QLD First Federal Circuit Court Visit - Any Recommendations?

[blamum]

Hi All,

New on the forum. So glad I found it.

Short backstory -

I had been trying to get a parenting agreement for my partner and his two children that gave equal visitation rights and shared parental rights and responsibilities to both parents. We became stuck on medical appointments and decisions, as his ex insists on making and being at every appointment, and refuses to book non-urgent appointments on my partner's day off.

She threatened to change custody arrangements and give less than 50% access to my partner if he did not agree- so he filed an initiating application and interim orders for the Federal Circuit Court in July.

We have had contact once from her solicitor regarding a disagreement on an appointment time for one of the child's appointments. We have received no response to the initiating application though the solicitor filed a notice of address for service today, and we will be completely surprised if his ex does not file a response.

My partner is self-representing so any help on what we can do if the response comes in the next two weeks, and any link recommendations on preparing for the first court date would be amazing.

xx

 

[AllForHer]

Are the current arrangements 50/50?

 

[blamum]

They were 42/58 on the first year. My partner then requested 50/50. She refused, said she would not change her mind, even with mediation. There was no parenting plan in place so, with legal advice, he notified her he would be taking the children 50/50.

They agreed on 50/50 at mediation, however, we have the signed documentation for that, and it isn't in dispute (that we know of as we haven't received the response).

They have been 50/50 since March.

 

[AllForHer]

Okay, so you've got a parenting plan for 50/50 - excellent. That means you have a very good chance of retaining 50/50 as interim orders while proceedings are afoot, since that's what she has already agreed. It also makes it very difficult for her to argue against 50/50, when she's already put her name on the dotted line to say that's what she agrees is in the best interests of the children.

Since you've essentially already got 50/50, does that mean the only issue in dispute is whether she is permitted to make and attend all medical appointments for the child?

 

[blamum]

The only thing that was agreed on at mediation was the 50/50, which they both signed. She refused to budge on anything else so mediation gave the certificate. We then had a further 3 months of back and forth on the parenting plan (we have retained all comments). We finally came down to the medical point as the last point we agreed on.

We suggested the following


a. The children’s health, with the parents to keep each other informed and make joint decisions about the health of the children and the need for any decisions to be made about operations and medical treatment, dental treatment, speech therapy, physiotherapy, and any specialist treatment, any alternative medical treatment and medicating the children on a long term basis as well as attendance by the children for any reason to a child psychologist, counsellor, family therapist or psychiatrist. Appointments will be made at a time agreed to by both parents, with more then 7 days notice given. If an agreeable time is not found, the parents will take turns attending appointments at a time suitable to them.

She refused this. She then threatened to revert to the original 42/58 plan. When we sent the notice of claim, and she withdrew the draft parenting plan in full. We have proceeded on the grounds that that is the only issue in dispute. We still don't have a reply though.

 

[AllForHer]

Then you're in a fairly good position. Shared parental responsibility, which enables each parent to have equal say about major long-term decisions affecting their children (major medical interventions, changes to name, educational providers, relocation which impacts the child's time with the other parent, religious affiliation, etc.), is a presumption under family law, which means it can't be removed in any way unless by order of the Court. What she is essentially asking for is sole parental responsibility for all medical decisions, which isn't going to happen.

Although not legally enforceable, the parenting plan will have a lot of weight in Court because it's what she has already agreed is in the best interests of the children. I don't think the Court will be pleased to have to use its time and resources on what is essentially a very discrete issue about which the legislation is already very clear.

So, just so you're aware of what will happen on Day 1 of Court (which was your original question)...

The first hearing is basically always an interim hearing. It'll usually only take a few minutes - the judge will look over the filed material, ask a few basic questions of each party, make some interim orders and then set down another interim hearing date for usually around three months' time. Interim orders are usually in the way of what time the child will spend with each parent, and usually an order to attend a post-separation parenting course and/or mediation so the parents have a chance to try again at negotiating an outcome amicably.

Some key issues for you: Don't refer to 'my rights' or 'her rights' - parents don't have rights, only children do. Instead, frame everything in terms of 'the best interests of the children'. For example, rather than "I want a say in my children's healthcare needs", frame it as "I think it's in our children's best interests for both parents to be involved in healthcare decisions that affect their lives."

Don't try and speak over the judge, and try not to take it personally if the judge gives both parties a firm shake-down. The Court doesn't like dealing with squabbling parents as a general rule, particularly since most cases are brought before the Court because one or both parties simply lack common sense. Remember, the problem isn't the Court; the problem is the ex.

 

[blamum]

Thank you so much for the feedback. I am also just wanting to know what we should do about the fact she hasn't responded within the 14 days?

 

[AllForHer]

This early in proceedings, I wouldn't put much weight in tardy filing. The Court is pretty lenient with that kind of thing at the start, but if it keeps being an issue, then the Court will be inclined to do something about it.

If she files late, you can advise the Court if you want to adjourn the matter so you can consider her material, but since it's evidence that cannot be tested during an interim hearing anyway, I really wouldn't bother adjourning. If you adjourn, you're going to be waiting another three months for the next hearing, which might make matters worse, rather than better.

Just so you know the procedure as well, the judge will have a lot of cases on his docket that day. When the lawyers and such enter the Courtroom at the beginning of the day, you can do the same - stand at the back of the Courtroom with the lawyers while you wait for your case to be called. It'll give you a good opportunity to watch how everything operates.