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"The little people in family disputes suffer, twice the pain, double the loss, two times longer"

Eternal Maternal Prison

Hello to everyone




  I have a few questions that are derived from different aspects pertaining to my case.


I am the applicant father seeking a 50/50 share care and parental responsibility outcome, how to approach this with validation?

I believe, actually I know my case is highly complex, are matters of this nature better dealt with in Children’s court rather than Federal circuit court?
  1. I recently became aware that a 3rd Judge is assigned to my matter. How can I search for judgements similar to my case with a particular Judge?
Can I mention Judges name on this forum?   
  1. When listing the times and dates orders were contravened on a contravention application, it then asks for an affidavit to be attached what is the correct terminology supporting those dates?

Fail to present with child?

Access was denied on date?….

Other party did not attend change over?
 
  1. I am a SRL and I am at a loss of what to include in a case outline as to what the courts perception of what is relevant and what is not. The topics in question are as follows; -

My ex prior Family court proceedings? as she fell pregnant twice, Ex has made no effort to be in their lives, and was charged with DVO breaches. Ex owes thousands in child support.

How to request the court to further the assessment of my ex mental health and wellbeing, capacity to care for a child. Where concerns are apparent in the Psychiatric report and the ICL case outline of these exact issues.

 
  1. How to convey to the court my overwhelming concerns of my child’s hygiene, grooming and nutrition, skin irritations from foods and bites.  Coupled with my child living in a household where a volatile relationship exists between my ex and the maternal grandmother.

15 months ago, when my Daughter was 3, years of age she was subjected to Family violence. Due to the maternal aunt and her boyfriend physically abused my ex, in child’s presence and kicked them out of the house. Currently my ex frequently returns with child to maternal aunt’s residence and stays 5 to 7 days, 400km away is that distance acceptable?

.
 
  1. My ex has been primary carer for 2 years, in Jan 2015 child and my Ex went out one day and refused to come home withholding the child.

February 2015, I filed a recovery and the magistrate ordered the child returned home forthwith, ex parte proceedings

Returning 7 days later where magistrate made interim of 50/50 care week about, adjourned to the federal circuit court in July 2015.

March 2015 4 weeks in orders my ex withheld child until July hearing.  Federal judge set trial for Feb 2016 and made interim orders for my time with child to be 1 day per week from 11am to 5pm, orders by consent for overnights to commence in October.  My ex in that time moved 400km away I had to drive 800km to see my daughter which I did.

August 2015 ex a daughter kicked out. Moved in with Maternal grandmother who lived 1km away from me.

October 2015 consent orders for overnight were refused by ex.

February 2016 trial was adjourned till November 2016. Federal judge made interim orders for overnights to commence in July 2016

June 21st 2016 mother broke her hip at her sisters 400km away and was hospitalized for 6 weeks,

Child spent most of that time with strangers on mother choosing them over me caring for her.

Since August 2016 ten fortnights have passed where orders are alternate weekend for overnight care of my daughter, five of those were not facilitated by my ex due to travelling to the maternal aunt’s 1 week every month.

November 2016 hearing presided by a new Judge unfamiliar with the case by telephone. I learned was just a mention. Trial adjourned again to April 2017.


 
  1. The child’s attendance poor at kindergarten, her development socially, recreationally and educationally is well behind other kids her age,

Childs authenticity is diminished she does not express any love or moments of happiness or fun times we have had in presence of mother or on the phone
 
  1. This relationship between my daughter and I for the last 3 years have been severely inhibited more so by the courts based on here say and speculation from my ex. Nothing has deemed me unfit or inadequate to properly care for a child.

In the magistrates courts my ex maternal aunt and uncle have made convoluted false statements to take an order out then have tried to get police to breach me on an order with more unsubstantiated allegations. They combined have made 14 police statements and 5 stat decs that do not coincide with one another and are at times physically impossible putting me in two places at the same time  
jaspervine.

