QLD Legal Aid Representation for Uncooperative Mothers?

[AllForHer]

Forget an order to keep grandad away. If Grandad is that bad Doc's will deal with. It makes you seem petty AND how to enforce.. Kid lives with mum... kid comes home and says grandad was there. what then? You cant enforce it.

Sorry but you guys have to learn to play better. So instead of paternal grandma accepting a 1 yr avo YOU agreed to no granny for 5 yrs? In the hope you can get it fixed by spending more money on court later on? It will take 1 year to get court to change the order and more importantly, it is mixing state criminal law with federal family law. messy.

I basically disagree with nearly everything in the post, particularly the part about the DVO. All DVOs in Queensland are made for a minimum of five years, so not sure why we are talking about a one-year AVO, and it doesn't sound like dad agreed to anything, only the grandmother did, since the DVO application was against her.

I'm also not entirely clear what drives the suggestion to pretend dad has no concerns about the paternal grandfather when DOCS and an expert witness already cited concerns of their own which led the paternal grandfather to bow out of his own kids' lives. That just seems like a daft comment to me, but as always, take or leave everything we say and make sure you're getting legal advice.

So, the grandmother's undertakings.

Undertakings aren't enforceable by the Court. They're a promise, but if the grandmother breaches them, it doesn't result in criminal proceedings against her. All they do is make it easier to get a DVO second time around (but it's unlikely the undertakings will transfer straight over to a DVO anyway because that's drawing dangerously close to parenting orders).

As such, I probably wouldn't worry about getting parenting orders for the grandmother's time with the kid yet. There is some truth to it being difficult to enforce, and mum is going to face those same difficulties on her end, and like I said, undertakings aren't enforceable, either.

The FCCA's advice is correct in context. If you want to change the existing interim orders, you would file an application in a case. If you want to include that same interim order in your final orders, you need to file an amended initiating application. Note, there's no 'amended initiating application' form, it's just an ordinary initiating application, but with 'Amended' written at the top, and I suppose you can bundle this with getting interim orders changed by ticking the box for interim orders and including a minute of orders accordingly.

Now, mum's new DVO is an interesting development. Is the child named on the application as a protected party?

 

[sammy01]

Ok. Wow AVO/DVO's are 5 yrs in QLD. Madness.

Yep - undertakings are not enforceable. But this nutter will withhold the child the instant mum finds out granny has been near her grandchild... I reckon fighting the AVO would have been a better option... But no point doing hindsight.

As for Grandad - I'm a bit lost. This is your partner's dad? Or the mother of the child's dad? Look either way, I reckon, you're better off letting that stuff go. It makes you look vindictive and if the case against Grandad is strong enough, Docs will be on the case. Let them deal with Grandad. And mum is using Grandad - soon as this stuff is over, she will discard him as he will no longer serve her any purpose.

My concern for you guys is that the magistrate will see you all as basket cases and decide that the kid should just stay with one parent to avoid ongoing conflict. You guys have conflict with the mum. The mum has conflict with you, and your partner's mum. You guys have conflict with your partner's dad. Just way too messy.

 

[JadeGoldCoast]

Hi AllForHer, in regards to the grandmother, she was being represented by a lawyer and part of me is wondering whether he was looking out for my partner in the long run. He has stated that the mother dropping her DVO application will not make her look good to our judge. The grandmother is obviously unhappy about the time away from the child (she has supported the mother over the past 2 years to keep the child in a safe environment) but would never breach the 'promise' either.

We already requested in our interim order that the court allow time between the grandmother and the child. I'm thinking we leave the orders as is and let the judge decide when to allow that time? Or are you suggesting removing the orders?

Yes, the lady on the phone said we basically write 'Amended' at the top of the initiating application in red and also underline any new orders in red. Then cross out any orders we do not feel are relevant anymore. This may be a better option as my partner is not dealing well with knowing his father is playing an active role in this case. I am seriously wondering how the mother thinks bringing this man into the child's life is going to benefit her.

The child is not mentioned as a protected party. Weirdly, her mother is. I'm wondering if this is to stop my partner from being able to communicate in total with the mother about his child, as at the moment, the only option for communicating is through the grandmother's phone as the mother has disconnected her own.

Is it ever worth fighting a DVO application? The application is typed but then has some written comments in some boxes. I feel this is because the original application wasn't enough to even apply put a DVO on a person.

