VIC Will the Family Court Orders Still Stand After Relocation?

[Corinne]

Hi,

My partner's ex moved 400 kms away 18 months ago and family court orders are in place for shared parental responsibility of their 5-year-old son - consent needed before further relocation and every second-weekend visitation.

She's decided she wants to move back to where she's from (60 kms from us) and my partner granted consent for this move. But she has a new baby with new partner that apparently potentially requires urgent medical attention. So she wants my partner to sign a statement saying that after she moves back, she can move away again to a city at any stage with their son, if the health of the sick baby deteriorates in the rural area.

This is ridiculous and he isn't signing it. But when she moves back, do the basics of the family court orders still stand, other than specific locations that are mentioned? I understand this change in circumstances will meet the Rice and Asplund rule but that would take a while to process, therefore, I assume we're all still protected by the current family court orders, including consent needed for further relocation?

Also, would he have much chance in gaining more time even though they'll still be an hour away? Before she moved, we had his son every weekend. It dropped to every second because of travel time and she claimed he needed bonding time with the new baby.

Cheers

 

[AllForHer]

Has there been any parenting plan signed since the orders were made?

If not, then the original orders still stand.

Chances of more time, probably not that high from the Court, reason being is because 60km is too far away to allow for school pick-ups by both parents on a daily basis, so additional weekdays isn't practical, and it's generally preferred that kids spend weekend time with both parents, rather than all weekdays with one and all weekends with the other.

That's not to say it's impossible, of course, I just don't think it's likely, that's all.

On a final note, whatever happens, don't sign the agreement that gives her liberty to move wherever she wants. If the baby needs extra care, then perhaps it's better for the older child to remain behind with dad so mum can give the baby all of her attention, rather than jeopardise said child's relationship with dad by relocating for the baby...

Just a thought.

 

[Corinne]

Thank you. I was kind of thinking along those lines too.

If she remains stable for a reasonable amount of time, I think we will move closer.

My partner's lawyer said that consent written via text message will suffice. But the ex wants something signed on paper. He's considering writing up on paper exactly what the text message said. And maybe reinforce the section of the orders that says no more than 20 kms relocation without consent..... Not sure if the last bit would exacerbate the situation.

 

[AllForHer]

Consent via text does suffice, but that doesn't make the orders null and void. Remember, consent for a relocation is not consent for anything else she wants to change, or anywhere else she wants to move.

If this were to go back to Court after she moves back, the Court would look at the existing situation. 60kms still allows for alternate weekends, so I doubt it would meet the requirements of Rice & Asplund anyway.

I would avoid exacerbating the situation until she moves back to the closer location. Just state simply that you're not agreeable to signing an agreement that gives her the liberty to relocate the child without consent but will be happy to consider further requests to relocate should they arise.

 

[sammy01]

I'd be booking in mediation with Relationships Australia to seek new consent orders.It would be a pity for you to move closer only to have mum shoot thru

 

[Corinne]

Thanks for your insight AllForHer. I agree.

This is true Sammy. A lawyer has stated that the basics of the court orders remain effective i.e relocation further than 20kms is prohibited without written consent from the father or a court order permitting her to do so. Technically, there are no exceptions for sick family members but obviously a mother will do what she has to do. But ultimately, my partner would prefer his son not be pulled out of school up there merely for a 'trial' back down here.

It's to be permanent, so he can settle into school and make long term friends, close to both parents which is why the consent is granted. It's not for a trial. So if she chooses to move back against professional medical advice and found it not to work, it's not in his son's best interest to be continually pulled out of schools and disrupted within the unstable environment they're essentially exposing him to.

Reading between the lines and having background information, I am fully aware that this move is purely based on a strategy to move to another city, which she can't do from her current location. But it can be achieved by moving back to the area and suddenly claiming they must leave again......

 

[sammy01]

So when she moved 400km away did you try and stop her?

 

[Corinne]

Yeah. Long story short, we were naive. My partner was manipulated into signing one of these little agreements.
Hence the orders, hence it won't be happening again.

 

[Corinne]

Do you guys know the correct procedure in varying/amending court orders? Or do they need to be signed off as new consent orders through mediation?

We were happy to just write up a statement that acknowledges the change in location of care for one of the alternating weekends and the different changeover location and times, but my partner's ex is saying she won't sign it unless there's a clause giving her consent to relocate in the future. But in the same breath says it doesn't matter whether he agrees to the clause or not because the orders say that he lives with her, meaning she can take him wherever she wants?

This is doing my head in. I can't find any information that advises on how to vary consent orders or what to do when one party refuses to vary them, when in fact they are the reason the orders need to be varied in the first place.

*pulls hair out*

 

[AllForHer]

So, mum can't just relocate whenever she wants without dad's consent, and she obviously knows this. If she genuinely believed that the child living with her meant she could relocate unilaterally, she wouldn't bother asking for a new agreement.

Without including any identifying details, can you tell me what the exact wording of the order about relocation is in the current orders?

If her relocation makes the changeover location, or the location of the time spent with arrangements impractical, and you can't agree to change the current orders about those matters without also having to sign away the need for consent to relocate, then you've got grounds for Rice & Asplund variation through the Court just for those particular orders, not the whole lot. You'd essentially be asking that all orders remain standing, save for orders #X, #Y and #Z which should be discharged, and then new orders to replace them.

Short of Rice & Asplund, an agreement for new consent orders filed with the court will override the existing ones. The other option is a parenting plan. The provisions of the parenting plan are not legally enforceable, but if she agrees to it and then reneges on that agreement, you can file to court have the parenting plan made into orders and the Court will likely do so because it's what both parents have already agreed.

I've said before and I will say again - do not sign away the need for consent before relocation. That is a disproportionate demand for changing the orders to something more practical about where time spent with and changeovers take place. You could probably feel confident self-representing to change just the order that are an issue, rather than give up parental responsibility for where the child is located.