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About to give up!

Complete Bias from Magistrate and ICL.. SRL ready to either throw in the towel or attempt 'passive resistance' (non-compliance)

Can anyone tell me how to get my current legal matter, which is a part-heard trial, in front of a new magistrate and ICL?

There is bias and no logic to what these two men have ordered me to comply with for the past year.

A supporter of 'Family Violence is NOT O.K.' and equally of 'Fight for Good Father's Rights'.
you need to elaborate. do you have grounds of no confidence?
What does no confidence entail? What do u hav to have evidence of?

A supporter of 'Family Violence is NOT O.K.' and equally of 'Fight for Good Father's Rights'.
well what is it that seems bias?

i had a magistrate that served in chambers with my exes uncle i was asked if i still would like the same magistrate believe it or not i kept him.
bias.. um.. i put a contravention in about reimursements of travel, as the other party is supposed to reimburse me half the costs of flights upon recieving an itinerary. With my contravention I filed an affidavit discussing the financial hardship it was causing me that he was not reimbursing funds as ordered. But rather than hearing the contravention immediately, as is required by law and the purpose of a contravention to begin with, he set it back to be heard on the first day of trial. This then ate into the first day of trial.

Oh and then, on the second day of trial, the magistrate didn't turn up until 2:15pm and left at 4:30pm. Didn't matter to him that I had paid my Barrister $3,000.00 to be there to appear for me for the day!

And the ICL stopped an affidavit that my then solicitor filed with the court (explaining my son's hospitilisation to have grommets put in both ears, adenoids out and tonsils out less than 2 weeks prior to his 3rd birthday as a result of the frequent and onerous air travel they have made me put my son through) going to the family assessment report writer. And I was told I was not to take any personal documents to show her or to explain that my son could not travel at that time due to medical reasons.

The father did however recieve the document, which also explained why the father was informed of the surgery when he was, yet he went into his interview with fam assessor claiming he had no idea why I hadnt informed him of the surgery etc earlier than I had.

The ICL also e-mailed me directly, and threatened that if I even attempt to alter the father's time with the child, he will speak to Family Assessment writer and urge her to change her view, which as it stands is in favour of me.

BUT, the family assessment report writer's recommendation was for a reduction of travel for my son, and that the father should travel on the intervening fortnight if he wants to bring a supervisor or use the ccs where we live.

Any of these grounds..?

A supporter of 'Family Violence is NOT O.K.' and equally of 'Fight for Good Father's Rights'.
Hang in there amre, there's a light at the end of the tunnel and it doesn't necessarily belong to an on-coming train.

It's hard to make much of a contribution to the discussion without more detail though. Why did the ICL not want the medical evidence given to the Family Report writer? More fundamentally, what does that medical evidence have to do with the on-going matter? Tonsils, adenoids and ear grommets are all common issues for 3 year old children, with or without frequent air travel. Perhaps the ICL is of the view that these are routine and have no relevance to the matter?

The time allowed by Courts is at the discretion of the court: your convenience is simply not a factor and neither is the cost of your lawyer, sadly. May I ask why you have a barrister appearing at all in what seems to be a fairly straight-forward proceeding that is likely to be decided on the recommendations of the FR and ICL? I know it's an important matter and you're doing what you think is necessary to achieve your desired outcome, but barristers specialise in the nooks and crannies of law; using one for a simple proceeding is overkill and as you say, very expensive.

Take a few deep breaths, have a good think about what precisely you're trying to achieve and why and forget about the bias or otherwise of the court. If you don't, you'll work yourself into a lather and waste the time you should be using to prepare for the hearings.

Set everything out again in a simple list. One for your requirements, one for his. Work out which is important and which is not and then focus on the things that are most important first.

It's hard to keep positive when things are dragging out, but remember that this too shall pass and in a couple of years it'll be a bad memory, while you, your son and your ex will all still be rubbing up against each other. The main aim is to make that as frictionless as possible.

On the subject of emails, they aren't a substitute for properly served documents, which require someone to be able to say "I gave them to him/her". It's just another fact of life, so it's best to accept that and get on with it.
Craigo said
 It's hard to make much of a contribution to the discussion without more detail though
True, however…

Craigo said
 Why did the ICL not want the medical evidence given to the Family Report writer? More fundamentally, what does that medical evidence have to do with the on-going matter? Tonsils, adenoids and ear grommets are all common issues for 3 year old children, with or without frequent air travel. Perhaps the ICL is of the view that these are routine and have no relevance to the matter?
While I understand the relevance of Craigos point in that these kinds of medical issue can be very common to some children and as such it might be difficult to establish that they are a direct result of the frequent air travel for the child as opposed to something which would have developed anyway regardless of the travel, I do not agree  that the ICLs conduct in trying to hide evidence (if this is what has happened?) which I assume is from the childs treating specialist and is included in your affidavit also? is open to the ICLs own interpretation of the relevance of the evidence.  Nor is the ICLs approach consistent with the ICLs legal obligations assigned to him by the Court to represent the child. 

