QLD What to Expect from District Court Hearing?

[Fm15]

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.

Sorry also to check further, when you stated that:

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.

I'm confused! How is it as the best interest of any child for their parent to move so far away from the child's residence and file court proceedings for the parent (who remained with the child at their residence) to travel and incur costs of travel? I am not receiving child support. Also meaning the child is away from parent at this time of travel? In your experience, is it likely to be transferred?

Thank you!

 

[AllForHer]

One last question, have you filed a response to the father's application for parenting orders? If so, what kind of parenting orders are you seeking in response? What kind of time are you seeking the child spend with the father?

 

[Fm15]

One last question, have you filed a response to the father's application for parenting orders? If so, what kind of parenting orders are you seeking in response? What kind of time are you seeking the child spend with the father?

I am seeking the following:

Annexure A – Final Orders Sought by Respondent Mother:

1. That the child live with the mother.

Parental Responsibility:

2. That the Mother have sole parental responsibility for all major long term issues affecting the child.
3. That each party be responsible for the child’s day to day care whilst the child is in their respective care.

Living Arrangements:

4. That the child spend supervised time with the Father at Contact Centre, for 2 hours per day at times the Father can travel to the Contact Centre can accommodate visits.

5. That the Father may telephone the child:

(a) each Wednesday and Sunday between 5:30pm and 6:00pm;
(b) on father’s day between 9:00am and 10:00am;
(c) on the child’s birthday between 9:00am and 10:00am;
(d) on the Father’s birthday between 9:00am and 10:00am; and
(e) on Christmas Day and Easter Sunday between 9:00am and 10:00am, with the Father to initiate the call and the Mother to ensure the child is available to take the call.

Specific Issues:

6. That the Father be responsible for all costs associated with the Contact Centre.
7. That both parties register at Contact Centre within 7 days from the date of these orders.
8. That neither party use illicit drugs when the child is in their care or 48 hours prior to the child coming into their care.
9. That both parties complete a supervised urine drug test a QML Pathology, within 24 hours of receiving a request from the other party/other party’s solicitor, with no more than one test to be requested per month, and provide a copy of the test results within 14 days of the request.
10. That neither party denigrate the other, nor any member of their household or family, or discuss any adults issues to or in the presence or hearing of the child.
11. That both parties notify the other within 24 hours of any change of contact telephone number and email address.
12. That both parties enrol and complete within 6 months from the date of these orders:

(a) Post-Separation Parenting Course and
(b) 123 parenting magic Course or Triple P Parenting Course and provide a certificate of completion to the other party.

13. That the Father enrol and complete within 6 months from the date of these orders:

(a) One on one alcohol and drug counselling; and
(b) Respectful Domestic Violence Program and provide a certificate of completion to the Mother/Mother’s solicitor.

Passport and International Travel:

14. That the Mother be at liberty to travel the child overseas to Hague Convention countries only, upon the provision of twenty-eight days’ notice to the Father, copy of the return air ticket, copy of travel itinerary and contact phone numbers.
15. That the Father execute the Child’s Passport Application within 14 days of the application being provided by the Mother.
16. That in the event the father refuses or neglects to execute Child’s Passport Application as required pursuant to Order 15 above, a Registrar or Deputy Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 to execute the Child’s Passport Application in the name of the Father, and do all acts and things necessary to give validity to the operation of the Child’s Passport Application.

Thank you!

 

[AllForHer]

So it seems that the orders you're seeking not just on an interim, but instead on a final basis, are very, very restrictive in terms of legislation and what you've listed as evidence.

You're seeking the father complete four separate courses to address what you perceive to be factors of risk to the child, none of which are a mental health assessment, but even after completing all those courses, you're still only going to be willing to facilitate two hours of time between the child and the father, conditional on him attending and paying the full cost of a contact centre, even though he lives over 1000kms away.

There's no time being offered for special occasions or holidays, or even regular, scheduled time at all, since such time is conditional on other factors.

These are the kinds of orders the Court makes after parents have shown a long, documented history of abuse and conflict - police reports and charges, investigations by DHS, a family report finding a child's fear is genuine. They are not the kinds of orders the Court makes easily and on flimsy evidence.

Let's break it down in terms of legislation.

