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Another Dad desiring to amend existing orders

Was confident of my intended outcome...before reading some of the prior posts

I have existing consent orders from 2003(interim). My circumstances at that time: fulltime mature age student doing a Bachelors degree, Austudy and minimum assessment by CSA. The mother moved 300km away(still there) and the cost and responsibility for access fell to me due to the low contributions(she got/took 100% of settlement though).

For 3yrs I never missed a fortnightly access,7hrs round trip Friday and same on Sunday(doing that was cheaper than tenting it in the winter and take away food all weekend) 1week every holidays & 3 wks over Xmas break.

I have remarried, re-entered fulltime work(and paying full maintenance) yet still expected to drive 1300km an access weekend by the X and abused because I don't have the kids on hols for a week(youngest is 11) She is adamant the orders are fine(she would wouldn't she) I believe the maintenance I pay calls for shared responsibility of access delivery. "in the best interests of the children" does not hold true when I have to shoulder the burden of driving all that distance to see my kids after having to work a full day.(only once a month now as it has taken its toll on me over the years)

Had 3 bad experiences in a row with legal representation, so not enamoured with the idea of more $ lining a Suit's pocket for nil result. Now of course, my $900+/mth the CSA bagman supplies the mother would be put to good use by her, in defending her righteousness!!

From what I have read, there are a lot of very knowledgeable people on these matters populating this site. Some input and opinions of the strength of my argument (or lack of perhaps) would be appreciated.
Rossa512.

A significant change in circumstances to warrant a change of orders; Rice and Asplund.

One of the change in circumstances is remarriage  - you fall in that category.

What variation of the orders are you seeking?

monaro said
Rossa512, a significant change in circumstances to warrant a change of orders; Rice and Asplund one of the change in circumstances is remarrage  - you fall in that category, what variation of the orders are you seeking?
I would not suggest a remarriage on its own is enough. Change of circumstance is a very difficult area and you need to use the site search engine and explore some judgements. You will need some support from the child(ren) to effect a change especially as they get older. The CSA payments may well reduce July 1. Take a good read through the forums here under Rice and Asplund. You will have to go to Mediation via an FRC (Family Relationship center) or similar to get to a Federal Magistrates court so you might as well commence the mediation now and see if that will help. Contact your nearest FRC or call the FRC hotline.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Secretary SPCA said
monaro said
Rossa512, a significant change in circumstances to warrant a change of orders; Rice and Asplund one of the change in circumstances is remarrage - you fall in that category, what variation of the orders are you seeking?
I would not suggest a remarriage on its own is enough. Change of circumstance is a very difficult area and you need to use the site search engine and explore some judgements. You will need some support from the child(ren) to effect a change especially as they get older. The CSA payments may well reduce July 1. Take a good read through the forums here under Rice and Asplund. You will have to go to Mediation via an FRC (Family Relationship center) or similar to get to a Federal Magistrates court so you might as well commence the mediation now and see if that will help. Contact your nearest FRC or call the FRC hotline.
 
Hi Testa Rossa 512,
You will fail on Rice and Asplung if you use marriage as a reason. Marriage is seen as a normal event! You will have costs against you. You can try to go through the FRC to see what the issues are for her; it will come down to money in all probability.
  Best attack is through the CSA; you should of received your new amount to pay. What is the cost of you collecting your son compared to what you pay in CSA payments?

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas. 
Secretary and Montiverdi,

The Rice and Asplund rule operates to prevent renewed or ongoing litigation concerning parenting orders where NO new circumstances are brought before the court.

now from the horses mouth;

In McEnearney, the Family Court spoke of " no startling new circumstances that can be brought before the court". Although every case depends on its own facts and ultimately the merits of those facts, certain circumstances have been held to constitute material changes in circumstances. they include:

b) remarriage and recovery from illness of a non-live with parent;

c) remarrage and stabilisation of accommodation of the non-live with parent and commencement of school by a child;

d)remarrage of the non-live with parent, enabling that parent to provide a proper family environment

cheers fella's

Rossa512 said
For 3yrs I never missed a fortnightly access,7hrs round trip Friday and same on Sunday(doing that was cheaper than tenting it in the winter and take away food all weekend) 1week every holidays & 3 wks over Xmas break.
  Bless you, Rossa512 - that is what I call a Dad!



