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Should i also apply to vary separately?

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mikeayo1891

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Would be glad if anyone can help with this.

I have a consent order that I am very unhappy about. I only agreed to it because I erroneously assumed it was an interim order, turns out it was the real thing. The terms are unfavourable to me as it requires lots of travel and no visitation rights. I desperately want it varied as soon as possible. Nevertheless the mother has failed to comply with it anyway. I applied for an enforcement order and she has now submitted a C2 application requesting to to vary the consent order. She wants the order completely suspended so that I have no direct contact with my child as "child does not want to see me".

My question is should I file my own separate C2 application to vary the order (where I can provide a new child arrangement plan) or is it okay for me to just ride on the back of the C2 application that she submitted - and simply submit my own position statement stating how I want the arrangements varied? Don't want to waste money applying for a C2 application if it's unnecessary.
 
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I'm assuming the court will merge your c79 with her c2.
I don't think you need to do your own c2 as you can put in a new position statement saying the ex hasn't adhered to the order anyway so would like to vary it.
A few years ago my partner put in a c79 at the same time as the ex put in c2. The c79 was seen by the judge just before the c2 so c79 was leading application.
By the final hearing relating to the c79 hearing my partner requested extra days to be added to the order and it was granted.
 
Peanut 21 said:
I'm assuming the court will merge your c79 with her c2.
I don't think you need to do your own c2 as you can put in a new position statement saying the ex hasn't adhered to the order anyway so would like to vary it.
A few years ago my partner put in a c79 at the same time as the ex put in c2. The c79 was seen by the judge just before the c2 so c79 was leading application.
By the final hearing relating to the c79 hearing my partner requested extra days to be added to the order and it was granted.
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Thanks for your response @Peanut 21 . My original enforcement hearing was heard back in August where judge directed ex to provide evidence for the reasons for her non-compliance. The judgement on my enforcement application will be made in a hearing next month, November. As well as provide her evidence/reasons for non-compliance, ex has now also submitted a C2 application to vary / suspend contact entirely. So as it is both my original enforcement hearing and her application to vary will be heard at the November hearing. Like i said, i also want the original order varied significantly in my favour. If i understand you correctly i dont have to submit a separate C2 application to vary, i should just do a position statement to that effect. Right?
 
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Yes I believe that as you're between hearings, your concerns cam be dealt with by using a position statement, not another form.
 
Before the next hearing you can write a PS stating that the ex has breached the previous order and you'd like to amend the previous arrangement.
Then state your points as to why it isn't working and why you'd like it to change.
 
It's fairly common for an ex to put in an application to vary as a response to an enforcement application. It's their way of saying they had reasonable excuse for breaching. Enforcements often do turn into variations. So as there is already an application to vary in, there is no need for you to submit one as well. She's hijacking your enforcement application basically.

However what you could do is formally object to her application to vary as "vexatious" and ask for it to be dismissed. Another guy did that recently and the Judge did dismiss it. Mostly.

I know you say you want the order varied but I think the main thing is get the current order enforced. However if you do want to proceed with an application to vary now and explain you didn't realise it was a final order and thought it was an interim order, you could set out your own proposals for variation in a position statement with reasons for variation being that ex doesn't comply with court orders.

So some thinking to do and decisions to make - do you ask for her application to be dismissed as vexatious and let the next hearing be about your enforcement only (hopefully). If that happened you can still apply to vary later. I think it could be a steep slope to try and vary time upwards from an enforcement and her application to vary.

It also might depend on what you said in your enforcement application? How do you think that last hearing went? It seems odd to leave it so long before a further hearing and Judgement.
 
However, as you say, if you believed it was an interim order then clearly you weren't in agreement with it being a final order and that could be raised but you might be asked why you didn't raise that as part of the enforcement application (or did you?)
 
Ash said:
However, as you say, if you believed it was an interim order then clearly you weren't in agreement with it being a final order and that could be raised but you might be asked why you didn't raise that as part of the enforcement application (or did you?)
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I didnt raise it as part of the enforcement order because at the time i was still under the assumption that it was an interim order. So my intention was for the interim order to be enforced whilst we await a final hearing.