Section 60B sets out the objectives that the Family Law Act 1975 aims to achieve, chief among them being "to ensure that the best interests of children are met by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child".

The children's best interests are of paramount concern to the Court when making parenting orders, and the factors which the Court considers when deciding what's best for the child are listed under s60CC of the Act. You should familiarise yourself with it because it will give you a better idea of what you need to prove to the Court with the evidence you provide.

There are two primary considerations: the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from harm caused by abuse, neglect or family violence. The Court must prioritise the latter over the former where necessary, but it rarely ever determines that the only way risk can be alleviated is by making orders that severely limit the child's capacity to have a relationship with one of their parents at all.

This is the nature of the orders you're seeking. To get them, you would need to show the child is at an unacceptable risk of harm if he were to spend any time with the father without supervision.

That first involves successfully rebutting the presumption of shared parental responsibility so that the Court can do away with the obligation to consider whether an order for equal time, and failing that, substantial and significant time is in the best interests of the child, which of its own accord is a very difficult argument to make (though made somewhat easier by the fact that you and the father reside 1000kms apart).

Looking just at the list of evidence you've provided and noting that I don't know most of the facts here, I would say that what you're relying on to get the orders you're seeking comes nowhere near close enough to persuading the Court they are what's best for the child.

First, a DVO that has been accepted without admissions does not prove that violence has occurred, let alone that there's an unacceptable risk of harm to the child. Having been accepted without admissions means it hasn't gone to trial and therefore, no finding of fact has been made that the respondent party is guilty of the allegations made against him. All a DVO does is prevent risk. It doesn't always prove that risk actually exists.

Second, the breaches are not breaches as you've insinuated them to be, they are only allegations. If the breaches you've alluded to are in relation to parenting matters, such as the father asking to see or speak to the child, then you can probably assume the police aren't going to turn those allegations into charges and convictions. Even if they did, they're allegations related to breaches against you. They don't necessarily prove an unacceptable risk of harm to the child.

Third, photos of your injuries don't prove that the father actually caused them, and nor do they prove unacceptable risk of harm to the child.

Fourth, the psychologist is treating you, not your child, and even if the child was being treated, the opinion of the treating psychologist would be given close to zero weight in Family Court because he will have only spoken to you and the child, not to the father, so it's impossible to argue that his professional opinion is unbiased. Add to that the fact that a GP has provided a letter that the child isn't suffering any health challenges at all and what you have is evidence that the child really hasn't been affected by any of the perceived risks at all.

The text messages may be a little more compelling and might support the case for getting checked in for a mental health assessment, and the alleged drug use can be handled easily enough by imposing a ban on the consumption of drugs and alcohol prior to and during the child's time with the father, but there's nothing here that suggests supervised time for two hours when dad can attend and pay for it is a necessary order on a final basis, nor in the child's best interests such that his relationship with both parents can be in any way a meaningful one.

To the contrary, since the child has been withheld for a 3.5 month period and no effort on your part has been made to reinstate that time by pursuing mediation, and considering the highly restrictive nature of the orders you're asking the Court to make, dad could potentially make the argument that you don't support the child's relationship with the father and therefore the only way the child can have a relationship with both parents is if the child resides with him instead of you.

Family law is a complex field to navigate, and often what seems right to a subjective parent isn't right to an objective Court. In my view, the information you've provided suggests an order for shared parental responsibility, half school holidays, maybe one weekend a month, regular phone calls and ancillaries for a post-separation parenting course and a restriction on drug consumption is more within reach than what you're actually seeking.

As always, for legal advice, you will need to engage a family lawyer.

 

[Fm15]

So it seems that the orders you're seeking not just on an interim, but instead on a final basis, are very, very restrictive in terms of legislation and what you've listed as evidence.

You're seeking the father complete four separate courses to address what you perceive to be factors of risk to the child, none of which are a mental health assessment, but even after completing all those courses, you're still only going to be willing to facilitate two hours of time between the child and the father, conditional on him attending and paying the full cost of a contact centre, even though he lives over 1000kms away.

There's no time being offered for special occasions or holidays, or even regular, scheduled time at all, since such time is conditional on other factors.

