QLD Legal Aid Representation for Uncooperative Mothers?

[AllForHer]

Okay, some observations.

· My partner lived with his ex in our current household - his son has always known this house as home. After going through the 2 years of text evidence (my partner stopped talking over the phone with his ex about a year ago as she used to abuse him and then message saying she was sick of his abuse. We knew court would eventually happen so wanted proof of her lies) we have discovered she has moved over 6 times in the past two years. We understand that sometimes life situations cannot be helped, but she refuses to admit she has moved this many times or accept that this isn't the best for a child.

When the Court is considering what's best for the child, the issue of home address is not as important as the issue of primary attachment figure. Primary attachment figure does not mean more important parent, it's just a term they use in psychology to describe the parent that has spent the most time with, and caring for the child, therefore establishing themselves as the person the child depends on most to have their needs met, which includes both emotional and physical.

If the child has lived mostly with mum, be it in one house or fifty, it's a safe bet that the child sees her as the primary attachment figure and therefore, it's likely the Court will accept that any signifcant separation from the primary attachment figure is going to cause some distress to the child. Like it or not, it is what it is, and it's better to present at Court recognising the impact such separation would have on the child, rather than complaining about a minor relocation every few months.

· His ex has never to our knowledge been diagnosed as having an illness that requires endone medication. She used to assert that she had Crohn's disease to my partner yet would not see specialists to confirm. My partner recalls her GP's stopping to prescribe the medication, where she would then move to a different practice and continue having the medication prescribed. My partner's mother is a nurse and set up an appointment for her to see a pain specialist to manage the medication. She refused to go. For all we know she could have stopped using the medication but the last time she cut contact with my partner and his son (18 months ago) my partner told her he planned to take her to court and would bring up her drug use to which she replied 'thats the beauty of prescription medication hunni'. My partner would be more than happy to find out she has stopped use of the medication, however due to her erratic behavior feels it is in his son's best interest to subpoena her records for court to check and monitor the situation.

Again, who is the better parent? The one who does take medication to manage their conditions? Or the one who doesn't?

· Now to the drug allegations. When I moved in with my partner his ex stopped contact with his son due to my partner being a drug addict which she knew not to be true. He attempted mediation but she refused to show after saying she would. He then sought legal advice who informed him that his child was too young to expect more than 2 days a fortnight and advised completing the drug test was the best option for him to gain access to his son, so he completed a urine screen. The mother has since allowed contact 2 days a fortnight. Whenever my partner has asked for more contact with his son (over Christmas holidays etc) she has stated that due to his drug use 2 days is a gift she is allowing. To argue with her would have meant losing contact with his son so we have kept things as amicable as possible.

If this is actually raised in Court by the mother, then the extent of this discussion on the father's part is: 'I deny allegations that I am addicted to any drugs, illicit or otherwise'. That's it. He doesn't need to defend himself with evidence of his own, because the burden of proof is upon mum to provide evidence that what she alleges is true, be it through subpoena'd medical or criminal records or otherwise.

If no proof exists of this addiction other than the mother's word, then certainly, the Court might order the father to complete random drug tests intermittently as interim orders, and the father should willingly comply because while it may feel undignified, it will also clear his name once and for all. Thereafter, if mum continues with this line of reasoning for withholding the child, it will hurt her credibility before the Court.

· Over the past year my partner's ex has been in a abusive relationship and the ex has had to reside with my partners mother for three months to keep the child in a safe environment. This information was kept from us so my partner unfortunately wasn't in a position to seek legal advice on the matter. She then moved into a new rental with the same partner. It was about 6 weeks later that she messaged my partners mother explaining the ex was again being abusive around the child. She came clean to my partner about the situation and asked if we could look after her son every weekend to keep him out of danger.

This is fairly significant, for two reasons.

First, mum obviously doesn't have any genuine issues with the child being in his father's care if she sought the father's assistance to keep the child safe.