Also, is it possible in the first hearing next week to say my partner wants to contest the DVO but then later accept without admissions? The application in itself is so full of lies and doesn't really make much sense, and I feel will be a great piece of evidence down the line to show the federal court/independent children's lawyer/specialist how twisted the mother is. If this goes to trial I predict she will spin more lies that could eventually hurt her in our parenting matter.

Hi Sammy, yes this is my partner's dad. We have only had one trial in December and the next date is in late March. We are hoping to be assigned an independent children's lawyer that can fight for the child's best interests, but until then we really do feel that the judge should be made aware of the mother's actions. She seems to have no understanding of how keeping the child around abusive men could pose a danger (she stayed in an abusive relationship last year after admitting the child was in danger). There is a reason that the family court didn't feel it was in my partner's or his brother's best interests to have their father in their life.

 

[JadeGoldCoast]

Just an update on the grandfather. I have been given the ordes, a copy of the DVO which names my partner and his two brothers, and also a copy of the expert witness report (psychiatrist). Upon reading the final orders it seems the father was actually permitted to contact the children if agreed by my partners mother and himself. He chose not to contact any of his children. The mother was given sole responsibility for the three children.

The expert witness stated in her report that 'perusal of material from the Department of Child Safety indicates that they made a finding of substantiated emotional and physical harms and substantiated risk of physical harms for all three boys at the hands of the father'.

I am just concerned as I thought the father was ordered to not be a part of the children's life's. Would this still be sufficient evidence to request the federal court to keep him away from his grandchild? We don't want to request orders and appear petty.

Any help appreciated. Thanks!

 

[sammy01]

So my thought would be that you would seek an order that either parent (as in your partner or the mum) can provide access to the child to either paternal grandparent but only if that parent supervises. Family court orders supersede and AVO or an undertaking from the court.

So at present your side (grandma) has an undertaking not to contact the child...

So there is so documentation pertaining to the grandma (hypothetically) being a danger - same doesn't apply to grandad - not pertaining to this particular child (true)...

So my suggestion of supervised access to both grandparents sorts things? True?

 

[JadeGoldCoast]

Hi Sammy,

Your suggested order makes a lot of sense. My partner is really against his father being around his child though. I won't go into detail of the things his father put him through, but it's more that his father to this day blames the children for his behaviour and doesn't believe it was wrong. Hopefully we will be assigned an independent children's lawyer who can advise what they think is appropriate for this child regarding this matter.

Also AllForHer, The child is mentioned on the order. I missed that somehow last night. My partner's lawyer has advised he should refute the DVO and has requested a copy to go through tonight.

 

[AllForHer]

Look, mum's actions with the DVOs are very telling. It sounds like she thinks she can get another one of these fake no-contact arrangements out of dad if she pursues a DVO against him, too.

But the Court may well throw this one out.

First, she sought a DVO against the grandmother following some incident which caused her to fear for her safety, but then she withdraws the DVO because grandma agreed to stay out of the child's life for five years. Whose safety did she fear for, again? Hers or the child's?

Next, she seeks a DVO against dad because grandma is allegedly using his phone to communicate with her, even though she just withdrew the DVO application to protect her from the grandmother. That just doesn't make any sense. Why not just say she's receiving abusive messages from dad? Why discontinue the DVO application against grandma?

If her only complaint is about the grandmother again, and she's just withdrawn the DVO application against the grandmother, I think you've got a reasonable chance of having this new DVO thrown out, so if the Court doesn't dispense with it at first mention, I would be inclined to contest it at trial. That will give you time for one or two more interim hearings for the parenting matter and let you gauge how that's going before deciding how to handle the DVO matter on a final basis.

And yes, you can accept without admissions later on, but if you choose to do so, I would make it conditional on the mother removing the child as a protected party in the orders.

Regarding the orders for grandma's time with the child, my concern here is that you're seeking orders in favour of a person who is not party to proceedings. Grandma can ask to join the matter as a second respondent and seek orders of her own accord, but gee whiz, she's really adding a layer of complexity to this case when in reality, it should be very simple.