To clarify.  The original interim orders in 2015 provided for a 50/50 week about arrangement?  Mum withheld and you filed a recovery but the orders were amended to daytime visitation only? Several more appearances and further interim orders made, all providing for daytime only visitation with overnights to start several months later? Mum has refused overnights on all occasions and thus breached all court orders to date? No enforcement of orders by Judge on any appearance?

What do the current interim orders provide for? Are you primarily seeking some guidance on how to file a contravention application?

Your case has been going on for 2 years? Were you previously represented?


Any opinions expressed herein are strictly for informational purposes and are never to be taken as legal advice.
Hi Swambo

 No the mum left the family home and with held the child in Jan 2015, at that point there were no court order's or any proceedings initiated.

I filed a recovery order in Feb 2015, On 17th February 2015 the recovery order was made. The Magistrate ordered that the mother deliver the CHILD forthwith to the father's care. The father will have 100% care of the CHILD at the family residence more importantly the CHILD'S home to which she is most familiar with.

The Magistrate then ordered that both parents will return to court on the 24th of February, interim family law orders were made that day for 50/50 shared care. Then the magistrate adjourned further proceedings to the Federal circuit court on June 15th 2015.

The mother with held the child on the 15th April 2015, I sought a lawyer a couple days after and requested a contravention be filled. Upon attended the Federal circuit court on 15th June,  I learned that my lawyer filed the contravention incorrectly.

The only matter before the Judge therefore was the adjourned interim family law orders. The Judge adjourned the matter to the 17 June and ordered the child attend upon a court appointed family consultant, In their report was suggested the child begin overnights in the fathers care within 4 weeks. The Judge did not agree and time spent with the father will be every Sunday 11am to 5pm. and the parents will return to court on the 2nd September 2015.

On the 2nd of September my lawyer still had not filed the contravention application, The Judge struck out the overlapping alleged contraventions, allowed a 60 day right of reinstatement, and the court made orders by consent that overnights with the father shall commence in October 2015. Trial was set for Feb 25 2016.

The mother did not comply with the consent orders and there was no overnight time for my child and I.

At Trial in February 2016 there was a visiting Judge whom presided our case, this was the first time any one other than the original Judge had dealt with our matter. The matter was adjourned to the 2nd November 2016.  The Judge ordered that overnight with the father shall commence in July 2016.

Since July the mother has only facilitated overnights 50% of the time.  The orders state the mother and father have equal parental responsibilities, but to this day that has been 0. The mother travels interstate with the child without my consent, or if i am told the child is sick I do not get a response to my request of a medical certificate.

This has all the signs of alienation


jasper.

While I understand from your post that there has been a history (pattern of behaviour?) of the mother not following the court orders and that your lawyer failed to file the correct paperwork, as you now have Final Orders, I will concentrate my opinions mostly around the issues arising since the final orders were made.

Equal shared parental responsibility
Equal shared parental responsibility relates to major long term decisions e.g. school child will attend. It does not refer to the day to day decisions and responsibilities of a parent generally e.g. what the child eats. While there can be some overlap of the 2 at times (and sometimes specific orders intentionally/unintentionally create overlap or conflict), generally speaking, unless it results in a welfare issue, what either parent does with the child during the time that the child is in their care is the decision of that parent. The intention being to provide a level of autonomy for parents when caring for the child.

You will need to be more specific as to how decisions made by the mother are unilateral with regards to ESPR.

The mother travels interstate with the child without your consent.
Unless otherwise provided for in the orders, interstate travel with a child, for the purpose of a holiday, is entirely the decision of the parent who has care of the child during that period. While it might be a courtesy to inform the other parent of intention to travel interstate, unless it interferes with the other parents time (or the child is absent from school because of it?), there is generally no requirement to do this. Relocation and International travel are a different matter.

