QLD Legal Aid Representation for Uncooperative Mothers?

[JadeGoldCoast]

Hey all, I really tried to stay away until after the DVO mention on Wednesday but no such luck.

Today we received a letter from the Paediatrition stating that the child has now been diagnosed with autistic spectrum disorder - high functioning. Now we understand that we cannot argue with a professional diagnosis. What is concerning if that the testing was carried out with only the maternal grandmother present- not the mother or father.

Also that part of the testing was a 2 hour interview with the maternal grandmother who discussed the child's developmental history. We can already prove that the mother has lied by saying the child has been diagnosed for two years. We can honestly say the child does not show any of the symptoms the grandmother has described in the meeting with the paediatrition and feel she is doing this so the mother can say that staying overnight with us is too much for the child (even though he has regularly stayed with us and grandma since he was 2 years of age).

Does anyone know if it is possible down the line to request independent testing to be carried out by the courts? Or whether this is something that will happen anyway? If the child genuinely has the illness we would all ensure the child has the best care to help with his development. We just are worried this is another trick to use against us in court.

On a another note, we received the undertaking between the maternal grandmother and the mother today. The child, herself and her mother are all mentioned on it. It states that the grandmother agrees to the undertakes on a without admission basis.

At any point where the child is mentioned, it does state that the grandmother is excepted when appearing personally before a court or tribunal, when attending an agreed conference, counselling or mediation, or when having contact with the children but only as set out in writing between the parties or in compliance with an Order of the Court.

Does this mean the mother can attend the next heating in March? Or not until the court allows contact?

We have both felt pretty down this afternoon, first the DVO and now this diagnosis. It seems the mother and maternal grandmother will stop at nothing to try and keep my partner and his family away from the child. Trying to stay positive that this wouldn't be the first time the courts have dealt with mothers like this.

 

[sammy01]

Slow down and turn around... Nothing to see here.

Sorry - but this is dumb... Mum has been lying for 2 yrs about a diagnosis. But now there is a diagnosis. But the mum has still been lying... Who cares. This is not about proving mum is a liar.

If the specialist states the kid has autism and that is a reason for the kid not to spend time with dad - then challenge it... Easy... But I doubt the specialist will say that, especially not for a high function autism. I teach high functioning Autistic kids all the time in the mainstream class. It is a low bow to draw to jump from diagnosis to justification for the kid not seeing dad... The courts will hear none of it, especially without direct instruction from the specialist explaining that it would be detrimental to the kid to spend time with dad...

Based on what you've written I reckon grandma can attend court. Remember it is an undertaking, so it is not enforceable...

 

[AllForHer]

'Appearing personally' refers to any matter in which she is a party or a witness. March hearing is a mention, no? So she won't be a witness there, and she's not a party to proceedings either.

Again, grandma is making this more complicated than it needs to be, and frankly, it sounds like grandma being at Court is just an effort to show mum up by defying the undertakings. Don't do that. Remember how I said undertakings make it easier to get a DVO second time around? What do you think mum is going to do if she sees grandma at Court for a matter that she's not personally involved in? Don't you think that's going to hurt your case?

Re: Autism. Like sammy01 said, this isn't about proving mum is a liar. Mum being a liar makes no difference to the kid, does it? This is about getting more time with the child, so you're better off assuming mum is telling her version of the truth and doing what you can to knock over her concerns one by one.

One of those concerns is the fact that you're denying the diagnosis of autism, right?

So, now that the kid has been diagnosed with autism, don't you think the best option is to move forward on the assumption that the diagnosis is accurate, rather than continuing to deny it? It benefits mum's case if you say you doubt the opinion of medical experts, because it makes you look like you're not going to provide the kid with proper medical assistance, and that actually may lead to the kid getting less time with you.

Instead, throw yourselves wholeheartedly into supporting whatever treatment plan the doctors think is best. Get the contact details of the diagnosing doctor and go there to discuss what the kid needs to manage autism, like routines, sensory play, counselling, etc. If kiddo grows up without showing genuine signs of autism, great, but it's better to be safe than sorry, especially since the Courts are watching how you handle this.

Imagine how frustrated mum will be when you show genuine willingness to support the kid with the diagnosis. Isn't that the exact opposite of what she wants?

 

[JadeGoldCoast]

Thanks for both of your replies.

Sammy, the mother's whole affidavit is lie and we aren't focusing on proving the 50 lies in that. But she has used the autism in her notice of risk to say my partner has failed to acknowledge it, which has caused the child psychological abuse for 2 years.

It's only the abuse to the child that we are trying to prove is a lie as we feel that would be taken seriously by the judge's view of the child's best interests. But I appreciate your words and we will wait to see what is mentioned about it in the court. The letter from the paediatrician already states that change is bad for the child. If what we think is true and the grandmother is doing this to go against my partner, then she will use this to the best of her ability.

