NSW Family Court First Appearance - Help?

[Twooke]

Hi guys,

I’ve been reading a fair few threads on here for a while now and just thought I’d come on and get some help as this site has been a wealth of knowledge so far looking through some other threads.

I had been married to my wife for 2 years and our son is 13 months old and I have not seen him in 7 months, missing out on many special days including his first birthday, my birthday and father’s day, since I left what was an abusive situation with my ex-wife yelling, screaming, threatening me and physically assaulting me. As my son was breastfeeding, I felt it was important for him to stay with his mum despite her violence towards me, thinking she would calm down when I left.

So I went and moved into my aunt’s place over an hour away. This violence from my ex-wife to me occurred throughout the whole pregnancy.

The next day the police placed an AVO on me after listening to her false version of events, in which she stated that I repeatedly punched, pushed and threw her around the house, which I did not do as I abhor any form of violence against women. I accepted the ADVO without admission and my ex is now using this against me as a reason for me not to see my son. Mediation was started via phone with the mediator cancelling the session 45 mins into the session.

I have my first family court appearance in court in a 2 weeks and my solicitor has told me that she feels there is a chance that my ex will not turn up or not have the paper work in place, as I still have not received any response from her as yet, as a stalling tactic so that it will be longer until I am able to see my son. I fear that this severing of the bond between my son and I and my ex’s refusal to let me have any time with him or have any information about him since that day will have impacted our son in a big way, as will our reintroduction to each other, if this does occur.

I fear that there is a chance that my ex will never allow me and my son to have any sort of relationship as she warned me throughout the pregnancy that if we broke up she will do everything in her power to make sure I never see our son, and looking at what she has done in the last 7 months I feel that is her intent. She is using the fact that she is "scared of me" and afraid of what I will do to her and our son as a reason for not allowing any communication between my son and I.

She is quite a believable liar and has been a few steps ahead of me at every turn, and fear that the judge will believe her allegations of family violence and not mine, as she weighs around 40 kilos dripping wet and I tip the scales just over 120kg’s on a good day, and to just look at us it would seem improbable that she would be the abuser.

Through anyone’s experience what would be the likely scenario coming out of this as I have that ADVO on me and she is being believable saying she fears for her safety? Is there any chance that I’ll be able to start getting any contact with my son on this court date? What happens if she just blatantly and consistently contravenes any orders the judge gives?

As a way of keeping costs down I keep my conversations with my solicitor short and to the point with me doing most of the run-around to get things ready. So we have not really been able to talk about the what-ifs… But these are what are keeping me up at night!

Sorry for the long post but I feel that everything is just stacked against me when all I wanted to do is be a great family man and an awesome dad. Any help would be appreciated.

 

[sammy01]

Mate the biggest problem you have is the age of the child... You can't really expect 50/50 care with a 7 month old... You can't really expect much more than a few hours a week.

 

[Twooke]

Yeah thanks Sammy,

He's 13 months old... but still I think it's the same.

I have put forward 3 x 2 hour sessions a week in the interim orders!

 

[AllForHer]

Not an uncommon scenario, frankly, but lucky for your son, Family Court judges aren't idiots.

I'm not going to run through the legislation, because you can probably find that information in many of my other posts on this forum. Instead, I'm just going to make some observations that I hope will help you make sense of your situation a bit more.

First, the ADVO.

You'll find that most lawyers will advise a respondent to accept without admissions, and I think that advice is good, particularly if there are kids involved. State legislation and State Courts are liberal with the distribution of protection orders because they have very few consequences for the respondent (except, of course, if they breach them), and it's better to be safe than sorry for the aggrieved. So, rather than wasting time and money trying to defend a protection order that the Court will probably make regardless, it's better to focus your time and energy on parenting orders, since they overrule protection orders anyway.

So, on to parenting orders, what impact will the protection order have on the parenting orders application?

Well, children have a legal right under s 60B of the Family Law Act to know, spend time and communicate with both parents on a regular basis, regardless of the nature of relationship between said parents and insofar as their best interests can be met, and the Court is there to protect that right, so for the Court to make an order that fundamentally violates that right by ordering no contact with one parent, like the care arrangement which your ex has implemented right now, the Court must be persuaded that the non-contact parent poses an unacceptable risk of harm to the subject child through either neglect, abuse or family violence.