However, two, it also begs the question, why did the father return the child to the mother's household when he knew she was living with a partner that she admitted posed a risk to the child's safety?

At this point my partner discussed kindy with his ex (his son was almost 4 and had been asking to attend school all year as he used to spend time during the week with his uncles, but they had started school this year). The ex supplied the immunisation records to my partner and his son was enrolled and got to spend a few hours meeting his teachers and familiarising himself with the school. My partner suggested his son stay with us from Friday nights to Tuesday nights once a fortnight so his son could attend school 2 days a fortnight to prepare him for school and provide some stability for him (although my partner also wanted more care of his son as his ex had told him that her ex was now stalking her and her mother's house). The following weekend for a reason unknown to us the mother decided she was against childcare and stated she would not allow it. My partner begged her to reconsider and stated his son would be staying with him until the Tuesday night so he could attend kindy. At this point the mother stated that once the child was back in her care she would cut my partner from the child's life again as he was a drug addict (here we go again).

· My partner immediately contacted mediation and asked his ex to do the same. He sent links of government websites to his ex stating the benefits of child care.

Did mum actually agree to enrolling the child in kindy? Or was it more that she didn't openly resist until the 11th hour?

I can't see a Court giving much weight to this issue. Realistically, kindy is optional in Queensland, and plenty of parents prefer to raise their kids themselves until they start school, rather than putting them in day care/kindy. You'd be hard-pressed to persuade the Court that putting the child in day care is in the child's best interests over spending time with the mother, particularly in light of the fact that dad is seeking to spend more time with the child himself.

My partner then told his ex that he would not be allowing the child to return to her until she signed a parental agreement (he didn't want to lose his son again when all he was trying to do was support his child).

He wouldn't keep the child from the mother when the child was living in a household with mum's abusive boyfriend, he would keep the child over a day care dispute? Maybe not the best move on the father's part...

 

[AllForHer]

· The child was in our care for the week until the following Saturday night. My partner kept his ex informed of the child's progress at kindy and that he had attended a mediation intake session, and had been advised to start writing up a parental order and suggested she do the same, as he wanted both parents in his son's life and wanted things sorted asap. Unfortunately my partner's ex was aware it was my birthday that weekend and made an informed guess that my partner's mother would have their child in her care. She then drove the 45 minute drive to my partner's mother's house and pretended she was alone and asked to see her child. Thinking they had a trusting relationship my partners mother allowed the ex to see her son. Unfortunately the ex had her mother hidden in her car and took the child and put him straight into her car. My partner's mother tried to stop the ex which resulted in the ex's mother attacking her. Police were called to the scene but as both parents could not come to an agreement of where the child should stay the police decided that as the mother had the child in her care when they arrived, that is where he would stay for the night. My partner has lost access to his son since as she is again stating he is a drug addict.

You seem critical of mum's actions, here, but who was in the wrong? Dad for unilaterally keeping the kid in his care, or mum for recovering him? Seems like they both made some stupid decisions on this occasion, and it's best for dad's case if he makes that concession.

· His ex sent through a proposed parental order that consisted more about drug use than the care for the child so he was informed by his lawyer not to sign. The lawyer contacted his ex via email twice trying to inform her that she wasn't acting in her son's best interests and was blackmailing my partner and her behaviour wouldn't be seen positively by the courts. This just resulted in the ex accusing my partners family of being drug addicts and stating that she wanted them all to complete hair follicle tests (these are the people that she chose to live with for support for 3 months earlier this year).

Sounds like the lawyer's advice was good. As I said earlier, it will likely benefit dad's case and hurt her's if he agrees to urine tests as interim orders.

· Now she has realised my partner won't attend mediation again (the first 4 times she refused to go, the 5th time she did attend after being contacted by my partners lawyer, however she spent the whole time laughing at my partner's concerns and the two things she did agree to -5 skype calls a fortnight and privacy in phone calls- she is refusing to honor stating she never agreed to them) she has put a DVO on my partner's mother stating she was the one who was assaulted in the incident in September. We are confident the police report will have nothing about her being assaulted and feel this is another game she is trying to play.

