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Rice & Asplund

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Totally Lost

Orders were initially made in Court in February 2012 regarding our son. 

There have been huge changes in circumstances regarding the residence and relationship status of the father (4 women that I know of and 1 marriage in less than five years, now moving to 3rd residence) which are having a negative impact on our son. 

The father sees his son Tues after school under until Thursday morning and every second weekend.  I am wanting to have orders changed, as is our son (who is 8 on Friday).  

I have been to Relationships Australia, father never responded, have been issued with my certificate.  

Am now told Rice and Asplund will apply to my case.  Why is this? 

The father clearly never wanted to become involved in mediation, is a terrible influence on the child, has had him in all sorts of unsavoury situations, constantly breaks the Orders,  speaks badly of me to my son  (which he complains to me about) and the midweek contact also effects schooling as the child is continually exhausted.  

What do i do?  I am having to go about this by myself as the last proceedings left me virtually broke    Thanks.

Last edit: by OneRingRules

Rice and Asplund is the case that is referred to when you are looking to have Orders changed due to changes in circumstances.

Have you searched this site for information on the case? Its worth doing some research, to get clear on what the test of significant change means. If your husband is still in the same area, is still having your son for his allocated times, then I'm not actually sure that you can demonstrate a Rice and Asplund level change.

My understanding is that to satisfy Rice and Asplund you'd be looking at things like him moving to the other side of the State, or becoming a drug addict who isn't capable of caring for your son, or moving into a place where he isn't able to house your son, or a change like that which means that the current Orders are no longer suitable.

You may not agree with your ex-husband having multiple partners, but unless the partners are sexual offenders or in some way a physical danger to the child then it which would prompt the changing of orders - again, in my understanding. Have a look at Rice and Asplund, have a look around the forum here and make sure you are clear on what will and won't fly as far as changing the orders.
Kimba245 said
Orders were initially made in Court in February 2012 regarding our son.

There have been huge changes in circumstances regarding the residence and relationship status of the father (4 women that I know of and 1 marriage in less than five years, now moving to 3rd residence) which are having a negative impact on our son.
Unfortunately I have to say that I am not convinced that there is a "huge change of circumstances".

Much has been said about this vexed issue in the forums and good advice as advised by Malady you should search the topic here on this site as there has been some really interesting discussion. I know that some judges particularly like to at least hear the change of circumstances and will rule on it very early on usually in a directions hearing before setting a hearing date.

Just because the other parent has had a few partners and or marriages and a change of living arrangements unless that change of living arrangements is such that it significantly affects the child's ability to have an on-going meaningful relationship then you are bound to be wholly unsuccessful which could leave you with a  costs order.
Kimba245 said
The father sees his son Tues after school <s>under</s> until Thursday morning and every second weekend.  I am wanting to have orders changed, as is our son (who is 8 on Friday).

I have been to Relationships Australia, father never responded, have been issued with my certificate.

Am now told Rice and Asplund will apply to my case.  Why is this?
The reason is that the courts make orders final so that cases do not keep coming back to court and set a very high bar to get them back again. If the matter was to go back it may be highly likely you will have the same judicial officer as the application would need to have your previous court file number and will be linked.
Kimba245 said
The father clearly never wanted to become involved in mediation, is a terrible influence on the child, has had him in all sorts of unsavoury situations, constantly breaks the Orders,  speaks badly of me to my son  (which he complains to me about) and the midweek contact also effects schooling as the child is continually exhausted.
If he is constantly breaking orders you can file a contravention but that is a very risky business unless you have a number of them and they are reasonably serious. For example if he is 15 minutes late bringing the child back you wont get that up. What I would suggest is that you have a strongly worded letter written in relation to two key issues you raise.

Firstly the fact he is speaking "badly" about you in front of your son is unacceptable behaviour and needs to cease.  I would suggest you look at your existing orders as it is unusual not to have an order that this sort of behaviour is not to happen. Secondly you say the boy is continually exhausted. That needs investigating and I would be looking into what sort of time he is going to bed mid week. Are you able to speak to the father at all? If this is affecting his performance at school you could raise it with learning services at school or the school counsellors. It is vital you are working with the school on the boys continuing improvement and education at school. If he "always tired" he cannot be managing peak performance in his school work. If he is gaming every night until the early hours you both need to agree on a strategy to pull the Internet
Kimba245 said
What do i do?  I am having to go about this by myself as the last proceedings left me virtually broke :'( Thanks.
These are issues raised everyday I am sorry to say. There is no easy answer. One solution is to engage an FRC (Family relationship centre). Take a look on our menus on mediation and read about the different sorts of mediation including legally assisted mediation.

The FRC process is inexpensive and worth a go. File as a Self Represented Litigant will save you money and you can either handle the directions hearings yourself with some guidance from  one of the legal practices here that bundles services. There are a number of Self Represented Litigants who I have to say are quite expert in going through the process and many Self Represented litigants do a really good job. Others are much less successful. Have a think about the issues, decide if you want a strongly worded letter to cover off the two key issues and work out what is going on that keeps this young lad tired.

Executive Secretary - Shared Parenting Council of Australia
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