VIC Family Court - When is an Application Considered Filed?

[Rod]

I agree. Something is not right with this matter and without having more details it is hard to know what.

It sounds like the FCC/Family court and the Magistrates' Court both find no real evidence of abuse of the kids, and it is only Child Protection keeping the matter alive. I have heard of this happening where bias is on display by Child Protection.

If either the FCC/Family court or the Magistrates' Court had found proof of abuse of the children, and this has a low threshold, then it is likely different orders would have been made by either court. To have both courts seemingly ignore the mother's request for supervised access makes me think even the very low threshold of the evidentiary burden has not been met.

 

[Malissla]

Having read over everything again, I’m finding several things difficult to understand.

What I’m having the most difficulty with is this this...Child Protection applied for supervision orders from the Children’s Court immediately after parenting orders were made in the Family Court for unsupervised time (last time). Child Protection have also put in great effort to have the supervision orders extended on a number of occasions (over several years?). You have a current 5 year FVIO. Child Protection are taking a hard line approach in that if the Family Court does not change the existing parenting orders to supervised time then they will again return to the Children’s Court and get a supervision order.

If this is their firm stance, they are without doubt the children are at risk of abuse without the orders being varied, and they could need to take it back to the Children’s Court anyway, why haven’t they sought (on their own accord...under s92A) to intervene in this case? They would be well aware they can seek to intervene.

Just seems counterproductive to me for CP to not want to at least be involved in this matter (where they can give direct evidence...even if the Court does not agree) when the idea of making you return to the Family Courts, in my understanding, was for there to be some form of finality...and they may have to take it back to Court anyway.

In answer to your first question, Child Protection have not intervened because - as they say - I am acting protectively and as such the children are not at risk, they will only become at risk if the Family Court puts them at risk by making orders for unsupervised access. I would much rather Child Protection of been involved as I believe it is an issue between them and the Family Court as opposed to me and the Family Court, after all it is CP who required the previous Final Orders be varied.

Secondly, by virtue of a 69ZW report it could be argued that CP are involved and have made their position clear as a result. Yes, CP wanted long term - final orders - that prevented unsupervised access. It is the case that if the Family Court makes final orders for unsupervised access - as they previously have - then CP will take it back to the Children's Court - will acquire short term orders that access be supervised - and again send me back to the Family Court to get Final Orders changed .. to me this is a crazy situation which has gone on way to long, if CP require those orders then the Family Court should not get in the way of CP doing their job in protecting the children and issue the orders required.

 

[Rod]

if CP require those orders then the Family Court should not get in the way of CP doing their job in protecting the children

CP need to convince a court they have the required amount of evidence. And no, the Family Court is doing their job properly by insisting on proof of the allegations being made. If CP can't convince a court of the veracity of their evidence, then there is no substance to CPs findings.

I have heard stories, admittedly anecdotal by someone working close to CP, where CP do not always act impartially and have torn children away from fathers when no real abuse has occured. My opinion of CP is not high. I accept they have a difficult job, but acting in the interests of one parent rather than the children goes against what I believe to be fair. There is no way I'd co-operate with CP based on what I've heard. They have over officious biased individuals lacking sufficient oversight.

 

[Malissla]

I agree. Something is not right with this matter and without having more details it is hard to know what.

It sounds like the FCC/Family court and the Magistrates' Court both find no real evidence of abuse of the kids, and it is only Child Protection keeping the matter alive. I have heard of this happening where bias is on display by Child Protection.

If either the FCC/Family court or the Magistrates' Court had found proof of abuse of the children, and this has a low threshold, then it is likely different orders would have been made by either court. To have both courts seemingly ignore the mother's request for supervised access makes me think even the very low threshold of the evidentiary burden has not been met.

Well, perhaps..The father admitted to child Protection significant acts of family violence but has not admitted those acts of violence to the court (yet) however has admitted certain acts of significant family violence in affidavits, but have not been read or considered by the court because the matter has not been heard at trial. The Family Consultant report states that the father is an unacceptable risk. The court has not ignored my request, interim orders have stated access must be supervised, the problem is I cannot get Final Orders to say that until the matter is heard at trial. It is also the case that the father has been to prison and had several convictions for the family violence so there is good evidence.

