QLD Interim Defended Hearing/Affidavit response to respondant

[pcfather]

Hi,

I filed an application for orders for my children to reside with me. We have had one court date that lasted 10 minutes via phone. The judge ordered that the children not be relocated from their current area which is where the mother lives and that we privately obtain a family report (which was done last week and have yet to receive report from the FRW). I didnt get to say anything and the judge only really listened to my ex's legal representative. Who has now made it seem that we are in court because I purchased a house and moved. The reason I filed the application in the first place was because my children were suffering due to the instability caused by their mother.

We have a defended interim hearing late next month and as I am self representing I am unsure as to what this will entail? Can anyone advise please? Do I get to talk this time or will the judge just go straight to talking to her lawyer as with the last hearing?

I also wish to know if I should submit a response to my ex's affidavit as she has very much distorted the truth in her response to my application.

Just a little background:
My children are 8 and 4.5 years of age. I ended the relationship with my ex over 4 years ago, just after my son was born. Since then I have had to fight every step of the way to get access to them. I instrumented mediation after my ex laid claims I was violent and a illicit drug user and would not let me see them. I had a psychologist report done and have done everything possible to be able to see my children. The biggest problem is my ex, she only ever agrees to anything if it suits her needs. Last year she took a job which saw her away for over 2 weeks at a time and it then suited her for the children to be with me the majority of the time. During the last 15 months she would come and go as she pleased even though we agreed to 2 weeks about. She very rarely keeps to any agreement and most of the last 15 months has only had the children twice for 2 weeks. I tried to communicate with her about how the inconsistency of when she would be back or away was upsetting. It finally got to a point that I told her I would file in court for orders for them to reside with me. Hence we are now in court.

Since the judges orders in June I have had to go back to only seeing my children every 2nd weekend because I have moved and they are not allowed to reside with me in my new suburb. It is 1 hour and 10 minutes away from where I last lived (same suburb as the mother). Will this have a severe impact on my application now that they havent been living with me for 2 months?

It just seems that the mother can continue to do what she likes and I have to suck it up. She went away for work again and left the children with friends for 14 days, when they have been with me.

Would greatly appreciate any help on how to handle the next court date.

Thanks

 

[sammy01]

u'm, not gonna like me... Mum can do what ever she wants? but you cant?
Mate you moved away, presumably causing kids to change schools? You did all of this without talking to mum and getting her agreement? Yes it will have a severe impact, not because the kids have not lived with you for 2 months, but because you relocated them without mum's consent. If mum now wants the kids back with her in the original location, then I reckon that is what is gonna happen.

You should not have moved without mum's consent.

 

[pcfather]

Thanks for the reply. I purchased a property so I could provide some stability, it was the only area close enough I could afford. I did try discussing with the mother, like I have with everything for the last 4 years, she just refuses to communicate unless she wants something from me. If she doesnt get what she wants then she just stops all communication. For her its all about what she wants, not the children. I have countless emails and text where she wont respond. My son currently has a medical issue and I am the one that took him to a paeditrician, she didnt even want to come and still does not give him the medication he needs, how is it she has all the rights to do what she likes?

So the mother can go away for work for over 2 weeks at a time and leave the children with whom ever she wants? This is not responsible parenting or in the best interest of the children. My children are distraught during this time, calling me upset.

I buy a house so my kids have some where stable to live and Im the baddie?

The mother has also told heaps of lies aobut me in her affidavit so I just let that go as well?

 

[pcfather]

Just want to also mention that I never moved the children to my new area. Her lawyer told me that because I moved after the first court hearing I could only see the children every 2nd weekend. So that is what has been happening.

I really need to know if i should respond to her affidavit with all the abuse lies she has told and that I dont pay for anything. I have given her over $35K in the last 3 years on top of all the other things I have paid for when the children werent with me. Do I just let this go and let the courts think Im an abuser and violent towards her and my children, not paying towards their welfare?

I would really appreciate some response, my life revolves around my kids and this is killing me to think she can say/do whatever she likes and I am always the bad person.

 

[GlassHalfFull]

I would have filed in court for primary care prior to moving away - you could have rented until such time as the issue of the children was more settled? I know sometimes life decisions need to happen and court takes time to work itself out, but it's hard to change primary care arrangements via courts, especially when it would uproot the children from their existing neighbourhood in the process.

I don't think anyone (except your ex, but most of us here have ex's like that!🤦‍♂️) is calling you a baddie... However, buying a house 'for stability' and in doing so moving an hour away from their school and their friends doesn't really make sense and I don't think the courts will see your motives the way you do - it doesn't sound like it's in the children's best interests. One question... are you self representing or do you have a lawyer? It sounded to me like you are self representing but your ex has a lawyer? Perhaps some of the money spent on the house may have been better spent on legal advice.

As for the lies in the affidavit, you are free to respond to her affidavit (unless the judge has ordered that affidavits needed to be filed by a certain date and you have missed that deadline). It is probably worth addressing any obvious lies in her affidavits, because to some extent, statements made in affidavits tend to hold some weight if they're not refuted or at least disputed. They're not taken as fact, but they are taken as evidence that a judge may factor in to make interim orders.

The issue I had early on in my case (when affidavits were flying in all directions) is that the applicant usually files their affidavit first and the respondent files theirs a few weeks later to give them the opportunity to respond, which gives them them a greater ability to make counter-claims. In the end though, I feel like most of the 'hot air' accusations from my ex in her affidavits were largely irrelevant - at least to my case. I'm sure they were read by the judges and family report writer, but I don't think they played much of a role in how my case played out. IMO, in most family law cases, there will be a few main factors that determine how the case plays out and all the rest of the affidavit will just be background noise:

1. Who has primary care currently?
2. Is there family violence or allegations of it? Who is accusing who?
3. Is there any reason to think the kids are being abused/neglected?
4. What are the current care arrangements and are they appropriate? (based on the child(ren)'s needs, ages, activities etc).
5. Is there any reason that those existing arrangements need to be changed for both parents to have a meaningful relationship with the child(ren)?

Regarding 4, for me it sounds like that the current arrangements where your ex gives you the children when she's away for work has a lot of room for improvement since you only get significant time with them when she chooses, instead of a regular repeating arrangement on a weekly or fortnightly basis.
Regarding 5 however, you live an hour away. How would you facilitate school runs if they were with you for more than just weekends? The only way it seems to me that you could make it work is if you DID take primary care back and enrolled them in a school local to you, which would then put the mother in a position where she can realistically only have weekends. That's a big change and you would have to make a pretty persuasive case to change the arrangements that substantially. I don't think you would get that over the line IMO based on what you've told me. But hey I'm not a judge and sometimes it seems like rulings are made based on what side of the bed the judge got up on.