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In need of urgent advice ... Thank you ...

Hi All,

I am a father who initiated FCoA court proceedings after I realised that my ex partner was abusing our 4yo son earlier this year. A Magellan report was ordered and done around 6 weeks later only to find that our son was not at risk (obviously after my ex changed her approach with our son and has been nice to him, giving him gifts, telling her teenage children from another relationship to be nice to him, etc).

Documents were subpoenaed and most of them returned to the FCoA on time, except for documents containing potentially compromising notes from my ex's counsellor.

We both met with a child psychiatrist in mid Nov 2007 and after the latter accepted to receive documents I had offered him to have (these documents were sent to another child psychiatrist from previous court proceedings), I was told by the child psychiatrist that the other parties should consent to those documents being sent to him first. I notified the ICL and the latter communicated with my ex's lawyers to seek their consent after I submitted a list of documents I wanted to give to the child psychiatrist. The ICL also instructed the child psychiatrist NOT to proceed with his report until a resolution was reached but after 3-4 weeks of fax exchanges between the ex's lawyers and myself arguing about those documents I wanted to send, the ICL seeked to urgently relist the hearing with the judge. In the meantime, a critical subpoenaed document (the one containing potentially incriminating information about my ex from her counsellor) had finally been lodged with the FCoA and upon me noticing this via the online search facility of the FCoA, I asked the ICL to send it to the child psychiatrist but haven't heard from her as to whether she had done it or not. Two days later, the child psychiatrist communicated to the ICL and the FCoA that he had completed his report. I communicated to the ICL that I objected to the child psychiatrist completing his report before him seeing the documents I had been meaning to send to him and especially before seeing the subpoenaed document which was returned last.

The ICL then mentioned that she had seeked an urgent meeting with the judge to decide what to do.

At the meeting with the judge, the ICL, myself and the ex's lawyers a day later, the judge then made orders for me to submit the documents I had been meaning to give to the child psychiatrist on the first day of the final hearing so as for him to examine them and then decide whether they ought to be sent to the child psychiatrist or not & to potentially even give a copy to my ex's lawyers despite the fact that they are confidential by their very nature (ie, these were documents I sent to the child psychiatrist during the first court hearing). The judge also granted me an extension to lodge my affidavits and subpoenaes.

A day after the meeting (ie, a Friday night), I received some rather distressing news from a very close member of my immediate family (whom I wanted to be my McEnzie Friend at the final court hearing) about her having to have a major brain surgery a day after the beginning of the final court hearing. I became so distressed that I neglected to work on my affidavits & subpoenaes over the weekend.

I wrote an emotional 2 page letter to the judge on Monday (ie a day before the set deadline for me lodging my affidavits/subpoenaes), respectfully requesting that the final hearing be postponed by 1-2 months (to allow my family member to recuperate and be strong enough to assist me) as the life threatening surgery would happen right in the middle of the court hearing, that I would not be able to adequately represent myself and our son given my emotional state of mind, that I would potentially be distracted, etc. I also respectfully asked that I be granted an extended delay to lodge my affidavits. I personally went to the registry and asked to speak to the duty magistrate about this matter; he literally flogged me off and said that it would be the judge to decide to postpone the hearing or not and that I would be contacted the same day. I never heard from anyone from the FCoA on that day. I sent a fax a day later with a copy of the letter to the judge. And today I received a letter from the judge saying that the hearing would not be postponed under any circumstances; he neglected though to mention the reasons why he wanted to proceed and neglected to mention whether I had been granted an extension or not. I wrote to the ICL and to my ex's lawyers about getting their support/consent towards postponing the hearing; the ICL replied that she did not consent and I am still awaiting an answer from the ex's lawyers (who will no doubt object too).

I am truly and frankly falling apart by the hour and am starting to notice the symptoms of depression coming onto me at the lack of consideration at so many levels of the judicial hierarchy. I have so many things to do: make all pre- and post-surgery preparations, move my close family relative into my house, pack her things, etc.

