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The FMC has odered that a family report be prepared .... what documents can I / should I submit ?

Hello all,

Firstly I must congratulate all that have had involvement in developing and making this site what it is.   I have already benefited enormously from reviewing the material, particularly relating to Rice & Asplund.

My ex an I split up in 2002 (6 long years ago) …. well she left, when I was interstate on a business trip.  She rang me up to give me the news, and when I returned two days later I found the house bare, and of course our 2 going on 3 year old daughter was also with her.

It took a couple of month's to successfully negotiate some contact with my daughter.  Later that year on the advice of my legal representatives I gave up residency in order to receive a more favourable outcome on contact arrangements.

My ex and I filed consent orders in Jan 2003, and again in Jan 2005.

My daughter is now 9 years old, and it would be fair to say that we have always shared a very close bond.  I have since remarried to a lady that has a daughter 1 year older than mine and together we have a wonderful family.  At the time of my last consent orders, I was living in a de facto relationship with my now wife.

My ex also has established a new relationship and has had children to her de facto partner.

My daughter is desperately unhappy living at her mother's and has expressed overwhelmingly strong desires to reside with my family.

I filed an application in Jan 2008, with the initial hearing in March 2008 …. not knowing anything about Rice & Asplund.

Following my Rice & Asplund hearing in July 2008 in which I represented myself, the judge orderd that a Family report be prepared and adjourned the matter until Dec 2008 without making a determination in respect to the Rice & Asplund threshold.

I have received a letter from the court appointed social worker who has been engaged to prepare the family welfare report that contains inter alia "Please have your solicitor if you are represented send to me any documents you wish to be read.  If not you can bring documents on the day if you prefer."

I was hoping that someone might give me some advice on what type of material should be given to the Faimily Report Writer.
Vermigarrd, I'm sure there will be others with much more experience than myself answer your questions, as I am still on a very steep learning curve. However, in my brief recent experience in my partners matter, the family report writer needs to see all affidavits with any supporting evidence. Any subpeona material such as school records, medical records and any other reports which have been compiled. I think there's a rule that you can't introduce any new material that hasn't been filed.. Oh, don't forget your diary, communication log, photos or family videos that show your daughter having family fun with you and your family.. A family report has been ordered for my partner and the above items were listed on a letter from his solicitor, we're waiting for our appointments now.
Thanks LilsMum,

That info is really useful.  I was particularly interested in the formality of the process, and I think you touched on it "new material that hasn't been filed".  I am interested if anyone knows how formal it is and whether that is the case.
Vermigarrd,

My recommendation to you is not to mentioned to your child why you are having the Family Report done. We made the 'mistake' when we had a family report done in 2005 of telling the child why the report was being done. (Not at all in a vexatious way or anything of that nature) basically we didn't want him confused about what was going on.

The child when asked by the report writer if he knew what was happening replied yes daddy told me. We then had this used against us as 'trying to influence the child's decision' which in reality couldn't have been further from the truth.

We simply explained to the 4 kids (3 of mine who had to attend as well) why they were going to be sitting around all day and various people asking them strange questions so that they were more comfortable with the situation. The situation being they were all sent into a 'play area' to be looked after by a complete stranger with other complete strangers coming in and taking them out one by one to ask them questions and 'observing' them all together etc.

IMO It would have been alot more stressful for all children involved if we had simply just not said anything to them as the courts expected of us.
Since the day my x split and stole my daughter from me ….. This god forsaken system has worked against me every step of the way.

What right did that women have to unilatteraly decide that my daughter was hers to take as though she was a possession. What right did the system have to tell me that it was in my best interests for give up residency in order to get favourable consideration by the court in respect to future access when I disputed that woman's right to steal my daughter away in the first place.  What right does this system require me to pay so much to that woman for the benefit of my child only to see that money directed to her benefit not my daughter's.  That woman has stolen from me, in so many ways … but worse than that …. she has stolen far more from my daughter.

