QLD Family Court - Chances of Abusive Ex Getting Access to Kids?

[Country girl]

Hi

I'm currently wanting help.

My ex (whom I was with for 5 years) was both physically & mentally abusive towards myself & my kids. He is only the father of 2 of my kids, girls (8 & 7years). The 8-year-old has special needs (currently in the process of getting tested for Fragile X). I currently have a DVO order against him (he reluctantly agreed to take without admission, it took 6/7 months of him adjourning to get this).

Anyways I'm worried that he will try to get access to the girls...

Neither of them know who he is. They were 3 & 4 (approximately) when they last saw him....They see my current partner as their father figure.

All of my kids are under the care of a psychologist & are being treated for PTSD, Anxiety, Trauma etc. & she has great concern that they will regress if he is granted any access (I have a written letter stating she is worried for their welfare if they are around negative influences).

He applied for mediation. The appointments were all set up & I then get a call from the Manager (I think it was) saying that given the history of abuse mediation, in this case, isn't viable & it should go through Family Court.

I'm seriously worried he will get access to them.

Does he have a chance of getting access?

His ex-wife has also had a DVO against him for the same thing & he also has an assault record.

 

[AllForHer]

What does the psychologist attribute as being the cause of the kids' anxieties?

 

[sammy01]

When does the DVO expire?

Yes, he should see the kids. It would appear he has tried to mediate with you previously? And for all that he still hasn't seen the kids in 4 years?

I'm sorry - but unless there is a long and documented history of child abuse then there is no reason for him not to see the kids.

 

[Country girl]

What does the psychologist attribute as being the cause of the kids' anxieties?

The psychologist has put it down to 4/5 years of abuse...3 of them have been diagnosed with Reactive Attachment Disorder, PTSD & Anxiety

 

[Country girl]

When does the DVO expire?

Yes, he should see the kids. It would appear he has tried to mediate with you previously? And for all that he still hasn't seen the kids in 4 years?

I'm sorry - but unless there is a long and documented history of child abuse then there is no reason for him not to see the kids.

The DVO expires in 2 years. He has not tried to make contact at all to see the kids for 4 years, not a letter or a text.

I, all of a sudden, get a Christmas card at random then mediation papers. He has always know where we live, through his parents. There has been no excuse for him to wait until now to do mediation. And yes, both lawyers I have spoken to have said, since the kids have a psychologist stating it is not in their best interest for them to be around someone they don't feel safe near, that the most he will get is supervised visits & even then I doubt he will turn up

 

[sammy01]

Look - I'm sorry, I kind of don't understand. He disappears 4 years ago. Great... So how do you wind up getting an AVO against him if he has been off the scene all that time?

 

[AllForHer]

The legal rundown is this:

1. Section 60B of the Family Law Act 1975 grants children a legal right to know, spend time and communicate with both parents on a regular basis, insofar as their best interests are met.
2. Section 60CA holds that the children's best interests are paramount when the Court is making parenting orders.
3. Section 60CC of the Family Law Act 1975 lists the considerations the Court must take into account when determining the children's best interests. The full list is here: FAMILY LAW ACT 1975 - SECT 60CCHow a court determines what is in a child's best interests
   
4. The primary considerations are:
   1. The benefit to the children of having a meaningful relationship with both parents;
   2. The need to protect the children from risk of harm cause by abuse, neglect or family violence.
5. When the Court must consider risk again benefit of a meaningful relationship, it must place the need to protect the children from harm as priority.

In summary, the Court does its best to uphold the children's right to have a meaningful relationship with both parents while also protecting their best interests.

It sounds as though you would be relying on the allegations of family violence to ensure the father isn't grant any time with the children, but it's very unlikely the Court will accept that as a persuasive reason not to allow the children to have a relationship with their father.

First, the allegations of family violence at this this point are just that - allegations. A DVO accepted without admissions means there has been no finding that violence has actually occurred, and even if there was, the Family Court has a different threshold test - it has to be satisfied that there is an unacceptable risk of harm to the children from abuse, neglect or violence, rather just that violence has occurred.

Second, I understand the children are seeing a psychologist, however any evidence from that psychologist is going to be given close to no weight in the Family Court because it's essentially biased - they have only talked to you and the kids, not to dad. The Court would probably want to appoint a family report writer for your case to get an expert opinion about whether or not the children are genuinely fearful of the father, or if their fear is sourced from elsewhere.

Personally, I am inclined to question how one could attribute PTSD, anxiety, etc. to a father they haven't seen in four years, having only been 3 and 4 years of age at the time of their separation from him. Add to that your assertion that they also don't know him as their father, it would seem rather presumptive to find a causal link between the children's anxieties and the father.

In most cases of this nature, the family report writer cites concern that the resident parent has projected their own anxieties on to the children and influenced them against the non-resident parent, which is something the Court takes quite seriously. This may be further exacerbated if you've refused to facilitate any time between the children and their father, and instead superimposed your current partner into that role unilaterally.

In the event that a risk of harm to the children is identified, the Court can deal with it in a lot of ways before it will take the ultimate step of ordering that a child have no relationship with a parent. It can order supervised time, or it can order that the parents communicate only in writing and that changeovers take place at a police station or public place.

Indeed, no contact orders are extremely rare, and near non-existent in cases where the only evidence of risk is a DVO and a biased psychologist report. Such orders usually only follow a pattern of police reports/charges/convictions, DHS involvement, and a family report recommending that no contact be facilitated.

My view is that the Court probably will make orders favouring the children spending time with their father, even if it's supervised. By Court standards, I'd say the evidence you've indicated supporting a no contact order is not persuasive.