QLD Variation to Parenting Order in Family Court?

[Adam101]

I had a parenting order made stamped and sealed in family court when my son was 3. He is now 12. The parenting order was for every 2nd weekend and the usual special day split. His mother and I have got along well since the court day to the point where I had him every weekend. I round trip drove 4 hours every weekend for 3 years to do that. 6 months ago, I moved to Brisbane to be closer to him as he is getting to that age. I had him 3 days sometimes 4 days a week, school pick ups, drop offs parent teacher interviews sport the lot

1 month ago, my ex and her new partner packed up and moved 200 kilometres away, put him in a new school. Told me not to follow her and to leave her alone. I believe it was her new partner's idea. There was no relocation clause. I am moving to where she is and I have begun the mediation process booked for 12th June. She will fight like hell.

Here is my question: I want 50/50 shared parenting. Should be easy as no violence or problems. Here is the kicker. I, as the father want, to be the primary custody parent. My son has mild autism and I don't believe her decisions are in my son's best interest.

I believe this is called a variation. My son is 12 now and has made it clear that he wants to live with me. What will the judge look for to rule in what I and the child want?

 

[sammy01]

Do the mediation, apply to court.

There is no strict rule. Have a read.
Parenting cases - the best interest of the child - Family Court of Australia

So the magistrate can consider the views of the child... And their maturity. This means a 12-year-old will be given more consideration than the views of a 5-year-old...and a 15-year-old given more consideration than a 12-year-old... But the autism thing could be a hindrance... The child is 'immature' because of the disability... (Don't shoot the messenger)

Chances of gettng primary care? Don't fancy your chances... But I'm wrong lots. Chance of getting 50/50...hmmm. Maybe... Chance of getting 5 a fortnight and half holidays? I'd bet on that.

She'll fight like helll... Ok... So get ready to fight.. By the sounds of things you've got lots that will help your case.

 

[Adam101]

Thank you!

 

[AllForHer]

So, if you file an initiating application to vary the orders, there's a really, really good chance that mum is going to raise a Rice & Asplund argument to have the matter dismissed. Rice & Asplund underpins the legal principle that the Court shouldn't facilitate new litigation about parenting orders unless there has been significant change in circumstances such that the parenting orders already made no longer meet the best interests of the child.

I can't say with any certainty whether your argument will surpass the Rice & Asplund threshold, but I can see where it might have merit - and where that merit might be lost.

First, the pattern of care since the orders were made is substantially different to what was ordered, and it's also long-standing, so there may be some hesitation by the Court to dismiss the matter when the child has been seeing you so frequently for such a long time. This might be particularly pertinent given the child's condition - I have no personal experience with autism myself, but it's my understanding that routine is important for autistic children, so one could speculate that a significant disruption to that routine (such as suddenly seeing dad a lot less) may cause some harm to the child.

Second, a relocation that overcomes the tyranny of distance which may have dominated the initial proceedings has often constituted a substantial change in circumstances.

However, the Court will want to know why you never tried to vary the orders in the past. The track record of positive co-parenting, though, can speak immensely to why you were avoiding Court.

If you do manage to pass the threshold test for Rice & Asplund, then you need to convince the Court that with the considerations of section 60CC of the Family Law Act taken into account, it's in the child's best interests to live with you.

The child's wishes are taken into account by the Court, but how much weight those wishes are given is dependent on the child’s age and maturity. The Court will assign a family report writer to meet with the child and ascertain his wishes to ensure it’s an unbiased account, and that report writer will file their report for the Court’s consideration.

So, what do I think are likely outcomes?

I don’t think you’ll get sole parental responsibility. You may not like the mother’s decisions in regard to the child’s condition, but unless you can prove her decisions have placed the child at risk of harm, your opinion will be worth naught to the Court and her capacity as a parent won’t be questioned.

I do think you stand a chance of equal time, or at least more than every second weekend, if you move close enough to facilitate it and that’s what’s been happening in recent times anyway. But if you go in seeking sole parental responsibility, the Court will be less likely to grant equal time because that tells the Court you don’t appreciate the important role she has played in her son’s life to date.

The reality is that you and mum have a track record of working amicably. That’s what you need to drive home with the Court.

 

[Adam101]

Wow ! I was really hopping that you would comment. Thank you.

 

[Rod]

Your alternative is to stay where you are and file for a Contravention Application if she stand by her assertion to not allow you to see your son again. Try to get her to put it email/writing if it is not already in writing.

Breaches don't need to meet the Rice v Asplund threshold test giving you a better shot of getting into court and then varying the orders you want.

 

[thatbloke]

Breaches don't need to meet the Rice v Asplund threshold test giving you a better shot of getting into court and then varying the orders you want.

Although I think that any Rice and Asplund argument will well be negated by 9 years passing since the last orders this would be my choice of the way to go. Why validate her move by moving as well? She has uprooted a child from friends, school, and probably peers as well.

This, in my opinion would well be taken into consideration by a court that has a Mum in front of it that has basically upped and left and told Dad to get lost. Forget mediation, file right away.

 

[Nonfiction]

I concur that you can make an application to the court for Contravention. Alternatively, you could apply for a Recovery Order. Even if you are willing to move (again), to be near your child, you should stay put until matters are afoot. Your willingness to move again to be closer to your child, along with your already previous move to be closer and your higher care and involvement (even if this is not part of the original orders), would certainly go in your favour for a shared care time regime.

Your child has mild Autism? I expect he has been receiving therapeutic services in Brisbane? To add to any issues you may raise to support your application, you should consider if this move reduces your childs accessibility to therapeutic services, and if so, the impacts this will have to their progress.

 

[AllForHer]

I don’t know where this rhetoric about contravention applications being a fast track to total review of parenting orders started, but it’s not entirely correct.

Yes, the Court has power to change parenting orders in contravention proceedings, but rarely will this ever occur outside of the scope of the contravention that’s been alleged.

First, you need to actually prove that Mum has contravened the parenting orders made nine years ago. If there’s no clause restricting a parent’s freedom of movement, then Mum can move as she sees fit, and provided she still facilitates the every-second-weekend arrangement that is reflected in the parenting orders (which is quite achievable over a distance of 200km), then she hasn’t contravened the orders in that sense, either.

Let’s say she does withhold the child against the orders, though, and the Court finds she has contravened, why would it resolve the contravention by making an order for equal time? How will an order for equal time stop Mum from withholding again? Doesn’t it make more sense to impose a bond first? To order make-up time for the child to see Dad? To change the orders by imposing restrictions on either parent’s relocation?

In contravention proceedings, the Court must determine whether a parent has contravened the orders, so it looks to the first orders, and the contravention that’s been alleged. It’s not interested in how the parents have deviated from the orders since. In fact, such deviations could be seen in the context that neither of you was following the orders too strictly, so why is it only now that one of you wants them strictly enforced?

I think an application to vary the orders stands a higher chance of getting the outcome you want.

 

[Adam101]

I really want to thank you lot for your input, I really do. I did not want to put an essay in the thread so here is some more info:

Mum has been allowing to the every 2nd weekend. The reason I want the orders varied is for the last year I have had 50/50 time with the child and now that has been taken away from me. It was not in the original order but it happened over time.