Is there an order (in the Final Orders) to the effect that the parents need to inform each other of their intention to travel interstate with the child? Or to the effect that interstate travel must be made by consent? If yes, then she is not following the orders in this regard. If no, then it is entirely her decision if she decides to travel interstate with the child and unless the travel interferes with your time with the child/school then she does not need to inform you of it nor does she need to seek your consent. Unless otherwise ordered, the same would apply to you.

The mother does not provide you with a medical certificate.
I gather that sickness of the child is the main reason the mother is using to not hand the child over during the periods the child is meant to be in your care?

Unless otherwise provided for in the orders, an excuse of the child being sick, unless due to serious sickness or injury resulting in emergency/urgent medical treatment (or by consent of the other parent), is not usually a good enough reason to not follow the court orders. There should also be an element of common sense here.

Is there an order to the effect that the child will remain in the mothers care if the child is sick? If yes, then depending on the terms of the order, she may be within her rights to not hand the child over during those periods. If no, then she is not following the orders in this regard.

Is there an order to the effect that a medical certificate needs to be provided to you when the child is sick? If yes, then she is not following the orders in this regard if she is not supplying you with one. If no, then she does not need to provide you with a medical certificate and it is likely enough that she is informing you that the child is unwell (which you state she is doing).

The mother has only followed the orders for overnight time 50% of the time.
Subject to any order (in the current orders) that suspend your time with the child on certain days/occasions or under certain conditions, then the mother needs to bring the child to all court ordered visits.

Initiating contravention proceedings is entirely up to you. A 50% failure to hand over the child, if this correct, is high in my view but I cannot make this decision for you.

While it may assist your case to argue a pattern of behaviour by the mother using examples of past breaches (past orders), you will need to show breaches by the mother of the most current orders.

If you have evidence e.g. text messages, email correspondence et al that the mother has consistently failed to hand over the child/bring the child to the court ordered spends time with arrangements this will greatly assist your case, and the Court.

Contravention proceedings are double barrelled. The applicant must prove the contraventions happened, the respondent must prove there was a reasonable excuse.

Be prepared for the possibility of a cross-application if the mother alleges you have also breached the orders.

Edit: Fixed up a couple of sentences as well as errors arising from my habit of double spacing between sentences :P  i.e. when not logged in these show up as a question mark between sentences

Last edit: by SWAMBO


Any opinions expressed herein are strictly for informational purposes and are never to be taken as legal advice.
Dear Swambo

 Hi I am sorry if I was unclear about final orders, currently the orders are of an interim basis, trial is set for March 2017.

 I need the court to be aware of the consistent refused access, also the mother has been diagnosed and treated with mental health issues, namely narcissistic personality disorder.

 I have no agenda regarding punishment of the mother, I simply want to ensure our daughter is raised in caring and nurturing environment. I worry that her cognitive development process is diminishing and her authenticity is supressed, and do not want issues to arise from this later in her life.

 Though I am not obligated I truly believe the mother needs psychiatric treatment but needs a push to initiate it. I sincerely hope that she will find inner peace one day and this will no doubt be in the best interest of the Child and for that matter all those involved.

 There are some in roads substantiated in the Family report and Psychiatric report of these proceedings raising their concerns of the mother's personality disorder but state that they are not the trier of facts in this case.

Will the court investigate this further during the trial and or thereafter if the relevant red flags are apparent?

All the best Jasper
jaspervine said
Dear Swambo

…., currently, the orders are of an interim basis, trial is set for March 2017.

I need the court to be aware of the consistent refused access, also the mother has been diagnosed and treated with mental health issues, namely narcissistic personality disorder.
and
jaspervine said
Will the court investigate this further during the trial and or thereafter if the relevant red flags are apparent?
From what I have read in previous threads I understand you had a recovery order issued and the child to live with you 100%. From there it is very hazy as to how you ended up with such little time. Your contravention was a complete failure and it has taken many months to get traction on anything.  The court will have set down dates when certain things are supposed to happen. What are the dates for final filings and who is to file what?

