QLD Legal Aid Representation for Uncooperative Mothers?

[JadeGoldCoast]

I have read throughout this page that legal aid is beginning to get more strict with how they will support mothers who are completely refusing to co-parent or who are not acting in their child's best interests.

My partner is about to start court proceedings to gain access to his 4-year-old child. His lawyer seemed confused and disagreed when I mentioned my research and has advised us that the mother will have the full support of legal aid and will also be in a power position to draw out the court process, increasing my partners lawyer's fees.

The current situation for my partner is that his ex does not at all understand that their child his rights to both parents and wants to be sole parent even though her life and living arrangements have been unstable since my partner split with her 2.5 years ago. She tells my partner their son is doing a lot better without his father in his life since she stopped contact.

My partner has begged her to seek legal advice and counselling on the matter and the effect this can have on a child. This has since resorted in her trying to paint my partner to be an abusive father (she gave up on that one when my partner wouldn't bite) and has now resorted to serving a DVO on my partners mother that is completely fabricated. We are praying the judge will see through these games and if he does, is there a point where legal aid will stop representing her?

Thanks in advance for your time.

 

[AllForHer]

My observation in this field of law is that Legal Aid tends to revoke representation if a matter looks likely to go to trial or their client's case is straying into unreasonable territory.

They don't have to withdraw representation, but they often do.

With that said, a matter can draw out for 18-24 months before a trial date is actually set, and Legal Aid may well represent up until and beyond then.

Your partner should start proceedings as soon as possible and make sure he seeks interim orders facilitating time with his kid because if he's not seeing his kid now, it will most likely be granted.

Don't focus on the DVO. Waste of time and money trying to fight it because even if it's being used as a tool in family law, proceedings fall under the State's jurisdiction, and the State generally grants DVOs because they're of no consequence to the respondent unless they breach them, and in respect of the aggrieved, it's better to be safe than sorry, so the Court will probably make it even without substantial evidence to support it.

Besides, is a DVO really so bad? It's such a good excuse to have nothing to do with the ex and just communicate about parenting matters through her lawyer. Way less drama and stress.

In Family Court, as well, DVOs alone have very little influence on parenting proceedings, particularly if accepted without admissions, and parenting orders supersede DVOs anyway.

So focus on getting parenting orders. Don't waste time on DVOs and other petty nonsense that will mean very little in the long run.

 

[JadeGoldCoast]

Thanks so much for your reply AllForHer.

The DVO isn't actually against my partner, it is against his mother. Long story so wont bore you with the details but the DVO would affect her livelihood as she has a business that works around children.
We feel the ex is now being spiteful towards his mother as my partners mother used to help support his ex with accommodation when his ex was struggling to find a stable environment for their child (her current partner was abusing the ex around the child so both the mother and child resided with my partners mother for 3 months earlier this year). Due to an incident in September my partners mother will no longer be in contact with the ex.

The ex has requested to stay out of the court system and attend mediation but as my partner has attempted mediation 5 times in the past 18 months without success he has told her this will not be happening. He has been in contact with his lawyer since the incident 6 weeks ago and we are hoping to have the application finalised next week so we can apply for final and interim orders. We didn't expect it to take this long but we had two years worth of evidence in text message we wanted to give to the lawyer and rather unfortunately the lawyer has had to move interstate so the case has been passed onto another lawyer within the company.

My partners ex has already tried to accuse my partner of being abusive, but we pointed out very quickly that the accusation doesn't fit in with the evidence we have of the ex asking us to care for the child every weekend the 5 weeks prior to the September incident to keep the child away from her abusive partner. She's basically trying every trick in the book to try and paint my partner as an unfit father.

If the DVO was on my partner we agree, it would be a good reason to not have to deal with his ex.

Is there anyway you could explain the family court process from interim hearing to final hearing? I believe my partner will be going through the Federal Circuit Court and has been advised we could expect a hearing four months after the interim hearing at best. Is there a difference between how the family and circuit courts work?

Just trying to understand why it could take 18-24 months before a trial date it set. We also plan to subpoena the ex's medical records as she used to rely heavily on the pain medication Endone throughout my partner's relationship with her and we are concerned she is still heavily reliant on this medication and that it may be affecting her parenting ability.

The ex will definitely try to drag out the case as she has already warned my partner to expect to pay over 50k in lawyer fees. We feel the concern for the child's well-being is more important than the cost - although we will have to take out loans etc to complete the court process.