AllForHer, I did think that it had to be her own court case that the grandmother could attend. I think she thinks it includes my partner's case. We wouldn't want to do be seen as aggravating the mother in any way so I will have a chat to my partner about it. It might be that down the track, if and when we get a full report, that my partner can ask for his mother to be present and if the courts think she should then they can order it.

We do plan to tel the courts that we are taking the diagnosis seriously. We are booking an appointment today to speak with the paediatrician to see what now would be best for the child in terms of specialists and try to get that started. How easy that will be when the mother won't allow conversation between her and my partner I do not know. But hopefully it will show we are concerned and want to support the child. We have also sent an email last night to discuss the diagnosis with the psychologist.

 

[JadeGoldCoast]

I just wanted to add quick, that the mother has already asserted that the child suffers from night terrors that are to do wit his autism. She has said that since the child has been spending time with us that the terrors have gotten extremely worse.

We have never had any night terrors when the child has stayed with us. We are just praying that the courts value what their own specialists see over what is said by each parent. We know that the reports will show how much the child loves my partner and enjoys spending time with us.

I guess we are both getting worried now that the mother's and grandmother's games may be taken seriously by the courts.

 

[AllForHer]

Look, most observations by parents are just he-said-she-said. That's why the Court appoints expert witnesses - so they can cruise past the nonsense and get to the facts about what the child is actually experiencing.

If mum says the kid experiences night terrors, you say: 'X has asked to sleep in my bed following a bad dream on approximately [number] occasions since [month, year the the current pattern of care commenced], but I have not observed X to experience a pattern of distress or difficulty sleeping while in my care. I am willing to support X as advised by X's treating practitioners to address any symptoms of autism that may impact his quality of life, including any night terrors X may be experiencing while in the mother's care.'

For the timing of the autism diagnosis, just tell the Court what you experienced in that timeline of events - that you asked mum for the treating practitioner's contact details when the child was diagnosed so that you could participate in the treatment plan, that mum didn't provide the contact details, that you met with the doctor on whatever date and that doctor advised X had not been diagnosed at that time, that on whatever date, you received a letter advising the child had been diagnosed with autism, that you contacted the doctor and were advised the diagnosis was given following a two-hour interview with the maternal grandmother about X.

Don't say mum is lying. Don't even imply mum is lying. Just tell the Court your version of events.

Change as described by the paed, by the way, doesn't necessarily mean that the child would be adversely affected by spending time with dad. If dad knows how to support the child with autism and mimic routines, it can eventually reach a point where 'change' is considered any disruption to dad or mum's time with the child because that would eventually become routine for the child. So don't think the autism diagnosis is the be all and end all. It's not.

 

[JadeGoldCoast]

Thanks for the suggestion on how to word a response to the night terrors. We need to try and keep our emotions out of it and state facts like you have said. Seems to be easier said than done but we need to trust in the system and accept this is going to be a long drawn out process.

We do feel the mother changing the child's routine (by stopping regularly contact with us all) would have had negative consequences on the child, but not sure we should be saying that, as that is the specialists job to determine I guess.

My partner finally heard back from his lawyer and she has suggested accepting the DVO tomorrow without admissions. She said doing an agreement like the grandmother would be an option, but would obviously come at a cost for needing a lawyer present.

Could my partner say he does not agree to the DVO now and at the next hearing accept without admissions? Cause my partner seemed to think that the lawyer made it sound like once the mother has submitted evidence then he would need a lawyer there to accept without admissions(??) We are trying to avoid extra lawyer costs so accepting without admissions does sound like the easier option.

We will obviously request that the child is removed however.

 

[AllForHer]

Honestly, it took me a really, really long time to learn how to write an affidavit that separates facts from feelings, speculation and hear-say. I can confirm it is much easier said than done.

For example:

Speculation: X was angry and tried to punch me.

Fact: X became red in the face, raised her voice, and drew her right arm back with a closed fist, as though preparing to hit me.

Hear-say: The grandmother observed X to run into the house crying.

Fact: The grandmother told me she saw X run into the house and that X appeared to be crying.

Here's one from one of the affidavits in one of my matters:

Speculation: He made sure not to look at me.
Fact: He did not look at me.

Also something to keep in mind:

Speculative: Disrupting the child's routine will cause the child emotional harm.
Fact: On [date], I attended a consultation with Dr Paed, who diagnosed X with autism. Dr Paed advised me that children with autism benefit most from consistency and routine. The current care arrangement has been in place since [date], and I am concerned that disrupting X's routine in terms of care arrangements will cause the child distress or anxiety.

