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VIC Self-representation in Family Law Court?

Discussion in 'Family Law Forum' started by Smof4, 20 July 2016.

  1. Smof4

    Smof4 Active Member

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    Hello,

    My partner is currently going through the motions of settling family law court matters which also include child protection involvement and an AVO that we took out on behalf of his two sons against their mother. Granted with full admission from her.

    Some of the story:

    We have my son from prev marriage 100% and we have a younger child together, 2 children from his prev marriage that came every second weekend - no court orders, all her way or the highway - they arrived one weekend looking very tired and unwell. That night older of two broke down - he is 8 - and told us what had been going on at mums house.

    The relationship breakdown they had packed the entire house prior to coming to our house, family violence had been occurring for almost a year, repeated exposure to a family member who is a registered sex offender ( overnight stays even though DHS had already warned her not to allow access ) and an incident where their mother and partner at the time were arguing in a vehicle and mother was punching driver in head and then grabbed steering wheel removing the car from the road at high speed.

    The 8-year-old also told us her car was unregistered and had been for several months because 'daddy doesn't pay enough'. So we retained the children and advised her that we would be, advising her to use the time to get her life back on track and seek some councelling.

    She was obviously irate however on the Monday we contacted child protection and discussed our concerns as they had previously attended her home due to access to RSO.

    They started an investigation immediately. They advised us to get police reports which police refused to take and they told us to get a restraining order. By Wednesday it was granted. We asked the judge to include a clause that she could contact by phone to maintain contact with children.


    Fast forward 6 weeks to final AVO hearing and no contact from the mother - we were to provide evidence ( we had a lot, including Child protection report substantiating everything that had happened ) she brought nothing. Her duty lawyer discussed this with her and it ended in her hurling abuse and saying fine stuff it! And left the court. The judge granted the full order.

    After this court hearing she text asking for us to return the children and we advised that we would be more than happy to cooperate with supervised visits conducted by a 3rd party ( FMC or local organizations). Since then we received family court proceeding documents by registered post ( is that allowed? ) in which she states the children are at risk with us because my partner threatened to break her arm 4 years ago.

    The content of the documents are basically that she is the primary carer and she wants her kids back. We received a letter today from a solicitor saying she wants to see them and we are disgusting people for not allowing her access so partner called and explain to the solicitor that we have proof we offered supervised visits and he lost his cool and told us we were in for a rude awakening in court.

    We are in the process of trying to juggle how to lodge the response officially - it's a complicated document and we need help - we have been to a few legal services but the issue we find is conflict of interest - she has registered with every service in 200ks of us - each time they don't tell her what she wants to hear so she jumps to the next.

    I want to pay someone to help us - can a solicitor / lawyer / family law expert be hired to just do this part?

    Every solicitor we have spoken to wants 15k upfront and while we can afford to pay as we go we just don't have the 15k retainer that they ask for. We have 2 weeks to file the response and we are sick with worry. The boys need a stable home - we are even happy to give her supervised access until she has sorted out her person problems ( child protection documented that she is severely unstable, irrational and volatile including the fact she has physically hurt the children ) and once things progress we hope to work to a 50/50 agreement.

    It should be noted also that her ex-husband had a child from prev relationship and she has suffered the same at the hands of her. So court proceedings have started for them as well - however she has split from her partner and he is backing us for the safety of the children - he contacted and told us not to give them back as she is unstable and puts a lot of emotional stress on them.

    So after this novel of a post ( sorry ) my questions are :

    Can anyone recommend a lawyer / legal service to help us ASAP? Are there any that invoice along the way? We both have incomes but don't have savings as such to cough up 15k upfront? Do you think we will be ok representing ourselves? Is it reasonable to think we are doing what's best for the kids ?

    We truly feel in her care ( at the moment ) they will become another news story. It's scary and we are totally lost

    Thanks for reading
     
  2. Smof4

    Smof4 Active Member

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    I forgot to include that she made full admissions to child protection about everything that has happened including one child being hit as he was caught in the middle of a family violence dispute - however states on most documents that it's completely irrelevant because all families have this going on me we are being dramatics
     
  3. AllForHer

    AllForHer Well-Known Member

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    Okay, this is a very difficult one to provide guidance for, but I'll do my best.

    First, the issue of withholding the kids.

