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QLD Family Court - Modifying Protection Order on Behalf of Children?

Discussion in 'Family Law Forum' started by EddyMerckx, 4 October 2016.

  1. EddyMerckx

    EddyMerckx Active Member

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    I am trying to protect my children in a domestic violence situation at their other parent's house.

    No go on getting a protection order on their behalf since I have no relationship with the offender and my children are minors so I cannot apply.

    Their other parent is in the domestic violence cycle, so they're already back in the relationship. Clerk of family court advised that I might be able to get a variation of the existing order on the children's behalf as 'there is a lot of grey' about 'acting on behalf of someone under another act'.

    The family court allowed me to submit the application. Went to court today and the judge wanted to know on what legal basis I am applying and adjourned for a week for me to work that out.

    So...all you legal eagles.. on what basis can I apply on behalf of my children to modify a protection order between their other parent and their partner?

    What I asked for is for the offender to be excluded from contact with the children, nothing on their parent.
     
  2. sammy01

    sammy01 Well-Known Member

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    I'll answer but only if you send me your autograph...and maybe a bike.

    So just checking...Your ex has an AVO on his/her new partner? Your kids were protected people? Yep, look a few more details, and what is the risk to your kids?

    My thoughts - you could withhold the kids on the grounds of welfare and ask for orders that provide for their time with their other parent to only continue if the dangerous one is not present.

    I think you'll need to give more detail - and a bike.
     
  3. EddyMerckx

    EddyMerckx Active Member

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    The police took out a protection order on behalf of the ex against the new partner after responding to a call about domestic violence but only has the good behaviour stipulation since by the time they interviewed the parent, the incident was downplayed as just an argument.

    Took the kids to see a psychologist who saw them separately and got a very different and much more violent view of events - head held in full sink etc. They also described and documented an ongoing pattern of DV. Kids have been reported by school as having behavioral problems for the last six months which is also when they moved in together. Kids have been seeing a psychologist since school reported this. Ex told kids not to tell the psychologist or me, and just made things worse on them.

    Took kids to see psychologist after the police attended DV incident. Psychologist gave me a letter saying that the children are at risk from the new partner and their other parent cannot protect them in the psychologist's opinion. Also that behavioral problems are due to ongoing domestic violence. Based on this, I sought legal advice based on which I am withholding children due to no care orders. I am allowing kids' other parent to visit them at my house and video call to ensure they maintain their relationship.

    Tried to apply for a protection order on kids' behalf as their school backs onto the house and has a small shared gate. I cannot since I have no relationship with new partner and kids are under 18.

    I made an urgent court order to apply for full temporary custody on Friday, which was granted today - but date is 1 November 2016 which leaves kids unsafe and in legal limbo until then. I have informed the other parent that I have assumed care, etc. Lawyer's letters are coming my way.

    My offer is consent 50/50 orders back to the way it was, but with the abuser excluded from contact as kids are having nightmares of him killing them, etc.

    The Judge asked me this morning about family court action. I think he partly postponed ruling on my variation of protection order application to find out what happens with my urgent application.

    Now that I have a date of 1 November, I can tell the judge that and ask him to vary protection order at least until then. But he still wants to know on what legal basis I am applying on their behalf as named persons in the order when their parent and partner are saying they do not want this order.

    So... I think there is an opportunity here to get the order varied on their behalf, but I need to be very specific about what my grounds are and which act I am acting on

    So... I think this is a real legal puzzle... but would make for a kick ass outcome :)

    And yeah, I'll Cannibal your bike
     
  4. sammy01

    sammy01 Well-Known Member

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    So why not seek sole parental responsibility?
     
  5. EddyMerckx

    EddyMerckx Active Member

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    My urgent application to the court asked for interim orders to give me sole custody and final orders that would be 50/50 with the abuser excluded from contact. They accepted my application but with a court date of 1/11.

    I really want the kids to have 50/50 back in their best interest. It was working really well before the DV, but nobody seems to be able to tell me:

    How do I get care orders between now and 1/11

    and

    On what basis do I tell the judge next week so I can apply to have exclusion orders?

    The latter I am now treating as a law hack... There has to be some order under some act that I can tell the judge that he will accept...

    The former... well, I have been speaking to child protection and they said that if she takes the kids away, they will intervene on my behalf and return the kids to me. Now I have no idea whether that actually works or not but I have spoken to them 4 times over the last month and they seem to believe what they say.
     
  6. EddyMerckx

    EddyMerckx Active Member

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    But I really like the idea of a law hack, even if just to find a crinkle in the system that other parents can use in the future.

    So on what basis am I applying on behalf of the kids?
     
  7. sammy01

    sammy01 Well-Known Member

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    Nope, you've got nothing. See you both have shared parental responsibility so that means what happens at mum's house stays at mum's house and vice versa.

    I'd suggest that you can refuse to return the kids on welfare grounds. Then seek orders for restoration of 50/50 with the condition that the abuser be removed, but the courts will have to be satisfied that he is an ongoing risk. And he might not be...

    Maybe they had an argument, etc, etc and that is all there is to it. And more importantly - theoretically, he has the good behaviour bond over his head, so there is a protection in place kinda...

    Sorry - thinking I'd better go back to asking Santa for a bike
     
  8. EddyMerckx

    EddyMerckx Active Member

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    Did all that, kids with me, etc, school and child services advised. Kids told psych he was drowning her in the sink independently, etc, etc.

    This is going to come down to who can spend more money on lawyers - which is me...

    But...Come on, there has to be some weird crazy statute that I can claim this under? Magistrate was asking me which one.
     
  9. EddyMerckx

    EddyMerckx Active Member

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    Son has been having school reporting ever since they moved in together that he has emotional problems - since April this year. Engaged psych around that time, so it's all documented. Kids are a mess, detailed by school and psych, etc etc etc.

    Surely there is some UN rule for kid or human safety that lets me act on their behalf? The judge did not say no - he deferred until family court ruling was made, then said I should come back and tell him on what basis I was acting.
     
  10. sammy01

    sammy01 Well-Known Member

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    How old are the kids?

    I'm a teacher - I am aware of teens taking AVOs against other kids, largely due to online bullying...

    So my thoughts, if kids have to go back to mum, then as soon as there is an incident that you find out about, you take the kids to the cops and get them to apply for an AVO on their own behalf... The AVO could include that the person not be allowed within 500 metres of kids...
     

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