QLD Final Hearing Preparation

[JadeGoldCoast]

Hi all,

We are currently trying to prepare for my partner's final court hearing. It is our second time in court (but first final hearing), so we are only disagreeing on a few things. In the orders, one of the points states "that the parties must jointly file a schedule of factual issues in dispute in point form".

Does this mean my partner should contact the mother to try come to an agreement on what they are disagreeing about? Communication with the mother is difficult as she generally does not respond. Or can they lodge this separately? Everything else required appears to be able to be lodged separately, this is the only item that states 'jointly'.

I hope this makes sense. Thanks!

 

[sammy01]

i don't know. But if i can give you a guess?
Write to her.
Dear nutter,
I beleive that the factual issues in dispute in point form are:
That you are an idiot.
That you don't send the kid to school because you get lonely. Poor you.
Tha you are an idiot
Please respond within 14 days if you would like anything amended.


If mum doesn't respond then you submit your factual issues in dispute in point form and explain that the OP agrees because they didn't respond to your request for them to offer amendments.

 

[Rod]

.. that the parties must jointly file a schedule of factual issues in dispute in point form.

One document .

You draft it and send it to the other side. If there is no agreement, send the draft and the email to the court saying the other side failed to respond.

 

[JadeGoldCoast]

Thanks Sammy and Rod for your advice.

Final court date is booked for next Monday 11th and mum is yet to file any material. She has however responded to my partner's email relating to the issues in dispute. She doesn't agree to any proposed orders (not surprised) and is stating her concerns lie with the consent orders from 2019.

It's like we have been running two separate court cases, the one we have filed, provided evidence for etc. And a different one the mother talks about with no evidence? It's very odd.

Am I right in thinking this final court date is to agree on new orders relating to the current issues - mum withholding child and mum keeping child home from school?
We spent an entire day in back and forth negotiations for the last consent orders to be finalised, I would think it is really unfair if mum can waste the courts time next Monday trying to change 6 consent orders, that are completely unrelated to this court case and any filed material, because she's simply changed her mind.

 

[sammy01]

Remind us...
Currently 50/50 (except with SHE doesn't play nice)
Child still missing heaps of school?
You guys are going for primary care and mum to have some weekend time? is that right?

 

[JadeGoldCoast]

Child hasn't been missing school since court started. We initially applied for primary care and mum with weekends. Court report advised to keep to 50/50 and add orders that if mum withholds child or he starts missing school, care be changed to us. Last court case the judge confirmed with both parents if they would remain at 50/50 and both agreed.

We have filed an amended initiating application with final orders in line with family report recommendations, and added a few more to make them more specific. Plus we are requesting sole parental responsibility for medical for several reasons. Mum has just filed her Outline of Case and what she has referred to as a 'consolidated affidavit' of 32 page (good luck judge).

Again, I have no idea what's going on. She is self-representing and seems to be making her own court case up? She is now proposing that all the consent orders from 2019 be removed and has listed all new orders - with us seeing the child 4 days a fortnight and her having sole parental responsibility for medical and basically all of the consent orders deleted/amended to her favour.

Also, not sure if this is important or not, but she still hasn't filed a response to the amended initiating application. She always writes her proposed orders at the end of her affidavits, and it would appear that the judge did not take her proposed orders into account for the interim hearing. It is likely he is going to take on board her request for a complete change of consent orders if she hasn't officially filed it in a court document?

 

[Dpj]

Good luck Jade. I recall your story and I really felt for you and your partner. Remember to ensure you have clear cut orders around the missing of school, sharing of doctor records, advising of doctor appointments, etc. If the mother decides to pull the same tricks using medical as the excuse, you need to ensure orders protect you. I have seen orders where a parent was required to disclose to the other parent any doctor appointments prior to appointment so both could attend. Something like this could ensure that you have the opportunity to talk to the doctor and hopefully quash the argument of the mother that the child needs to miss school due to ill health.

Also, I think it is reasonable to have clear orders in regards to school days missed. Have a few reasons only (significant family event, illness) and then have it as a breach if the mother withholds the child from school.

The family report writer made it clear that, as I recall, that if the child continues to miss school then additional custody to you and your partner should be granted. You need to set the orders up so that if the mother starts withholding the child from school then you have a clear pathway for a change in custody.

 

[JadeGoldCoast]

Hi Dpj,

Thanks for your response. The ICL has finally put forward her requested orders. She has put an order "that the mother ensures that the child does not miss school any school days when the child is in her care. Should the child not attend school due to illness, then the mother shall provide the father with a medical certificate addressed to the father, clearly stating the condition the child is suffering from and advising that the child ought not to attend school that day."

It also included the following notation: "if the mother is unable to ensure that the child has attended at least 90% of the school days while the child is in her care, then the court shall consider changing the residence of the child to the father's care, provided he has also ensured that the child has attended at least 90% of the school days whilst the child is in his care."

I am hoping this will be specific enough.

Although, I am a little concerned that the ICL hasn't put forward an order relating to the mother withholding the child (and the court considering a change of residence if she does) considering the family report writer suggested it. I am hoping this is an error. I am not sure if this is normal, but our ICL hasn't shown to a court appearance, and doesn't seem to respond to the judge's chambers emails (or isn't getting them)? We had to politely forward the chamber's email (asking the ICL to follow the orders and file material) before she responded. Seems odd. Perhaps over worked?

 

[Dpj]

Hi Jade,

The ICL is recommending Clauses for your orders correct? Or does the ICL also submit orders? I didn't deal with an ICL as my children were deemed too young.

That second clause seems pretty open ended. I think a lawyer would be better off to comment but my uneducated thought is that it is not a definite and clear order that would override Rice & Aplund in the event it was triggered (ie, <90%).

The issue I see with the first clause is that the mother could find a sympathetic doctor who is loving the business /shehe gets from the mother and his/her Medicare rebate cheque each time she wants a sick note and so complies with the mother's request. I wonder if you could request a more certain clause to eliminate that possibility.

Regardless of whether the ICL has or hasnt, but surely it doesn't preclude you from entering your own clause about withholding the child from your custody. Again, I'm not a lawyer so not sure if it would fly, but could you put 'if the mother withholds the child from the father, without lawful reason, the custody will change to (insert what the FWR suggested)'

I just feel for your situation and hope that the orders you propose just protect you in a very clear way from the BS the mother was putting you through. It feels that unless there are very clear consequences or orders that she will find a way to exploit it.