The thing is i was supposed to have a FF in November but at a gatekeeping Hearing in February ex's own counsel mediated between us and managed to convince ex drop her allegations and we agreed a consent order. I assumed it was an interim order else i would not have accepted. Ex fails to comply with consent order and i apply for an enforcement order, all the while still assuming that what we had was an interim order. At the enforcement hearing in August i find out from the judge that this was indeed a final order and not interim as i thought. Ex then tell the judge that she was wrongly advised and coerced into dropping the original welfare allegations and wants it revisited (as that is the reason for her non-compliance) and that she also wants the consent order varied/suspended.

So basically the original 2 days fact finding hearing (which was cancelled) has now been reinstated for November as well as the the Enforcement Hearing. Her application to vary will also be heard at the same time. So its the next hearing in November is a combination of Fact find, Enforcement Hearing & Appication to vary. I also would like to vary upwards. Just not sure the best way to go about it.
 
Oh great! (Not) so she just gets another fact find because she asked for it! Once that consent order was made that should dismiss all her previous allegations because she agreed to it! So ex is complaining she was "coerced" by her own barrister? Lol. Sorry it's not funny but I can't believe the court went along with that.

Ok how long is the hearing in November listed for? 1 hour? Half a day? A full day? It sounds to me like it isn't going to be a fact find but a hearing regarding variation and enforcement at which they might decide whether or not to give her a fact find - or hear or dismiss her allegations on the day rather than it be a full fact find - unless you have an order that specifically says it'll be a fact finding hearing.

So when you enforced - what breaches had she done? Sorry I haven't read back. Just the one, or did she withold the child completely?

Anyway yes you can say you thought it was just an interim order that you were enforcing at the time.

But the court is going to see both of you saying you didn't agree with the consent order you both consented to - for various reasons. In which case the court will make an order. But maybe not at the next hearing?

She is bringing the allegations up again as a "reasonable excuse" for breaching. However she should have applied for an application to vary as soon as she witheld the kids, not months later after your enforced. So that is another argument.
 
Ash said:
Oh great! (Not) so she just gets another fact find because she asked for it! Once that consent order was made that should dismiss all her previous allegations because she agreed to it! So ex is complaining she was "coerced" by her own barrister? Lol. Sorry it's not funny but I can't believe the court went along with that.

Ok how long is the hearing in November listed for? 1 hour? Half a day? A full day? It sounds to me like it isn't going to be a fact find but a hearing regarding variation and enforcement at which they might decide whether or not to give her a fact find - or hear or dismiss her allegations on the day rather than it be a full fact find - unless you have an order that specifically says it'll be a fact finding hearing.

So when you enforced - what breaches had she done? Sorry I haven't read back. Just the one, or did she withold the child completely?

Anyway yes you can say you thought it was just an interim order that you were enforcing at the time.

But the court is going to see both of you saying you didn't agree with the consent order you both consented to - for various reasons. In which case the court will make an order. But maybe not at the next hearing?

She is bringing the allegations up again as a "reasonable excuse" for breaching. However she should have applied for an application to vary as soon as she witheld the kids, not months later after your enforced. So that is another argument.
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Yeah. Its a 2 day fact find for which she has sent her allegations and scotts schedule. I just lucky that by some clerical error the original fact find date of November (was fixed since last year) was still available so the judge simply fixed it to the same date. But she limited her to only bringing allegations of any abuse that have happened since the consent order was made. So its basically a fact find to defend the exes "reasonable excuse" for non-compliance. The judge said that if she doesnt have good reasons she will enforce the order. But that consent order arrangement is very stressful for me anyway. It requires me to do a 8hr round trip from London to Somerset every Saturday to see the child and with no visiation rights. I only agreed to it cos i thought it was interim. Now that i know it is final i definitely dont want anymore. Its far from the kind of order that i would have sought at a final hearing.
 
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