WARNING ON THE DANGERS OF A COURT ORDERING YOU HAVE A LAWYER CROSS EXAMINE THE OTHER PARTY DUE TO DOMESTIC VIOLENCE ALLEGATIONS
In my capacity as a Mediator a mother approached me for assistance to seek resolution in her matter some weeks before final trial.
She wanted to consider her position and see if she could resolve the dispute with the father by accepting consent orders drafted by the father’s lawyers prior to trial. The consent orders would provide the children live with the mother and spend time with the father alternate week-ends and half the holidays, common orders you would see.
BACKGROUND
She has been the primary carer of two children aged 10 and 11 who have special needs being assessed at level 3 on the spectrum, still requiring nappies at this age to give you indication of the severity of their condition and level of care they require.
Aside from a period of a month some 4 years ago (when the parties first separated and the father refused to return the kids), which resulted in immediate recovery orders being granted in the mother’s favour, the children have never lived with the father.
PRE-TRIAL
The first 3 weeks (out of 4) prior to trial the mother was ordered to facilitate time with the father for week-ends (after previously being supervised time). The three week-ends with the father went reasonably well with only minor issues experienced by the children at change-over.
The mother was self-representing at that time, however orders were in place that pursuant to s.102NA she had to have a lawyer represent her for the final hearing. Although 102NA is about the mother not being able to cross-examine the father due to allegations of domestic violence, the Court Orders were for the lawyers and a Barrister to represent her at trial. This was about a week prior to final hearing.
The mother and father had agreed in that week prior to trial verbally to the consent orders, with the father encouraging her by saying what a good mother she has been for the children all these years (the mother had a recording of the conversation). The mother accepted the consent orders that were previously drafted by the fathers lawyers, however at that stage the father’s lawyers and ICL rejected the acceptance on the basis that the 102NA lawyers were appointed already and the trial was a week away so the mother was told (by her new lawyers as well) that any discussion of the Consent Orders would occur on the first day of trial.
The mother was previously ordered to file a response to the Father’s affidavit which when at the time it was written the father had sought a change of residence of the children, however her new 102NA lawyers said there was no time for that and they were not getting paid for that just the 102NA obligations, if she wanted to do that their services would be charged out at $350-$500 per hour. Money the mother did not have.
The Family Court report writer has suggested the children should live with the mother and spend some time with the father. The mother also had a psych report within the last 6 months (late December) that gave her the all-clear against mental health allegations made by the father.
The mother had no criminal record. The father had on his record threatened to commit suicide more than 4 years ago and the allegations of domestic violence from the mother.
THE TRIAL
The mother was ambushed the first two days of trial and battered under heavy questioning from the father’s lawyers and the ICL about issues such as :
· Attendance at school by the children ( 14 days absent last term due to illness)
· Relocation – whether the mother had considered moving 3 hours away to where the Father had moved to live some 4 years ago.
She was mocked about her religion and why she could previously asked the Church to help her as a single mother looking after two special needs children but if she had to move 3 hours away why the Church could not help.
- Alleged Emotional Dysregulation – Sheer allegations from the Father’s lawyers about emotional dysregulation, no medical evidence to support such allegations.
- The Fathers Lawyers for 2 days watched on and refused to even talk to her, to avoid allegations that they might coach the witness.
- Day 3, the sole purpose of needing the 102NA lawyers to cross examine the Father, they did this for 30 minutes and must have thought he was a saint at that stage with no further questions asked.
The mother was begging her lawyers for a chance to speak. Her Barrister said, ok if you had 2 minutes to say something what would you say to the Court?
The mother responded in writing saying she would ask the Court for an adjournment (which she had previously asked her 102NA lawyers about and they rejected the idea on the basis they were already paid to do the 102NA cross examination and had engaged and briefed the Barrister), the Mother was seeking an adjournment in the interests of justice as her lawyers only had a week to prepare and that evidence was not presented at trial including no counter-affidavit to the fathers due to the lawyers saying time had passed and they were not being paid for it. She added that in 3 days of trial she has not had a chance to have her voice heard in her defense.
Through out the first two days the Barrister of the Father limited her answers to YES or NO (not allowing any explanation – and if she attempted to explain the Barrister told her to STOP and just answer YES or NO. The mother also said that as the ICL had not yet met the Children as required under the new Family Law Amendments that came into effect May 6th, 2014, an adjournment was warranted to allow time for that.
The mother was seeking in her 2 minute submission that the Children live with the Father for 1 week and then they return to the mother for 1 week on a week about basis until the lawyers had time to properly prepare and to continue in the interim that way until final trial.
The mothers Barrister never gave her the opportunity to speak, nor did he make those submissions on her behalf.
Orders were made that the Children live with the Father for the next 7 days and that final orders would be handed down within 7 days.
In that interim, the mother prepared and wanted to file an application in a case essentially making the submissions above plus seeking recusal of the Judge and ICL for apprehended bias during a 4 day trial where she was not allowed to speak other than answering YES or NO questions while being attacked.
The mother asked her 102NA lawyers about this and they advised her NOT to file such a thing and be patient and wait for the orders which they were informed the following morning that the orders would be handed down the next day.
Final Orders :
The Children Live with the Father.
The Father have sole parental responsibility.
The mother have no contact for 2 months – (their Birthday is next week).
After that limited contact unless she moves location near the Father in that case every second week end.
The mother has been advised (by lawyers) her only hope now is an appeal, which would cost $30,000-$50,000 and was not covered by legal aid.
FLAST-AI Comments on the outcome
The events paint a disturbing picture of potential miscarriage of justice due to several concerning factors:
1. Inadequate Legal Representation: The mother's legal team appears to have been unprepared, failing to submit crucial evidence, adequately cross-examine the father, or effectively advocate for the mother's position. This raises serious questions about whether she received competent legal representation and whether her rights were adequately protected.
2. Judicial Bias and Procedural Issues: The judge's actions, such as the unjustified injunction (2 Months ban on any contact) and the disparity in questioning time, raise legitimate concerns about potential bias and unequal treatment of the parties. The failure to allow the mother to testify fully and the disregard for critical evidence further compound these concerns.
3. Misunderstanding of the Children's Needs: The focus on the mother's mental health and the failure to adequately consider the children's special needs and best interests suggest a fundamental misunderstanding of the case's core issues. The lack of involvement from the Independent Children's Lawyer (ICL) and the absence of a comprehensive family report further contribute to this concern.
4. Potential for Harm to the Children: The final order, granting sole parental responsibility to the father and severely limiting the mother's contact, seems to disregard the children's established routine and support system. This abrupt change could cause significant disruption and harm to their well-being, especially considering their autism diagnosis.
Overall, the events describe suggest a deeply flawed legal process that may have resulted in an unjust outcome for the mother and her children. The lack of adequate legal representation, potential judicial bias, procedural errors, and the failure to prioritize the children's best interests raise serious concerns about the validity of the court's decision.
It's important to remember that this is just one perspective on the events. The events that I heard unfold over a period of weeks when the mother hoped she could resolve the matter out of court with consent orders prior to the trial.
