WA Family Court - Applicant Not Complying with Interim Orders?

[Wanda]

The applicant has been ordered to undertake drug testing and hasn't complied with these orders since the were made over 2 years ago. Subsequently, the applicant's time with the children was suspended for approx. 22 months ago. The applicant attended the readiness hearing and says he has no evidence, no witnesses yet still wants to go to trial.

A bit of background: the children and I were victims of prolonged family violence. I have a VRO protecting me. The applicant used to threaten me with family court proceedings during violent attacks. There have been several applications by him over the years as he thinks he can use the court to get his way.

I have made him offers to settle which he ignores. The ICL is useless and doesn't provide any info, and has been in my favour the entire time. The single expert witness report doesn't meet the family law rules 2004, how do I bring this to the courts attention? Should I bother?

Why is it that the family court will allow a trial to go ahead if he admits having no evidence and has not complied with any interim order? I have emails from him, to the ICL and I, where he says he will never agree to anything I propose.

I'm owed 15k in child support, and will be seeking this be paid if we go to trial.

I also would like to get my costs covered.

We're both self-represented, so who pays for the trial?

I'm seeking sole parental responsibility and custody of children, and they spend no time with the father based on his drug addiction and the children's exposure to family violence (they're both under the age of 7, one has significant special needs with multiple disabilities which the father refuses to acknowledge).

I haven't let the family court know the full extent of the violence, in fear of being seen as an unfair parent and due to poor advice from a legal aid lawyer. I need to make them aware now, but they don't want me to file a form 4. Do they need to know how violent the applicant is? How do I make them aware?

Any help would be appreciated.

 

[AllForHer]

Messy.

1. Refusal to comply with a drug test isn't a persuasive reason to withhold the children's time with their dad. If he contravened the order, why didn't you apply for a contravention order, instead of executing vigilante justice?

2. If I hadn't seen the kids for two years and the other parent was seeking my complete removal from their lives, I would be going to trial, too, witnesses and evidence immaterial. Sounds like the court will give him a better deal than you will, and for clarity, the fact that you've withheld them for 22 months over a drug test is evidence.

3. The court isn't going to strike out the single expert report for not meeting the rules. The rules are rules, not law, and it's at the court's discretion to decide its tolerance for not following rules. If the report helps the court determine what's best for the children, it will accept it as evidence.

4. Why will the court allow a trial? Because the father has a right to be heard at trial. Similarly, the kids have a right to have a relationship with him.

5. If you're self-represented, the court won't make a costs order. It's usually the applicant who must pay the setting down fee and the fees for hearing days.

6. Bringing up further allegations of violence after two years of a parenting dispute is going to put your credibility into question because it will look like you're just trying to use those allegations to advance your case. The fact that you've withheld for two years doesn't look good for you, either.

This is why people need lawyers.

 

[Wanda]

Messy.

1. Refusal to comply with a drug test isn't a persuasive reason to withhold the children's time with their dad. If he contravened the order, why didn't you apply for a contravention order, instead of executing vigilante justice?

2. If I hadn't seen the kids for two years and the other parent was seeking my complete removal from their lives, I would be going to trial, too, witnesses and evidence immaterial. Sounds like the court will give him a better deal than you will, and for clarity, the fact that you've withheld them for 22 months over a drug test is evidence.

3. The court isn't going to strike out the single expert report for not meeting the rules. The rules are rules, not law, and it's at the court's discretion to decide its tolerance for not following rules. If the report helps the court determine what's best for the children, it will accept it as evidence.

4. Why will the court allow a trial? Because the father has a right to be heard at trial. Similarly, the kids have a right to have a relationship with him.

5. If you're self-represented, the court won't make a costs order. It's usually the applicant who must pay the setting down fee and the fees for hearing days.

6. Bringing up further allegations of violence after two years of a parenting dispute is going to put your credibility into question because it will look like you're just trying to use those allegations to advance your case. The fact that you've withheld for two years doesn't look good for you, either.

This is why people need lawyers.

Thanks for your reply. Good to get some outside opinion.

