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Changing orders by breeching them

changing orders by breeching them

I had final orders in place.  They stated that the mother could not remove the children from their current primary school till the completion of their primary school education, due to the mother continually moving the children in order to hinder contact with the father. Our children have been to 5 primary schools. My eldest started Grade 6 this year.

I have my children from Friday till Tuesday morning, pick up and drop off at school. I got a text message from my ex 3 days before school started saying "I moved girls now going to another school". I live in Carrum Downs and the children were going to school in Moorabbin. She has now moved the other side of town to Kings Park, near St Albans.

I filed an application to have the orders enforced. What I walked out of court with is the court convicted her of the breach (no penalty, this was her third time she had been found guilty of breeching orders). The judge said this was because it would impact on the children. And also said it was now impractible for the father to keep the same contact times as per final orders, as it was 75km from the father's house. It takes two hours to get there in peak hour traffic. And it was too far for the mother to take them to the court appointed school as she lives 50 km away.

So the judge said he fully understands the father's frustration and anger, due to once again loosing contact because of the mother moving. And even though it's a clear breech of orders the children can go to Kings Park primary school. We will safeguard them once again by putting in the same order that the mother cannot remove them (funny that order was already in place).

We will now give you Friday to Sunday and you can pick the children up from school and drop them of at the City on Sunday. So not only have I lost all my meaningful time I had with the children but I have lost the interaction I had with their school and school work.

My parents moved from S.A to be close to the children. They have the shits with me because I said yes there are final orders in place, she cannot move them again.

I have to all the travelling, yet she was found guilty of breeching the orders. I dont understand.

I have no money left but I have to appeal this. Any advice or help on this procedure would be appreciated.
The girls started school the first week after school started, as at interim hearing the court made an interim order they start school. The judge citing because the mother was the main carer they stay with her and start school were she moved to.

At the final hearing my application was to have the children reside with me until the mother was in a position to take them to the school. The court said they couldn't be removed.  From when we went to the hearing the child rep and judge made it very clear the children would not be going back to the school they weren't supposed to be removed from.  This, they said, was due to the fact they could not stop the mother from relocating (even though the judge said the mother should have made a application to the court to relocate and not breeched the orders like she did) and that it was impracticable for her to take the children to the old school due to the distance.

They also specified that Flinders Street Railway Stationhad to be the change over for the return journey, due to it being a closed station and the children would not be subject to weather and possible violence from hooligans, even though the change over times are 5pm.

The judge used the excuse, on both my application and the contravention hearing, that even though she was found guilty of contravening the orders, that changed the court's final orders, that any penalty imposed on the mother would impact on the children, so basically she was given a pat on the back for breaking the court orders.

I would love to have the children on a permanent basis and stop all this.
Philby, you have not answered all of Lifeinsight's questions:

when was the FIRST change in schools - you mention 5 changes - when was the first.

I would recommend you book a meeting with the guidance counsellor and let them know about the school changes and voice your concerns as to how this is affecting them academically and behaviourally. Ask her for some strategies that may help. Make sure mum gets a copy of this too.

When they moved the first time, what was your reaction? Did you contravene her etc?

I'm wondering if you would overcome Rice and Asplund and be able to revisit the orders/go for custody, given the campaign to reduce time with you and the disruption to your children's schooling.

Junior Executive of SRL-Resources

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

Adding punctuation

The first time (went to this school first six months) and the second time (the next six months till july of the next year were she left with the children).

We were married and living together. We moved the children from the first school due to the ex wife chastising 2 other girls in my daughters class.

She then took the children from S.A to Victoria without my knowledge or consent. By the time I found them and went to court, they said "the girls are settled, the mother has found residence, we are not going to make them return to S.A." So I also moved to Victoria.

I got good contact - Friday through to Tuesday and half of all school holidays. This puts me in substantial care with the child support agency. After I found them (by pure luck) I found a house at one corner of the street. My ex was down the other end, on a corner to, with the children's school in the middle. That was in <suburb A> we both had a two miniute walk to the children's school - perfect! So what does she do? She moves to <suburb M>!