    You have an IVO, but you don't necessarily have proof of domestic violence against the kids because she didn't attend the hearing to answer to the allegations under cross-examination. This means the evidence wasn't tried, so to have any impact at final hearing, you're going to need more corroboration on this front - police reports and DHS reports at least. What the kids have said isn't going to be given a lot of weight, at least not without a third party confirming at a professional level what the kids have told you.

    However, you're a long way out from final hearing, and a lot is going to happen between now and then. The first mention will basically cover interim orders, so let's look at what you think needs to happen now to fix things for future.

    The kids need to be seeing their mother relatively often in order to continue having a meaningful relationship with her while these proceedings are afoot, but if you fear for the kids' safety, it also needs to be in a safe environment, so what kind of supervision do you think is best for the kids? Supervised at a contact centre that costs money? Or supervised by, for example, a trusted family member, such as a maternal grandparent? How often should that time take place? Is once each weekend workable? Or is once every second weekend a better option?

    Can you facilitate Skype or FaceTime? Would you be open to such calls maybe three times a week?

    What else can be done to address this issue? Would it be beneficial for the parties to attend a post-separation parenting course? You can request a psychological assessment, but it might be better to let the Court decide whether or not this is necessary.

    Your evidence needs to show that you believe the orders you are seeking are in the best interests of the children. If they are in their best interests because you fear for their safety, you do need to provide detail about what has caused this fear. Have you seen anything? Or are you only going by what the kids say? Do you have anything from DHS about their investigations?

    Be careful about how you explain the situation - don't descend into simply framing her as a bad parent and criticising even minor oversights in her parenting style. Focus only on what's best for the kids. Fundamentally, that has two main components: that they have a meaningful relationship with both parents, and that they are also not exposed to risk from violence, abuse or neglect.

    For final orders, you can be more liberal. These will probably change before final hearing, dependent on how the matter progresses in the interim.

    The paperwork is a response which will include a minute of orders sought and an affidavit of supporting evidence as to why the orders you're seeking are in the best interests of the kids.

    Please read Section 60CC of the Family Law Act 1975 to understand what the Court considers when deciding what's best for the children, and address those factors in your affidavit.

    A Legal Aid consultation is not a conflict of interest. It only becomes an issue if you're seeking that they represent you. They are extraordinarily helpful for self-represented litigants, and if you're lucky, they'll know which judge you're appearing before and give you some tips about them, too.

    If you need help with understanding the legislation, please feel free to ask, as well.
     
  4. Smof4

    Smof4 Active Member

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    Thankyou. I really appreciate the response :)

    Il try to cover everything...

    DHS / child protection services have a substantiated and completed report that confirms all family violence incidents - they conducted 'suprise' interviews with the kids at school with a welfare coordinator present.
    Their recommendation is that they children remain with us and are deemed at risk with their mother.

    Re: supervised visits - we are requesting a professional to supervise because the children need to be protected from what she will say - she is extremely irrational and will put emotional pressure on the kids ( she has done this damage in the past - 8 year old feels as though this is his fault and that his mother 'doesn't need anymore stress in her life ' and unfortunately her parents are not a candidate to do this because the registered Sexoffender is actually their son. They refuse to acknowledge that he is not allowed contact with children at all. They funded and planned a family holiday on which they took their son and the children in question.

    Our parents are deceased.

    We welcome phone contact from her ( we stipulated this in the AVO ) however she has not made phone contact at all. It has been almost 4 months. She is 100% aware that she can make this contact as well.

    It's in the best interest of the children that they remain with us. - she doesn't have a home and is couch hopping - the registered sex offender lives with her parents so that's not an option for her either.

    Interim wise we would like to see evidence of her bettering herself for the children. She sees no problem with family violence so it's a mindset for her that only she can change.

    I will re read your message again shortly, my mind is going at a million miles an hour and my focus is crap to say the least.

    I really appreciate your response and references :)
     
  5. Smof4

    Smof4 Active Member

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    I know she wasn't cross referenced or anything but she admits to every incident of family violence ( to DHS ) and the order listed all the occurrences and she accepted the order with full admission
     
  6. AllForHer

    AllForHer Well-Known Member

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    So, I think you have very good grounds for seeking interim orders that the children remain living with you and spend supervised time with the mother. The DHS report is worth annexing to your affidavit to support your case.