1: orders were made by consent that in the event of a failed drug test, or no show, visits would be suspended. Until he provides consecutive clean tests, costs remain suspended. He agreed to this order, as did I and the ICL.

I've offered supervised visits, he refused to take them. He now admits that supervision by his current partner is "really unsupervised anyway" so I'm reluctant to allow her as the supervisor now (there's an order in place, that she will be the supervisor should he pass the tests as above and visit commence again).

There are no further allegations. The violence occurred and the children were by my side during most of it. The eldest one was used by the father during his attacks. He'd hold her and get her to be verbally abusive. Often, he'd be holding them while attacking me.

I've got a 5-year VRO. Due to poor advice from legal aid lawyer, I wasn't aware I could apply for a contravention, I haven't even filed my VRO with the court. It's only through my own research I've found out about these things.

Obviously, the children need a relationship with their Dad, but they need to be safe and need to be protected from psychological trauma which may arise. I'm now thinking supervised visits at a centre would be a better offer than none at all.

In regards to the child support, can I use that as leverage to persuade him to agree, for instance, offer to have the debt removed if he consents to a settlement?

Messy is an understatement in this case. I wish I could afford a lawyer as you say this is why we need them. After researching the Family Law Act 1975, I now understand why they charge so much!

I was quoted 10k just to prepare my trial paperwork. If I was to engage that lawyer to help me prepare my trial affidavits and then self-represent at the trial, could I seek a costs order for the portion spent on lawyers?

 

[AllForHer]

I'm not a judge and I can't speak on behalf of the court, but this is what I observe about the matter from the other side of the fence, and some of the questions that I am inclined to ask based on what you've provided.

It sounds like an extraordinary number of barricades have been raised to make time the children might spend with their dad as challenging as possible.

Is there persuasive evidence that the father's parenting capacity is compromised by his drug use? Has it been reported to the police or DHS? Has he attended any rehab centres or been arrested at any time for drug use? Has he ever taken illicit drugs in front of the children?

If none of this evidence exists and the court has only your word to go on, all dad really has to say is 'I deny those allegations, I have at no time abused drugs of any description', and it's going to look like you've fabricated these allegations of drug abuse for to insist on drug screens, with the added condition that if he doesn't comply, or even if he is unable to spend time with the kids once for whatever reason, he then doesn't see the kids indefinitely. Not overly flexible, is it? The court also doesn't generally like orders where one parent has to be satisfied with the actions of the other in order to facilitate time, because it's very easy for said parent to decide they're never satisfied.

In regards to the domestic violence matter, were there reports the police? Was DHS involved for the children's safety? Did they investigate? Did he consent to the VRO without admissions, or did a court make a finding after a hearing that he'd been violent toward you? Are the children named on the VRO? Why are more allegations of domestic violence from two years ago only coming to light now? What's their relevance moving forward?

If the children have witnessed the domestic violence, but were never actually targeted in it, and if there have been no further incidents of domestic violence in two years, then he's not exactly going to be considered an unacceptable risk to the children, is he? From a court's perspective, you might be seen as holding on to what happened two years ago to try and advance your case now, and withholding the kids for such a long time may be seen as unreasonable.

He also agreed to supervised time in the presence of his partner, which I agree is practically unsupervised anyway, and now, you are saying that because the father has pointed that out to you, you're not happy about that supervisor after all. Seems a bit uncouth, no?

Regarding bad legal advice, maybe the father also received bad legal advice to sign the consent orders in the interim? We made that mistake once, and ended up with a bad parenting plan as interim orders for nearly a year while proceedings were under way. The court didn't show much compassion for us having received what we would also describe as bad legal advice.

I guess some of the best advice I ever received was the advice that I didn't want to hear, because it helped us prepare our case realistically, and change our actions to reflect more of what the court wanted, so even though I'm sure this will seem like a post intended to frustrate you, it's more a post intended to highlight some of the questions the court might be asking about this matter so you can prepare adequate answers for them.