In the year's that have followed, my relationship with my daughter has only grown stronger.  Not because I take her to amusement parks, fancy holidays etc etc …. Its the small things that count.  When she is with me, I am there,  with her …. I know her and not a day goes by that she is ever left wondering how much I love her.

Can you sense a little resentment there ?

In answer to your question 4MD

I want residency of my daughter, and she has wants that as well.

In her younger years …. can you say that about someone who is only 9 now ??? …. anyways ….. she was obviously too young, nut now she is quite articulate for a 9 year old and has a very strong mind as to what she wants.

There is no doubt in my mind that my daughter will be with me in the future at some point, her will not be denied, and there will come a time when no one will be able to stop her.  But I don't want to wait until then.  Too many years have already been lost … none of which can replaced … every moment lost is lost forever …

In my recent Rice & Asplund hearing …. although I was unsuccessful in having a ruling in my favour on the day … I requested a family report be prepared and the judge ordered one to be prepared before considering matters further.

I actually felt as though I had a massive win on that day !!!!!   …..  It has always been my desire to give my daughter a voice in all of this.  To have that voice heard and respected.

I have no doubt what my daughter will say, and how vehemently she will say it when she gets her chance.

But, as I have learned …. It doesn't matter how much I want it, how much my daughter wants it, how much anyone with any degree of objectivity who looked upon all the circumstances would agree what should happen ….

It is what the system with all its idiosyncrasies and peculiarities determines in is infinite wisdom or lack there of, that matters in the end.

Having said that,  it is important to me that I do everything I can to unsure I put my best case forward to the Family Report Writer.  For in her hands my future and that of my daughter's  lies.

I have seen some comment on this site about bad experiences with Family Report Writers, so I thought it might be a good idea to find out what I should be wary of, how I should approach it, and exactly what sort of material I should present.
Vermigarrd,

Focus everything you say on what is in the best interests of your child and how you did such and such for the child.

We were told to not denegrate the other party (although they did us) but just focus on the child and how close you are etc.
The term 'residency' or 'custodial parent' is no longer used. The correct, current terms are "lives with" and "spends time with". There is an implication that the child spends time with both parents. How this is time is split is what the court will determine.

If you are seeking 50/50 you will probably get it. In order to increase your time beyond this, you will have to demonstrate that the mother is neglegent in her parental responsiblities as "lives with" parent to both you and the child.

The family report writer will have access to all prior affidavits and will read the case file. You may highlight particular affidavits of interest. New material should not be introduced, as has been said.

You will need to control your resentment of your ex partner. You will need to demonstrate how you will facilitate a relationship with your child and your ex partner.

Conversely, you will need to demonstrate that your ex doesn't facilitate a relationship between you and your daughter.

Things the report writer may ask are what your plans for the child's future are, if you are successful. How would you manage her schooling, highschool etc. Health and well being issues are something that will be of interest.

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. 
debraesq said
Vermigarrd,

Focus everything you say on what is in the best interests of your child and how you did such and such for the child.

We were told to not denegrate the other party (although they did us) but just focus on the child and how close you are etc.
 

This is  the BEST advice you will get on here about the family report DO NOT BE SUCKED IN, done even mention your ex, dont mention problems…. DONT allow yourself to be led as i was…… 100% focus on talking about your daughter and HER only..

be very VERY careful

VERY  This is one of the most important interviews of your life

They must find it difficult, those who have taken authority as the truth, rather than truth as the authority

You can comment on the actions of your ex, those behaviours and how they make you feel. You should not pass judgement on your ex.

Talk factually about your ex and not emotively.

Example:

I tried to negotiate time with my daughter for my birthday and the ex and I could not come to agreement.

as opposed to…

that blinkin' so and so wouldn't even let me see my daughter on my birthday.

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. 
Artemis,

Artemis said
If you are seeking 50/50 you will probably get it. In order to increase your time beyond this, you will have to demonstrate that the mother is neglegent in her parental responsiblities as "lives with" parent to both you and the child.
 

I hope this isn't so.