 

[sammy01]

Yup, some of what solicitor said is kinda right... She has a power position...But that is why courts exist... One person has power and they are exerting that power in a mean and nasty way. So yup she has all the power... And yep, she can manipulate to delay and she will. This will cost you heaps more money in solicitors...

Or you can self represent. There are lots of good resources to help. Look my thinking is most reasonably sensible people can get through lots of this crap...

My opinion, go through as much as you can without solicitors.... If I had my time again, I would have saved lots by using solicitors... I blew about $30 000 on solicitors without even seeing inside a court house, except for the AVO which seems to be part and parcel with these things...

BTW - I'm a school teacher in NSW... We had to do working with children checks this year... I thought I was gonna face the sack... Nope, all good...

So legal aid is not a bad thing... They are far more interested in getting things sorted than some private solicitors... If there is one thing solicitors love to hear it is when their client says 'Id rather give my money to my solicitor than my ex'.... But when it is legal aid there isn't quite the same financial imperative drag things out for their own benefit.... It does concern me when your solicitor says the sort of things you've mentioned. It makes me wonder IF he/she is preparing you for having to put your hands in your pockets lots....

So why does it take so long? well the system is seriously underfunded and if it goes to final hearing there may be a whole lot of hurdles along the way, expert family report writers will interview both parties, possibly observe how they interact with the child and write a report, the court could order an Idependent Children's Lawyer to represent the interests of the child.

Magistrate will likely order more mediation etc etc, it all takes time... Look only about 5% of cases get decided by a magistrate. Most of the time folks come to an agreement, sometimes only minutes before the final hearing begins...

The best way to save $$$ is to self rep... The next best is to ask questions here.... Free opinion from people who have been through the system can be at least as good as a good solicitor and often better than the advice from a crap one.

So for example, has your solicitor written to their solicitor to offer a proposal? Or has it all been done through mediation? Look I'd suggest agreeing to do mediation again ain't a bad idea... But wait until after you've done the court application and served her. Basically, wait until she knows she has to go to court before offering mediation... The thought of court and someone else telling her what is going to happen, can sometimes be motivation enough for her to start playing nice...

 

[AllForHer]

After you file, the first hearing is an interim hearing for the judge to assess the situation in brief and hopefully make some interim orders. Interim hearings are permitted to last for up to two hours, but usually only last a few minutes because they're meant to allow the judges time to consider evidence on a preliminary basis without actually testing it and can make interim orders accordingly.

Interim orders usually include a few parenting orders (time spent with, changeover detail, etc) and a few procedural orders (mediation, family report, etc), but the nature of each will depend on the facts of your case at the time.

They'll also usually allocate the next hearing date, which is usually also an interim hearing to check how things are going and see if time has resulted in any improvement in the situation, and more interim orders will be made accordingly. Interim hearings usually happen a few times in the course of a matter, but eventually, the Court will resolve to set a final hearing date, which is when a proper trial with cross-examination and testing of the evidence will be carried out.

The more interim hearings that are held, the longer a matter will be in Court, and applications in a case, DVO applications and contravention applications and more complicated matters make it even longer again.

In my experience, the Queensland registries don't take as long to process parenting matters as some others around the countries. Ours was started and finished in ten months, but we also ended up settling by consent because the cost of trial really motivated the ex-wife to start negotiating.

While your matter undoubtedly feels complex to you, the facts are actually very straight forward and you can probably get it resolved fairly swiftly provided you don't get caught in the trap of turning your matter into a mud-slinging match.

For example, let's look at the medication issue with an analogy.

Parent A: The other parent relied heavily on prescription medication during the course of the former relationship and I am now concerned it's affecting their capacity to parent our child.

Parent B: The other parent has health issues but refuses to take their medication to manage the problem and I am concerned it's affecting their capacity to parent our child.

Which one is worse? The parent who does take their medication? Or the parent who doesn't?

The answer is usually neither. If the kids are fed, clothed and happy, the capacity of both parents to look after the kids is not really in question, and if you really felt they were at risk, why would you keep sending them back to the other parent?

The Court doesn't like mud-slinging matches. It's not looking for evidence of who is the more or less capable parent, because the legislation doesn't support such a finding. What the legislation supports is a child's right to have a relationship with both parents, so the Court looks for the best way to facilitate that right.

If one parent is on a witch hunt against the other, they are hardly going to be seen as supporting the kids' relationship with the other parent, are they?

So, don't get caught in the trap. Whatever your personal plights are between you, her role as a mother shouldn't be slandered because of her role as an ex.