 

[Wanda]

Is there persuasive evidence that the father's parenting capacity is compromised by his drug use? Has it been reported to the police or DHS? Has he attended any rehab centres or been arrested at any time for drug use? Has he ever taken illicit drugs in front of the children?

The only evidence is in the Family Report. It reports his admission to using marijuana and an another substance to control his alleged ADHD (name unknown). He has also admitted during interim proceedings that he is using an "illegal substance", that he knows it's "illegal" and has no intention to stop doing it. He has attended drug councilling many years ago, and fabricated an ADHD diagnosis in an attempt to be prescribed dexamphetamine. He has smoked marijuana in front of the children. He will, of course, deny that, as they do. He's actually said to the magistrate during interim proceedings that a drug test won't stop him doing drugs the day after the test or every other day the children are in his care.

I have witnesses who have seen him use drugs in the presence of the children, and have seen him be abusive towards me in the presence of the children. They've witnessed that during the relationship, he showed no interest in being a parent, he provided none of the parental responsibilities, they were left up to me.

In regards to the domestic violence matter, were there reports the police? Yes, several reports to the police over the years.

Was DHS involved for the children's safety? Did they investigate?

DCP was involved a few times, after each assault, id calls the police and as the children were present, DCP was automatically notified and had to investigate. They concluded there was no case, as we would reconcile after each incident until the final separation occurred, after which they concluded that there was no issue as the children and I were protected by VRO's (mine became final).

Did he consent to the VRO without admissions, or did a court make a finding after a hearing that he'd been violent toward you? He objected the VRO and we went to trial. Before the judgement was made (trial ended without a judgement, after two months, he made an application for a variation). At this variation hearing, he agreed to the VRO.

Are the children named on the VRO? No. The children were covered by an interim order after the final violent incident. I was unable to get legal aid to represent me at this trial, so this interim order was never made final. (Both were held in different courts).

Why are more allegations of domestic violence from two years ago only coming to light now? What's their relevance moving forward?

Well, I'm not sure what the relevance is, and I suppose that's why I need help. I want to prove he is violent. I want to prove that during the relationship he was not a responsible parent. I want to prove that the children are better off without their violent drug addict father. I want to prove to the court that my allegations are true.

I suppose that I would be using this to further my case, as it is the most important factor in my argument. He's violent, and he will continue to be violent in the presence of the children. He's done so during previous separations, during handovers. (we separated after each violent assault, which occurred once or twice per year from 2009 to 2013. Unfortunately, the separations were brief, and we reconciled after short periods. It was only due to the VRO that I was able to flee the relationship indefinitely in late 2013. He was unable to contact me and, therefore, unable to manipulate me into a reconciliation).

Unfortunately, I married a dropkick, who manipulated, controlled and abused me for over a decade. Then we had kids (Yeah, I know - what a stupid woman I am). Domestic Violence is a complicated matter, and this is a textbook case, and he shows textbook perpetrator behaviour, during and after separation.

In regards to the single expert witness report, he has completely manipulated and lied and come across as a glowing example of a Father. Yet, his actions contradict this entirely. The expert witness has no experience with Family Violence. It does state that the Applicant answered in a "socially acceptable" manner, and not in a truthful way. This really irks me. I'd like it done again, but I think my chances are slim.

The children were not targets, but it's my interpretation of the FLA1975 that if they see it, hear it, or are exposed to it, against another family member, or have to clean up the mess, or provide comfort to the victim, then the children become victims themselves. The Family Violence has been acted upon them in these circumstances.

I've withheld the children to protect them from being exposed to future acts of family violence and to protect them from psychological trauma. It's been court ordered, so I'm complying with the orders. I don't want my children around someone who is using illicit drugs.

The eldest has had to attend DV counselling. I attended for over a year as well.

He's admitted to being violent during previous proceedings, and attended a violence program while we were together. It didn't work, the violence got worse after this program. He would often return from the program and be cocky about the advice, complain about women and so forth. He did this program as a show.