Whilst certainly medical opinion can be the subject of scrutiny, the fact that (and I assume here that the ICL has not accessed further information from the childs treating doctor and that the ICL does not hold a duel qualification in law and medicine with a specialist knowledge in paediatric medicine for him to make any self determinations about the degree of accuracy or relevance of the evidence?) the evidence still requires examination in the context of the possibility (not always certainty I say this as medical opinion is not always definitive) that the frequent air travel is the cause (or at the very least an exacerbation of) the medical issues of the child.  But also that the continuation of the regular air travel for the child (considering the child is being treated) is likely to cause further medical issues in the same regard for the child.  None of which are open to the ICL (who is probably not qualified in the area) to decide without appropriate assessment of the facts.

Having said that though, and being based on my own equal lack of qualifications in medicine, I would think that given the medical issues outline by you can be common to some children generally (i.e. they are not a very straightforward diagnosed condition etc ) that while the evidence should not be denied, there should still a lot of scrutiny of the evidence and a simple letter from the childs treating specialist (without background history of the child e.g. was there issues with the childs speech previously to the air travel which could have indicated pre existing hearing problem  etc etc as well as supporting information that backup the position that the cause/exacerbation of the medical issues is the frequent air travel) should need to be shown.  Just my opinion.
 
Craigo said
 The time allowed by Courts is at the discretion of the court: your convenience is simply not a factor and neither is the cost of your lawyer, sadly.
Too True!  I am yet to hear anyone say they were "convenienced" by the Court process
 
Craigo said
… that is likely to be decided on the recommendations of the FR and ICL
Agree in part.  IMO trends over the past 6 months have shown less consistency but thats a diff issue. 

Craigo said
 Set everything out again in a simple list. One for your requirements, one for his. Work out which is important and which is not and then focus on the things that are most important first.
Easier said than done but I couldnt agree more!!

Craigo said
On the subject of emails, they aren't a substitute for properly served documents, which require someone to be able to say "I gave them to him/her". It's just another fact of life, so it's best to accept that and get on with it.
Email is a perfectly acceptable manner of service (Lawyers use it all the time and in straight forward  applications special service is only a requirement for the Initiating Application, not response) and if you have provided a service address in your Court materials (I believe you  are self represented now?) then the documents could have easily been sent via that route. 

However, you have said you were served on the weekend and that you have a Court appearance on Monday?  While not ideal, perhaps the documents were served in this manner due to the lateness of giving them to you.  Either way if the lateness of you receiving the documents has given you less opportunity to respond to them you can raise this with the Court on Monday (It might not do much but will at least make the Court aware). 

"Never, "for the sake of peace and quiet," deny your own experience or convictions". Dag Hammarskjold
I needed help with my case and couldn't afford a lawyer and found these guys invaluable  srl-resources.org
Craigo, my case is far more complicated than you could imagine or that I could probably explain here. In essence, it is a relocation matter. I relocated without permission and have had the book thrown at me. Which, without extenuating circumstances I would agree is fair. However, the father in the matter was extremely violent and manipulative to the extent that I don't feel safe in my home town. To add to this, he socially isolated me during the relationship and has done so further since I left turning everyone against me. Unfortunately I protected him too well while he was abusing me and few knew of the real circumstances and ins and outs of the relationship and this has made it very easy for him to plead his case to everyone we knew together as 'the victim'.


Prior to me leaving, I attended mediation but the father did not comply with the outcomes and I did not deem it safe for my son to visit with his father until he did. The father did not put any effort into trying to spend time with my child for 11 months prior to me leaving other than turning up to mediation and not following outcomes and then turning up to a second mediation 3 days before my sons 2nd birthday expecting to have immediate and unsupervised contact and disregarding the outcome of the first mediation where it was agreed that there should be a period of gradual reintroduction with safe guards to protect my son.


