QLD Other Party Refuses to Follow Magistrate's Directions - What to Do?

[Shadz]

Hi all,

I'll try to keep this as brief as possible but happy to provide more details if needed.

- The mother of my 2-year-old daughter (separated before she was born) has refused to have our daughter spend any time in my care since June, in response to being invited to attend a mediation process through Family Relationship Centre.

- Previous signed parenting agreements were for time in my care for 8 hrs 1-day per week and 3 shorter 2-3 hour visits during the week (while she worked) and 3 hrs on a Sunday. Things turned bad when I requested more time on the weekends so that our 2 year old could spend more than the current 3hrs per week with my other 3 children, whom I have 100% custody of.

- She has refused to provide any reason as to why our daughter cannot spend time in my care since then.

- Mediation happened end of August, mother refused to agree to any time in my care.

- In response to me providing her my notice of intent to make an application for parenting orders she filed a DVO application against me, with a Temporary Protection Order being made before I was served that restricted me from being able to contact her in anyway.

- At the first mention hearing at end of November, I had a cross application for DVO heard at the same time and had a duty lawyer represent me, the mother once again failed to provide a reason why our daughter had not spent time in my care for 6 months.

- My duty lawyer advised the Judge that I had just received a call from legal aid advising me that my application for funding for parenting orders had been approved but only for another mediation process, despite a 60I certificate from August.

- The Judge adjourned the matters until February next year and made verbal directions/orders that my Lawyer was to draft/create an Undertaking for our daughter to spend time in my care, (appropriate for a 2-year-old), and that the mother had to sign it, stating that the undertaking was to last until an agreement for consent orders was reached between the parties at mediation and/or parenting orders made.

- The Judge's verbal Directions/Orders were not included in the revised Temporary Protection Order.

- The mother has refused to sign the Undertaking and is continuing to refuse to let our daughter spend time in my care, even for Christmas day, until we reach an agreement at mediation, which due to the fact she has failed to respond to the first letter sent out by legal aid cannot possibly happen before next year now.

- I have attempted to contact the duty lawyer but have been told by the firm that there are no appointments available until next year and when I approached the DV counter at the court I was told to seek legal advice on how to proceed.

If anyone can help me on how to proceed - that would be greatly appreciated. I'm just trying to find someway to ensure that my children and I can have a relationship with my daughter again.
eg. can I file an application for an urgent hearing with the same Judge for the DV matters that doesn't need to be postponed for the mother to be served/present and request that the Judge make the Undertaking into an Order at the hearing?

 

[sammy01]

Ok so you don't have court orders / consent orders about this child?
You could speak to a solicitor about urgent recovery orders, but without court orders I don't think this would work... You could seek an urgent application for interim court orders through the federal court.

Just checking, so the judge who ordered the 'undertaking' was the same judge that was hearing the DVO application? IF so... WOW - that is a good result.

Mate my advice other than applying for an urgent hearing is to just stay calm. Do nothing dumb. I think given the time frame you have little chance of seeing the child at Christmas... I have been there too. So your job is to do NOTHING that can help her case... Just play along with the system.. Yes it is slow, but in some respects that helps you... WHY? well as long as you play by the rules, do nothing dumb and play smart, you will look good in court.... Meanwhile if she continues to refuse access, continues to make allegations and refuses to follow instructions from the court she is actually helping your case in the long term.

I do have faith in the system (mostly). But you need to learn how to play the system... Best thing SHE can do is cause conflict and hope you buy into it.. Remember the legislation states that there is an assumption that 'it is in the best interests' for kids to have a 'meaningful' relationship with both parents... Have a read
Parenting cases - the best interest of the child - Family Court of Australia

Now read the bit about the two tier considerations...
especially the bit about protecting the child from psychological harm..... That is the real deal for you right now... So if mum is a twit and you get mad and you do dumb stuff, the courts might deem that the kid has two parents who are so caught up in arguing with each other that it is harming the child... IF that happens she wins because the court could determine that to protect the child from harm he/she needs to be removed from this conflict and the only way to do that is to remove one parent and that parent is likely to be YOU at this point in time.... I hate this, so she acts like a twit, provokes you etc etc and IF you respond to it SHE wins...

Your job - kill her with kindness - make it abundantly clear that any mud she wants to throw is just that MUD... The more effectively you do that the better because your mission is not to prove that she is a twit... Those magistrates are pretty smart, they will work that out pretty quick... Your mission is to prove that you're priority is the child and regardless of whether or not mum is a twit, you're prepared to work with her in the best interests of the child...

Mate good luck and keep us informed how you go...

 

[AllForHer]

I think perhaps you would benefit from some clarity about these two fields of law.

Domestic violence orders (DVOs, or AVOs or IVOs in some states) fall under State jurisdiction. Family law, on the other hand, falls under Federal jurisdiction. Among other things, this means that a State Magistrate can't make parenting orders (though in Queensland, they can vary them if necessary to accommodate a DVO, though most Magistrates will decline to do so).

So, basically, the Magistrate who heard your cross-application for a DVO doesn't have jurisdiction to make parenting orders, and they certainly don't have the power to force someone to sign an undertaking that facilitates a child's time with each parent. That's coercion, plain and simple. On top of that, Temporary Protection Orders are orders of protection. They are not orders of direction. Mum is not following the Magistrate's direction because no directions orders were made, and she doesn't have to sign any undertaking at all if she doesn't want to. Even if she did, an undertaking isn't enforceable, so it's not worth the paper it's written on anyway.

The only way to guarantee time with your kid is to get parenting orders from the right Court, and that's either the Federal Circuit Court of Australia, or the Family Court of Australia. That's really all there is to it.

It's important that you don't confuse the possible outcomes of a DVO matter with the possible outcomes of a parenting matter - State Magistrates simply cannot make parenting orders to ensure your time with your child, only Judges of the FCCA or FamCA can.

File an initiating application for parenting orders through the FCCA. You can ask to have it heard urgenly, but I doubt the Registrar will allow it.

 

[MartyK]

Yes, at present, Magistrates Courts have very limited jurisdiction under the Family Law Act 1975 and can only make certain parenting orders by consent. Where one of the parties do not consent to parenting orders being made, the matter can (should) be transferred to the Federal Family Courts. (For anyone living in W.A, the Courts, in this regard, are operationally different, as the Family Courts are State Courts.)

If you are seeking parenting orders, you should make an application to one of the Federal Family Courts. Good Luck

 

[Migz]

Going by what you said you have some Family Court Orders inplace but they haven't been included into the DVO paperwork. If I'm reading it right and this is the case, then you need to download the following form

http://www.courts.qld.gov.au/__data/assets/pdf_file/0017/162170/dva-f-4.pdf

fill this in, make 4 copies of this and your additional paperwork, then head on into the local court house and hand it over, you will be given a court date there and then.

Goodluck