As much as it may pain you, the DVO is for your mother-in-law to deal with, rather than you and your partner. When the focus is on the child, the situation is that the father can facilitate the child's time with his grandmother, so grandmother and mum don't need to have a relationship, really.

· Throughout the year we have also had issues with the mother not supplying adequate medical care to the child, and when my partner has addressed the issue (and advised her that he can pay if that was the issue) she has retaliated suggesting she will cut contact. She has also kept her son in nappies a whole year after agreeing to start toilet training which has caused the child clear confusion and anxiety. I haven't even bothered to mention the blackmail and emotional manipulation she has put my partner through since they broke up as we would be here all day.

'Adequate' medical care is somewhat subjective.

My husband's ex criticised us in affidavits over the course of many months about the level of medical care we sought for my stepdaughter, then aged four. Every time we didn't take the child to the doctor for some minor issue, mum wrote a paragraph about how she had to take the child to the doctor and it ended up being some awful illness that we seemed to be blamed for, but then every time we did take the child to the doctor, mum also wrote a paragraph about how she had sought a second opinion from her own doctor, and it ended up being some awful illness that we seemed to be blamed for.

The situation was that we were damned if we did, and damned if we didn't, because that's what adversarial Court proceedings do to parents: they find ways to perceive everything as a problem with the other party.

In the end, my stepdaughter ended up on six courses of antibiotics in less than five months because of mum trying to stage evidence to the Court that my husband was negligent about my stepdaughter's medical care. Cuts on feets and minor seasonal coughs were being treated with antibiotics, and consequently, my stepdaughter just kept getting sicker and sicker (as is often the case with people who subject their bodies to too many antibiotics).

But the Court didn't care about how the issue of medical care was being fought about between the parents. The fact of the matter was this: the child was seeing a doctor when she needed to see a doctor. That was all that mattered.

The point is, keep some perspective about the medical needs of the child. Doctors won't often prescribe medication to children under the age of six, so most parents learn fairly quickly that anything less than a broken bone probably isn't worth a trip to the doctor. Is it worth bickering about? Probably not.

While unfortunate that mum and dad couldn't get on the same page for the toilet training thing, this isn't going to impact proceedings in any way that would benefit you. To the contrary, all it shows is that mum and dad can't get along, so it's best if one parent has more care than the other to minimise the risk of the child suffering as a result of their inability to communicate and agree on things.

Now we both understand when you are emotionally involved in a situation it is easy to see things from your own point of view. We would both appreciate any advise you can give us from a law perspective. We really feel the child would benefit from spending 5 days a fortnight with us until school time where we would like 50/50 care (just over a year's time). However we would like the courts to decide what they feel is best for the child. We are really concerned that the mother refuses to believe my partner should have a say in her child's upbringing, and feel it is unfair that she can pick and choose how much time my partner should spend with his child to suit her life circumstances. She is currently actively trying to cut my partner out by refusing face time and interrupting and cutting his 5 calls a fortnight short.

So, my main line of advice - not legal, just in general - is to change your perspective about mum being the enemy.

Mum has the power at the moment because she is the primary carer, so if dad creates a case in which she is villified over things like his opinion on medical needs and the fact that the child was in nappies for longer than dad would have liked, all he will be proving to the Court is that he can't co-parent any better than she can, because he's too focused on criticising his ex, instead of doing his utmost to work together with her for the benefit of the child.

I understand that you're probably feeling a bit deflated about what I've said above, but you haven't even filed for proceedings yet, so you've got time to change perspective to your benefit.

The Court generally accepts that any care percentage in the realm of shared care (five nights or more per fortnight with the non-resident parent) requires a reasonable capacity on each parent's part to get along, so rather than bemoaning mum's flaws, focus on dad's strengths in respect of five nights a fortnight and/or 50/50.