Admittedly, I think it was unwise on her part to enter into undertakings of no contact with the child. It would have made more sense to consent without admissions conditional on the child being excluded from the protection order all together, particularly given the fact that mum sought grandma's help for a while there while mum was having trouble with her boyfriend. Now, grandma is stuck with undertakings associated with a State Court that a Federal Court probably won't agree is in the best interests of the child, while allegedly abusive granddad is getting time with the kid!

I do think it would be prudent for dad to raise his concerns about the grandfather with the Court, though. It's not unheard of for the Court to impost an injunction on contact with a third party because the stress associated with that contact will negatively impede on parenting capacity. Granddad may not pose any risk to the child at all, but it has been argued before that it's against the best interests of the child to have one parent suffering anxiety and distress because the other is bringing the child into contact with someone they know to have abused them in their youth.

Indeed, it seems a bit uncouth that mum is citing the need to protect the child from the grandmother, but sees no risk to safety with the grandfather. Hmmm...

 

[sammy01]

Ok so I'm not sure if you want to or would have to add the grand-parents as parties to the proceedings. Surely, you can get an order along the lines of Both parties not hindering OR both parties being at liberty to facilitate the child's relationship with all members of the extended family as they may choose. (basically voiding the grandmother's DVO undertaking)

But I think your partner is gonna have to cop that the ex may let the grandad see the kid. And to be fair, Grandad has no history of harming the grandchild... I know, I know, BUT the fact is Grandma who actually does want to see the kid, cant and you're gonna have to give a bit in order to fix that one.

 

[AllForHer]

Agree that it's not a good idea to add the grandparents as parties to proceedings. Keep it as simple as possible.

 

[JadeGoldCoast]

Yes we feel the mother is trying to play games, but I also think she thinks if she keeps attacking my partner and his family then they will back down and agree to whatever the mother is offering. My partner and his family are all very placid people, the mother's family don't have the best reputation to put it lightly. I'm trying to convince my partner that her games are all a positive for him. Yes it's a lot of extra wasted time and money and effort dealing with these DVO's, but it speaks volumes about the mother's way of thinking in my eyes.

It is going to be really interesting when we get her 'evidence' as my partner is always so careful in his messages to not give the mother something to use against him. The mother has rambled on about how the grandmother controls my partners finances and cars and everything in my partner's life (simply not true and not sure what that has to do with a DVO application), then falsely alleges again that my partner is acting like his mother by with-holding child support from her (impossible as it's through child support). She states my partner insistently requested facilitated time between the grandmother and the judge at their last child matter hearing...

My partner wasn't even if the room, his lawyer was, and his lawyer told us that the mother is the one who bought up the grandmother. Then she states that she knows it's his mother texting her due to the language and punctuation. Then again about my partner being a drug user, then more lies about the September incident saying the grandmother attacked her. She states she has pleaded with my partner to only contact her about their son and he won't listen.

My partner has absolutely no other reason to message her, and there has been minimal contact since this all started. She then states her and the child are at risk of violence if they do not get the protection order and that it's affecting her sleep etc. Oh and she also mentioned that my partner has no respect for the law as he has lost his licence 4 times in 6 years.

I'm finding it hard to believe a judge would even allow someone to have a licence if they had lost it that many times, my partner has never lost his licence at all. So basically all lies again. But thankfully due to the judge ordering change over at a police station, she couldn't add in any lies of actual abuse because i'm sure there are cameras in the area that they meet. Thank god for that!

In regards to the grandma, I think she is aware that it could be a long road until she can spend time with the child again. I agree about just accepting the DVO, but due to her charity work I do understand why having a DVO on herself would have upset her. I think we will leave the order in about grandma that the lawyer added for us in the initiating application. The grandmother has played a significant role in the child's life since birth and especially over the past 2 years as she cared for him on a regular basis. We will let the judge decide if and when he thinks it is appropriate to allow time.

Yes we will definitely amend our initiating application to include interim orders for hair testing and no contact with grandfather. And then final orders about no contact with grandfather. My partner has truly not dealt very well with the knowledge that his father was with the child on Christmas day, I never knew much about what he had gone through but it's all come back to him of recent.

Yes we all find it bizarre that the mother can justify to keeping the grandmother away who has supported her for so long, and bring a man into the child's life who she knows has been proven to be abusive. Makes no sense to us at all.

First hearing for the DVO is next Wednesday, so will update on the outcome. Thanks again for your replies!