 

[Malissla]

CP need to convince a court they have the required amount of evidence. And no, the Family Court is doing their job properly by insisting on proof of the allegations being made. If CP can't convince a court of the veracity of their evidence, then there is no substance to CPs findings.

I have heard stories, admittedly anecdotal by someone working close to CP, where CP do not always act impartially and have torn children away from fathers when no real abuse has occured. My opinion of CP is not high. I accept they have a difficult job, but acting in the interests of one parent rather than the children goes against what I believe to be fair. There is no way I'd co-operate with CP based on what I've heard. They have over officious biased individuals lacking sufficient oversight.

With respect, you have no idea of the level of significant family violence that has been perpetrated again myself and the children, if you had you would not hold the opinion you now hold.

 

[Malissla]

Let me say this again, the father admitted in an affidavit to putting a shotgun to the children's and my head and threatened to shot us. NO COURT HAS YET TO READ THAT AFFIDAVIT. IT WILL NOT BE READ UNTIL TRIAL. He claims the gun was not loaded..

 

[Nonfiction]

Well, perhaps..The father admitted to child Protection significant acts of family violence but has not admitted those acts of violence to the court (yet) however has admitted certain acts of significant family violence in affidavits, but have not been read or considered by the court because the matter has not been heard at trial. The Family Consultant report states that the father is an unacceptable risk. The court has not ignored my request, interim orders have stated access must be supervised, the problem is I cannot get Final Orders to say that until the matter is heard at trial. It is also the case that the father has been to prison and had several convictions for the family violence so there is good evidence.

If this and everything you have said is correct. You have the evidence to support all of the allegations (and have/will file it all with the Court) and the Family Consultant has also agreed the father is an unacceptable risk to the children (have they recommended supervised time also?) then why are you even bothering about the application in the case being dismissed? Just seems like an attempt to provoke the Court to me...

To add to what Rod said about CP...in your matter the Court is in no way obstructing CP from doing their job. The father presently has supervised time, the matter is still to go to trial and, CP are not even a party to your matter.

Let me say this again, the father admitted in an affidavit to putting a shotgun to the children's and my head and threatened to shot us...He claims the gun was not loaded..

In no way do I view this as not being serious...it’s irrelevant if the gun was loaded or not

 

[Malissla]

If this and everything you have said is correct. You have the evidence to support all of the allegations (and have/will file it all with the Court) and the Family Consultant has also agreed the father is an unacceptable risk to the children (have they recommended supervised time also?) then why are you even bothering about the application in the case being dismissed? Just seems like an attempt to provoke the Court to me...

To add to what Rod said about CP...in your matter the Court is in no way obstructing CP from doing their job. The father presently has supervised time, the matter is still to go to trial and, CP are not even a party to your matter.



In no way do I view this as not being serious...it’s irrelevant if the gun was loaded or not

I do have good evidence to support the allegations, you cannot get better than a signed statement. I have filed all the evidence with court, although nothing gets seen until trial. No they did not recommend supervised time, they said that even that must be considered with caution, what they recommended was he be sent a photographs twice a year. What possible result could come from provoking a court who's authority will be undermined by CP in the event they issue an order that places the children at risk ? Yes, I have told the court they have no authority in this case, because that is a fact, the court is at liberty to make orders that place the children at risk and child protection will stop it via the childrens court, that is fact, am I to keep my mouth shut and play the game or be direct in my approach and rely upon the letter of the law and not the emotional state of a judge that I may or may not upset by my attitude? My position is to protect my children not worry about upsetting a judge with the truth, indeed is not what a court deals in.. truth ?

 

[Rod]

FYI I have personal experience of having a gun pointed at me. I know what it is like. It is an unpleasant experience and not one I wish to repeat. I agree with @Nonfiction in that it is very serious, loaded or not.

After 6 pages of posts you have just said you have interim orders granting supervised access. I fail to see a problem. Wait for the final hearing and then present your evidence on the right forms and in the right format and you will not have a problem.

Do not annoy a court requesting final orders be granted BEFORE the final hearing.