All in all, the father showed the general lack of commitment that was evident from pregnancy through to now. I had re-partnered and decided it was best for both my children, I have a daughter aged 12 to- who's father and I have never been to court but share parenting and have a very good relationship for our daughter. My daughter loves her dad to pieces and I have ALWAYS encouraged this and still do, and she has travelled back to spend time with her father as frequently as possible around school, and he is invited to attend and stay with us whenever he chooses to travel over as he gets along well with my partner.


So anyway, I have proven for the past 8 years that I am all for shared parenting where the father is capable, trustworthy and the child is safe, and I might add I have bent over backward to encourage and maintain the relationship between my child and her father.


Back to the topic, I had denied my son's father contact with the intention of ensuring his safety before contact was to occur.


So it is a relocation matter, but the magistrate and ICL refuse to acknowledge extenuating circumstances and have treated me harshly from the outset. The thing that frustrates me the most is that they have continued to make my son travel fortnightly when it has been against his best interests in every sense of the term.
The travel began in November 2010, my child had 5/6 severe cases of ear infection and tonsillitis between December 2010 and June 2011. Then he had surgery July 6th and his doctor has indicated the causes are likely to be the travel. My son had never had either illnesses prior to travel- ever.


The icl most certainly hid evidence. He refused to allow the family assessor to read the affidavit period. The affidavit dealt with concerns about my son, and medical certificates and reports.As well as concerning sexualised behaviours that surfaced in January 2010, and became more frequent and more concerning when overnight stays commenced.


Also, I just remembered another issue that shows bias, I requested that the father be restrained from attending hand-overs as my fear of him was that great that I could not bring myself to travel on the first occasion. My request for such an order was declined. I thought this to be a reasonable and simple order considering he HAD to have a supervisor present at all times anyway.. there should have been no issue in making this order, which, would have reduced my fears in accompanying my young son who needed my presence on these trips, and thus making orders easier to comply with. The supervisor could have collected my child and met the father 10 minutes away to commence his time. But no, it took for the father to attend a handover and intimidate me, and cause conflict for this to then be ordered months down the track. All the while, I lived with fear that the father would attend whenever he felt like it and possibly hurt me. And, I couldn't get a restraint order from the police at the time despite calling them and shaking like a leaf in fear of the father because it would have contradicted the FM's order that he could be present.

So I am fighting to remain where I am with my children and my partner. The ICL's view of my requests, reducing travel, requesting the father not be present at handover, requesting the father book flights at reasonable times (not so we arrive home at 1am in the morning as he has done because 'its cheaper' unable to comprehend a 2 year old should not be travelling late at night or getting home at 1am after a 2hr drive when there are 2 closer airports within an hour of our residence!) The fact that I have argued the frequency of travel and its implications on my son and his regression in development. All of this plus more, is viewed as me not supporting the relationship between the child and father. Ridiculous!


All of this, is in fact, to adapt the arrangement to suit the needs of my son, which for some reason nor the magistrate or ICL can relate to the logic of what I have argued for!
If I am not successful tomorrow, when again, I will argue for more suitable orders to attend to my son's needs, then I don't know what I will do. And if they criticise me again, or refer to me as 'difficult' when all I have done is fight for my son's right to stability, security, appropriate travel, for my son to not have such an onerous travel regime at such a young age and my right to feel safe when complying with orders, then I fear I will walk to the nearest court room wall and start banging my head against it as it will probably result in a more logical outcome than anything the Magistrate or ICL will be offering!

A supporter of 'Family Violence is NOT O.K.' and equally of 'Fight for Good Father's Rights'.
wow this topic has grown since last night…

amre21 this is very common in the court system, i had a lodged an appllication for a drug contravention against the mother and after many dollars in court it basically got thrown out and our child is young. drugs +children is abuse right?

as craigo said the light at the end of the tunnel isnt always a train headed for u but behind closed doors there would be alot going on between the lawyers and magistrate (have u noticed in court they shortly adjourn it then dissappear together to their rooms) this is where they deal together whilst we sit out in the waiting room wondering our fate)

amre, I can see that the matter is complex. On the subject of the medical issues the ICL may be doing you a favour. If you are "having the book thrown at you" you don't need to have anything put into the mix that might mean the court will reduce the travel by leaving the child with his father.

To be completely honest, the whole thing is beyond my experience, but I know that the Court tends to look unfavourably at people who make unfounded allegations and that ICLs are generally interested in promoting arrangements that will last, as much as anything else. You're unlikely to successfully remove your child from the father's care and if you're obstructing without good reason, especially if the father has no proven record of violence, then you're likely to be viewed negatively and perhaps lose a significant part of the care time you now enjoy. I'd also not be too concerned about the time of flight issue. My kids have routinely outlasted me in staying up since they were just tots and a 2 year old doesn't really care where they sleep, they just do it.