The threshold for what constitutes an unacceptable risk, however, is significantly higher in the Family Court than it is in State Courts. If the only evidence supporting your ex's case for no contact is her word and a single protection order which was

• accepted without admissions;
• doesn't name your son as a protected person;
• was not accompanied by any charges for violent crimes; and
• has not been breached

then it's not going to be enough to support a no contact order. Evidence of a genuinely unacceptable risk of harm includes things like police reports, criminal charges, abusive/threatening text messages and/or e-mails, witness statements of violent incidents, etc. If none of that exists, then again, it's not going to be enough to support a no contact order.

With that said, you're very early in proceedings, and in a lot of cases where allegations of violence are made, the Family Court sometimes treads carefully with the interim orders that it makes simply because all it has at that time is your word against hers and no way of knowing if the allegations are true or false. A such, you might find yourself subject to interim orders that facilitate supervised contact or similar, but the longer interim orders are carried out with no incident, the more inclined the Court will be to facilitate more time with fewer conditions, so it's important to always be on your best behaviour.

Long term, though, mum is going to be facing an uphill battle to get this current arrangement on paper as final orders. Against the enormous number of matters heard where allegations of violence are made, it's quite astounding how very few actually have those allegations substantiated at trial, simply because the judges aren't idiots.

They are familiar with the games parents play to advance their case, and false or exaggerated allegations of violence are the oldest trick in the book, particularly in the current climate of social panic about domestic violence against women and children. As an average, though, I'd say the vast majority of non-resident parents (usually dads) who take their matter to Court wind up with five nights a fortnight at least with their kid, even with protection orders entering the fray.

Right now, sit tight. Don't contact mum directly, just communicate through your lawyer and only if you really have to (which should hardly be at all, at the moment, consider the protection order and the fact that you're not seeing your son).

Contrary to popular opinion, the system actually does work, provided you are always genuinely acting in the best interests of the child (emphasis added only because I've seen a lot of parents confused about what they say is in the best interests of their kid, and what actually is in the best interests of their kid).

 

[Twooke]

Cheers for the response Allforher...it has taken a bit of the stress off, I appreciate it!

I've done everything that I've been told to do.. the police officer who served me with the ADVO could see that I was in absolute shock as I had never been in trouble for anything before and she gave me good advice.

She told me she sees this happen to fathers a lot and for me to see my son as quickly as possible I should follow the ADVO orders to a tee, talk to a solicitor the next day and follow what they have to say and get things rolling.. which I have done!

It's just these bloody stalling tactics of my ex.. I attended mediation 4 days after moving in with my Aunt and the first court date is 7 and a half months after seeing my son last!!

Although I have used this time to reflect and I do feel that I am now able to put everything my ex has done to my son and I to the side and do honestly want to act in the best interests of my son and nothing else..

Thanks again for the response...

 

[Twooke]

Hi All,

So I had my first time in court today and my ex didn't turn up, there was a solicitor there for her who said that she wasn't aware that she had to attend. All the judge said was that he was adjourning this until December and that she had better show up then, he didn't seem particularly phased. I was told that the court isn't happy when one party doesn't turn up? This didn't seem to be the case at all
And this excuse from her solicitor was obviously crap, but the judge didn't seem phased at all..

I also found out today that my ex has quit her job, cancelled the lease and moved 3 hours north and is now living with her parents.. all without my knowledge. I fear this is going to massively complicate things and severely limit the chance for our son to form bonds and relationships with myself and his extended family..

The solicitor acting for her said that she moved there as she has needed her mothers help looking after our son.. after court I rang my solicitor whose been helping me and he said that in my orders I'm seeking ill just ask for a relocation back here.

My second question is... Will the fact that she no longer has any ties back here.. considering she now hasn't got a job or a house down here play a part in the judge deciding whether or not our son will be permitted to stay 3 hours away where she is getting help from her parents instead of me?