Admittedly though, I have the strangest of feelings that the judicial process has not been respected somehow (ie, with the child psychiatrist not awaiting resolution of the issue at hand and proceeding nonetheless to submit his report without having had a look at all the subpoenaed documents, that the ICL and ex's lawyers seem to be 'buddies' in/out of the court, that the delay/blocking tactic of the ex's lawyers, that the judge absolutely wants to see those documents I have offered to the child psychiatrist and wants to potentially give a copy to my ex's lawyers despite these being confidential, etc).

As such, I would like to know:

1. whether there is another way that I postpone the upcoming final court hearing (happening in 3 weeks' time) on grounds that I am medically and mentally unfit to attend the final court hearing (eg, get a medical certificate from a GP/other specialist);

2. whether you thought that there was a/several rules or processes which had not been followed properly from what I described above. If yes, what are they and what can I do about these?

Many thanks in advance for your assistance and please keep up the good work on this website …

JB

So close to the end of the court process, I suspect the Magistrate is loath to consider a delay.

The absence of your McKenzie's friend (in the court's eyes) is not a huge detriment to you as the role, in Australia, that they play is only as much as a "page turner" where you are the "piano player". They are not a substitute for legal representation.

My other suggestion was to write to the Magistrate's associate and plead for an extension. It sounds like you have already done this. Courts are patient, but only so far. If you have asked for other delays previously, you will be seen as inefficient and dragging your feet. SLRs are already tainted in most court officials opinion and Magistrate's become frustrated with the "lack of professionality" that comes with dealing with the person involved, rather than a 3rd party who does not allow personal issues to impact in the court process. Basically, Care Factor = 0.

I really don't think there is much you can do legally. Personally, I would rally around all the family support you can to help you through this difficult time.

Unfortunately, you need to cultivate a certain personal ruthlessness or doggedness when acting as an SLR and the number one priority is your child. You have no personal or social life while going through the court case.

My partner has many serious personal maladies and the court doesn't care. You are not being discriminated against and there are no rules, other than 'guidelines', that you can appeal against.

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. 

Thank you Artemis ...

Hi Artemis,

Many thanks for the firm yet realistic words. I woke up sick in the stomach last Thursday morning and stayed in bed to think about what to do next. Somehow though, moments after I woke up, my son came into the bedroom to me, gave me a hug and said that he loved me very much. Not knowing what his mum and dad were involved in legal battles, he just reacted the only way I could: I cried and hugged him back.

That was enough for me to realise that it was no longer a fight between 2 adults but that there was a little defenceless life to care for.

I was galvanised from this point forward and had the same realisations as you mentioned (ie, that the court did not care, that it would actually make me look bad if I took the pleading approach of wanting to delay the hearing, etc) over Thursday.

I also realised that 10/20/30/etc years down the track, I want to be able to look my son in his eyes and want to be able to tell him that I did my very best to save him from the violent environment he was in and that, irrespective of the outcome of the upcoming hearing.

So, I pulled myself together and distancing myself from the emotional part of my personal circumstances, I pretended that I was a ruthless lawyer trying to save my client (ie, myself). What would I do? What could I do? I re-examined my circumstances and canvassed the various legal centres I could contact to speak to lawyers to bounc ideas off them. Some were helpful while some were dismissive. I did not let myself be discouraged and kept reminding myself of those moments when my son hugged me and told me that he loved me … and just kept going until I managed to find a way to obtain a delay.

I checked the court file online and noticed that the other party had lodged their affidavits but I had still not been sent the necessary documents from the other side. I immediately lodged an application in a case backed with an affidavit describing the facts. I spoke to an excellent duty magistrar at the Parramatta registry about the contents of the application in a case and the affidavit and she granted me an extension to next Friday. That's more than enough for me to complete whatever I need to complete. I walked out of the Parramatta courts so positively strengthened by what had happened.

I then read your response just now and am very grateful for it as it confirmed that I was on the right track so again. So again, from the bottom of my heart, thank you for your realistic words.