As an aside, what has the father actually done to you or your child to make you so scared as to shake with fear when talking to the police? I'm trying to grasp what your reason was for moving so far away as to require air travel between the two locations. That's a very serious move and makes a reasonable shared care arrangement of any kind impossible, really.
Craigo, I have extremely good reason to protect my son. And am fighting to prevent the father getting significant time though I do acknowledge he needs to know who his father is and have a relationship provided it can be facilitated safely.
The allegations are certainly not unfounded. I have no concerns about the court making findings of extensive abuse etc.
And I am not wanting the father to have what you may consider a 'reasonable' shared care arrangement.
He still to this day is denying ever being abusive therefore has demonstrated he is incapable of taking responsibility for his actions. He is therefore likely to continue to be abusive to people around him, and this in not the environment that is best for my son, or any child for that matter.
I do agree that women making false allegations should have serious consequences.. and I agree with a lot of the comments on this site with relation to concerns about the new amendment bill with regards to how it will affect GOOD fathers.
But simultaneously, those of us (mothers) who have experienced real violence, are celebrating the bill because at last our children's safety will be seen as THE paramount consideration.
As I said earlier, I dont condone the actions of women who take advantage of being able to make false allegations so easily and I have a personal insight into it as my partner, who is a fantastic father has had it done to him. He is still keeping up hope that he will be able to return to court to get 50/50% shared custody of his child, who is only two. I supported him in moving with him to live in the same state as his child because he is a wonderful father who deserves to play a major role in his child's life. At the time, I didn't realise that my son's father who had previously shown little interest to commit to my son would file an application against me in court just prior to my leaving.  As I said, it is an extremely complicated situation, but are the centre of it are two good parents, wanting to continue to provide a loving and nurturing nest to our blended family.
I would not be surprised if my case, intertwined with his becomes a significant judgement case as it is so complicated.
I just hope that I can continue to fight it to the end as I know that I have a strong case, however, the fact that I am not represented and have lost a very good barrister scares me when I know I am up against the magistrate and ICL that I have- who may as well thrown on my ex's team colours and rab some cheerleading pom poms!

A supporter of 'Family Violence is NOT O.K.' and equally of 'Fight for Good Father's Rights'.
Two key points - Rebutable Presumption of shared parental responsibility - Needs to be solidly argued and evidence provided which will set the scene for where the matter goes from there in relation to contact time and secondly evidence, evidence , evidence must be able to be proved. Have you thought about working in the costs to travel with CSA. Is the agreement you have in relation to reimbursement already in orders or some other arrangement? Do you already have interim orders?

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
 
Yes we have interim orders. Trial was pushe back from march to sept then part-heard and rebooked for next year. I have just spent 3.5 hours getting my case in order for the morning and it's 1:45am and I am too nervous to sleep. Biggest concern is I am attending alone. No barrister, no solicitor, no partner as he is at home in another state. It will be me, alone, against every other person in the court room. My anxiety at being so vulnerable in the presence of my ex and his entire family (yes they all turn up, yes everytime) is really affecting me. It's frustrating because I have a case and evidence that is as solid as a rock but am afraid to walk in there tomorrow. :(

A supporter of 'Family Violence is NOT O.K.' and equally of 'Fight for Good Father's Rights'.
Good luck for today, amre. Keep a cool head, don't be afraid to ask for some time to think about issues raised by the other side and don't let yourself get pushed about. If you have any concerns about any part of the process you can always ask for an adjournment and seek advice.

Do be aware that it is unlikely the Court will agree to everything you want and that you will generally do better to come to a willing agreement than to stand too firmly on your digs.

Reading between the lines of what you've written there seems to be more than a little undercurrent around "teaching him a lesson", which is not conducive to good court outcomes.