 

[AllForHer]

Look, that's fairly ordinary process when one party doesn't show up to a first hearing. Most judges will give benefit of the doubt because it's a first mention and parties this early on don't often know what is expected of them, but if she doesn't show up to the next one, the judge is more likely to make interim orders in her absence. After all, if she has genuine concerns here, isn't the Court the very best place to have them addressed? Why wouldn't she participate in the very proceedings that can protect her son from the alleged abuse?

So, sit tight until December, and try not to let the disappointment and feeling of hopelessness eat you alive. It's easy to lose faith in the Court system when things don't go your way, but try not to get stuck in the cycle of bitterness. Truthfully, the Court supports your son having a relationship with you, but it still has to follow procedure to make sure all parties are given a fair hearing.

Regarding relocation, I'd say she has very reasonable ties to where you're living, simply because her son has a pretty significant tie to you, don't you agree?

Nevertheless, relocation applications are difficult to predict, so I'm not going to do that. She might be ordered to return, she might not. Best to file for a relocation order ahead of the next mention and hope for the best, but expect the worst.

You can file interim orders that facilitate care arrangements for both scenarios (that she is ordered to relocate back, that she isn't ordered to relocate back).

Three hours of distance, while certainly inconvenient, would still facilitate an every-other-weekend schedule at least, so seek interim orders for the child to spend time with you from after school (or day care) every second Friday until before school (or day care) the following Monday. Indeed, such a distance would very nearly necessitate an immediate to move to overnight time, but given the young age of the child, you might end up with one overnight each weekend for the time being.

Make sure the judge knows how long it's been since you've seen your son and you are obviously concerned that given his young age, his relationship with you is deteriorating rapidly in your absence.

But keep your chin up, mate. December isn't too far away.

 

[Twooke]

Thank you Allforher for your reply.

It has been extremely helpful in helping me know what to do next. It's hard having to sit and wait thinking you should be doing stuff. A mate a work told me some wise words "if all you can do is wait.. you're doing everything you can!"

I'm just in the middle of drafting my interim orders if the relocation order is unsuccessful. Would I be able to ask a quick question?

If my ex is not looking to work again and her focus is just on raising our son, and my only two days off are the weekends is it too much to ask for every (or most) weekends down the track after bonds have been reestablished?

Just wondering seeing as though everyday is my exes day off and her parents are retired so they have all day everyday with our son, and with his young age weekend and weekday routines wouldn't be any different at the time being I would assume.. and seeing him every week would be more beneficial!

Or should I just keep it at every other weekend and some evening time in between?

 

[AllForHer]

Okay, so, some things to consider.

First, it's always a good idea to try and get interim orders as closely associated with final orders as possible. It is not often that the Court sees fit to maintain certain interim orders for the duration of a hearing, and then make final orders something vastly different, so try and work it so that the interim orders complement what you're seeking in final orders (for example, incremental increases in the time the child spends with you until you reach the five nights goal, and start half holidays as early as possible).

Second, remember that parenting orders are intended to last until the child turns 18, so you need to think about the many variables and needs of the child has he grows, changes and matures. For example, while an every-weekend schedule might be acceptable now, what happens when the child reaches 12 years of age and wants to spend more time with his friends on the weekend, or participate in team sports on Saturday mornings?

Also, think about the vast difference between weekends and weekdays.

Weekdays involve things like school pick-ups, homework, bed times, the 'hard work' of raising kids, whereas weekends are when the full-time workers get their leisure time to go camping, hit the movies and stay up late. If the child only ever sees you on the weekend, he's not going to benefit from your 'weekday' style of parenting, and if the child only ever sees his mum on weekdays, he's going to miss out on leisure time with his mother.

It's important to recognise that kids benefit most from having what the Family Law Act describes as a 'substantial and significant time' with each parent, which is a combination of weekends, weekdays, holidays and special occasions.

With that said, your son is very young, and most psychologists agree that it's best for a child of such tender age to spend less time, more frequently with each parent, rather than more time, less frequently. You may have an argument for every weekend, but I doubt it will make it into final orders.

 

[Twooke]

Thanks for your insight, it's been invaluable!