My intention is not to hold onto what happened years ago to further my case - I have been manipulated and coerced into believing that if I brought up the violence, the Father would be able to take the children from me. (yes it's completely crazy - he threatened me so many times to go to the court and take the kids away, and stupidly I believed him). The dynamics of domestic violence are extremely complicated and seem very uncouth to outsiders.

"He also agreed to supervised time in the presence of his partner, which I agree is practically unsupervised anyway, and now, you are saying that because the father has pointed that out to you, you're not happy about that supervisor after all. Seems a bit uncouth, no?"

Yes, she is supposed to supervise him but if she isn't supervising him, then I'm not happy with that order. It's ridiculous to think that would be ok. She was supposed to attend the court and be approved, but this hasn't happened - which I find strange if he was keen to see the kids, why no just pass the two drug tests, get the partner approved and start spending time with the children?

To me, it's as if he has used this entire case just to get at me. Every time we attend a hearing, he discusses everything other than the children. For example, he goes on about debt, finances, making derogatory comments about me. It seems his intention is to make me out to be a dodgy character. Then, he hasn't complied with simple urinalysis orders, which I interpret as him not wanting to see the kids. It's easy, pass the drug test, you see your kids. (we both had to do urinalysis at the start of proceedings - I complied and after consistent clean results were no longer required to do them).

I really appreciate your input, you make some very good points and it is really helpful to get an outsiders view. It's so terribly complicated and even more so when iIm so personally involved.

I really need to get some actual legal advice. It's difficult to find a lawyer who will advocate for the rights of DV victims and their children.

 

[AllForHer]

So he's admitted to drug use, but one is a controlled substance that a qualified doctor has prescribed to him, and the other is at the lighter end of 'illicit'. It doesn't sound like he does any heavier narcotics, it doesn't sound like he's dealing anything, and it sounds like there are no parties, not even the children, to confirm that the children have been exposed to the drug use.

So, while the Court will certainly be concerned by the use of marijuana, it will probably be more in the fashion of making an order 'that the father is restrained by injunction from consuming drugs or alcohol from at least 24 hours before the children are to be in his care and for the full duration of the children's time with him thereafter'. Even children of drug addicts have a right to have a relationship with their parents.

Just for interest's sake, here is what Judge Harman had to say about a mother's use of marijuana:

That is not to suggest that marijuana is the worst drug that a parent could ever use or use whilst they have the care of children. It is, however, illegal and obtaining the drug is illegal and potentially exposes the mother, if not the children, to impoverishment or other disadvantage. Those engaged in the sale of illegal drugs would not be inferred as being the most upstanding members of society.​

The mother there ended up with four nights a fortnight with the kids.

Now the domestic violence issue.

You're right in saying that domestic violence is a very complicated issue, and it's an abhorrent reality that it happens at all, but in parenting matters, it's just not as simple as 'He is violent, so he shouldn't spend time with the kids'. There are provisions everywhere in the FLA that give the Court avenues to facilitate contact between parent and child so the child's rights can be upheld, but without exposing them to violent situations. For example, if a risk to the children is identified, then the court might order 'that the children spend time with the father on two occasions each week for a period of two hours at XYZ Contact Centre', or if the violence more or less occurs at changeover between the parents, then it might order 'that changeover occur at the children's school, or otherwise at the XYZ Police Station'.

So, applying this to your case, the father hasn't been violent toward you for at least two years, and he has never been violent toward the children outside of exposing them to the violence perpetrated against you. The children weren't named in the final VRO, and there are no recorded breaches of the existing VRO. The police and the Department have determined there is no case to investigate, and the single expert witness hasn't reported there to be any concerns about the father's social cognition. As such, there's not a lot of evidence to suggest that the children would be at an unacceptable risk of violence by spending time with the father, so by bringing up allegations from two years ago, which have otherwise already been settled by the VRO, then it may seem to the Court like you're saying whatever you think will advance your case to win.