I hope you managed a good, or at least adequate, sleep and that things get worked out for you all.
The only thing I hope I "teach" them, is that I am stronger and more intelligent than they (paternal family) believe, and that even now without a lawyer I will still fight for my sons right to stability, consistency in routine and the opportunity to thrive without the onerous travel imposed upon him. And I want to make the point that they, professing to care so much for my son, have not once in 12 months given my son a rest from travel by arranging to visit him in our state.. Not even one visit! I couldn't lessen the travel as it would have equalled contravention, but they could have at any point.
I am so passionate about my cause.. I hope I remember to keep my emotion at bay today!! And I suppose I am fearful of being cut down and humiliated by the ICL in front of the paternal family, as was the case when I appeared by phone recently- not much fun when they gang up on you..
Thanks for the well wishes Craigo, and the advice. Fingers crossed I can argue my points articulately! :)

A supporter of 'Family Violence is NOT O.K.' and equally of 'Fight for Good Father's Rights'.
Hi amre,
just wondering how things went for you.
Hey Craigo,

It was a disaster. My entire application was dismissed. Not one order granted. So I can't get legal representation for trial. My ex gets my son new years eve, I argued against because he is a violent drunk and the magistrate all but agreed but simply said 'that's why visits are supervised' (by his sister who behaves like an idiot when she gets drunk, along with all his mates at their parties!)
Magistrate didn't release my house from an order so I can't sell to get funds for legal representation and to pay bills but am expected to keep flying with no money, and to appear with no lawyer because I owe them over 25k so they won't work for me. The icl said I will more than likely sell my house then try to get legal aidso I shouldnt be allowed to as I haven't paid my half of his costs. And when I asked for certain members of exs family to be banned from attending hand over because they are abusive, the magistrate referred to their lies saying that they allege I am the one who causes problems and still allowed any/all of them to attend! The issue of changing interim order so my son would only travel once a month rather than fortnightly and the father travel too was completely dismissed. The magistrate dismissing my argument that the child is suffering regressed development (supported by evidence of daycare and discussed a lot in family report).
And I wasn't believed about the incident at ccs Saturday as the affidavit of service said I refused to accept documents- though I was never actually served! Ccs back me on this but obviously couldn't obtain their report, which would also highlight other lies the father has told and that were used on me yesterday, by yesterday!

So all in all, I was completely ignored and once again ICL, magistrate, and father's barrister worked well as a team!

A supporter of 'Family Violence is NOT O.K.' and equally of 'Fight for Good Father's Rights'.
I'm sorry to hear that amre, all though not really surprised from what you'd already told us.

Unfortunately, you're the one who has chosen to move away and you've obviously not convinced the court that your reasons were sound. I know it's tough, but you have to come to terms with the fact that in the eyes of the law, you're the parent who has not done the right thing, rather than there being any conspiracy to do you out of justice.

This situation is obviously not sustainable though, so you'll have to consider how you're going to change things. Perhaps consider moving back closer to the father, for a start. If you do that you'll be able to apply for a new hearing as circumstances will be different, but you'll probably need to improve the relationship with the father if there's going to be much difference in the decision. Also, the child is going to start school soon enough; what are the plans for when that happens?

You're going to have a great deal of pressure on your shoulders over the next little while. Do you have anybody to help you in dealing with that?

It's a tough time. I hope you get things on a better footing as soon as you can.
I think that the biggest issue here amre is that you seem to be fighting against the entire paternal family having any involvement with what you frequently refer to as "your" son and that, whilst I do appreciate that you could have legitimate concerns for the child's safety from the father and you have said you can prove this, you still have not come to accept the fact that just because the child lives with you does not mean that the child's relationship with their father is not as important and nor can you make all of the decisions independently of the father.  It is not only up to you to decide what is in BIC, there are 2 parents here.  Of course I agree that where family violence has happened that this contact must occur in a safe environment for the child but unless there is more to this, it seems that you are trying to find any possible argument to prevent the relationship.  The fathers time is already being supervised, so again, unless there is more to this, this should satisfy that criteria of safe environment.

Something that I am curious about in all of this is that…you say you are all for shared parenting for good fathers and that the 12 year old has a good relationship with her father.  Did her father agree to her moving?  How often does he see her?  I would assume less frequently than he did before your decided to relocate?        

"Never, "for the sake of peace and quiet," deny your own experience or convictions". Dag Hammarskjold
I needed help with my case and couldn't afford a lawyer and found these guys invaluable  srl-resources.org
The magistrates view of me is influenced by the father's continued lies. I have only just started giving evidence and my witnesses haven't been heard.

I still have a thread of hope.

Plan is to compile evidence highlighting lies, have my witnesses heard and try to restore my credibility.

Fathers evidence gave the magistrate the view my allegations of substantial and extensive violence were grounded. One plus.

I will never move back to home state because of father. My children and I have the right to feel safe.

My partner is very supportive.

A supporter of 'Family Violence is NOT O.K.' and equally of 'Fight for Good Father's Rights'.
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