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Amending final orders

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rannii View Drop Down
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  Quote rannii Quote  Post ReplyReply Direct Link To This Post Topic: Amending final orders
    Posted: 07/February/2018 at 23:45
Hi,


Can someone point me to the legislation which deals with courts power to amend final orders (2 years old) without the need to satisfy rice and asplund.

Father has unsuccessfully applied to court for a contravention order And side tracked this to have the final order amended. I want to know my “avenue” to appeal.

emca01 View Drop Down
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  Quote emca01 Quote  Post ReplyReply Direct Link To This Post Posted: 08/February/2018 at 07:42
Hi stranger...
So If the application for a contravention was unsuccessful, what do you have to appeal.

Can't point you towards the legislation... But I'll tell ya a story.... Mate does contravention application. Meant to see his kid every second weekend... Mum isn't playing nice. He is off to court soon. But in her response, she is requesting new orders based on the fact that the current orders are not working (of course they are not working - she isn't following them)... The new orders she is requesting? Either he do all the travel because she is refusing to do the routine meet half way OR she be permitted to move 1000km away, so dad will only see the kid at holiday time...

Her argument? Dad isn't spending time with the kid anyways.... So she might as well be able to move.... And all of this comes about because he has made a contravention application.... madness.

rannii View Drop Down
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  Quote rannii Quote  Post ReplyReply Direct Link To This Post Posted: 08/February/2018 at 07:45
I want to appeal because he amended the orders - that is - out final orders when no significant change of circumstances occurred.

The amendment had a significant impact on mine and the children’s lives - and will impact us hugely financially.

I did not contravene the final orders, I ensured they were followed - so why can’t I enjoy the stability of final orders?

jaazzz View Drop Down
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  Quote jaazzz Quote  Post ReplyReply Direct Link To This Post Posted: 08/February/2018 at 09:31
Originally posted by rannii

Hi,


Can someone point me to the legislation which deals with courts power to amend final orders (2 years old) without the need to satisfy rice and asplund.


The 2 relevant sections are :-

FAMILY LAW ACT 1975 - SECT 70NCA

See 'note' at end of section

Relevant part of subsection B :-
FAMILY LAW ACT 1975 - SECT 70NBA

You're probably aware that any successful appeal will not be directed by how the amended order has affected your circumstances but rather if there was an error at law...

Perhaps you were not afforded proper procedural fairness...

A couple of things to consider...

were the amendments substantially what the applicant asked for or were they made solely by the judge?

If the former, were you given the opportunity to put forward a rebuttal to the applicants wishes?



Any opinion given should not be accepted as legal advice.

Please post your legal questions in a forum rather than sending a PM. Thanks

rannii View Drop Down
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  Quote rannii Quote  Post ReplyReply Direct Link To This Post Posted: 08/February/2018 at 11:24
@jazzz.

I am aware my "circumstances" are not going to be considered.    I am trying to work out whether it was an error in law. He side stepped rice & asplund.


It was more probably procedural fairness.


I had no notice that am amendment was being sought.   He father got solely what he was seeking.


Our original orders, based on the ICL (and consented by dad), said that dad has to do XYZ to get ABC.    

Dad did not get XYZ, the judge struck out that "subject to" provision.    As previously advised, there was no significant changes in circumstances, and no barriers (apart from dad) for dad to complete XYZ.


The order is currently "interim" so, have lost in effect. I cannot consciously sign consent orders to make the interim orders final.


I am looking to put together my submission to essentially provide that he sidestepped the proper process by providing false allegations and that I want to see the original order enforced.

Obviously, I will obey the interim order, and I will also obey it if it gets made final - but the implications for myself, and the children are significant.


There is a significant milestone event that is occurring later in the year, which has required family/friends to incur significant travel costs etc. The children under the original order were due to be in my care, and under the interim will no longer.   Had the father triggered ABC, this would have been known 18 months ago, and the event would not have been planned.



EDIT:

I've just read the legislation . . . .this sux


        (3) This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order


So basically, you just need to cry wolf, and then get what you want.

Edited by rannii - 08/February/2018 at 11:26

jaazzz View Drop Down
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  Quote jaazzz Quote  Post ReplyReply Direct Link To This Post Posted: 08/February/2018 at 16:48
Originally posted by rannii

So basically, you just need to cry wolf, and then get what you want.

Not really.... Without exploring the specifics of the 'subject to' clause for dad to get ABC in the original order, the court still needs to be satisfied that any change is in the best interests of the child/ren... It seems the judge for whatever reason was satisfied

You can point out that you believe an abuse of process has taken place in as much as a baseless contravention application was bought before the court (you believe) for the sole purpose of seeking an amendment to the current order, bypassing the normal procedures... Also that you believe you were denied procedural fairness as a result...

Then, perhaps rather than attempting an appeal, you only agree to the amendments in a consent order if it includes you having care for the specific event in the future you are concerned about.

Much more likely to have a small win that way...

Going to be very difficult to win any appeal IMO.. This isn't a financial order it's a parenting order & the court pretty much has the power to overturn or amend any part of such an order if it's satisfied of the best interests principal
Any opinion given should not be accepted as legal advice.

Please post your legal questions in a forum rather than sending a PM. Thanks

rannii View Drop Down
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  Quote rannii Quote  Post ReplyReply Direct Link To This Post Posted: 08/February/2018 at 23:30
Valid next steps. Thank you.

Frustrating part is. . . For the last 18 months I’ve been offering the father an amendment which will see the “subject to” words struck out, if changeover time is amended by the 24 hours.

He has refused, lost time with kids and spent $1,000s to not get this.

Of course, on the surface judge does not look at the detail an merely sees how much $$$ the father has spent, so of course the mother is unreasonable.

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