent Parenting Plan. I have entered into a Subsequent Parenting Plan, did so in Jan 2022. Other parent didn't realise the strength of it, and unknowingly hung it over my head as a constant threat until they realised it made the consent orders (the few that were changed) unenforceable. I'm actually in court this month fighting contraventions brought against me on this basis - so I'll know for sure in a few weeks

 

[GlassHalfFull]

Yeah, I've often wondered that about the Subsequent Parenting Plan and how it affects orders. Surely a way of avoiding that unenforceability that it causes is to stipulate in the Subsequent Parenting Plan that they are are temporary amendments to the orders and that they are to revert back to the orders by a certain date if the Subsequent Parenting Plan isn't renewed, or if either of the parents no longer agree to the Subsequent Parenting Plan; that way it's no longer contradictory...?

In your case, it sounds like it works in your favour to not have that stipulation, but it makes sense to me that it would be a standard inclusion to avoid a situation where the Subsequent Parenting Plan is unenforceable, but renders the court orders unenforceable too.

 

[sammy01]

There is always a 'or by agreement'....
The orders are the fall back. The OP talks about a 'secondary benefit' and that would be the financial benefit around family tax benefit from reducing the time from 4 nights to 2 nights. However, the ex is mistaken.... Care % is done in brackets over 35% = 5 nights a fortnight and half holidays.....
I'd argue you're not entitled to make up time... It isn't like the ex is stopping you seeing the kids, you've chosen not to see them while away. YOUR CHOICE.... It would be nice for the ex to offer a bit of make up time for some kids who have not seen much of their dad, after all, I'm guessing you made more $$ on this expidition and as such will be paying more child support.... But the world isn't nice...

 

[Dpj]

Does your agreement constitute a subsequent parenting plan (SPP) as per 60D of the Act? Is so, the final orders, insofar as they are contradictory to the SPP, are not enforceable. Check if your agreement passes the test (signed, dated, etc). If it dies, you could negotiate an outcome by saying final orders aren't enforceable where the SPP is contradictory to those. It basically forces your ex back to the negotiation table