These are the kinds of orders the Court makes after parents have shown a long, documented history of abuse and conflict - police reports and charges, investigations by DHS, a family report finding a child's fear is genuine. They are not the kinds of orders the Court makes easily and on flimsy evidence.

Let's break it down in terms of legislation.

Section 60B sets out the objectives that the Family Law Act 1975 aims to achieve, chief among them being "to ensure that the best interests of children are met by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child".

The children's best interests are of paramount concern to the Court when making parenting orders, and the factors which the Court considers when deciding what's best for the child are listed under s60CC of the Act. You should familiarise yourself with it because it will give you a better idea of what you need to prove to the Court with the evidence you provide.

There are two primary considerations: the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from harm caused by abuse, neglect or family violence. The Court must prioritise the latter over the former where necessary, but it rarely ever determines that the only way risk can be alleviated is by making orders that severely limit the child's capacity to have a relationship with one of their parents at all.

This is the nature of the orders you're seeking. To get them, you would need to show the child is at an unacceptable risk of harm if he were to spend any time with the father without supervision.

That first involves successfully rebutting the presumption of shared parental responsibility so that the Court can do away with the obligation to consider whether an order for equal time, and failing that, substantial and significant time is in the best interests of the child, which of its own accord is a very difficult argument to make (though made somewhat easier by the fact that you and the father reside 1000kms apart).

Looking just at the list of evidence you've provided and noting that I don't know most of the facts here, I would say that what you're relying on to get the orders you're seeking comes nowhere near close enough to persuading the Court they are what's best for the child.

First, a DVO that has been accepted without admissions does not prove that violence has occurred, let alone that there's an unacceptable risk of harm to the child. Having been accepted without admissions means it hasn't gone to trial and therefore, no finding of fact has been made that the respondent party is guilty of the allegations made against him. All a DVO does is prevent risk. It doesn't always prove that risk actually exists.

Second, the breaches are not breaches as you've insinuated them to be, they are only allegations. If the breaches you've alluded to are in relation to parenting matters, such as the father asking to see or speak to the child, then you can probably assume the police aren't going to turn those allegations into charges and convictions. Even if they did, they're allegations related to breaches against you. They don't necessarily prove an unacceptable risk of harm to the child.

Third, photos of your injuries don't prove that the father actually caused them, and nor do they prove unacceptable risk of harm to the child.

Fourth, the psychologist is treating you, not your child, and even if the child was being treated, the opinion of the treating psychologist would be given close to zero weight in Family Court because he will have only spoken to you and the child, not to the father, so it's impossible to argue that his professional opinion is unbiased. Add to that the fact that a GP has provided a letter that the child isn't suffering any health challenges at all and what you have is evidence that the child really hasn't been affected by any of the perceived risks at all.

The text messages may be a little more compelling and might support the case for getting checked in for a mental health assessment, and the alleged drug use can be handled easily enough by imposing a ban on the consumption of drugs and alcohol prior to and during the child's time with the father, but there's nothing here that suggests supervised time for two hours when dad can attend and pay for it is a necessary order on a final basis, nor in the child's best interests such that his relationship with both parents can be in any way a meaningful one.

To the contrary, since the child has been withheld for a 3.5 month period and no effort on your part has been made to reinstate that time by pursuing mediation, and considering the highly restrictive nature of the orders you're asking the Court to make, dad could potentially make the argument that you don't support the child's relationship with the father and therefore the only way the child can have a relationship with both parents is if the child resides with him instead of you.

Family law is a complex field to navigate, and often what seems right to a subjective parent isn't right to an objective Court. In my view, the information you've provided suggests an order for shared parental responsibility, half school holidays, maybe one weekend a month, regular phone calls and ancillaries for a post-separation parenting course and a restriction on drug consumption is more within reach than what you're actually seeking.

As always, for legal advice, you will need to engage a family lawyer.

Thank you so much for your insight and taking the time to reply.

As soon as the applicant (ex) received my response, his lawyers advised him to agree to my interim orders of supervised visits in the area where myself and the child resides. Any talk of him having custody or our child relocating to reside with him was off the table due to my response and the evidence I had to rubbish his claims and back up mine as being truthful.

 

[AllForHer]

Not uncommon advice for interim orders.

Keep us updated.