Could ill/diminished-health due to the extensive travelling be part of change of circumstances? There again could this be self-defeating?
monaro said
Secretary and Montiverdi,

The Rice and Asplund rule operates to prevent renewed or ongoing litigation concerning parenting orders where NO new circumstances are brought before the court.

now from the horses mouth;

In McEnearney, the Family Court spoke of " no startling new circumstances that can be brought before the court". Although every case depends on its own facts and ultimately the merits of those facts, certain circumstances have been held to constitute material changes in circumstances. they include:

b) remarriage and recovery from illness of a non-live with parent;

c) remarrage and stabilisation of accommodation of the non-live with parent and commencement of school by a child;

d)remarrage of the non-live with parent, enabling that parent to provide a proper family environment

cheers fella's

monaro

You are on a losing wicket with this one. That Judgement will not go very far in a Rice and Asplund argument as you have to show a substantial or significant change that would not normally have occurred or been expected to occur. Remarriage means nothing to the Courts - unless it is accompanied with some very good arguments to show a substantial or significant change.

The SPCA submission to the AG on this issue seeks to set out clearer definitions to make decisions more consistent rather than the current 'lottery' results.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
MikeT said
Could ill/diminished-health due to the extensive travelling be part of change of circumstances? There again could this be self-defeating?

MikeT as you said this can very well be a self defeating argument. Too sick or too tired to travel could get thrown right back at you unless you had a good counter argument.


Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
Agog,
i need you to clarify this to me,
in several judgements of FM Lucev, the most recent being, Tucker and Tucker paragraph numbered 8, he clearly expresses that remarrage b), c) and d) in these circumstances have been held to constitute a material change? has the FM erred in his judgement?

Hi Monaro,
Thanks for the input. The variation I am wanting to secure is for the orders to become generic in light of the contribution I am making.
  A/    Shared travelling to drop and pick up(I live in Perth, my kids are in Manjimup 300km away)
  B/    Being able to have input into any decisions affecting the welfare,education etc of the Kids (ages 11G,13B & 16B) My ex is a challenged  individual and gains security from a unilateral approach to everything.(herway or highway)

As you see, not a major 'ask' as far as the compromise of orders go, however the 'Rice& Aspinall' buzz word has got me on the back foot as per my standing.I won't go into past history, but as an insight, it took 3 appearances in the FC(1 unrep and 2 with budget counsel) to get a clearer definition of access. Like most newbies to the sep scene, I was a lamb unto slaughter. The upshot of the court process was- she refused mediation with me present, the mediator had to shuffle between I and her+her counsel. I approached all due process in text book "total wrong" manner and after the magistrate refused to rule on issues we could not agree upon… My counsel(Black&Gold brand) suggested we appeal.Judge ruled as I was unable to contribute to welfare, I shoulder the cost of access. Times change and I believe that if I pay full assessment, then I should not have to still shoulder the full cost of access. The risk factor to the kids did not seem to rate a mention in the Court when judgment was given…

Anyway, that gives a brief history; again :thanks for the input.

Pete
Sorry if this is a red herring Pete.

I know nothing about parenting orders, contact orders etc, that is probably even the wrong language, but I notice you said your orders are interim.

Is interim used in the ordinary sense of temporary and, if so, does that mean you can go for something permanent without having to prove a significant change since the orders were only temporary anyway.

Or is that just wishful thinking?



BR, Methinks you may be onto summink there! 'The orders by Justice Pxxxx were not final but there is probably not enough to keep it going at this moment." (post judgment feedback from B&G Counsel 2003) although wishful thinking to my mind is arriving at a win/win for both parents and kids WITHOUT entering the court process again.