Is his house set up to faciltate that level of care? Does the child have his own bedroom, clothes and possessions at dad's house? Can dad facilitate the child's attendance at school with suitable arrangements for drop-off each school morning and pick-up in the afternoon? Does dad's work schedule facilitate such care arrangements? Does he have a support network that he can turn to if and when he needs it?

If they've had difficulties in the past, acknowledge that, but propose ways to fix it in the future. If changeovers at the house have led to fights in-person, maybe changeovers are better carried out at the local McDonald's? If phone calls lead to arguments between the parents, maybe their main form of communication should be via e-mail except in case of an emergency?

Dad hasn't been completely free of wrongdoing in this, and neither has mum, but the Court appreciates parents who can make concessions for their own behaviours and seek ways to resolve issues. Perhaps it would be prudent for dad to enrol voluntarily in a parenting orders program, which is a short course to help parents identify and manage challenges that arise in co-parenting with a conflict ex. Doing so shows the Court that he wants to co-parent and is taking steps to make that possible.

If dad presents as being the co-operative parent, and mum presents as being the complainant on every matter, who do you think the Court is going to hold in higher regard?

 

[JadeGoldCoast]

Self-representing is definitely beginning to sound like the better option. My partner has dyslexia though and would find standing up in a court room extremely stressful and intimidating. We have so far planned to use the lawyer for the application (we have already sent them the paperwork and transferred some money into their account) but are considering only using the lawyer from now on for court purposes as suggested by Sammy01.

Thank you so much for the website suggestion also, we are going to start reading up this weekend. My partner checked and a urine screen is only $100. We are going to check with his lawyer before doing it however, as we are a little concerned that this could jeapordise his interim order as one of the main points for the interim order is to gain contact of 4 days a fortnight as she is currently refusing contact.

If she does go back to allowing the 2 days a fortnight could we still apply for an interim order for the 4 nights does anybody know or would be loose the ability to apply for the interim order? Part of us are wondering whether we should follow AllForHer's suggestion and leave the drug testing for his ex to push in court. So my partner can prove to the courts he is not a drug addict and hopefully that will be the last time his ex can use that excuse against him.

AllForHer, thank you so much for your observations. We appreciate an honest experienced opinion right now. It's much better to hear it now and amend the application accordingly than to add things in that may go against my partner.

We think we are beginning to understand what you are trying to get at. Basically we are best to word the application in a way that shows we have tried everything to effectively co-parent from our end and to support his ex when she was struggling.

For example when we were concerned about the toilet training we started a reward system in our house and explained what we were doing to her and suggested she could try the same to keep things stable for the child and also bought an extra pack of undies for her. And when my partner was concerned about his son not being taken to a doctor my partner offered to cover the cost if his son ever needed to go and said he was more than happy to take him. He has also suggested having more care of his son on a few occasions as we knew his ex was looking for work and thought it would give her time to focus on this.

It's just unfortunate that his ex has a belief that she should make all the decisions regarding their child and always calls herself the sole parent. But I guess this isn't for us to prove anymore, her beliefs will become evident in court. My partner intends to argue that he is able to support his son from 5-7 days a fortnight as he has recently started working 10 minutes from home so can drop off/pick up his son from kindy/school - where as he used to drive to Brisbane and back and had to leave around 5am.

His son is also always had his own room with all of his toys/activity boards. My partner has already enrolled himself into parenting class that begins next month. We are both considering seeking counseling to gain advice on the situation also.

My partner is completely aware that witholding his son from the mother was not the best decision and completely regrets this decision. Unfortunately at the time he was panicked and did not want to loose access to his son again.. yet here we are.