I tried to stop it, but the court said I could not stop freedom of movement. She said she was going back to uni to better herself, as well, so they allowed it. In the meantime she claimed I fell asleep at the wheel of a car. She had no proof but the child rep put a driving ban on me until I had a sleep apnea test.

The court agreed; at the time I was living in <suburb A> the children were in <suburb M> 50klm away. She also tried for a contravention order but that got chucked out. I was lucky and got the test done within a month. Originally, they said there was a 1 year wait! I begged and got lucky - of course I passed the sleep apnea test.

In this period, they went to 3 schools while in the mothers care. Their mother never even enrolled to go to Uni. Now my parents have sold their house in S.A to come near the children. With the remaing money I had, paid for a one bedroom unit. The children have their own rooms in the main house.

All this was done due to there being final orders made that stated the children can not be moved from their present school in <suburb M> until the completion of there primary school education. My girls are 7 and 11. Now she's done it again, she's moved back to <suburb K> which is makes the distance 75klm away.

She breeched the orders to do it, they found her guilty and did absolutely nothing. Instead they've rewarded her by giving her extra time.

Appeal to FM Court

Hi to everyone.

I have won the right to appeal the decision by Phipps in the Federal Magistrates Court.

Accordingly, if anybody can help me formulate tactics and reasons for the appeal hearing, it would be very much appreciated.  I am finding it hard after four years of constant fighting the ex and her allegations just to win the right to be a father to my two little girls.

As we all know every minute extra with your children reminds you of how it used to be - but every minute you loose reminds you of the reality of what you are now - a father without rights.  The constant heartache of knowing you will never be able to comfort your children when they are upset, confused, or share in their joy when they are happy, unless the mother gives you the right to be a father, or unless these things happen when they spend a couple of days with you.

Sorry for harping on but I still have not gotten over the fact that due to splitting up, I have become a bad parent and yet there was never a problem with me being a parent to the children for the seven years before she left.  Now I find the court nurtures and protects her desire to get at me by doing everything possible to stop me from seeing the children.

Once again if anybody can help with strategies for the appeal hearing it would be appreciated as I have also exhausted all funds.
There are hundreds of solutions to this but here are two:

The issue with the ex: Does fighting with the ex get you access to your kids ? It looks like a loose on that so the next sentence is how can you make it a win win, there are heaps of books out there called "divorce hell" and "how to screw your ex" in it are all the evil tactics used by disgruntled ex's and HOW to do damage control without hurting yourself.No matter how many times you do this, she will keep moving and you cant' stop it.

Solution two is your kids: Ask them, at 7 and 11 you can say, mum has moved away, I can't afford to see you on Friday to Tuesday how about I talk to the judge and we use the saved petrol money for school holidays and we will go camping this year instead. You can maintain your relationship with your kids on a "different" level to the black and white day to day thing, I know it is hard to give up the idea of "breakfast together for always" but you can maintain a relationship without it, it just requires creative thinking. eg turn up for the school concert and P and C, call the night of tests or special somethings, etc

Look the system SUCKS but its largely because the law is a blunt instrument, families and family life are NOT, so think laterally, not literally which is all the courts can do.

The bond between parent and child will OVERCOME the ex when the child gets old enough to know the difference, but it won't overcome the exhausting toll that court room will take on yours and theirs mental health.

Short of that you are asking for a change of custody and that is tall order for a broke guy to pull off, courts like stability even if there is clearly a winner and looser.
Bonnie my ex does not work either. And guess what, she has shown not to be a better parent by her actions.

I have a 20 year old daughter who I haven't seen for 15 years because the ex moved to the other side of Australia. I took the advice people gave me then to wait till she gets older. What a load of garbage. And not only that, I missed all the firsts that can never be replaced (birthdays, special events, life in general). Now the only time she calls is if she wants money!

About fighting the ex (she originally wanted me to have supervised care), I would rather walk in front of a train than stop trying to get back what the court granted me. I have to send my children back to the ex crying because they want to spend more time with me.