The court does not investigate anything. It is entirely up to you or your legal representation to present a case outlining everything that has gone on with evidence to support all matters raised in your final affidavit, amended application in a case and case outline. The case outline is critical as it sets out the case law you intend to rely on and is for the Judge to make a decision.

If you believe there is a need for the mother to require psychiatric treatment you had better have a lot of evidence as to why and that will need to be supported by subpoena material from her clinicians and or Medicare showing the range of places she is having treatment. If you are a self-represented litigant, you will need to file to seek leave to issue these and don't forget to add the fee to any issued subpoena. You should have by now already issued subpoena material on all agencies/bodies the child has an association with.

This is an adversarial system where one parent will attempt to show how the other is not a suitable parent. Interim orders were made that include for Shared Parental Responsibility (61DA). This will at least allow you to request significant and substantial time in certain circumstances (read 65DAA). If you are only getting limited contacts in orders 50% of the time since 17th June 2016 (every  Sunday 11am to 5pm), then you should have filed a contravention proceeding. You have had six months to sort it out so why have you done nothing?
jaspervine said
There are some in roads substantiated in the Family report and Psychiatric report of these proceedings raising their concerns of the mother's personality disorder but state that they are not the trier of facts in this case.
When was the Psychiatric report issued or is this just material mentioned in the family report. You cannot release the family report to any other party to the case unless it is a legal professional and often not without permission of the court. Is there an ICL appointed in this case?

The final hearing is in March 2017. You are sadly no where near ready in what little I have read here. You need to take a much more active position in this if you expect to get any sort of reasonable outcome. Have you drafted the detailed orders you are seeking? You could read much on this web site about what you need to do. Just remember this is an adversarial system and there are no friends on the other side.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Secretary SPCA said
 From what I have read in previous threads I understand you had a recovery order issued and the child to live with you 100%. From there it is very hazy as to how you ended up with such little time
I too was wondering how this happened.  Its a big move from a successful recovery order with 100% time to a few hours a week. Without knowing the reasons how or why this happened its pointless going any further with opinions


Nothing i say should be taken as legal advice. I am not a Lawyer. If i help you it is of your own free choice to listen to what i say or not. I do not create documents for you. I do not represent you.... Purple Monkey Dishwasher
Hello

Secretary SPCA said

From what I have read in previous threads I understand you had a recovery order issued and the child to live with you 100%. From there it is very hazy as to how you ended up with such little time. Your contravention was a complete failure and it has taken many months to get traction on anything.  The court will have set down dates when certain things are supposed to happen. What are the dates for final filings and who is to file what?


I did file an order for recovery and it was made on the 17th of February 2015, we returned to court a week later and interim family orders were made for 50/50 care week about 50/50 parental Responsibility

On the 15th April 2015, the interim family law orders were contravened, child with held by mother.

My VLA lawyer filed a contravention that was listed to be heard in July 2015, the contravention application had no affidavit attached and was not heard by the court in July.

June 2015 the Judge order time with the father shall be every Sunday from 11am to 5pm due to the child primarily in the mothers care.

In July 2015, I informed my lawyer I no longer required their services. I filed a contravention application that was listed to be heard September 2015.

September 2nd the Judge dismissed any overlapping allegations that were in the first contravention application completed by my practitioner at the time, and the second application that I completed. This basically dismissed the contraventions that occurred from April 2015 to July 2015. The remaining allegations the Judge ordered that I have a right of reinstatement within 60 days upon written application before the 2nd November 2015.

September 2015 parties made agreement in writing that overnights were to commence in November  and are to be each alternate weekend. In November the agreement was refused by the mother.

October 2015, I made an application for contravention and it was the decision of the Judge who had presided over all proceedings in our matter that the contravention will be dealt with at the trial in February 2016.

February 2016 at trial the presiding Judge was new from Queensland filling in for the week. The trial ended up getting adjourned.

