QLD What if Mother Can't Speak in Family Court?

[Thefactsonly]

Hello.

To keep a long story short the basics are:

There are two children from a 7-year marriage.

We separated in 2013. Multiple attempts at mediation. The most recent mediation is cancelled by RA with ongoing calls to check on mother's welfare/safety and referred to other sources. Mother is referred to DV centre. After 12 months, the mother is still not wanting to put DVO on the father (does not want children to think badly of the other).

The 10-year-old shows many signs of emotional concern, such as ongoing doctors apps to locate reason for behaviour/anxiety levels. The final straw was when she was thrown onto furniture whilst at the father's place. for past 12 months has refused to attend fathers place. Father blames mother stating parent alienation.

5-year-old is too young to fully understand complexities of separation (15months old when dad left) and has a big tie to the mother due to her influences in his formative years. Still continues to attend fortnightly visits to father's, however, he is starting to state he no longer wants to go (can be coerced with promise of 'treats').

His behaviour is starting to follow similar patten to the eldest - crying when returning from father's, saying to the mother that maybe should have with daddy and mummy can have eldest so its fair as daddy cries to sleep, emotional outbursts that if mummy dies then we have to go to live with daddy. He recently started acting up, worried the father will remove him from educational centre without mum knowing, wetting pants in classroom, etc.

The parents have no family court orders. There is a history of minimal violence (father threatening mother, restricting movements, following phone logs/social media, holding her against will and stating she's lucky help arrived (friend) as he doesn't know what he would have done to her otherwise). Mother is extremely afraid of him, however, she still continues to encourage the children to attend his house. Mother cannot face him at drop offs and all have been done by friends for her.

The application is in place because of the father for court orders, and states throughout that the mother is not of sound mind, is causing children to dislike the father. The mother is a 'princess' on her 'high horse' and communication between them is very limited. The mother can not face the father for fear of being yelled at and abused.

It happened recently when he mistakenly thought a friend was the mother (was in shadow) - and foul language and a few gestures followed by nasty texts was given. All in front of children who started to cry and say daddy is always mean.

The mother is worried she will not be able to speak in court at first hearing and feels she should just agree to his parenting orders, which although his affidavit states mother is incapable, he still believes the children should reside with her. He has also lodged a child protection order on the mother and is asking family court to supoena the documents for him (mother has not had contact with anyone or any department checking on her or the kids).

The father has not been actively involved in children's life. He has attended one sport day for the eldest in the past 5 years. No teacher nights or interviews. Mother provides all reports, etc when she receives them.

After all this, what I am wanting to know is:

What happens if mother cant speak in court? Fear is such a simple word for her reaction to him based on the years of put downs, name calling and eventual physical pain. She is not in position to have lawyer due to the costs of settlement taking up 32K last year.

Her children are her highest priority but both she and it would seem the eldest are deeply concerned for safety when he is near.

 

[Migz]

OK, this is how it plays out in court, at her first hearing;

1. They will be infront of a judge for 1 minute to 10 minutes.

2. She will not get a chance to ramble on her side of the story.

3. You are normally asked direct questions from the Judge, in relation to the court orders being presented.

4. Your friend doesn't get to talk in court because her "initial Application (Family Law)" and "Affidavit" and "Notice Of Risk" and "Anexures" need to all be presented before she goes to court and filed with the Family Court, then she has to pay someone to have these documents "Served" on the Husband.

The "initial Application (Family Law)" and "Affidavit" and "Notice Of Risk" can be downloaded from the Family Law website. She will need to put together her "Anexures" herself, then get them stamped by a Justice of the Peace before Filing with the Family Law Court via the Portal Online.

5. So she has attempted mediation, does she now have a Certificate 60i from them? If not why not?

6. She will need the 60i Certificate.

7. If the Father is the Applicant, then she will be the respondent, so fill in the paperwork for that.

8. Has a court date been set?

Cheers

 

[AllForHer]

So the father has never actually been violent toward the children, bar the one allegation that he threw the ten-year-old into furniture? What evidence do you have of that incident? An admission from the father or just the word of the child?

And when you say the father hasn't been involved, what do you mean? If both the children have spent regular time with the father over the preceding five years, that constitutes involvement, wouldn't you agree?

 

[MartyK]

The most recent mediation is cancelled by RA with ongoing calls to check on mother's welfare/safety and referred to other sources. Mother is referred to DV centre.

The mediation was cancelled due to Relationships Australia identifying safety concerns for the mother from the father?

Does the mother have something in writing about this from Relationships Australia? Perhaps even a copy of the referral to the domestic violence centre from them? If not, she should seek to obtain something in writing.

