NSW Family Court - Likely Outcome of Interim Orders?

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

Old Pop

Well-Known Member
29 December 2016
15
3
74
Admins/Moderators...not sure how much I'm allowed to reveal, so feel free to edit/remove any comments I've made that may overstep the rules.

First off, I'm writing this for people's opinion on what their experience/thoughts are, having gone through or is going through custody of chldren. It's purpose isn't for legal advice - though if any pointer(s) are offered, I won't be ungrateful. We do have a solicitor. I also won't be using any following comments in Court eg: 'but such and such wrote in such and such discussion', etc.

I'm looking for clarity/answers for myself, having never gone through anything like this before, and I'm quite frankly left bewildered, and can't find anyone to answer from a point of experience.

My son and his ex separated when their baby was 8 months old. The baby stayed with his mother, while our son moved back home with us. There was quite a bit of threats of withholding the child for the first few months from the ex and her father. It was also suggested by her solicitor to 'use the baby as leverage to get what you want'...as told to us by her.

At first, there was no set periods of contact. Son would ask for contact, and if there wasn't the threat of withholding, she would agree. The threat(s) would only last a day or two, then she'd agree and we'd have the baby over for whatever agreed time.

(Without looking up specific time periods, I'll just give rough guesstimates for examples). After about 1.5 months of this, they agreed to 1 week on, 1 week off. About 3 weeks after that decision, they agreed to 4-3/3-4 care.

Just before the 4-3/3-4 agreement, my son suggested to her to do mediation which she agreed to. He arranged it, then while waiting for their appointment, she said no, she wanted to go with a different mob, so she could have a solicitor with her. My son attended the one he arranged when the appointment came, she didn't. He also attended the one she arranged.

At the 2nd one, she dropped the times down by heaps for my son to see his son, and my son reluctantly agreed because he was veil-threatened by her solicitor that they could push for even less time, and because he worked, she would get it!

Meanwhile, our grandson would come to us (I say us because our son's living here, so naturally our grandson's coming here) filthy - clothes and body, and sometimes inappropriately dressed for the cold weather. Then he started showing up with bad nappy rash, all of this over a 5-6 month period. A diary and photos were kept of all this and submitted to the Family Court.

Then around June, he came with a small faded bruise on top of one of his ears. My wife didn't tell our son or me about this because she said it was too faded. She did try to get a photo, but it wouldn't show properly. A few weeks later, he came with a much darker bruise.

I won't write who my wife works for, or what her qualifications are, but she is qualified to be able to say this bruise was highly suspicious. We took photos and talked about our options, but knowing that my son's ex was very capable of having no hesitation withholding our grandson - based on previous actions on her part, and knowing her 'personality' like we do, for the purpose of still being able to keep an eye on grandson, we decided to err on the side of caution, and not mention anything to her, but agreed that if he showed up again with anything even remotely suspicious, we'd take appropriate action.

Well, he did show up again with bruising at the end of August last year - this was for my son's 2-night weekly access. Bruising was the same place, but this time much darker, and both ears...these bruises have always been roughly finger size, and always on the inner and outer top most part of the ear.

I took him to the local hospital - this is the same day he arrived here for the start of my son's access. Triage Nurse was suspicious, and said it'd need reporting. Then the doctor looked at him, he diagnosed as "Non-Accidental" injuries, and said he'd have to report it.

Two DOCS workers showed up the next day, and both also came to the same conclusion as the doctor that the bruising was "Non-Accidental". They determined that our now 16.5-month-old grandson would be safe in my son's full time care until such time as an investigation could be completed.

The next day - grandson was due to go back to his mother. My son sent her a text stating that due to the circumstances, he wouldn't be returning their son. A flood of text messages came back to my son with all kinds of threats and warnings. To my mind, written by her solicitor because she's incapable of pronouncing some of the words, let alone spell them! On advice from my wife and I, my son ignored her messages. We also sorted legal advice this day.

My son's ex served him with an application for Recovery Order just over a month later to appear 2 days later... She and her solicitor didn't even show, which irritated the Judge to no end. Her solicitor had to be tracked down by phone, so then it became an 'appearance by phone'.

The ex told DOCS one version of how the bruising happened, then told them a slightly different version. At Family Court, she wanted time to come up with another version, but the Judge told her no because she'd already given one!

When my wife and my son got to Court, they were also told that a note/letter/email (whatever) was there from the Crown's Solicitor's office requesting that my grandson remain in his father's care.

There were 6 or 7 Court dates all up. A couple ran out of time when the Judge wanted more info, so we went back again. The last was for the Interim Order. Also for the Interim hearing, there was an official letter from a doctor of an organisation that I would describe as a Forensic Team of children's injuries (not sure if allowed to use the organisation's name here), saying the injuries were "Non-Accidental", and that this doctor was prepared to stand up in Court stating that.