Regarding the choice of supervisor, it doesn't sound like he has said that she is hardly ever there, it simply sounds like he feels the arrangement just reflects a regular household unit anyway. In our household, for example, I'm present for 100% of the time that my stepdaughter spends with her dad simply because I'm married to him and we reside together, so even if I was deemed a 'supervisor' for the purposes of care arrangements, it would make no difference to our household anyway - I would be there whether I was supervising or not. I imagine it's much the same with your ex, especially if they live together. Adding another person into that mix because the supervision doesn't necessarily feel like supervision is simply putting up another barricade against the father.

I've talked at length about barricading the father from the kids' lives, and I've done this because there's a pseudo-doctrine called the 'friendly parent' principal that's gaining momentum in the court system. Basically, if the court determines that one parent has gone to extraordinary lengths to try and cut the other parent out of the kids' lives, then it may determine that the children's best interests won't be met if they remain in the care of that parent because they will interfere with the children's right to enjoy a meaningful relationship with the other parent. This is what I'm worried about in your case - there have been barricades erected all over the place to stop the father from seeing the kids, but none of them have really stood up to questioning.

I can't explain why the father hasn't simply conducted the drug tests to spend time with the children, but if the only drugs of concern were marijuana and a prescription medication, then I'm afraid I can't agree that disrupting the children's relationship with their father for nearly two full years is a reasonable response to his failure to carry out those tests, and nor do I think it is an action that reflects the children's best interests. I think the Court will get stuck on that, too. Two years are such an extraordinary amount of time for children to go without seeing one of their parents, and it does imply that you don't recognise the impact that such a separation would have had on the children's emotional well-being.

However, I am just a stranger on the Internet. It would be best for you to get legal advice. There's a reasonable risk the father will present his case as you failing to support and encourage the children's relationship with him, which means the only way they will have a relationship with both parents is if they reside with him. I sincerely hope that doesn't happen, but I think legal advice will be able to clarify your prospects and help develop a case that results in the children's best interests being met.

 

[AllForHer]

I just read this in a case from February. It's from the Federal Circuit Court, so different jurisdiction to WA because WA hasn't granted carriage of family law matters to federal jurisdiction like other states have, but it's interesting nonetheless and perhaps relevant for your consideration, @Wanda.

The case is Hopper & Hopper [2016] FCCA 84. The mother in this case made very serious allegations of family violence perpetrated over many years against her and the children. Judge Harman gives some very interesting commentary about the personal nature of family violence at the very start of his judgement, but I note the family report writer for their case stated as follows:

Some caution, however, must be exercised when considering Ms Hopper’s allegations [of family violence] in the current proceedings. The lack of police reports and\or notifications to FaCS are of some concern, given the alleged repeated incidents of extreme violence, including strangulation. While I accept that Ms Hopper may have feared the repercussions of reporting family violence to the police, it is perplexing why she would not have acted more protectively for the children...given that she reportedly feared an imminent risk of murder-suicide. Similarly, it seems odd that she did not report such high level violence in her initiating application or affidavit material. Moreover, it is concerning that Ms Hopper did not leave at that time but remained with Mr Hopper for another eight months at least, and that she wanted to remain living in the former matrimonial home where Mr Hopper would have access to the children.
​

Judge Harman is very objective about each party's experience with domestic violence in this situation and basically accepted the parties' respective views about the degree of domestic violence as 'truth', even those views were competing. The reason for this is because Judge Harman believed that it was true for them. In any case, some of the allegations that Judge Harman accepted as true were very serious, but he still granted time between the father and the children, even unsupervised overnight time.

Anyway, I just wanted to maybe show you what I mean about the questions that get raised about raising allegations of domestic violence late in proceedings, that's all. Let us know how your case goes. Personal experience of forum users is very much a main reason why people find this forum so helpful.

 

[okanynameyouwishthen]

A lot of your historical details I find puzzling. One is chasing a " drug addict " to pay your costs! Or is your strategy going to be to only part paint him to court as a frugal "drop-kick" & deadbeat dad whom is unequivocally overcome by the all pervasive nature of addiction that renders him unable/unwilling to parent?

Have you any peer reviewed papers to go with your qualifications? Put the axe away & switch off the grinding wheel!