The application is in place because of the father for court orders, and states throughout that the mother is not of sound mind, is causing children to dislike the father. The mother is a 'princess' on her 'high horse' and communication between them is very limited. The mother can not face the father for fear of being yelled at and abused.

I expect this means that the father has made an application to the Family Court or Federal Circuit Court in relation to parenting orders?

Like Migz said, the mother will able to find copies of the Court Forms on the Court websites. If the father is the applicant this will make her the respondent. As well as her reponse to an initiating application and affidavit, she will need to file the mandatory notice of risk.

It happened recently when he mistakenly thought a friend was the mother (was in shadow) - and foul language and a few gestures followed by nasty texts was given. All in front of children who started to cry and say daddy is always mean.

If any of the mothers friends (or family), have been direct witnesses to anything that could assist the mothers case and would be happy to file a supporting affidavit for her, there is nothing stopping them from doing this.

However, just a word of caution. They will need to be very careful not to include anything that is hearsay, exceeds any qualification that they may have or to draw any conclusions that they are not in a position to draw. Any information they provide will need to be directly related to what they have witnessed. Just the facts, that's it.

What happens if mother cant speak in court? Fear is such a simple word for her reaction to him based on the years of put downs, name calling and eventual physical pain.

If the mother is fearful of the father she should contact the Court Registry to inform them of this and they may be able to put safeguards in place for her while she is in attendance at Court.

She is not in position to have lawyer due to the costs of settlement taking up 32K last year.

Is she eligible for Legal Aid?

Her children are her highest priority but both she and it would seem the eldest are deeply concerned for safety when he is near.

Like the father, the mother should detail her concerns in both the notice of risk and in her affidavit and attach any supporting evidence.

 

[Thefactsonly]

OK, this is how it plays out in court, at her first hearing;

1. They will be infront of a judge for 1 minute to 10 minutes.

2. She will not get a chance to ramble on her side of the story.

3. You are normally asked direct questions from the Judge, in relation to the court orders being presented.

4. Your friend doesn't get to talk in court because her "initial Application (Family Law)" and "Affidavit" and "Notice Of Risk" and "Anexures" need to all be presented before she goes to court and filed with the Family Court, then she has to pay someone to have these documents "Served" on the Husband.

The "initial Application (Family Law)" and "Affidavit" and "Notice Of Risk" can be downloaded from the Family Law website. She will need to put together her "Anexures" herself, then get them stamped by a Justice of the Peace before Filing with the Family Law Court via the Portal Online.

5. So she has attempted mediation, does she now have a Certificate 60i from them? If not why not?

6. She will need the 60i Certificate.

7. If the Father is the Applicant, then she will be the respondent, so fill in the paperwork for that.

8. Has a court date been set?

Cheers

Thank you - yes, a court date has been set, a few weeks away. No she does not have a 60i - RA have confirmed they both attended mediation but it was cancelled and she was referred to another support group.

Ex has claimed throughout affidavit that he has cert60i, however RA has said the cert they gave him was requested of him (mother didnt request one) and it expired last November. Father lodged court docs in Dec with not attached 60i.

Mother has contacted RA who are giving evidence she attended and that she can file with her response.

 

[Thefactsonly]

So the father has never actually been violent toward the children, bar the one allegation that he threw the ten-year-old into furniture? What evidence do you have of that incident? An admission from the father or just the word of the child?

And when you say the father hasn't been involved, what do you mean? If both the children have spent regular time with the father over the preceding five years, that constitutes involvement, wouldn't you agree?

The child has witnessed violence toward the mother and claims she (child) is always getting smacked and yelled at by father hence why she does not want to go back. Further on returning home from the 'throwing' incident the child was taken to the gp as she claimed her arm was tingly and hurt to move. Father has said nothing about the incident rather telling the child that maybe when she's 30 she will love her dad then..

Sorry - yes he's been 'involved' as in having them sporadicatly for a few years and then most recently 15 months of alternate weekends with youngest child only. I meant not involved in terms of their school education, sports, friends etc.

He has not made an effort to see them in class presentation nights, parent/teacher meetings, watch them with weekend sports (even when his weekend) etc. I guess I mean the more 'emotional' absence - I hope that makes sense?

 

[Thefactsonly]

The mediation was cancelled due to Relationships Australia identifying safety concerns for the mother from the father?

Does the mother have something in writing about this from Relationships Australia? Perhaps even a copy of the referral to the domestic violence centre from them? If not, she should seek to obtain something in writing.



I expect this means that the father has made an application to the Family Court or Federal Circuit Court in relation to parenting orders?