So in summary, we have - in order - my wife who's certified to recognise and investigate children's injuries, the Triage Nurse, the doctor, 2 DOCS workers, the DOCS workers' Manager (forgot to mention her, I took some photos to the case worker 4 days later, and she called her manager out who was surprised that the bruises were still so dark and evident after so many days had passed), the Crown's Solicitor's office request, the Judge stating at one hearing that the injuries were done on purpose (years of experience in Family Law), and then the Forensic Dr stating they were done on purpose.

So my question to any that would like to give their thought(s)...what would you expect/speculate the outcome of the Interim Order would be?
 

Hayder Shkara

Lawyer
LawConnect (LawTap) Verified
16 January 2017
121
25
454
Sydney, NSW
www.neatlaw.com.au
Hi there, thanks for your messages Old Pop.

What would you expect/speculate the outcome of the Interim Order would be?

Very dangerous territory we are entering into here - you are basically asking us to give an opinion as to how a Family Court judge will take the situation. The problem with this is - we've read a summary of what's happened from your perspective, however, the other side hasn't been able to provide an argument here.

If this were to happen in court, the judge would make orders in favour of your son. However this does not happen in court. Both sides provide arguments, there may be expert witness reports that your son's ex may have that say something different about the injuries. The judge may not be convinced that the injuries were intentionally made. Because we don't know both sides, it's hard to make a call.

Also, we are unaware of the Interim Orders sought, so we have no way of speculating whether or not they will be granted.

I hope your grandchild stays healthy and safe
 
  • Like
Reactions: MartyK

sammy01

Well-Known Member
27 September 2015
5,152
720
2,894
It is tomfoolery, old man, to expect anyone to answer/speculate. Hi, my name is tom, so I'll be that fool.

So, look seriously, it really is hard to speculate... But I wanna appease your concerns.

I reckon the courts get it right most of the time and they don't muck around when it comes to the wellbeing of kids. So my bet - supervised visits at a contact centre as interim orders. Maybe mum gets some overnight unsupervised time, maybe. But possibly not at interim...

I reckon mum will be asked to do a parenting course. Look - she's a single mum, possibly without much support. Lets hope she gets her act together enough to be a good mum and that structures are put in place to achieve that. And to that end, the best structure in her life is you, your missus and your son.

So she has behaved like a pork chop... granted. But maybe she can get her act together and realise you guys could be her best allies in the world when it comes to raising this kid. Oops ranting - I do that sometimes.

Oh and if the kid is with mum for a few nights here or there - I reckon that is ok... Kid will still be coming back to you guys right? And if you're sensible, you'll accept the occasional bruise without being hyper vigilant, but if the kid comes back with welts, well, that is a different story.

Now I don't know if this is gonna help - but here is a link to heaps of court cases. I searched for 'unacceptable risk of harm'. Please, please, please, do not send yourself crazy here by spending hours reading... Sometimes it is best to read the summary at the top and the bit about 'orders' to help you know the result... But it is worth noting the mistakes people make in their cases rather than the end result.

AustLII Results - unacceptable risk of harm

You're gonna like this one:

Palma & Murphey and Anor [2016] FamCA 247 (18 April 2016)

This one is interesting - make sure you read paragraph 14...
Grainger & Grainger [2015] FamCA 276 (20 April 2015)

Don't do what this mum did. I reckon this dad will have a good case down the track to show how mum is a porkchop and has caused the whole world unnecessary grief with her antics.

Now this one might also be worth a read:

Lofts & Lofts [2016] FamCA 95 (19 February 2016)

So short version - even with a history of some - let's call it neglectful parenting... It is still likely mum will be seeing the kid... Long term? Who knows.

Can you keep us informed how you go? I'm kind of interested...

Look, I used to think the system was sexist against men. I'm not so sure anymore and I reckon your case exemplifies that.

Final thought - be seen to be prepared to encourage a positive relationship with the mum. It is the best thing for your darling little grand kiddy and will look better than claiming she is the devil incarnate - because she isn't.... Trust me, I know because the devil incarnate is actually my ex.
 
  • Like
Reactions: Corinne

Old Pop

Well-Known Member
29 December 2016
15
3
74
Hayder Shkara,

we've read a summary of what's happened from your perspective, however, the other side hasn't been able to provide an argument here.

My perspective was the neglect - filthy and bad nappy rash backed by time stamped photos, granted. The physical injuries part was the perspective of professionals in that area, including that of the Judge who has 20 odd years in Children matter - Family Law Court, DV and Child Protection, and is a member of a "Child Protection" Liaison committee, who also commented to my son's ex that the injuries were done on purpose.

I purposely left out the 'he said-she said' stuff so as to try and not 'muddy' peoples thinking.


sammy01

I reckon the courts get it right most of the time and they don't muck around when it comes to the wellbeing of kids. So my bet - supervised visits at a contact centre as interim orders. Maybe mum gets some overnight unsupervised time, maybe. But possibly not at interim...

