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Hi.

I'm just want to find out a few things.

1. Can final orders be overturned?

2. What age is my child able to speak for themselves?

I ask this because my daughter was removed from me for over a year (we got to see each other at a contact centre).

Now I have her back every second weekend. She is only 8 1/2 but she asks me if she can come and live with us (myself and my wife).

She tells us her mother yells at her all the time for no reasons and that she is unhappy there (this was always the case however due to lies and an unfair family report she was sent to live with her mother).

I want to go back to court, as we are able to pay for a lawyer this time round (the first time I was a SLR and I was extremely under prepared).

I just feel so helpless.
I think there needs to be a significant change of circumstances to warrant a re-visit to court.

I believe this is known as the 'Rice and Asplund' rule. It is meant to stop endless litigation, I guess seeking legal advice in the first instance is the best way.

Setting Aside Final Orders.

Seeking to return to court to obtain new final orders can be difficult. As Loujane points out, there needs to be a change of circumstances to bypass the Rice and Asplund test.

I note you mention you have a wife.If you were single when the previous final orders were made, being married now can be considered enough change in circumstance to justify re-opening the case.

A lot will depend on how old the orders are. A point to remember, if you did return to court there is a fair chance the court would order a new family report and there is a very good chance it would be by the same report writer as last time.

For me - Shared Parenting is a Reality - Maybe it can be for you too!
I think you will find that she is just old enough to express her wishes to the court.
Fairgo said
I think you will find that she is just old enough to express her wishes to the court.
Disagree. 8 1/2 is too young. More like 10+.

4MYDAUGHTER
The age would be determined by the maturity of the child, the magistrate and the report writer.
Hmmm… more importantly, what is said by the child can trump any other consideration.

For example… "If make me live with the father, I will hurt myself". Sounds extreme but I've heard this before.

For example… "My father kiss me and it made me feel uncomfortable"

When statements like these are made, age does'nt matter.

But the father is this instance has relayed anything of significant substance or magnitude that would suggest a change of residence is warranted.

There could be many reason's why his daughter is saying what she is saying. Always difficult to interpret what is motivation lies behind statements made by an only child, especially an only child that is female.

4MYDAUGHTER
You will probably have to go through the mediation process before filing an application. May be a good thing and a chance to speak to the other parent with an independant 3rd party about sharing more parenting time?? Worth a shot at saving time and money best spent with your daughter than in court rooms and with lawyers.
Loujane said
I think there needs to be a significant change of circumstances to warrant a re-visit to court.

I believe this is known as the 'Rice and Asplund' rule. It is meant to stop endless litigation…, I guess seeking legal advice in the first instance is the best way.
Use the search engine on the site as there is a huge amount of good material on this subject. Then review the commentary before you seek legal advice. You might save a lot of dollars and at least be able to speak more authoritatively about the sorts of direction you may want to take.

Executive Secretary - Shared Parenting Council of Australia
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Good advice, having been through the courts myself and an appeal it is always better to avoid this where possible. It is very stressful for everyone involved.

Violent situation at home needs a resolution

How does physical and psychological abuse factor in final orders.

I was told by my daughter that her mother has been telling her negative stories about me, and how I treated her when she was little (of course which are all lies). She also came home one weekend with a massive bruise on her face, we were told a story of how this happened. However on my daughters last visit with me she broke down, telling my wife and I how her mother had squeezed her face that morning which left her with a sore lip, and when we asked her about the bruise fromthe previous visit, she said her mother had told her to say it was a soccer ball but it was her mother that did it to her.

The thing is we know there is abuse going on, I lived with it when I was with her mother. When I last went to the police about it, my ex went down to the police station the next day and told them I had sexually molested my daughter, so in actual fact they totally disregarded what I had gone down there with, the truth about my daughter being abused, and I was put under scrutiny with this absurd claim. Needless to say the abuse claim I went there with was thrown away!!

