QLD False Allegations of Violence - Likely Outcome in Family Court?

[Isittrue]

Hi there,

Just wondering if anyone would know what sort of outcomes might be on the cards for the following scenario:

The mother and the father had a pretty toxic relationship. Some fights were physical. No AVOs/DVOs were ever taken out. Their child witnessed majority of these fights. The mother and the father split 3 years ago. The mother has care of child who is 9.

Prior to orders made early this year, the mother withheld child whenever she felt fit, with no regard to parenting plans. The mother blames the father for violence during the relationship and is now saying the child has behavioural and mental health issues as a result so has taken child to a counsellor for trauma.

The mother has initiated legal aid mediation, for orders to change current arrangements, stating issues are "communicate and spend time with". The child currently flies interstate to see the father. The father pays all costs associated to see his daughter. This occurs half of every school holidays.

The mother has already attempted to withhold child against family court orders. Went to court. The mother was ordered to send child. The child told the father that the mother intends to have the father travel to where they reside interstate for him to see the child. The child has not shown any behavioural or mental health issues while in father's care and is very happy while in his care.

The father has changed completely as a person since leaving the mother. The mother has become very resentful and bitter toward the father. The father has spoken to counselling place but due to confidentiality, they have only said there are no concerns. However, the mother said in family court that she was withholding child due to conversations with her lawyer and the child's counsellor saying it was in the child's best interests.

Question is - would it be likely for a judge to order the father to travel interstate to see child each holidays when there has already been an arrangement for the opposite? Physically, it's not possible for supervised visits, and this does not seem logical when the child has not been in any danger while with father.

Would a judge be likely to limit contact/visitation between the father and the child if the contact is already limited to half of school holidays only at the father's expense?

And lastly, would a judge see the violence as being father's fault if mother has fed child stories and therefore, brainwashes the child into only one side of the story where the child then shares this with counsellor?

Side note: the father moved interstate for work 2 years ago and the mother knew this was always going to happen, even since they were together. The mother and the father split up 3 years ago.

Thanks so much for any insight, experiences, suggestions, criticisms!

 

[AllForHer]

So, you already have orders? Are they final or interim?

 

[Isittrue]

Yes already have orders. Consent orders.

 

[sammy01]

If you have final court orders and it appears you do - then forget the nonsense - do mediation via phone. But don't agree to anything.

If she witholds go back to court - do it every time. Then apply for the kid to live with you

 

[AllForHer]

Generally, agree with the above. Mum is going to have a lot of trouble changing the orders now that you have them. The allegations obviously weren't a problem back when she agreed to the care arrangements, so the Court isn't going to suddenly believe they are an issue now.

If she withholds, make sure you file for contravention orders every time, even if you just self-represent. Once the prima facie case is made out, the onus is on her to prove she had reasonable grounds for withholding. It's not likely she will be able to claim the child is suddenly having a response to alleged violence that happened more than three years ago, and short of genuine fear for immediate safety, there's not many compelling reasons for a person to contravene orders in such a way.

 

[Isittrue]

Thanks both of you.

No intention to agree to any less time that what has already been arranged. On the contrary, if this ends up in court then would love to change time to all school holidays bar Christmas which would stay halved.

The mother only started bringing up the violence "trauma" once she had the drafted orders to sign. Prior to that, she didn't say anything about there being concerns and the child has never been scared to come. The child cried before flying this time and mother claimed it was because she didn't want to come but bets are on that it is because the mother puts too much pressure on the child as well as doesn't encourage her or reassure that the child will have a good time. Instead instilled fear.

Self represented before for the other time she withheld so all good there. Mother got a stern talking to (but was let off lightly) as talked over the top of the judge and got quite short.

The mother has legal aid so that's the only worry about going to court if self represented but have read that legal aid don't fund cases where they don't think they can win. Hopefully this will be one of those cases.

 

[Isittrue]

Draft consent orders included mother's violence allegations but she still signed. In the clause about if the child had ever been exposed to violence, it was put that "yes" she was by both parents but none of the allegations by the mother related to the child bar one, although mother claims the child was in her arms when other violence occurred.
The judge still granted the consent orders without having to ask to have us go to court. Guessing the judge believed that both parents had signed and there is no evidence of violence occurring apart from mother saying it did, and now of course the child having these issues and talking about what had happened (from what the mother told her) in counselling sessions.

 

[AllForHer]

Honestly, she will be extremely lucky not to have the application dismissed at first instance on grounds that it doesn't mean the threshold rules of Rice & Asplund, which holds that the Court can only consider varying orders where there has been a significant change in circumstances such that the existing orders no longer reflect the best interests of the child.

A change in circumstances is if, for example, you relocate closer to the child such that more time can be facilitated. 'Sudden trauma' from incidents that occurred nearly three years ago when the child was just six isn't going to be terribly compelling, particularly since you have both conceded wrongdoing (and who should be held more responsible for the impact on the child now? You or mum?).

The mother's lawyer isn't an expert witness in a parenting matter and legal advice isn't binding, so the mother, not the lawyer, would be held responsible for the decision to withhold the child. Likewise, the child's counsellor has only spoken to the child and the mother, not you, so their opinion won't be worth the paper it's written on because it would be considered biased.

In any case, allegations of violence don't have the same weight in Family Court as they do in public opinion. The Court tends to be much better than the parents themselves at finding ways to protect children while still ensuring they can have a relationship with both parents. I doubt Legal Aid will fund a case where there are already consent orders in place, so I think mum's going to have to find a way to deal, or otherwise spend a lot of money to be disappointed.

 

[Isittrue]

Really appreciate your comments. Thanks very much. It all makes a lot of sense.

Definitely have the same thoughts regarding who can really be more to blame. The mother has told the child she's not to blame and consistently blames me, and the child says it is because of me. Says in front of the child to me "she's effed up because of you" just before jumping on a plane. And the mother thinks the child doesn't have anxiety because of her...

Anyway, feeling rather a little more optimistic about mediation and the prospects of court knowing that it's going to be less easy than I thought for the mother to take away time.

On another note - does anyone have any insight as to how a legal aid run mediation goes?

 

[sammy01]

Legal aid is a good thing for you. Legal aid solicitor gets a grant - say $5000 to sort things - they want it sorted quickly and take the money. Private solicitors don't mind dragging things out (well the bad ones anyways) because then they get paid more. So self-represent and just say that you want the consent orders to be adhered with.

Legal aid won't fund her in court - so if you get a list of contraventions, then you can expect soon enough the magistrate will put her on a good behaviour bond. If she breaches that then go back to court again. Mate get good at self representing, but in the long term, if you're persistent you could look at having the kid live with you if that is what you want.

How far away do you live from child? Any chance you could move closer?