Supervised is what I would've thought, given the injuries - which by the way of her description is impossible to have happened. I won't give extra detail, because that's part of our 'ace(s) up the sleeve' so to speak, and I don't want her forwarned in case this read by her, and she's only given an explanation for the last time my grandson arrived with the ear injuries.

After the initial Court date, ex was ordered to only have supervised 3 times a week x 2 hours each, which of itself was a joke. Only one of them days was with a "contact centre" or a DoCs worker, the other 2 days were at a child's play group. Granted, there are other people around as well, but to me and the dictionary, "supervised" means being watched/observed.

Up until my son got primary carer, my wife and I were respite and short term foster carers, and I know there are many ways of hurting a child without leaving marks....especially a child who can not even speak yet!

After the 2nd Court date, she was given 3 days a week @ 8 hours each - no nights. Suppose to have a 'responsible adult' with her at all times, but what we know of her family and friends - yes I know personal thoughts and reality aren't allowed to play a part, but I'll guarantee you wouldn't trust 'em to take your garbage out.

----------------------

They go back to Court in May for a "review" of the Interim (Final Orders early next year), and I have a very nasty feeling she'll then start getting nights as well, in the least, but won't be surprised if my grandson is handed back to her as primary carer
 

MartyK

Well-Known Member
4 June 2016
419
61
794
Hayder is correct that there are two sides to every story. Here we have only one version (or part thereof) and as such it is impossible to speculate how this will end up.

While I do not disagree with you Old Pop that the welfare of the child should take precedence, as supervised (contact centre) time has moved to longer supervised daytime visits (family member supervision), then my guess would be that the Court, at least at this point in time, does not share these grave concerns you have about the mothers family.

Has an ICL been appointed? Has an order been made for a Family Report?
 

sammy01

Well-Known Member
27 September 2015
5,152
720
2,894
Old man... calm down.. Yep, your version of supervised and the courts are different...but I think the courts got it right. The child gets to see mum - great. The kid is unlikely to be harmed - great. Now no-one has proven that mum is dangerous, true - so does she really need someone with a notepad and paper writing down stuff while mum spend time with the kid? The child is being protected what more do you want?

Magistrates are smart punters. Mate supervision costs money... Employing someone for supervised contact is so bloody expensive that mum couldn't afford it...Sad but true. So what magistrate has ordered is a reasonable compromise... So lets think of this from mum's perspective. I bet she wanted the kid returned to her...That didn't happen - true. So who got closer to what they wanted? You.
 

Old Pop

Well-Known Member
29 December 2016
15
3
74
Wow! The more I read about this system, the worse it gets :(

I completely understand you're only getting my side of the story here, but that'd be true of every query on this site!

I could understand if only 1 or 2 professional(s) had said it was their opinion that my grandson's injuries had been done on purpose, but with so many including the Judge all saying the same thing - well if it quacks like a duck, and walks like a duck...

I would expect complete protection for my grandchild no matter the provision(s), his safety and wellbeing is 1st and foremost. It's not about my son's (or ours) wants - except for his son to be safe and happy. It's not about the mother's wants or her financial position - if I remember right, it cost her $5.00 for the supervised contact service each week, it's about my grandson's rights and needs to be free from having physical pain inflicted on him on purpose.

Neither my son or my wife and I want him to not see his mother, it's the furthest thing from our minds. What we do want is him to be safe while with her, at least until such point that he is 'aware' (of self) and can talk - remember, he's only 20 month old at the moment, so if he is purposely hurt, he can at least tell someone what is going on.

Sorry, I understand a child's need to know and have contact with both parents, and I fully back that, but for the life of me, I just can't get past my grandson being purposely hurt - and on more than 1 occasion, and not enough being done to protect/help him! In my book, a child should never be hurt - and I'm not talking discipline, no matter the reason(s). If I was to do the same to her, I'd be charged with assault, but she'd also have the ability to at least try to protect herself from me!

Thanks for your replies guys, I do appreciate them. Your comments have painted a much clearer picture of the institution.
 

sammy01

Well-Known Member
27 September 2015
5,152
720
2,894
So let me give you a hypothetical.... What is mum accused you or the father of abuse... It happens.

Now it takes time for the courts to check all the facts. Wouldn't you be wanting to see the child and wouldn't the child want to see you...?

Now - do you think the mum is happy with this set up? Nope, not a chance. Oh and has the child been put at risk with the judges set up? Not really...

One more thing - if there is evidence of harm after any of these visit get the kid back to the dr and refuse the mum access. But let's get to that one later if we have to
 

Old Pop

Well-Known Member
29 December 2016
15
3
74
P.S

Just spoke to my wife, and whilst in Family Law Court - and directed by, Supervised Contact is free.

Also, after Final Orders, the service that provides it around here (small rural area), Supervised Contact cost is income dependant