But remember, changing the child's routine is a two-way street - are you sure you want to cite fear for how the child will cope if care arrangements are disrupted, when you're seeking the disrupt care arrangements by increasing time the child spends with you?

Re: the DVO, this can get a little complex when it runs up against a parenting matter. You need to make sure that if you accept without admissions, all of the conditions on the DVO are viable. You don't want to be messaging mum about the kid and then mum take it to the police for breach of DVO.

You can ask for certain conditions - like an exception for communication about the child, an exception to accommodate care arrangements for the child (for example, changeovers or attendance at mediation) that the child be removed from the DVO, etc. You can also enter into undertakings (if mum accepts it), but again, you need to make sure the conditions are viable - none of this 'five years of not having a relationship with the child' nonsense. You also need to advise the Court that there is a parenting matter on foot so that the aforementioned options are understood in context.

You should follow your lawyer's advice, though. They know the judge who will hear your matter, so they have the upper hand on knowing how willing or unwilling your particular judge will be to make a DVO, and whether it's worth your time to contest it.

Personally, I see merit in accepting without admissions, though. Your next affidavit for the parenting matter should include something to the tune of: 'On [date], I attended the X Court to support my mother as the respondent in a DVO application by the mother on [date]. On returning home from the Court, two police officers attended on my property at approximately [time] and advised that the mother had applied for a domestic violence order against me.

A true and correct copy of the application is annexed hereto and marked X. On [date], I attended X Court in regards to the DVO application and accepted the order without admissions. I maintain that I have at no time been violent or abusive toward the mother.' Let the Court decide how it feels about the timing of mum's DVO/s.

 

[JadeGoldCoast]

Thanks again AllForHer, you examples are amazing. Fact without emotion. Something to practice and will go over the start of the affidavit we've written and check for opinions.

Yes I think I will leave out the comment about the changing the child's routine causing harm. There's always two sides to the coin and need to be mindful of that in our comments.

We will def make sure to include that the mother can be contacted about the child. Especially now if he will be having more appointments with specialists etc.

We actually want to add in an order that the father be permitted to attend the child's appointments with the mother regarding his health. The mother has ignored all messages about the child's health and refused to let my partner be a part of the child's diagnosis's, but the paediatrician has advised that it would be best for both parents to be in attendance for specialist appointments so we will state that comment.

That's the thing, our lawyer has no idea of the judge. She is in a completely different city. The first lawyer we used moved interstate so we got passed onto the companies next lawyer in the next city. She advised we would be seen at a earlier date if we applied for her local court, so we did, but the DVO is through our local magistrates court.

We will see what the duty lawyer advises tomorrow morning, we're wondering if it will be the same one from last week. I will point out that even though we were served the DVO the same day as the grandmother's hearing, the mother actually applied for it the week prior. I did find this a little strange as usually DVO's are served fairly quickly from the experience I know of people applying for them, but i'm presuming this one wasn't seen as high priority or something as my partner hadn't received any missed calls, or maybe because it wasn't applied through the police.

Funnily enough, the mother applied for the DVO the day after my partner asked the mother to request random drug tests from himself to alleviate her drug taking concerns, she doesn't seem very concerned about his drug use now hes asking her to request random drug testing. Also, probably irrelevant, but we didn't attend grandmother's hearing as her lawyer thought it was best to keep my partner away. He has literally done everything to avoid her putting a DVO on him but I guess she feels the need to strengthen her argument for sole custody.

I also can't remember if I mentioned earlier, but the mother brought my partner's father to the trial. From what I have heard, the grandmother's lawyer used this against the mother's duty lawyer when the mother wanted to pursue the DVO. He stated it wouldn't look good to the judge that the mother had included in her evidence a write up that the grandmother had posted on a woman's domestic violence support website, which discussed the abuse the grandmother and her boys had been through, and then bought the man who was found responsible for it to her domestic violence hearing. That one baffles us.

We will have a chat tonight about options and might see the if mother wants to agree to a undertaking tomorrow... but we won't hold our breath I don't think.

 

[AllForHer]

DVOs sought by police are served swiftly. DVOs that are private application can take a bit longer.

Tomorrow, you could see if the Court will make an adjournment on grounds a parenting matter is on foot and you think some of the issues can be resolved with an appropriate consent order between the parties. It might give you more time to consider your options, but that's dependent on whether the Court grants it or not.

The Court may even just throw it out summarily because the complaint is more or less against the grandmother again, rather than dad.

When you speak to the duty lawyer tomorrow, make sure you do the following:

- bring a copy of mum's DVO application;
- advise the mother just withdrew an application for a DVO against the grandmother;
- advise there's a parenting matter on foot.