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QLD Family Court Matter has Incomplete Subpoenaed Documents?

Discussion in 'Family Law Forum' started by tru, 10 June 2016.

  1. tru

    tru Member

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    My family court matter has been going on for 9 years and is very complicated, including a long history of domestic violence and child sexual abuse, which the lawyers have been trying to exclude from proceedings.

    At our last mention, I was pressured into signing yet another set of consent orders which I told the lawyer I didn't agree with as I was signing them. I specifically asked my lawyer to bring to the Judge's attention the family violence, which he said he would. He didn't end up saying anything about it.

    Just as the Judge was closing our mention, he asked me if I wanted to say anything and I told him about how the Family Report Writer and evaluating psychologist compiled their reports without being provided with highly relevant and important evidence, including long Domestic Violence history (applications, orders, variations, breaches, police statements, affidavits, etc) and that the police subpoenaed documentation was incomplete, including missing documents on history of sexual abuse investigations and Domestic Violence.

    The ICL has further not provided the reporting family consultants with important documentation regarding our child's medical condition, which was made available to the ICL. The ICL has been appointed for six months and has not once made any contact with our child's school who are heavily involved with our child's situation (involving CYMHS).

    The ICL has also not subpoenaed our child's latest counsellor (who he began treatment with before ICL was appointed). Are these grounds for ICL incompetence?

    The Judge appeared to be making a note about this. Is he obliged to conduct inquiries into these issues when brought to his attention? It's been over a week since the mention and the latest family court orders have not been uploaded on the portal (they've always been on there within a couple of days previously) which causes me to suspect something is going on behind the scenes due to the delay.

    Any ideas?

    Thank you.
     
  2. MartyK

    MartyK Well-Known Member

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    Previous proceedings and Court Orders? Were the same allegations of DV and child sexual abuse raised in those proceedings? Did the Family Court determine the allegations were unsubstantiated? If yes, this could be the reason little weight is being given to them now. Your lawyer might be doing you a favour in not re-raising them as a forefront issue?

    You raised the DV and abuse to the Judge? I thought you had a lawyer? Usually represented litigants do not make their own verbal submissions in the Court, their Counsel does?

    How do you know the subpoenaed documents are incomplete? Are they on Court file and have you inspected them?
    Did your lawyer forward all of your filed materials to the Court Reporter prior to the report?

    I might have misinterpreted some of the information in your post?
     
  3. tru

    tru Member

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    The initial DVO and parenting Orders were in 2008, with variations to DVO to add named persons and "no contact" condition, due to escalating DV over the next couple of years (breaches reported but finalised as "not in the public interest" to prosecute. There is a current DV application and new recent child sexual abuse allegations. We have previously mostly settled the FMC matters by way of consent (which I regret now, reluctantly signing orders due to pressure to settle the matter outside of court).

    The police and DCS filed the initial sexual abuse investigation (2009) as unsubstantiated due to "insufficient evidence". My child was almost 3 years of age at the time he made explicit disclosures to three fresh complainants, all who gave police witness statements (police material on this investigation has never been provided to the court, despite this 2009 investigation being mentioned in a related police report of sexual abuse from 2011)

    Until recently I was funded by Legal Aid, which was not a good experience (I was mostly self-represented prior to that). At the latest mention, I asked my new privately funded counsel to at least mention the chronic history of DV to which he said he would. He didn't.

    When the Judge asked my counsel questions he turned to me to provide the information. The Judge asked me about the current DV proceedings which I informed him of, and of the missing subpoenaed documentation.

    Yes, I inspected the subpoenaed material as my Legal Aid solicitor had not. Given the history of police involvement in our matter, I knew there should have been much more documentation, including the history of DV and sexual abuse investigations (the initial one from 2009 being mentioned in the related 2011 occurrence which was in the subpoenaed documentation) and other relevant police material. The father is self-represented and was the first to view the subpoenaed material.

    No. My Legal Aid lawyer did not forward any material to the FR writer. The ICL provided FR writer and evaluating psychologist with incomplete briefs, including not providing history of DV, no former affidavits of my witnesses, nor any of my affidavits prior to 2014, no initial Family Report from 2008 (there have been four FR done in the past 8 years) and no notes from the latest counsellor our child and I have been seeing for treatment as corollary to domestic violence.
     
  4. MartyK

    MartyK Well-Known Member

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    Not uncommon for police to close an investigation with unsubstantiated-not enough evidence if they don't think they'll get a conviction. Evidence of 3-year-olds, even a bit older, without strong collaborating evidence of sexual abuse is usually considered unreliable. Doesn't help young kids who actually are being sexually abused.

    If police closed the 2011 investigation the same way then the Family Court would be reluctant to make findings of fact about the sexual abuse. Even if the subpoenaed documents were complete. Principles from High Court cases like M v M and Briginshaw v Briginshaw come to mind.

    Sometimes DV is just listed briefly in police records. DVO's and other important supporting evidence should be attached by litigants as Annexures to their affidavit. Subpoenaed documents should never be the only evidence relied on.

    If proceedings were finalised and reopened at a later date, materials from the other proceeding will not always be forwarded to the Court Reporter.

    IMO one of the biggest risks litigants take in the Family Courts is running child abuse arguments where there is little to no evidence to support them. They can backfire easily and cause you to look unreasonable and obstructive, even if you honestly believe the allegations you are raising are true.
     

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