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QLD What to Expect from District Court Hearing?

Discussion in 'Family Law Forum' started by Fm15, 17 October 2016.

  1. Fm15

    Fm15 Active Member

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    I am attending federal district court next week for custody of children. My ex initiated the proceedings after a lawyer from legal aid advised me to sit and wait for him to try mediation. Then I was served "ex-parte" by a court bailiff.

    My question is why I have to travel to attend a court over 1000km away from where the non custodial parent left myself and our child so he could relocate? My legal aid applied to attend via phone but the judge has asked that I attend. Legal aid won't find flights, so I have paid what little money I have on flights for lawyers and myself. Apparently this is unusual and I wonder why? Shouldn't it be filed where we reside and still reside?

    The orders the ex have applied for is that our son move to where he has moved to, he have full custody of our son and I get supervised visits once a month. This is due to alleged domestic violence, physical abuse, drug abuse, emotional and verbal abuse with myself being the perpetrator. These are false allegations.

    The background info is that I ended a relationship with him due to physical abuse, drug use and affairs. When I ended the marriage he took everything from myself and our son, leaving us with a bed and a couch. I went to the police station after speaking with legal aid over the phone. I mentioned (after being questioned) that I did have significant injuries (a lot of bruising, some scratches and a cut on my foot) from my ex just before he left.

    The police photographed this for evidence and immediately put a dvo in place. This is currently temporary until trial date. Also there are criminal charges going through court in relation to those violent offenses committed against me.

    I feel as a "reaction" from him being served this police application, that a cross application has in turn been applied for by himself and his lawyer and served to myself. Am I right in viewing it that way? They will be going to trial together (in this case, where I live and where it all happened).

    Can anyone give me an insight on what to expect with the above information or give me any help for attending court in this case please.

    Thank you!!
     
  2. sammy01

    sammy01 Well-Known Member

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    Just checking - you've paid for flights to take the legal aid solicitor with you?

    Based on what you've written, I don't think the dad has much chance but you need to comply with the court's instructions to the letter in order to ensure you get a good result.
     
  3. AllForHer

    AllForHer Well-Known Member

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    Am I right in assuming that the father's application regarding care arrangements is under child protection laws in New South Wales?
     
  4. Fm15

    Fm15 Active Member

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    I have booked and paid for fights for the lawyer and me. Legal aide may have appointment someone to act in the area in which it will be heard, however, I stopped that application as I feel I should stick with the lawyers I started this journey with and not someone who is not familiar with the case.

    Can I ask, do you feel that the case will be moved to where the child and I reside? An application is being made for this at this initial hearing. I'm very confused as to why I am the one to have to travel over 1000km to attend. I have never left our child for a entire day (being a baby).
     
  5. Fm15

    Fm15 Active Member

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    No it's still in QLD. So the same state.
     
  6. Fm15

    Fm15 Active Member

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    Can I ask if you have any opinion relating to knowing it's the same state (QLD)? Thank you!
     
  7. AllForHer

    AllForHer Well-Known Member

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    I'm actually a little confused about whether this application is for parenting orders under the Family Law Act 1975, or a custody order of some description under the Child Protection Act 1999.

    When you say you have a Federal District Court hearing, do you mean the Federal Circuit Court? And when you say it was served ex parte by the Court bailiff, do you mean there has already been an interim hearing?

    Just need some clarity before I share my views is all.
     
  8. Fm15

    Fm15 Active Member

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    Thank you for your response. My apologies, it is the federal circuit court.

    I am of the understanding that I was served ex-parte, as my ex attempted to get custody of our child without me being able to respond to the ex's allegations. That is my understanding. However, the judge said no because the ex didn't have any evidence and the matter was then set to be heard and I was served.

    Perhaps I'm not understanding this process correctly?

    The ex is making false allegations against me of the following nature:

    -I have a criminal history (assault, drugs, previous dvo's, community service)
    -I am a drug abuser
    -I have previous DV relationships
    -My family are drug users and alcoholics (that I reside with)
    -I am the perpetrator of domestic violence within our relationship
    -I am an unfit parent

    I have gathered the following evidence to show this is not the case:

    -National police clearance certificate
    -clean drug tests
    -photos of child's clean and safe surroundings at home
    -photos of injuries to myself from ex (these are photos I took myself, the police photos are currently before he courts for criminal charges against the ex that the police have pressed so cannot be accessed at this time)
    -photos of ex using drugs
    -police filed a DVO
    -3 breaches of DVO
    -Text messages of ex threatening my life
    -text messages of ex threatening to commit suicide
    -Letter from my psychologist regarding seeing them for DV from my ex
    -Letter from our Child's Gp advising Child and I in great health

    Is this enough and is this the type of evidence they would want?

    Thank you for your time!
     
  9. AllForHer

    AllForHer Well-Known Member

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    Thanks for clearing my confusion up, this is an application for parenting orders under the Family Law Act 1975, makes it a little easier to navigate.

    It sounds like dad has sought interim orders on an urgent basis and while the Court has agreed to hear the matter urgently, it's hasn't agreed that such orders needed to be made at this point in time. It rarely does change residency on a whim like that, so not much really turns on that outcome in the greater scheme of things.

    So, your questions.

    To answer your first question about where the application was filed, the father is not under any obligation to file closest to where the child lives. If the Court decides to transfer proceedings closer to you, then that's its prerogative, but someone is going to have bear the cost of travel and you may find the Court won't be particularly concerned by which party that is.

    In regards to whether the State in which the matter was filed is going to make a difference, the answer is fundamentally no. The FLA is Commonwealth law, meaning it's the same in every State. The only real difference in influencing factor is whose docket your matter is assigned to (read: which judge hears your case). Some judges prefer one way of handling things, other judges prefer another, but they're all bound by the same law regardless.

    I also think the reason the Court will want you to attend in person rather than by phone is because of the allegations made against you.

    Before I get into the evidence you've talked about, I have some other questions.

    Is dad currently seeing the child in question? If not, when was the last time he saw the child? How was the DVO made, after trial or by consent without admissions? Were the breaches of the DVO recorded as convictions after a criminal hearing? Why were you taking drug tests?
     
  10. Fm15

    Fm15 Active Member

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    Dad is not currently seeing the child in question. The child is on the DVO. No mediation has been made for contact (which is allowed). The last time he saw the child was 3-4 months ago. The breaches have been made at the police station, due to him being so far away now - they get sent to his new district for police to "question" him over.

    Ex continues to adjourn the criminal matters.

    The police application of DVO was initially done within 24 hours, then a court date was set. That was adjourned and a new one was set. At this new court date I was served a cross order DVO. At this trial, ex agreed to DVO without consent. Also return of essential property was ordered to me (being my business computer ex stole). I took a drug test to show I do not have drugs in my system nor do I take drugs.
     

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