QLD Possible to Move Up Family Court Trial Date?

[Billbobson]

Hi all,

This is possibly fruitless, however, today I attended family court armed with a family report that clearly stated that I should be given more time immediately with my daughter. When presented to the Judge, she wouldn't listen or even consider the report as all she wanted was to know if my daughter should still attend a psychologist that her mother unilaterally took her to.

This was due to our previous hearing where the Judge asked a family consultant to answer this question. At this hearing, we did sign some interim orders that now do not reflect what the family report writer has suggested should be done.

At this point, the Judge said that she would only consider the family report in trial as it needed to be tested. The problem is that she then put us in the trial callover for 2018 - 2 years away! - Stating she was too overloaded to consider this earlier.

So in effect, I have a family report that recommends increasing my time, that the mother undertake counselling and not move - which she had already done anyway - 45 min away. But this will not see the light of day until at least 2018.

I wonder if there is any recourse or previous precedent to move the Trial date up into 2017 or have our case heard by another judge sooner. Otherwise, I am left with a useless report that basically says it's in my daughters (3 year old) interest to be spending more time with me.

Thanks for any thoughts or help.

 

[AllForHer]

I am sorry to hear this.

It's probably not possible to move the trial date, but you can potentially file an appeal to the interim orders, or you can file an application in a case to have another interim hearing in the near future, on grounds the current arrangements are clearly not in the child's best interests. If the mother has relocated, you might also consider filing for a relocation order to have the child returned to the town of origin until proceedings have been settled. I would also consider organising mediation in the interim to see if you can sort out some of the issues. L

The Family Court is one of the most heavily over-burdened and under-resourced institutions in the country, even the judges make no secret of their distress at having to set trial dates two, even three years into the future. It's the nature of the beast at the moment.

If mum is paying for a lawyer, you could play dirty and email then every week or so with a proposal for consent orders. She has to pay money every time they have to read something. Just saying.

 

[Billbobson]

Thanks for the help.

I ran these options past my lawyer who had also thought of them and has even talked to a barrister.

Word I'm getting is that I cannot do any of these options and the judge even said I cannot appeal the orders until trial.

So I'm stuffed. 18 months at least until trial and im stuck with orders that don't reflect a family report, and a mum who needs counselling (called out in the report). Plus, the relocation won't fly as while she has moved 45min away, it's still within the greater Brisbane area and the court will not care.

I'm gutted that the system that is supposed to be there to help, quite clearly doesn't and most often, acts in a way that benefits the mother. She can now basically do as she pleases and is court endorsed to do so.

This is terrible.

 

[AllForHer]

It is a terrible system. Nobody will contest you when you say that. It needs a lot of work to address the plethora of problems it currently presents to families in these sorts of vulnerable situations.

What are the interim orders in terms of how often the child sees you?

 

[Billbobson]

I currently get 3 nights a fortnight.

Family report said it should increase to 5 nights immediately and 6 from June 2017 with a discussion of equal share in 2018.

At this point, I'm stuck with the interim until trial in 2018.

 

[AllForHer]

And that is reflective of interim orders made by consent, correct?

 

[Billbobson]

It is yes.

'Consent' is an interesting word. I was basically strong armed into accepting the current orders otherwise the ex was going to take it in front of the judge, which I'm glad we didn't as I would have been worse off, based on the comments.

 

[AllForHer]

Yes, I agree that sometimes consent orders are more like trying-to-avoid-Court orders, but unfortunately, the Court doesn't see it that way, and it's because they're consent orders that you can't really file an appeal - it's impossible to argue that the Court made an error of judgement when it didn't actually make the judgement in the first place.

An application in a case, however, is still very much an option.

So, what would I do?

I would organise a family dispute resolution conference as soon as possible with the mother with the intention of discussing the implementation of the recommendations made by the family report writer.

Yes, it will probably be fruitless. Mum is technically on a winning streak, so she's not going to see any reason to change the current arrangements. However, for you, it shows you've tried to do what you and the family report writer believe is best for the child and settle things amicably, and it's the mother who stopped that from happening.

However, if agreement can't be reached about increasing the time, then I would consider filing an application in a case to have the interim orders amended, and I would do that in maybe April next year, after you've had a few months to trial the three nights a fortnight deal when it should be four nights a fortnight.

Observe the child during this time. See how she copes with the three nights a fortnight deal, and keep a diary. If you have concerns, raise them with the mother and ask if she would be open to trialling four nights a fortnight. Again, probably fruitless, but it gives you a track record, and always, always be respectful and polite to the mother. Don't enter into arguments that you're invited to.

When my husband had interim orders for three nights a fortnight, he found his daughter didn't cope anywhere near as well as she did when it was five nights a fortnight previously (it was changed without his consent when the "new girl" - me - entered the scene). She went from seeing her dad every three or so days consistently to not seeing him for 11 days straight every fortnight, which, to a three-year-old who has no understanding of the passage of time and limited capacity to retain memories beyond a few days, seems like an eternity.

She would ask sometimes why she didn't see dad more, but as time went on under the same regime, she became terribly clingy at changeovers, would become overly distressed and anxious when she was going back to her mum's and ask to stay an extra night or two at dad's, she didn't sleep well and the day care raised concerns with her becoming defiant, while the mother said she'd become violent toward her (I think she said this believing it made it sound like the child didn't want to see her dad, but the timing of this change in behaviour suggested to us that it was probably more to do with the major change in routine).

She showed regressional day wetting behaviours,and when she started into prep after these arrangements had been in place for about 12 months, she would howl and scream and cry when her dad dropped her off, even with the other kids staring and nobody else doing the same thing to their parents. It was awful.

We now have 50/50, which was implemented over the course of about 15 months, and this kid is like a totally different person, now. She sleeps through the night, she goes happily between households without crying and without clinging, she's totally calm and her performance at school has improved tenfold.

What I'm getting at is that it helps to observe your daughter's behaviours and raise any concerns you might have about it. It'll also help justify an application in a case to have the family report revisited in an interim hearing.

Anyway, that's what I would do.

 

[Billbobson]

Thanks again.

So the problem is that while in court, my Lawyer asked if we would be able to file an application in case at a later date, with the family report writer being examined and the Judge said no, as she considered it to be a mini trial and stated she doesn't have capacity.

So now I'm being told I cannot even put an application in case as the judge said she wouldn't hear it if we did. And I assume that if we do, it will just be shot down.

Seems ridiculous to me?

 

[AllForHer]

I would probably still file one, to be honest. Even interim orders need to reflect the child's best interests.

Rather than just seeking an increase to regular time, you might consider making it more substantial, like seeking holiday time that allows the child to travel away with you sometimes, an order for the parties to attend mediation to discuss the family report and the child's best interests, and an order for the parties to attend a post-separation parenting course to try and improve the co-parenting relationship and get you out of Court all together.

It might get rejected.

Or it might not.

There is no way of knowing, at this point.