Thanks so much for all the help you have both given us. We are finally talking with the new lawyer too who seems to be a tone better than the last (I think the last lawyer had lost interest once she knew she was moving interstate). We will keep you up to date with how things progress over the next few weeks/months

 

[sammy01]

I would do the drug test, send her the results.... Even if she does resume the 2 nights of care, you can still apply to court... It will cause one of three things to happen...

1. She will continue with the limited care

2. she with refuse to give you access because she is pissed off that you're applying to court.

3. She will compromise and agree to consent orders...

Short version, you have nothing to lose... But if he does the drug test and gives her the report and she continues to withhold, that will be an interesting piece of information for the judge and it shows that dad is doing all he can to co-operate in order to see his kid.

Next - the best thing mum can do is cause conflict... The saddest cases you'll read are the ones where a magistrate has ordered no contact with dad... Why? Well in some cases the mum has been so effective in convincing the kids that dad is evil that the kids live in fear and as a result the magistrate feels the kids would be so traumatised if they were forced to spend time with their dad that it is not in their best interests...

The next saddest bunch of cases is where there is lots of conflict. and as a result the magistrate orders one parent doesn't see their kids because the kids don't need to be exposed to on-going conflict throughout their whole lives... You guys look like you're at risk of being in this category... Dad was so caught up in proving mum is an idiot that he forgot that his job was to prove that he was a good dad.

Story time - My ex is a nutter, you can't imagine the abuse I copped on a weekly basis and in front of the kids... Underwear smeared in excrement thrown at me... She was trying to prove a point - the only point she proved was that she is a twit...

For all that every email, every piece of correspondence I had to send her, every change over I was nice as pie... so there was nothing she could present to a magistrate to show that she lived in fear of me, or there was conflict... So after a few years she decides to move 5 hours away... Gets solicitors and they tell me she is leaving and I should not waste my money taking her to court as I will lose. She claimed she had to move because she was so scared of me...

In the end she left but the kids stayed with me...

 

[JadeGoldCoast]

Just to update. My partner has completed a urine screen yesterday and should have the results by Monday. His son's birthday is on Wednesday so will be sending the screen through to his ex as soon as he can.

We're praying we can see his son for his birthday and start regular contact again. Trying to not get our hopes up too high though, but its hard. Will post an update on how we go.

Also to clarify, minus the event in September, there has never been any conflict around the child. Whenever my partner has expressed concerns regarding his son in person his ex agreed with him and is fine.

It's the next day that she usually messages my partner telling him to keep his opinions to himself etc. The child has no idea that mummy and daddy don't get along sometimes. The ex has manipulated my partner so much to suit her but he just went along with it so he could continue to see his son.

We've also spoken to our new lawyer (so much better than the last) and she agrees with the change of tone in our application. To be honest we really didn't know that our job was to prove what a good dad my partner is. We were under the impression that we had to prove why his ex is unstable for a child. Thank god for this forum! The old lawyer we feel just wasn't invested in our case at all as she knew she was moving state.

We are going to write up notes this weekend explaining what a close relationship my partner has with his son. Even though our time has always been limited the child has constantly asked to come to our house and cried every time he had to leave. The mother has also told my partner that she knows i'm good for her son. So we're going to try and paint a picture of the stability and activities we do with his son.

If anyone has any opinion on this part feel free to share

Sammy I'm so sorry to hear what your ex put you through, but at least you had a great outcome in the end. My partner's ex is continuously cutting the calls between my partner and his son short and interrupting the calls.

My partner politely asks her to get off of the call or questions why she is threatening to end the call and she gets off. We feel she is trying to cause conflict around her son so we are making sure this does not happen. Thankfully my partner has the most placid temperament.

 

[JadeGoldCoast]

So just an update. After a day of waiting the ex has finally replied a 2 page novel explaining how much of a liar my partner is, half of it doesn't really make sense to be honest.

I have a feeling she may have been upset today as my partner's mother went to court to defer her case so she can gather evidence to fight the DVO the ex has put against her, probably wasn't the outcome she was expecting.

