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VIC Family Court Returning Children to Abusive Mother - What to Do?

Discussion in 'Family Law Forum' started by Bob Dobolina, 10 October 2016.

  1. Bob Dobolina

    Bob Dobolina Active Member

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    I took the children off her and hid them as she was using weed + ice and was diagnosed as PTSD. She had hit one to the face with a hard open hand causing a blood nose, so I took the children and went to the cops to report it.

    They didn't act on it. I called DHS and they said they would act and didn't. I went to the primary school and they said they would investigate and didn't. I ended up in court after being railroaded by her lawyer as mine was unavailable .

    I ended up facing a giant affidavit from her and her son, which was full of lies to which I was given only 2 working days to reply to and my replies were not submitted by the Barrister whom I fired.

    The family court ordered an FCC who did what they appear to do...badly...but decided that I coached the kids and didn't believe them or me and ordered the children returned in the interim. The family court has appointed an ICL, whom I presume is waiting for me to file something?

    Meanwhile the courts have handed the children back to the drug using abusive and neglectful mother as I see it.

    So I get 3 weeks ordered no contact as I supposedly brainwashed the kids to make up stories or something and then am supposed to be great full at receiving 1/2 hour phone call once per week and every second weekend with them? All this without submitting a single response or document or speaking in family court?

    So all her affidavit lies are listed as closed in the portal which I take to mean I don't get to reply? Meanwhile the other family members housed with the children are violent towards me and assaulted me last Christmas, resulting in both children being on a protective order with me against her brother which she ignored?

    The son from a previous relationship has spent more time in jail than anyone I know. Where is the justice for these children who nobody believes?
     
  2. Bob Dobolina

    Bob Dobolina Active Member

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    Please anyone?
     
  3. Bob Dobolina

    Bob Dobolina Active Member

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    AllForHer, you seem to know what you are talking about? What do I do now apart from appoint a new legal aid funded law firm?
     
  4. AllForHer

    AllForHer Well-Known Member

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    Okay, so my first question is, what evidence do you have of the alleged risk factors - the drugs, the physical abuse, etc.?

    Just the children's word?

    How old are they?
     
  5. Bob Dobolina

    Bob Dobolina Active Member

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    I have a child at 8 and another 10.

    She admitted in her FCC interview that she has been a chronic cannabis user for 30 years and used ice, according to her, 3 times.


    I had my vehicle attacked by her in front of the kids when she located us. She did $2200 damage and was found guilty of criminal damage. She is housing the kids with her brother who was under an interim intervention order naming the kids last Christmas after he assaulted me twice the same day, resulting in a broken rib and caved in face. The order was struck before it was permanent as he left the country and I missed the court date.

    i couldn't lodge again as i didn't know where he was.

    Now he is with her, wherever that is. She had been sexually assaulted by him in 2013 whilst he was on ice and reported it to the cops but he slipped away again and she dropped it. Her son also lives there and was party to the flogging I got last year...that was the fourth time he has assaulted me but the first time I reported it.

    I have photos of weed and a couple of the ice pipe. There was no discernible physical signs of the assault on the child, but they were taken away by her for 18 months in 2013 against my wishes or knowledge of their whereabouts and I had no opportunity to contact them for 12 months, which she states in her initiating affidavit as running from her brother.

    One fell off the play equipment at school today, an ambulance was called and the other daughter wanted to call me but the school denied her saying the power was off?

    I also have a document I made in 2007-ish that outlines accurately when the baby and toddler sized girls and I were barricaded in a bedroom as she tried to kick the door down. She ended up trying to smash her way through the plaster wall with my computer. The 000 operator could hear it at their end and police arrived.

    Nothing happened to her.

    I have the notes from her behaviour and conversation. She yells at me to take the kids and expletive off, 'I never wanted you in the first place', etc on that occasion. Her son is diagnosed bipolar and doesn't take his medicine but deals and uses ice.

    The kids reported to both DHS and I believe the FCC that the brother drives like a maniac at 120klm with one hand on the wheel. The DHS in their court report describe my reporting the assault as quote"concerns over discipline" unquote.

    Has the entire system gone insane? How can I be treated this way when I am the only one ringing the alarms and pressing the red buttons? I haven't even been given the opportunity to reply, let alone lodge my own statements.

    The children have been ignored and nobody will answer my emails asking why they did or didn't act, from the cops to the school to the DHS.
     
  6. AllForHer

    AllForHer Well-Known Member

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    Okay, so, you've asked for my views on grounds that I seem to know what I'm talking about. Often, those views don't coincide with what people want to hear, but I'm a firm believer in being realistic, rather than just merely supportive. Essentially, I am not going to tell a person they're right if I don't believe they are.

    Family law is complex, but what I would say is of most significance here is the following:
    1. Children have a legislated right to know, spend time and communicate with both parents on a regular basis, insofar as their best interests can be met.
    2. In parenting matters, children's best interests are paramount.
    3. When considering children's best interests, the Court considers the factors listed in s 60CC of the Family Law Act 1975.
    4. The primary considerations are the benefit to the children of having a meaningful relationship with both parents, and the need to protect the children from harm caused by abuse, neglect or family violence.
    Now, a lot of parents - you included, I think - tend to make the mistake of believing the only way a child can be protected from harm is by cutting the other parent out of their lives competely, but the Court doesn't share that view. To the contrary, it condemns such a view and considers it very nearly abusive because it shows a lack of insight about the children's emotional needs and the importance to children of having a relationship with their parents.