I hope that at some point, my daughter will be afforded some recognition …. some right to express what she feels and believes … some right to influence the outcomes of the decisions that are shaping her life today.  She feels as though she is imprisoned, and she cannot understand why she has not the right to be who she chooses to be.

It would be just typical of this system that:

  • I could provide her with a future that in all liklihood would achieve better outcomes for her
  • That she is so unhappy in her present environment that she has threatened to run away
  • That she desparately wants to live with me
  • That I want the same
  • That she is so much more happy, safe and emotionally secure in my home's environment
but that my application will fail because my  x  hasn't neglected her.

And then in a few more years time …. my daughter eventually carries through those threats … runs away and my x never see her again … by my daughter's choice … and then no one will be able to deny her the right to decide …. she will seize that right ….

And to what end.

Vermigarrd, have you looked at this publication of the FamCA it is titled Family Consultants. You said court appointed social worker who has been engaged to prepare the family welfare report. To me this is not a Family Report of a Psychologist or Psychiatrist therefore the below is relevant and applicable.

http://www.familylawcourts.gov.au/wps/wcm/resources/file/ebf0b70be149875/Family_consultants_120207.pdf

It looks like you are in the FamCA not the FMC but the next link could be of interest to assist your understanding of the purpose and documents required, I was looking for the Practice directions for FamCA Family Report Writers.

Although your Family Reporter is not indicated as an expert the following link might help you decide on what should be sought to be given or caused to be given to the Report Writer.

http://www.fmc.gov.au/pubs/html/family_reports.html#1 for the FMC.

A link regarding full and frank disclosure.

http://www.familycourt.gov.au/wps/wcm/resources/file/eba2da4ca84b20b/BRDisc_0706w.pdf

The main things you need to supply as I see it, are anything that relates to the childs/rens best interest and an understanding of the childs nature/personality, behaviour (both good and unacceptable) school behaviour if applicable, school reports especially those that show a change in behaviour and learning.

If an IO, DVO or AVO are in force, whether it was consented too or made without proper evidence, Statutory Declarations of past and existing; practices and procedures with the topic of child interaction as the main theme. That is information not already before the Court in affidavits or needs simplification for a true picture to be seen at first blow/glance. Caution is required here that you dont cause a picture of your dislike for the other partys behaviour that can be turned to you are undermining the mothers ability to parent.

Admission of the things both you and the other party contributes; like the general ability to encourage the child to be clean, well dressed and attend school all the time, share with others and play nicely with others if applicable.

Hope this gives you a start, dont be put off by the amount you need to do. Is interaction with the child/ren your focus or punishment of the other party?

If it is the child/ren then no mountain should be too high and remember the mountain looks higher from the bottom (when you are just starting to climb the mountain of knowledge) then it does from the top or even half way. I found if I look at what was ahead as a learning experience/trip then the new knowledge gained was equal to new sights of new places (maybe a bit rose coloured but it works).   
4mydaughter said
R & A should be fairly easy to overcome.

Unfortunately it is NOT easy to counter Rice and Asplund and I have no idea why the writer makes such a broad statement or the experience to make such as statement. Those of us involved in this business know just how frequently it is used successfully.

Before the Amended Act there was always a good argument to use the Best Interest principle. Since the previous AG made it very clear that R&A would be used more extensively when the Act was amended it has again become a potent argument against changing existing orders.

Elsewhere in these forums are references to the recent SPCA submission to Robert McClelland and the Chief Justice about Rice and Asplund. The existence of this submission is some evidence to illustrate the ongoing concerns about the miss use of this old precedent.

Note I use R & A as a generic because there are other judgments that reinforce the principles contained in that 29 year old document

Now in this current topic there is a situation of several sets of consent orders which will make it more difficult.  Fortunately a Family Report has been ordered and this can make a great deal of difference. There are several recent judgments concerning the use of R & A and wheter it should be applied to initial hearings or at the Finals. Because the matter goes to a Final does not mean that R & A will not be argued.

4mydaughter said
The views of your child are probably the strongest arguement in your favour.