Out of the court as a SRL I brought to the attention of the ICL and the Barrister for the other party, the contravention that was still afoot to which they had no idea of. Upon rechecking their file, they realised it was before the court today.  Her honour was also un aware of the application and was called back into court.  The barrister for the ICL and the Judge strongly urged that I dismiss this application in the hope of some goodwill in return from the other side, to which I took their advice and dismissed the contravention application.

February 2016 The ICL recommended that I get legal assistance, I took their advice a retained a legal practitioner in March 2016. Contraventions are still occurring.

April 2016 my legal practitioner confirmed that they would draft and complete my documents for trial and represent me at trial that was set for 3 days in November 2016.

10 days before the trial my lawyer withdrew as my council based on the family report.

The trial in November was set to proceed and was presided by a 3rd new Judge subsequently the matter got adjourned until March 2017.

I am to file and serve any affidavit material no less than 28 days prior to trial.

The respondent mother is to file and serve any affidavit material no less than 14 days prior to trial.

Each party file and serve a case outline no later than 2 days prior to the hearing.

Secretary SPCA said
This is an adversarial system where one parent will attempt to show how the other is not a suitable parent. Interim orders were made that include for Shared Parental Responsibility (61DA). This will at least allow you to request significant and substantial time in certain circumstances (read 65DAA). If you are only getting limited contacts in orders 50% of the time since 17th June 2016 (every  Sunday 11am to 5pm), then you should have filed a contravention proceeding. You have had six months to sort it out so why have you done nothing?

 I have no excuse as to why I have not filed a contravention, I have instructed 2 practitioners to do so and they have both failed too.

Secretary SPCA said
When was the Psychiatric report issued or is this just material mentioned in the family report. You cannot release the family report to any other party to the case unless it is a legal professional and often not without permission of the court. Is there an ICL appointed in this case?

 The Psychiatric report was issued in November 2015. It was a separate report done by some one other than the writer of the Family report. Yes there is an ICL appointed to the case.

All the best JASPER
jaspervine said
10 days before the trial my lawyer withdrew as my council based on the family report

Was it that bad for you? What did it actually say or recommend? Were you pushing for impossible orders given the report and that is why your lawyer bailed?


Nothing i say should be taken as legal advice. I am not a Lawyer. If i help you it is of your own free choice to listen to what i say or not. I do not create documents for you. I do not represent you.... Purple Monkey Dishwasher
The Wolf said
Was it that bad for you? What did it actually say or recommend? Were you pushing for impossible orders given the report and that is why your lawyer bailed?


The report recommended the child live with the mother, there was no bad findings in the report in regards to me. I had 3 sets of  alternate orders for the court to consider also my lawyer. My lawyer was a VLA practitioner therefore just prior to trial VLA wrote a letter to my lawyer asking if it was viable to proceed. My lawyer initially confirmed yes that it was in their opinion, 2 or 3 days later they retracted this and withdrew.

All the best Jasper   
jasper.

Ok first things first.  You no longer have a lawyer and the trial is in March.  Have you started preparing your trial affidavit?  If not you will need get onto it asap to allow yourself time to review it and make changes prior to filing.

You have 3 sets of orders filed with the Court? Have a look over them and work out 1 set of orders.  You can file an amended initiating application with these at the same time as the affidavit.

You refer to a psychiatric report from 2015. Is it in this report where concerns about the mothers mental health are raised? Was there a diagnosis? What were the recommendations of the treating psychiatrist?  Has this report been filed with the court? It can be attached as an annexure to your affidavit.  Are there any other, more recent, medical documents that you have access to that indicate the mothers mental health continues to be an issue? What about in the Family Report?  Have a good read through it to see if there is anything in the report that could support your claim.

Be aware however that even if a parent has been diagnosed with a mental health issue, if the illness is being treated and managed and does not interfere with general daily functioning or care of the children, then this will not usually be viewed as significant enough, without other welfare issues for the child while in that parents care, to necessitate changes to a child's living arrangements.

Is it likely that you will have a barrister for trial?
 

Any opinions expressed herein are strictly for informational purposes and are never to be taken as legal advice.
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