I take it you are a woman. I could be wrong, but you tell me why should my children and I suffer just because my ex got greedy and left when she received an $80,000 inheritance and then was awarded 72% of the property. Easy money for her!

So you say walk away and hope they understand later why their father didn't want to fight to see them (my ex has already used the fact I didn't fight to see my other daughter, hoping they would do what you suggest). If that is your advice then you are on another planet, or like I said a woman.

I have a great relationship with my children, as the family report states, and even in the last court hearing because she breeched the orders and wanted to get on the good side of the judge states what a great father I am. This is after 4 years of saying and stating I was the biggest arseh0le out, falsely claiming abuse, the works.

So according to you I should say "Oh this isn't fair. I will go hide in the corner till the children get older and say sorry 'I didn't try to see you because the system isn't fair'."
Well said Philby, I am with you mate.

This website is for those who recognise the need to fight for a proper relationship with our children, NOT to lay down in front of our nut case ex's and be walked all over, and try to make the most of what our ex's grant us.

Of course you should fight this all the way, you have been treated appallingly by her, and the court should have taken action against her to prevent her doing this stuff in future and to compensate you for what she is putting you through.

Fight on mate - I am sure there are many here who will give you proper and informed advice shortly.

"Bonnie" sounds like she might even be your ex undercover!
Gooddad makes an awesome point… why should you/anyone make the most of what the ex grants you.  This has been the way for too long. It takes two to make the children but apparently only one to raise them and the other one to finance them.

Yes the system is a joke but continue on.  Maintain as much contact with your children as you can and eventually they will grow up and see what their mother has done.  They are adults much longer than they are kids.  When they are adults they will no doubt have bonded with you far more and will respect you if you persevere in their lives. (Trust me I am a child from a similar situation.)  My father plays a much bigger part in my life now than my mother ever did and ever will.

As a mother myself I am ashamed of the women out there that make us all look bad.  My son sees his father whenever he likes and he has never paid support.  I am with you all the way.  Don't give up!

If you haven't already, you need to apply to join the SRLs. This will give you access to various information which can help you formulate your case.

I would suggest you subscribe to the FMCs website. When they list recent judgements, they email them out to all subscribers. I have done this for my partner and we scrutinise all of the recent judgements for those that are applicable to our situation.

I know you have been struggling on through the system for a long time. You still need to get your strategy together yourself as only you know your circumstances as well as you.

I would suggest:

1. make sure you can meet the Rice and Asplund thresholds.

2. Have an idea for orders that allow the mum to move where she likes, as long as contact with your children is met and the cost impact to you is minimised. For example, let her move interstate, but the orders should state that she is fully responsible for the cost of travel for the children to see you.

A good way to ensure the other party pays is to state that the children will not be returned unless the provisions for return travel have been made.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
Never stop fighting for the right for your children to have a meaningful life with their father. Eventually someone somewhere has to notice. SRL can help and save money.

You probably have all the legal advice and it sounds like you have the strength (keep sane).

So here's some more gratuitous comments from someone who has been there and now has basically full custody:

1) Judges like to make character judgements - so be of fine character - not matter how much gets thrown at you or how absurd that sounds considering her character.

2) Judges like the law - so use it and point to the relevant sections.

3) Judges like precedents - but not in they way you may think - they like the legal position not the story as such.

4) There is no direct logical connection between what a judge finds and their judgment - it will make no direct sense - so its always potentially appeal able (as long a legal grounds exist).

5) Be Careful - Don't be lead by the judge to agree with his suggestions (for his own convenience) - be sure to ask for time to explain or adjourn to investigate (make sure you understand the legal meaning of his comments) - while they smile at you they sometimes are thinking like this "I can sympathise with what you are saying but I find myself unable to legally make a decision to help you" - which is about speeding up the trial and saving their time.

6) Get onside with the associate - they are very influential - they prepare most of the material and help the magistrate.

7) Assert - Defend as required matters of fact - don't attack.

8) Present in a way that the logical legal outcome is thoroughly self evident (don't plead or beg).

9) Good luck.

 Maybe I am not explaining myself well enough
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