Your child's views will need to be examined by the Family Consultant. This is very important. Can your child articulate her views well? Is her preference to live with you strong?

Is not a strong argument as the child is 9 years old. Whilst the Family Report writer will listen to the child. Nine years is generally not considered an age when children are able to comprehend the long term nature of any wishes they express.


Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
Agog said
Is not a strong argument as the child is 9 years old. Whilst the Family Report writer will listen to the child. Nine years is generally not considered an age when children are able to comprehend the long term nature of any wishes they express.
 

Again the system !!!! …. package my daughter into a generic slot …. children of that age typically do not possess the cognitive capacity to comprehend the long term nature of any wishes they express.

That is an interesting concept from a number of angles.

Most obviously any individual is just that, and so I hope that my daughter is assessed on her merits and not prejudged based on some stereotypical paradigm.  I am confident that she possesses the cognitive capacity to make that choice … however I do acknowledge that my objectivity on the matter is not a given.

More importantly perhaps are some very relevant facts about how her desires have manifested in her everyday life.  She has an older sister by the mother from a previous relationship.  She is constantly bullied by the sister, and in the last school term received 3 "time outs"  which have been officially notified to the parents.  Two of those instances involved fighting with the sister.  Her school report card noted the aggressive behaviour which has become more prevalent in the last school term.

My daughter has written in her school work about her desires to come and live with me …. to the point where this became an issue with the teacher who admonished her in an aggressive manner for doing so.  I lodged a complaint with the school principal and following investigation it revealed that my daughter's conduct in this regard was not a one-off but repetitive.

While I can appreciate that the Family Report Writer may listen to child, and hear how strongly she feels …. and believe me it is my view that when she gets the chance to speak …. it may well be a tirade of frustration ….and then judge that she lacks the capacity to have her wishes taken into serious consideration.

If on balance the Family Report Writer can not establish that my daughter's long term best interest's would be better served in either parents predominant care (taking a holistic view), and by that I mean that each parent presents with a plan for the future which is just as good as the alternative (and I don't believe that will be so), then surely the damage being done today to my daughter through the emotional stress and turmoil of being denied her inalienable right to be who she chooses to be, must then come into play.

Surely if a decision as to the long term future is not an obvious and clear one, don't they have an obligation to address what they can address ….. witch is the clear and obvious short term detriment … which if it goes on unabated …. will result in a long term detriment, because at the end of the day, isn't the long term just a cumulative effect of all the short terms along the way. Surely we should not completely sacrifice the present in favour of planning for a future that may never eventuate.
vermigarrd, you have posted some intersting additional information. This is the sort of thing the family report writer will find interesting.

The dynamic in the mother's house with the older sister.

The stated wish to live with you, expressed in school work. This should be submitted in affidavit at some point.

Agog has not said that your daughter will not be listened to. He has highlighted that it is not gauranteed to carry sufficient weight to make things a forgone conclusion.

You are correct, you are in a system. Now, you need to learn how it works so that you can work it so your daughter gets the best outcome. Some teenagers are not considered sufficiently mature, whereas occaisionally younger children will be. The typical age is around 12.

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. 
I note these last 4 post … sorry my mistake.

I post an air of caution is required when seeking the views of a child be given weight rather than simply identifying where the child has expressed their views.

Like; the child expressed their wants in their school work and to…, the ICL has not taken these expressions of the child seriously and not looked at the cause for the child to express these wants, etc.

I went to a FamCA SRL information group meeting 1 time, at that meeting which was chaired by a claimed Child Rep as they were then called. That Child Rep, now known as ICL, claimed any father who sort to advance the wishes and concerns expressed by a child would be condemned by her and worked against, that is only the right of the mother. Guess what, the ICL my children had took the same stance, I was the cause of the children's misbehaviour at school. But I was not in the country when they misbehaved and within 2 weeks of my being part of the family again the children's behaviour improved to no misbehaviour until my Ex started saying she was going to prevent me from have any contact with the children. Guess what the ICL claimed the children's misbehaviour was therefore because I was not in the country only started because I was going to leave the country again, problem was I did not leave only moved 20 mins away but unable to prevent the assaults on the children by the mother.