There has to be something my wife or her nana or myself can do to get my daughter out of this abusive situation immediately. In the past DOC's have been of no use in helping my daughter. But as she gets older she is telling us more horrendous things her mother does to her and the volatile home situation she lives in with her mother and her mothers new boyfriend.

Please there must be something we can do so I can protect my gorgeous little girl, and have her home in a stable and loving environment.

I would also like to add my thanks to all who have contributed to my post, knowing there is support is truly a wonderful thing, thank you!
You would have to go through the process from the start - mediation to get your certificate and then a new application to the court. You have obviously moved on (remarried) and can provide a good home for your daughter which is probably enough of a change for the court to consider a review. You would need to show the court that your daughter is at risk of being abused whilst living with her mother. Be aware that anything negative about your ability to parent or provide emotional support from your past will be used against you. You could ask for 50% care with a view of getting 40%. This will at the least reduce the risk of abuse.
Dear Guest, how awful and if the mother is abusing your daughter she should never see her again in my opinion. I have no time for false claims of sexual abuse, those of us who have had genuine issues in this area become infuriated with such people.
I am a health profssional and by law I hav to report such issues therefore have you thought about taking your daughter to a doctor or psychologist? I your daughter discloses abuse they are obliged by law to report to DOCS. Have you thought about going to another police station?
I wish I could give you more options and I truly hope you and your daughter get the help you need.
Thanks Loujane. I forgot to sign in so came up as a guest.  It truely is such a horrendous position to be in.  We were going to take her to the police station when she told us, but history with that made our decision not to.  But then having to drop her back at her mothers when she clearly is distressed is sooo distressing for us.  I have done alot of reading on this site about other peoples encounters with family reports and the court system and it really gives us NO hope that my daughter will be taken from such a violent situation. Of course I got dragged through the wringer when we had our time in court.  Not one single person believed the truth and the performance that was put on by my ex won her full coustody.  My daughter was put with the person that abuses her.  The other problem with taking her to a doctor or physcologist is she still has to go back to her mothers and if they tell her mother what she has been saying, the outcome of that will be physical abuse against my daughter.

I wonder if a recording of my daughter telling of the abuse would be of any help.  I have looked into the laws on recording people but it somewhat bamboozles me.

Fairgo, thankyou for your words.  As my past relationship with my daughters mother was itself sometimes unstable, this was indeed used against me.  I split from her over 4 years ago and have been happily married for almost 3 years. My daughter loves her step mum and they have a beautiful relationship, with my daughter telling my wife that she wishes she was her real mum, that she loves her and the affection she shows to my wife is not like that at which she shows her own mother.  We always let her know how lucky she is to have all this love around her and NEVER berate her mother to her.  She is her mother and it is up to her to make her own opinion and views.

I believe the change in her behaviour, going from a happy little girl to bursting into tears at any random moment and the fact that her mother is filling her head with false stories(this is breaching court orders) should be enough to take it back to court.  However if it is indeed the same report writer, who first time round wrote the opposite of what we actually said to her, then her opinion will not have changed, the things she wrote were untrue and uncharacteristic of who we are, but that is the thing with only having such a short period of time with complete strangers.  Although on saying that, my wife actually knew the report writer as she was a customer at the cafe my wife worked at.  Could this be a conflict of interest?

Is being able to proove a huge amount of the lies that have been told any use in court.  I also have photos of the bruises that my daughter has come home with and I document everything she tells us and all interactions with her mother.

Going through mediation would only put my daughter at more risk of harm.  What is wrong with this system that has no governing body?  I have never ever hurt my daughter, the only reason I ever had physical altercations with her mother was when she was hurting my daughter and I was trying to protect her.  I have prooven her lies before in court, but again none of this was even looked at.  My wifes, friends and families affidavits were not taken into consideration, and because of the false allegations of sexual misconduct I have been believed to be the monster in this situation.  It has taken me a long time to heal from the devastation after the last court case which was early 2009.  I have done an anger management course, which was of great benefit and my life is stable and loving with a beautiful wife and great friends with support from my family.

My daughter needs protection and the very people/system who are meant to be there to enforce that have let her down massively!
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