The ex has basically told my partner that his drug screen is not to her standard and its all his fault that his child is missing out on seeing his child as he won't take a hair follicule test.
My partner ensured he got a urine screen that would be accepted by the courts.

We expected this, but still upsetting. Especially when she words it that 'your son will always wonder why you wouldn't do this for him'.

Trying to not let it get to us and hoping that this will help clarify to the judge that she isn't acting in her son's best interests at all.

 

[AllForHer]

As in, it was a two-page response affidavit?

 

[Lennon]

If your DP's ex were to involve your SS in the issues by telling him that kind of detail, the court would be extremely critical of her. Hopefully that kind of guilt-tripping is just an empty threat and she won't really discuss such things with him.

I'm glad that your new lawyer and this forum have helped to redirect your DP's attention in his affidavits. I have just been down a similar path, initially focusing my attention on rebutting my ex's ridiculous claims about our marriage before realising that I should ignore her irrelevant evidence and only focus on things that actually affect our kids. It's hard to ignore all the incorrect things in her affidavits though!

 

[sammy01]

Ok to start with I'm gonna be critical. Was it really the best day to send the drug screen results... You "have a feeling she may have been upset today as my partner's mother went to court to defer her case so she can gather evidence to fight the DVO the ex has put against her, probably wasn't the outcome she was expecting."

No really? And you rub that one in by sending the drug screen on the same day...

Look if you have not made an application to court by the end of next week, I reckon you're not serious. I understand that it is scary.... But the law is on your side. You seem smart enough... To get this to court can cost less than a few grand. You can do all the paper work... So that is a small kick in the pants, but I hope you understand it is well intentioned.

So some other thoughts.

Remind us again, when did you do mediation last?

What have the solicitor's done so far? Look from what you've written I think you've seen one who has messed you around. Why not start self representing... ?

By the sounds of things the mum is not going to have lots of money and unless you're earning a big income, you'll find solicitors expensive and even if mum has legal aid, that isn't a bad thing... They don't muck about. It is not legal aid's job to keep good parents away from their kids...

My ex had a legal aid solicitor, the legal aid solicitor eventually refused to represent her because my ex was being a twit...

So all of a sudden, my ex had to start paying a solicitor and then she started being a little bit more reasonable. WHY? Not because she is a reasonable person, but because the solicitor was costing her a fortune and as a mother on the dole she could not afford court.

So self represent...

Here is a good starting point.

How do I apply for Parenting Orders? - Family Court of Australia

Little life experience from me... Some people will only change the way they behave when they are confronted with a scenario that motivates them. Right now she is the boss and she is enjoying playing games with you. When she is confronted with a magistrate being the boss, the attitude will change. Right now I can't think of any other alternatives to try to motivate her to change her approach to this situation. I'd like to say that we could play along....

Let's suggest that she agree to 50/50 shared care, or what ever, under the condition that both parents agree to drug screening at their own expense every 6 months, or that she agree to pay for the drug test if it comes back negative... But she will agree, you will do the test, then she will accuse you of cheating the test, or some other BS...

Apply to court, do so asap. Don't bother with solicitors, you really can do most of the leg work yourself, then pay a solicitor to front up on the actual day of court if your partner thinks he cant handle the stress...

One more thing? Does mum have a solicitor? do you know that person's name? If so you could write to them... But I'll explain more once you've answered my questions.

 

[sammy01]

Sorry - one more little kick in the pants... The ex has requested this stay out of court?

You wrote that earlier... Of course she has. She knows she doesn't have a leg to stand on... She requests this and that, don't go to court, do drug tests, not that drug test, this one... and all the while you guys are requesting one simple thing... To see the kid... And so you're doing all she asks, don't go to court, do drug tests... But still no kid...

Go to court. Think about how much fun it will be to serve her with a court attendance notice - basically, notifying her that you have made a court application....

When did you see the child last?