My point is it is HOW you get the information of the child's wishes known, rather than the child's wishes.

To cause the school work and reports to be produced to the Family Reporter(FR) you will need a release of that information to the FR from both you and your Ex. If their is an ICL it is their duty to cause that information to be given and the releases obtained, if no ICL or the ICL refuses as in my case, make a procedural application to the Court for an Order if a letter to the Registrar does not  enable a subpoena to cause the production of the information.

The school maybe classed as a 3rd Party therefore Non-party Notice could be required  instead of a subpoena.

The Registrar will probable tell you the best way to get the school work, reports and misbehaviour records sent to the FR.

Last edit: by No-Justice

4mydaughter said
4mydaughter said
R & A should be fairly easy to overcome.
I am making an assumption that the last consent orders were made several years ago when the child was 5-6 years of age. Perhaps vermigarrd could clarify this. Assuming my assumptions are correct or thereabouts - what's changed is that the child is now 9. I'd suggest that the orders that the orders made several years ago need to me re-examined because they probably aren't relevant now given the child age.

In my matter last week, Final Orders were made but the Judge encouraged me to make another application in 2-3 years time.

As Monti and others would know, I asked the court to make orders for 50/50 equal timeat around the time the child reaches 6-7 years. The Justice said he could not make orders that far out because of the current situation.

I asked him something like, 'would I have trouble overcoming R & A if I made an application in 2-3 years time'. And hereplied 'I would think not. The child is now 3 years old. In 2-3 years the child will be 5-6. There's a big difference. Also, given the orders I'm about to make in 2-3 years time your child will be spending significant time with you which is not the case at this time. That is a significant change' or words to that effect.

Then he said, 'Look, what I'll do is make a note on the Orders that you may bring an application in 2011 or 2012."

I replied, "Thanks, that's a good idea".

Arguing that orders are a few years old is not a change of circumstance. As an example stating that three years ago we were not aware the child would be three years older is of course an argument most Courts would reject. What has to be shown is a change of circumstances and in many cases these should be significant.

In 4MD case the Judge gave you leave to re apply which technically bypasses the threshold test, this is also a common situation when we get such orders tucked inside consent orders.

vermigarrd your daughter is not being packaged into a generic slot by the Family Courts. That age group is not considered to have the maturity to fully understand the consequences of an action. Reverse the situation and ask yourslef if you were your daughters primary carer now and she wanted to live with her mother - would you agree?

What will have far more bearing is the circumstances surrounding the Mothers care and the emotional effects on the child and whether the Court might view this as a permanent situation or one that could be rectified and the short or long term damage this might cause.


Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
No-Justice said
My point is it is HOW you get the information of the child's wishes known, rather than the child's wishes.

To cause the school work and reports to be produced to the Family Reporter(FR) you will need a release of that information to the FR from both you and your Ex. …
Okay, I definitely need some procedural help here as I suspect some of the material I have already included in affidavits may be inadmissable, although this issue has not been adressed to date.

By the way the other party is also self representing, and there is no ICL.

So far in Affidavits I have included as appendices copies of:

  • Teacher's Diary notes
  • School Report
  • Physcian's letter
  • Various Receipts
  • Medical Certificate
  • Photographs
It was my intention to file an affidavit and include the latest information I have received in connection with the "time out" agressive behaviour, which was a letter the schiool prepared addressed to me.

Have I done the right thing so far … or is the material I filed already potentially inadmissable and can this be remedied ?

If the material is in my possession why do I need my x's approval to provide itto the FR ?

One thing I could not understand was an earlier comment that suggested no new material could be provided …. If the FR has access to the File and alll affidavits so far …. and if no new material can be provided …. why did she ask for me for documents I would like to be reviewed ? If she already has access to the material upon which I am allowed to draw her attention to ???

Bit confused on all the procedural stuff here ?