Once the court hearing is over, I intend to write to the administrators of this web site and share my experience as a SRL so as to benefit all who are interested.

Cheers,

J
Hello J,

Firstly, I must apologise to all the wonderful McKenzie's Friends out there. I meant no disrespect in the role performed. It can be invaluable help and not as limited as I may have portrayed.  I still have my "L" plates on with regard to being a moderator on this forum and obviously, my limited reading on the Macca's Friends lead me to give some limited advice in my previous post.

However, I would hate for you to think that all is lost without your support. No one knows your case as well as you and no one will be as passionate as you.

I know it is just so hard to get away from the 'emotionalness' of it sometimes. I have seen my partner swimming in a sea of indecision on many occaisions.

I'm so glad the moment passed and you were able to gather yourself.  You know, it is true, what doesn't kill you makes you stronger.

Good luck and keep us posted.

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. 

Unable to defend my son's right to have contact with me

Artemis said
So close to the end of the court process, I suspect the Magistrate is loath to consider a delay.

The absence of your McKenzie's friend (in the court's eyes) is not a huge detriment to you as the role, in Australia, that they play is only as much as a "page turner" where you are the "piano player". They are not a substitute for legal representation.

My other suggestion was to write to the Magistrate's associate and plead for an extension. It sounds like you have already done this. Courts are patient, but only so far. If you have asked for other delays previously, you will be seen as inefficient and dragging your feet. SLRs are already tainted in most court officials opinion and Magistrate's become frustrated with the "lack of professionality" that comes with dealing with the person involved, rather than a 3rd party who does not allow personal issues to impact in the court process. Basically, Care Factor = 0.

I really don't think there is much you can do legally. Personally, I would rally around all the family support you can to help you through this difficult time.

Unfortunately, you need to cultivate a certain personal ruthlessness or doggedness when acting as an SLR and the number one priority is your child. You have no personal or social life while going through the court case.

My partner has many serious personal maladies and the court doesn't care. You are not being discriminated against and there are no rules, other than 'guidelines', that you can appeal against.
What can I do to help my son have any contact with me.  I became witness to an alarming revelation happening in the Family Court.  A Family Court Judge refused to apply the Evidence Act to me and read my evidence stating my mental state of mind by a Doctor.  Instead the Judge took a know it all approach and claimed He was the same as a Doctor or Psycharatrist and could digonose mental illness. This was without medical trainning.  The Family Court Judge allowed personal relationships with my son's fathers previous solistor to cloud his judgement. Also by blaming me in the Final Court Hearing for being responsible for his close friends early departure from his career in law.  Isn't this conflict of interest?  I need your help on that one. The transcripts are now missing from the Final Hearing?  Why would that happen?  Can you tell me if transcripts are always suppost to be kept by the court.

How can you have investigated what transpired in a Final Hearing with the Judges conduct and Lawyers conduct being correct?

In Australia because you are poor and have exhausted all avenues of Government Legal Aid Funding a person is then fair game for Lawyers and Judges to violate your childrens and your basic HUMAN RIGHTS. Then it is impossible to find anyone who is brave and courageous enough to take on these lawyers and judges and investigate their conduct.  Please someone stand up for peoples rights.  Poor people have rights to they are both women and men in our Australian society and they need help desperately now.

I am not afraid of standing up for my rights and that of others.  The right to free legal representation and the right to freedom of speech should be paramount in our society. It is not sadly for those that are poor.  Show compassion make more funding advailable so children and their families don't have their rights violated because the current law allows this to happen.

These poor people like myself are poor, miserable and desperate.  They need their children to have contact with themselves and their families.  They have had their human rights violated and need the support and understanding of other Australians to fight for justice and their rights.  We need to take power from judges and lawyers and set stict guidelines to control their law practices and make them accountable to the Australian people.  Don't discriminate against the poor we are people too who are caring and loving and don't deserve to be separated from our loved ones for in some cases years.

Where can I find reliable legal advice that I CAN AFFORD so I can have the right to see my child?

Last edit: by OneRingRules

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