Like Migz said, the mother will able to find copies of the Court Forms on the Court websites. If the father is the applicant this will make her the respondent. As well as her reponse to an initiating application and affidavit, she will need to file the mandatory notice of risk.



If any of the mothers friends (or family), have been direct witnesses to anything that could assist the mothers case and would be happy to file a supporting affidavit for her, there is nothing stopping them from doing this.

However, just a word of caution. They will need to be very careful not to include anything that is hearsay, exceeds any qualification that they may have or to draw any conclusions that they are not in a position to draw. Any information they provide will need to be directly related to what they have witnessed. Just the facts, that's it.



If the mother is fearful of the father she should contact the Court Registry to inform them of this and they may be able to put safeguards in place for her while she is in attendance at Court.



Is she eligible for Legal Aid?



Like the father, the mother should detail her concerns in both the notice of risk and in her affidavit and attach any supporting evidence.

Thank you - sorry I replied but it appears to have gone missing!

Yes she has contacted RA who are doing her a letter to confirm her attendance at mediation and that it was stopped, she has also asked for help from the DV group to see if she can get a letter or similar to say why she was referred to them.

Yes there are witnesses to the tension from father - most notable the direct texts and emails he has sent not only the mother but other family members staying they need to protect her from him as he's not safe to be around.. also his aggression towards her has been witnessed first hand by a relative who received a text asking him to attend the house as the father (who sent the text) wasn't sure what he would do to mother.. relative got there to find daughter screaming in driveway that daddy wouldn't let mummy go. Relative disengaged situation and father left residence. mother too scared to call police.

Is it beneficial to get such things in writing? or other scenes that have played out in front of other people? Just direct facts? Mother is worried about dragging friends and family through court.

As to being afraid - mother is worried she will break down/cry/be unable to respond to judge simply because of her fear of the ex being in same room as her. this is a real fear. She knows she is 'safe' whilst in the court room and will have other family around her on the way in/out etc. I believe its just the emotional fear and intimidation.

The father has only written about his concern of her as a parent... mother is one who would do anything for her children so we do believe his concern is more to do with trying to put fear into mother.

 

[AllForHer]

Forgive me, but who are you in this case? Are you the mother?

 

[Thefactsonly]

Forgive me, but who are you in this case? Are you the mother?

A close friend - was joint friend of both but have likely seen enough to know who I am supporting going forward. Difficult situation all round.

 

[MartyK]

Yes there are witnesses to the tension from father - most notable the direct texts and emails he has sent not only the mother but other family members staying they need to protect her from him as he's not safe to be around.. also his aggression towards her has been witnessed first hand by a relative who received a text asking him to attend the house as the father (who sent the text) wasn't sure what he would do to mother.. relative got there to find daughter screaming in driveway that daddy wouldn't let mummy go. Relative disengaged situation and father left residence. mother too scared to call police.

If this is accurate and there is evidence (hard copy evidence) that the father has contacted family members of the mother and warned them that "he's not safe to be around" or that they need to intervene in situations as he is not sure "what he would do to the mother", then yes, as well as these communications being included into the mothers filed materials, I would also suggest that the family member who received these messages strongly considers filing an affidavit on the mothers behalf.

While an acrimonious relationship between parents, or even acts of domestic violence directed towards one parent by the other, will not always lead to a parent being excluded from a child's life in terms of the Court orders (especially if safeguards for the children can be put in place), such communications from the father, as you have described above, could certainly bring the fathers mental health and stability into question. It could also place the mothers capacity to parent at risk, which would affect the children.

Have any family members sought to notify the police on the mothers behalf if they have genuine fears for her safety from the father?

Is it beneficial to get such things in writing? or other scenes that have played out in front of other people? Just direct facts? Mother is worried about dragging friends and family through court.

Yes. If an affidavit is filed by a person other than the mother, that person would need to be prepared to be called as a witness and be cross examined at the trial (if the case goes to a final hearing).

The system, as it stands, can only work with information that is raised or provided by parties i.e. while the Court may seek independent reports to be conducted etc it does not "investigate" per se and the parties need to present the issues to the Court.

As to being afraid - mother is worried she will break down/cry/be unable to respond to judge simply because of her fear of the ex being in same room as her. this is a real fear. She knows she is 'safe' whilst in the court room and will have other family around her on the way in/out etc. I believe its just the emotional fear and intimidation.

You have mentioned that the mother will be engaging the services of a lawyer? I think this would be a good idea. She should advise her lawyer of her fears and discuss measures that can be taken to ensure her safety, including those that the Court may be able to accommodate.

The father has only written about his concern of her as a parent... mother is one who would do anything for her children so we do believe his concern is more to do with trying to put fear into mother.

As I said, the mother should include all relevant facts in her filed materials.