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Need for Hearing

Question regarding possible next step

I will do this in summary as it is a long story. 

Other parent lives interstate, children visit every holiday and he comes to children's city on occasional weekends.  He moves much further away (3000km).  Children don't go first holiday for a good set of reasons.  He lodges contravention and at same time application in a case for new orders as his new job and location make it harder for him to see kids each holiday.  Contravention dismissed after 18 months (he failed to turn up for hearing). 

It is now 16 months later and we are close to the end of the process to deal with the new orders.  Previously we reached agreement at CDC but then he then wouldn't sign.  Asks to meet me 9 months later and comes to same agreement - then wont sign again.  Family Report now completed, children now 16 and 13.  Family report says we are in agreement over most things and issues are narrow.  His lawyer presented amended proposed orders just prior to Family Report which are half way close to agreement.  Family report makes it clear children should be given choice themselves about when to see father and that communication between us should be bare minimum.  Family Report supports current situation which children are happy with.  He lodged affidavits day before family report which are irrelevant to the orders which the Family Report writer has recommended.

I am more than happy to end this and have all the recommendations made by Family Report Writer made into orders. They are recommendations but the wording for the orders needs to be written.

I am in court again this week.  I just want this over - been going on for nearly 3 years - father is unreliable, inconsistent, won't sign anything.  His lawyer is young and inexperienced and y letting him get away with all his mucking around (negative advocate)

Question - can the magistrate make a decision on the papers only without a hearing?  I am thinking of asking to be able to put in proposed orders based on agreement reached and Family Report recommendations.  A hearing would waste everyone's time (and his money - which he doesn't seem to mind as he has loads) when the issues are narrow and we are in agreement on the major things. Or is there something like a meeting with a Registrar like you do for financial settlement whereby someone can write the orders and sign them on the spot if you get agreement? 

If we have a hearing I can destroy what little credibility he has left with a few pieces of paper but as his affidavit is irrelevant, historical with little evidence and and superseded by what the children said at the Family Report interview, I can't see the point and don't want to go through the drama.

Can anyone give me some advice or suggestions as to how to move forward with this - quickly please as I am at court on Thursday.


God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.
To my knowledge if there is not full agreement by all parties on all aspects of an order then it goes to a hearing.
Magistrates do not make a decision based only on paperwork for a final order. This may be the case on interim orders, but not on a final order.
You need full signed agreement for handing up in court to enable these to be made final orders as long as the court is in agreement with the agreed proposal.
If you have the agreement you can request a hearing to hand up your agreed orders.
A no show at final hearing usually is in your favour.
I do not know of any quick fix without agreement.
'On the Papers' refers to where a Court makes a decision on the paperwork and there is no final hearing. This type of case may be where the parties are in separate states and where there are no substantive changes to the orders - just minor tweaking. This means the Court does not have to go through the major 60CC processes. The process would normally involve the Court ordering each party to produce an Affidavit of x pages and a written submission of x pages in support of their case.

Your case has become complex because now there is a Report Writer involved. You can of course ask the Judge if the case can be finally heard on the papers. It is unlikely the case could be decided on the existing material because the other side would argue they have not been able to make submissions or to cross examine the Report writer.

You seem to missing a major factor - the age of the children. The 16 year old can make their own choices and the 13 year old may be considered mature enough to do the same. A Court can make orders for the children knowing full well the difficulty of a parent making children of this age comply. Contraventions for children of this age rarely succeed if the parent can prove they have done everything reasonable to get the children on the contact visit.

You can still make Consent orders and hand them up to the Court.

Judges not Magistrates in the FCC and FCoA.
Thanks for that Conan and Kalimnadancer. 

Sorry, I am used to calling him Magistrate, it only just changed to Judge!

I don't think the other parent would agree to be heard just on the papers but it might be worth asking just in case.

I am well aware of the children's ages and they should make up their own mind.  The father and I have already agreed to that twice but he won't actually sign consent orders because he then keeps throwing other things in.  It is a complex situation with his job and living arrangements and I can't go into it all here.  If he had a normal life and a normal job there would have been no need to change the orders in the first place.  The trouble too is that the 16 year old doesn't feel able to make his own choices because there is the ever present threat of being taken to court for a contravention. 

Although a contravention may not succeed for an older child, that doesn't stop the other parent continuing to be a vexatious litigant and lodging contraventions.  Believe me, I have been through this for nearly 3 years and I don't want it to be continuous for the next 5 years until the 13 year old is 18.  I want orders that make it more difficult to apply for a contravention in the first place as far as the children spending time with their father is concerned so they feel free to actually make a choice.

The father spent 20 pages in an affidavit saying how I stop the children seeing him and talking to him, and his only substantiation was the one time they didn't go, three years ago, and for which he didn't bother to turn up at the hearing to prosecute me. I have never stopped the kids seeing their dad and the report writer in her recommendations said the children need to have a 'real choice not a token choice' about the time they spend with their father.

The Family Report has one line that says it all - in the interview with the children the 16 year old is quoted as saying 'mum never stops us seeing dad, sometimes we don't go because we have something on.'  I rest my case.

God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.
larissap said
The Family Report has one line that says it all - in the interview with the children the 16 year old is quoted as saying 'mum never stops us seeing dad, sometimes we don't go because we have something on.'  I rest my case.
Obviously there would be more in the Family Report, however that one line may say more than you realise. A potential cross examination opening for a Barrister - …………….."We dont go because we have something on"
Why do they have something on?
Are you scheduling things that coincide with his time?
Have you ever tried to 'schedule' a 16 year old who has a part time job, a girlfriend, plays in a band that has paid gigs and has to attend practice sessions, do his homework and go out with his mates? 

I have nothing to do with the arrangements my son makes with his father.  However it might have something to do with his father living 50 minutes away (when he is in our city - which isn't often) and not liking all the driving involved with dropping a son off and picking him up from all his activities.  I have two step sons who saw their father less and less as they got older because their lives became so busy.  However their father (unlike my son's father) was happy to do all the driving and spent most of his weekends in the car. 

On the other hand the 13 year old spends his weekends with his father when his brother doesn't because he doesn't yet have a busy social and work life. Although even then his father has occassionally brought him home on Saturday morning because he was 'busy'.  I have all this documented in a diary by the way. 

So I have absolutely no problem whatsoever answering that question.

(and as I have said, this is far more complex than I can explain here and if it gets to hearing all this will probably come out - but thanks for the heads up on a possible question!)

God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.
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