    If an interim order is made for supervised time, you can then start relying on the supervisor's reports to determine how you think the issues should be addressed in future. If the reports are positive, great, start considering whether unsupervised time is workable conditional on the children not being brought into contact with the offending uncle. If they're not, request that supervised time be extended and request an order for counselling of some description.

    Basically, this is how the Court process kind of operates - it's not really about what's happened in the past, it's more about what happens from that first day in Court onward. From Day One, the judge is observing the situation and assessing how it changes over the course of the time you spend in Court. As an example, if the Court orders random drug tests at the first hearing, and the affected parent decides that's an insult to their dignity and refuses to participate, at the next hearing, the Court will see a parent who can't put his/her own needs aside for the children. A parent who compiles however, and passes with flying colours, is going to be far better positioned in future to have that order for random drug tests done away with so they can spend more time with the kids.

    But whatever happens, keep a realistic view of the thing. Give credit where it's due - if mum starts to shape up, acknowledge that and show that you're eager for the kids to see her more. And always remember the kids love their mum, even if she's scared them a few times before.
     
  7. Smof4

    Smof4 Active Member

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    We definitely acknowledge that she can be a great mum she's just having a rough time at the moment and unfortunately that effects the children.
    The sadness I feel for them that she hasn't made any contact is indescribable. Being a mother myself I just don't get it. As we have mutual friends we have been privy to information about what she has been doing and sadly it's also not demonstrating that she's bettering herself for the sake of the children :-(
    At the beginning we imagined she would re establish herself and get help but it just hasn't happened. She continues to tell DHS ( as recently as this week ) that her brother is no threat and it's ridiculous that she would keep her kids away from him?!?!?
    Her parents were quoted as saying 'we can't help if they are all Present at family gatherings' there's just no ownership and it feels that the kids aren't the priority ...
    We request supervised in the interim ( what we have drafted so far ) and then following on we ask that we work together to adapt a 50/50 situation pending her mental health and ability to provide a safe and nurturing environment for the kids.... We definitely want them to spend time with their mum.... We want them to be able to access all aspects of their family and to be happy.
     
  8. AllForHer

    AllForHer Well-Known Member

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    Well, it sounds like you've got your head screwed on right.
     
    Smof4 likes this.
  9. Smof4

    Smof4 Active Member

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    Thankyou. You've been a great help, both with information and just being an ear to listen. Much appreciated
     
  10. okanynameyouwishthen

    okanynameyouwishthen Well-Known Member

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    "As an example, if the Court orders random drug tests at the first hearing, and the affected parent decides that's an insult to their dignity and refuses to participate, at the next hearing, the Court will see a parent who can't put his/her own needs aside for the children. A parent who compiles, however, and passes with flying colours, is going to be far better positioned in future to have that order for random drug tests done away with so they can spend more time with the kids.

    But whatever happens, keep a realistic view of the thing. Give credit where it's due - if mum starts to shape up, acknowledge that and show that you're eager for the kids to see her more. And always remember the kids love their mum, even if she's scared them a few times before."


    Ahh, humbug! I wish judge I had operated like that. I also wish opposing the barrister made disclosure of an alluded to document that I made the oral application he provided, before smirking and ignoring and generally bullyboy barging on with the hearing, but then presenting the document 8 months later proved that I was right all along. But that was bullyboy'd again by simply changing his arguments/claims to suit the newly revealed doc., that due to ambushing me with it on the 2nd day of a 2-day trial, had no time or docs. ready to reply.

    The job is done though as he got the desired results of continuing testing as he painted me as a non-complier by grossly misleading (dishonourable conduct?). Wish my not having a s128 - never be charged with a criminal offence - voucher nor having the slightest untruth in any evidence of mine, yet bucket loads of the ex's meant court had no valid reason to not accept my cred. Should've meant something.

    Wish the ICL hadn't been intimidated by this crooked barrister & had done the duty to the court by jumping in at any given moment to correct court's onerous view...Wish the court didn't scoff at my honest pleadings that being casual and unable to get ahead with all the courts and drug test related time off.

    I'm at risk of losing my job of less than a year old & house also should that happen. Wish I could believe it was a coincidence that the last day I worked at the job was the day I scraped the 160 up & raced off in lunchtime to test whilst the boss turned up the jobsite asking of me & drove off muttering & shaking head when told where I was that again was clean and brings total to 2 years of cleans with 1 single dirty 2 years ago now...Man do I wish!
     

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