Also in respect to:

"Reverse the situation and ask yourslef if you were your daughters primary carer now and she wanted to live with her mother - would you agree? "

The answer to that is a definite YES.

And if I am successful, and If my daughter asks me if she can return to her mother in say 6 months time …. I will let her. Because in the end it is her happiness and well being that is my primary concern. While I believe that I can provide her with a future that will offer better outcomes, a big part of that is the emotional stability and happiness she will enjoy. I feel she has the maturity to know where she feels safe, secure and happy. If she tells me that is with her mother, then I will not deny her. This is not about winning, or trying to right some injustice done to me 6 years ago. This is about standing up for the rights of my daughter and providing her with a future that balances her best interests in both the short and long term.

When my daughter is an adult and can reflect upon all that has gone before, I want her to know that I acted always in her best interest, even if that necessitates going against what is in my own.
If the reports notes etc are in an Affidavit, just give the reporter the Affidavit. Don't worry about admissibility, that is not the job of the reporter to determine.
You will need a release of the information to the FR from both you and your Ex if that information is not in your possession.If annexured to an affidavitit isannexured as evidence of things stated within the affidavit and should have a cover certificate witnessed stating what the annexure is and the page numbers of the affidavit it is referred to on, therefore is relevant.

I will try and post an example of what I use but the admin might have their own views on how it is done.

"Certificate of Annexure # referred to in the affidavit of
______________ sworn ___ ________ 200_"
IN THE FAMILY COURT OF AUSTRALIA No. ____________of 200__
____________________ REGISTRY

APPLICANT _________________________
RESPONDENT  _________________________
ICL  _________________________

 Description of "Annexure #"

A copy of what was reported in the NZ Herald 19 April 2007.
I, _____________ of _____________ VIC. ______. Employed as _____________________, being duly sworn make oath and say as follows. Attached hereto and referred to at pages __, __, __ of my Affidavit sworn ___ _______ 200__, is a copy of ____________ marked by hand on the first page as "Annexure #".

 __________________________________________
  (Signature of deponent)

This document was produced and shown to _____________________ at the time of swearing his/her Affidavit this ____ __________ 200__.

Before me: ___________________________ ________________________________

  (Print Name of witness) (Signature of witness)

Space it with line spaces I have removed to save room on the page.

In the affidavit at the place I have made the first statement of reference to the annexure I put "a copy of filed and marked by hand on the first page as "Annexure #".

At the end of the affidavit I make a list of the annexures with a reference number superscripted like this1 which is place on each reference to that annexure within the affidavit.

List of Annexures relied on in this affidavit are as follows;

1 "Annexure 1" is a draft copy of the "Writ of ______" sought, marked by hand "Draft Copy Annexure 1", referred to a pages 1, 2, 9, 16, & 19 of this affidavit
2 "Annexure 2" is a copy of the Orders of _________ copy marked by hand on the first page as "Annexure 2", referred to a pages 1, 2, 3, 4, 9, 11& 12 of this affidavit
3 "Exhibit 3" is a copy of the transcript of _______ In the matter of [2007] _________" marked by hand on the first page as "Annexure 3" referred to a pages 4, 11, 12 & 14 of this affidavit.
4"Annexure 4" is a photocopy of the photos of "________" marked by hand as "Annexure 4" referred to at pages 4, 6, 15, 16, 17 & 18 of this affidavit.

The fact that it is evidence of a thing referred to or stated in the affidavit makes it admissible whether or not the issue being referred to is relevant, prejudicial, or inflammatory is more likely to cause its removable.

Have the annexures listed with pages is handy for both you and the judge. It takes some time and patients to get it right and typos of page numbers are easy to make if you modify your affidavit while making the referances.
Thanks,

The way I have put the stuff in is okay in terms of presentation.  I was more concerened whether for exmaple the "diary notes" would be considered heresay and may not be valid unless contained in a sworn affidavit themselves.  

Also from what you just said I take it that if documents are in my possession and/or in affidavits, its okay to give to FR.

Cheers   Vermi
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