If you want to give yourselves the best chance in Court, tell the Court why your circumstances support the care arrangement you're seeking - that dad is able to take the kids to school, that he's got beds, clothes and school supplies for them, that he's got a good relationship with them and he's committed to co-parenting with their mother as well. Don't sling mud.

 

[AllForHer]

Oh, and also, FCCA and FamCA proceedings run the same way, but FCCA can process matters faster because it doesn't deal with complicated matters (usually involved proven violence, neglect or sexual abuse). FamCA is dedicated to the complicated cases. Yours isn't complicated.

 

[JadeGoldCoast]

Thank you both so much for your replies. You both have so much knowledge and both me and my partner are finding this forum to be much more informative than his lawyer at this current point in time.

My partner has tried his very best to keep on good terms with his ex. He has allowed her to play her games until he had enough evidence to take her to court - purely for his son and so he could continue the minimal contact he's been allowed. He has no issue with his ex, neither do I. Our concerns lie with the upbringing of his child.

I think it might help if I explain the situation in more detail. I'll try bullet points to try and keep as short as possible (I did not keep this short at all I aplogise!)

My partner lived with his ex in our current household - his son has always known this house as home. After going through the 2 years of text evidence (my partner stopped talking over the phone with his ex about a year ago as she used to abuse him and then message saying she was sick of his abuse.

We knew court would eventually happen so wanted proof of her lies) we have discovered she has moved over 6 times in the past two years. We understand that sometimes life situations cannot be helped, but she refuses to admit she has moved this many times or accept that this isn't the best for a child.

His ex has never to our knowledge been diagnosed as having an illness that requires endone medication. She used to assert that she had Crohn's disease to my partner yet would not see specialists to confirm. My partner recalls her GP's stopping to prescribe the medication, where she would then move to a different practice and continue having the medication prescribed. My partner's mother is a nurse and set up an appointment for her to see a pain specialist to manage the medication. She refused to go.

For all we know she could have stopped using the medication but the last time she cut contact with my partner and his son (18 months ago) my partner told her he planned to take her to court and would bring up her drug use to which she replied 'that's the beauty of prescription medication hunni'. My partner would be more than happy to find out she has stopped use of the medication, however due to her erratic behavior feels it is in his son's best interest to subpoena her records for court to check and monitor the situation.

Now to the drug allegations. When I moved in with my partner his ex stopped contact with his son due to my partner being a drug addict which she knew not to be true. He attempted mediation but she refused to show after saying she would. He then sought legal advice who informed him that his child was too young to expect more than 2 days a fortnight and advised completing the drug test was the best option for him to gain access to his son, so he completed a urine screen.

The mother has since allowed contact 2 days a fortnight. Whenever my partner has asked for more contact with his son (over Christmas holidays etc) she has stated that due to his drug use 2 days is a gift she is allowing. To argue with her would have meant losing contact with his son so we have kept things as amicable as possible.

Over the past year my partner's ex has been in a abusive relationship and the ex has had to reside with my partners mother for three months to keep the child in a safe environment. This information was kept from us so my partner unfortunately wasn't in a position to seek legal advice on the matter. She then moved into a new rental with the same partner.

It was about 6 weeks later that she messaged my partners mother explaining the ex was again being abusive around the child. She came clean to my partner about the situation and asked if we could look after her son every weekend to keep him out of danger. At this point my partner discussed kindy with his ex (his son was almost 4 and had been asking to attend school all year as he used to spend time during the week with his uncles, but they had started school this year). The ex supplied the immunisation records to my partner and his son was enrolled and got to spend a few hours meeting his teachers and familiarising himself with the school.

My partner suggested his son stay with us from Friday nights to Tuesday nights once a fortnight so his son could attend school 2 days a fortnight to prepare him for school and provide some stability for him (although my partner also wanted more care of his son as his ex had told him that her ex was now stalking her and her mother's house). The following weekend for a reason unknown to us the mother decided she was against childcare and stated she would not allow it.

My partner begged her to reconsider and stated his son would be staying with him until the Tuesday night so he could attend kindy. At this point the mother stated that once the child was back in her care she would cut my partner from the child's life again as he was a drug addict (here we go again).

My partner immediately contacted mediation and asked his ex to do the same. He sent links of government websites to his ex stating the benefits of child care. My partner then told his ex that he would not be allowing the child to return to her until she signed a parental agreement (he didn't want to lose his son again when all he was trying to do was support his child).

The child was in our care for the week until the following Saturday night. My partner kept his ex informed of the child's progress at kindy and that he had attended a mediation intake session, and had been advised to start writing up a parental order and suggested she do the same, as he wanted both parents in his son's life and wanted things sorted asap.