As an aside, I stumbled across a discussion paper on the site last night re: High Conflict Cases. The BPD key traits are like reading a detailed description of  the x (sadly) and because of that;the prospect of attaining the w/w mentioned above is a but a zephyr of fancy flitting across ones preferred reality.

Ordnung

Rossa,

Are you saying you only have consent orders, or only have interim orders? I am a bit confused. It does make a difference to your situation.

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas. 
monaro said
Agog,
i need you to clarify this to me,
in several judgements of FM Lucev, the most recent being, Tucker and Tucker paragraph numbered 8, he clearly expresses that remarrage b), c) and d) in these circumstances have been held to constitute a material change? has the FM erred in his judgement?

I have not read it but a 'material' change needs to used in conjunction with the rest of the judgement material.

Did you upload this to the library?


Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
Agog,

I have attached, Tucker and Tucker, one thing i do find odd is that Lucev FM uses paragraph no 8 often in his judgements?



Attachment

Hi Rossa,
All this discussion of Rice and Asplund is very relevant if you are seeking to overturn a final Order, but you said it was an interim consent Order. If you look at your order, does it say…"It is Ordered by consent until further order." The words "until further order" confirm whether it is interim or final. If you are not sure, ring the registry where the orders were made, give the staff your file number and ask them to check on the computer whether the file is still current. If you have an interim order your matter can be relisted for further mention and you can seek the variation to travel you propose.
If your order was a final order then you should contact the Family Relationship Centre closest to you. Regardless of any Rice and Asplund argument, without a mediation certificate from a Family Dispute Practitioner, you don't even get through the front door (ie you can not file your application to change the orders).
On Rice and Asplund, I do not believe you have a problem. You are seeking a variation to travel arrangements. The R&A test will be satisfied because the facts which support your application (employment, CSA being paid, financial means of both parties etc) have clearly changed sufficient to warrant revisiting the issue.
Good luck.
  Rossa, what do you mean by "she got/took 100% of settlement though" it sounds like there were no Court Orders for settlement but you gave her everything.


Where you married or de facto?


I note you are in Western Australia Family Law so judgements of that Court are going to be more help I would think. Family Court of Western Australia




On that note, have a read of this judgement by Thackary J http://decisions.justice.wa.gov.au/family/pufcdcsn.nsf it might help you formulate a course of action by answering the questions Tackary J set himself to be answered. By this I mean you need to prove your case on each of these questions and present the answers you form so the Court can come to the same result you are looking for.

I hope the Court will forgive me I have copy and paste from what I see as important points in the Court today that Thackary J sought to answer in this judgement;

1.               The benefit to the child of having a meaningful relationship with both of the child's parents;
2.              The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
3.              Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
4.              The nature of the relationship of the child with – (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child); where are the other family members Perth or Manjimup, what time do the children have with the other family members or do they even know them? For you to answer yourself.
5.              The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
6.              The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from – (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
7.              The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
8.              The capacity of – (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs;
9.              The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
10.          Any family violence involving the child or a member of the child's family;
11.          Any family violence order that applies to the child or a member of the child's family, if – (i) the order is a final order; or (ii) the making of the order was contested by a person;
12.          Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
13.          Any other fact or circumstance that the court thinks is relevant.

Note Tackary J made comment on untested evidence, that is the affidavit evidence was not examined or cross examined due to this is a interim (not final) matter so no evidence was given from the witness box.

The best way I know of to prove what is said in affidavits is by filing Exhibits or attachments like copies of fuel receipts to show you have been having contact in Manjimup this shows you facilitate and encourage a close and continuing relationship between the child and the other parent, you. It also raises the question of what does the mother do to do the same, let you do all the work (travel) while she sits back and not facilitate or encourage a close and continuing relationship between the child and the other parent or family members.                      

Does the mother work or live off someone and you.

Good Luck
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