    Instead of making a no contact order, the Court prefers to find other ways to protect the kids while also facilitating their right to have a meaningful relationship with both parents.

    For example, look at mum's drug use. Cannabis use for 30 years is very different to an ice addiction, and what you've described in terms of ice use is experimentation, not addiction. Moreover, unless she's using in front of the kids or with the kids, it makes her an average role model; it doesn't make her a bad parent, nor does it suggest the kids are at an unacceptable risk of harm should they spend any time in her care. There is also potentially a lot more capacity to prove the children have been harmed by being separated from their mother than by her drug use, and rather than remove mum from the equation all together, the Court is more likely to order that she take drug tests and not consume drugs prior to or during the kids time with her.

    As another example, the brother's assault was against you, not the children, and the allegations probably won't have much mettle if the interim order was never made into a final order because you didn't defend the application at Court, but if the mother also cites a fear of the brother, then the Court will probably order an injunction on the brother being around the children, rather than oust the mother completely from their lives.

    I do think there are also some problems around insight, here, that are going to cause problems for getting your case over the line.

    Take the following statement as an example:

    "they were taken away by her for 18 months in 2013 against my wishes or knowledge of their whereabouts and I had no opportunity to contact them for 12 months, which she states in her initiating affidavit as running from her brother"
    Then take this statement from your first post:

    "I took the children off her and hid them as she was using weed + ice and was diagnosed as PTSD."
    I'm unclear as to how your actions are any better or worse than her actions of the same nature, but they seem to be framed as though she did the wrong thing, and you didn't, which suggests you lack insight about how your own actions affect the kids. Surely you can see the issue the Court is going to take with that?

    Likewise is the complaint about the damage to the car. The Court is going to consider that incident in context, so when you say that she did $2200 of damage and ended up with a criminal charge for doing so, what the Family Court is going to be concerned with is the fact that it happened when she located you and the kids after you took them and hid them from her. Again, you lack insight about the impact of your own actions in this scenario. What she did wasn't right, and you can see that it might have harmed the kids, but what you seem to be overlooking is that what you did isn't right either, and might have harmed the kids, too.

    Now, the incident with breaking down the door is another matter that will be considered in context. If you barricaded yourself into the room with the kids because the mother was wielding a knife and threatening to kill you and the kids, then sure. But - and I'm not saying this is what happened, I'm just using it as an example of context - if it was you who took the children into the room and threatened to take their lives, then her actions are going to be seen as justified.

    And the last point that I want to make is that I am concerned there is a predisposition to exaggerating claims of violence well beyond the reality of the situation, which risks making you look like an unreasonable parent who is more about finding enough evidence to get what you want, rather than considering what's actually best for the kids. Some examples that cause me this concern:
    • Driving at 120km/h with one hand on the wheel is not even remotely close to 'driving like a maniac'. The speed limit on many roads in Australia is 110km/h, and 10km/h above that is hardly worth police time and resources to issue a speeding fine, let alone worthy of 'maniacal driving' as a descriptor.
    • Using ice on three occasions hardly constitutes an addicition. It's experimentation at best.
    • Similarly, if the mother was using weed for 30 years, then she was obviously using it before and after the children were born, so why is it suddenly a risk factor now? Why didn't you consider it a risk factor ten years ago when the first child was born, or eight years ago when the second child was born?
    • Falling off play equipment at school hardly indicates a risk of harm to the children by the mother, does it?
    • Likewise, if you've got an order for three weeks of no contact, a school isn't about to contravene that order because one of the kids asked to call you, are they?
    In my view, there are some complaints here that are indicative of you being more of a risk to the children than she is, simply because you have demonised the mother, but don't appear to have any insight about your own flaws and oversights, or how your own actions might have affected the kids.

    Now, you have mounds and mounds of third-party evidence stacking against you, which is a very serious obstacle that you will face in Court, because all of it seems to be pointing to the fact that you don't see any reason why the mother should be involved in the kids' lives, or how the kids might suffer if she is not enabled to be involved at all. This is, by and large, one of the leading reasons parents end up with no contact orders against them, and from what you've said of the police, the school, DHS and the family report, I'd say there is a very real risk of losing your chance to have a relationship with the children all together for the same reason.

    To make sure that doesn't happen, you very much need to change your tune and accept that perhaps the world hasn't gone mad, but instead, you might just be contributing to the problems. Both you and mum have made some very serious errors in judgement, and it's obviously not working out for you or the kids, so rather than continuing with the same pattern of behaviour in the hope that someone of authority will agree 'the whole system has gone mad' and rule in your favour, you need to consider changing your behaviour and showing the Court that you can put the children's best interests first.

    My suggestion is to speak to Relationships Australia about a post-separation parenting course, attend one, and start implementing the communication tactics that they teach you. If nothing else, it will show the Court that you are voluntarily willing to fix the issues that currently exist in the co-parenting relationship, and that you've sought insight about what's best for the children.

    I am sorry if this isn't what you want to hear, but it does concern me that you have multiple third-party witnesses providing evidence that doesn't favour your position, which makes it extremely difficult for me to truthfully say that I think your case is doing well and the Court will come to its senses. Truly, I want you to win your matter because I believe children need both parents, but I don't see how you can do that without changing your mindset a bit.

    If you have any questions, though, please don't hesitate to ask.
     
    Rod likes this.

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