Unfortunately my partner's ex was aware it was my birthday that weekend and made an informed guess that my partner's mother would have their child in her care. She then drove the 45 minute drive to my partner's mother's house and pretended she was alone and asked to see her child. Thinking they had a trusting relationship my partners mother allowed the ex to see her son. Unfortunately the ex had her mother hidden in her car and took the child and put him straight into her car.

My partner's mother tried to stop the ex which resulted in the ex's mother attacking her. Police were called to the scene but as both parents could not come to an agreement of where the child should stay the police decided that as the mother had the child in her care when they arrived, that is where he would stay for the night. My partner has lost access to his son since as she is again stating he is a drug addict.

His ex sent through a proposed parental order that consisted more about drug use than the care for the child so he was informed by his lawyer not to sign. The lawyer contacted his ex via email twice trying to inform her that she wasn't acting in her son's best interests and was blackmailing my partner and her behaviour wouldn't be seen positively by the courts.

This just resulted in the ex accusing my partners family of being drug addicts and stating that she wanted them all to complete hair follicle tests (these are the people that she chose to live with for support for 3 months earlier this year).

Now she has realised my partner won't attend mediation again (the first 4 times she refused to go, the 5th time she did attend after being contacted by my partners lawyer, however she spent the whole time laughing at my partner's concerns and the two things she did agree to -5 skype calls a fortnight and privacy in phone calls- she is refusing to honor stating she never agreed to them) she has put a DVO on my partner's mother stating she was the one who was assaulted in the incident in September. We are confident the police report will have nothing about her being assaulted and feel this is another game she is trying to play.

Throughout the year we have also had issues with the mother not supplying adequate medical care to the child, and when my partner has addressed the issue (and advised her that he can pay if that was the issue) she has retaliated suggesting she will cut contact.

She has also kept her son in nappies a whole year after agreeing to start toilet training which has caused the child clear confusion and anxiety. I haven't even bothered to mention the blackmail and emotional manipulation she has put my partner through since they broke up as we would be here all day.

Now we both understand when you are emotionally involved in a situation it is easy to see things from your own point of view. We would both appreciate any advise you can give us from a law perspective. We really feel the child would benefit from spending 5 days a fortnight with us until school time where we would like 50/50 care (just over a year's time). However we would like the courts to decide what they feel is best for the child.

We are really concerned that the mother refuses to believe my partner should have a say in her child's upbringing, and feel it is unfair that she can pick and choose how much time my partner should spend with his child to suit her life circumstances. She is currently actively trying to cut my partner out by refusing face time and interrupting and cutting his 5 calls a fortnight short.

I apologise again for the long post! I understand this is a very in depth post and if this breaks any rules regarding identity etc please let us know. We have felt so helpless for such a long time and would really like to know where we stand in trying to support my partner's son.

Thanks!

 

[AllForHer]

So, is mum still living with the abusive boyfriend?

 

[JadeGoldCoast]

So, is mum still living with the abusive boyfriend?

We would have no idea as my partners mother is no longer in contact with her and my partner only messages to ask to speak to his son.
From her facebook posts it would appear he's actually left her (this is not fact it's just my interpretation) and she seems really upset and angry about it.

 

[sammy01]

A few quick thoughts...

1 - learn to self represent.... If she is getting legal aid, it is not costing her a cent to go to court...So it will be lots of fun for her to watch you having to do crazy stuff to appease her and all the while it will be costing you $$$... The system ain't great and it will send you broke... There are good resources to help you learn how to self rep...

Why not find out when / where court is and go have a look.... So you know how it all works... If your partner would rather eat his own foot than stand in front of a judge and speak (fair enough too) you can still do lots of the leg work yourself and engage a solicitor for the court attendance stuff - That alone will save you 10s of thouands of $$$$...If I had my time again I would have self represented all the way through.... or at least to the point where it went to final trial...

Tell partner to go get another drug test... BTW how much does it cost? Go every 3 months... You're not gonna get to court for a few months... So when she gets to court she can spout out that your guys are drug addicts and you'll be able to present the paperwork that refutes her claims... Better still, once you get the test results send her a copy with a request to see the kid...

I'm a bit busy.... so I'm gonna keep this a bit brief... The law is on your side, but the process is crap...
start learning. There are loads of good sites to help, as well as advice from this site... Have a look at this one to get you started...

Self-represented Litigants - A Challenge - Family Court of Australia

The good news - the law states - where practical a magistrate must consider 50/50... And think of how much fun you'll have serving her the court documents so she will realise that you're not backing down....