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CAO - requests made to judge

(38 Posts)
FV45 Tue 24-Jan-17 09:54:55

- CAO hearing next week.
- Cafcass called yesterday.
- They are aware of failed non-molestation order I tried to get ie it is in their report. I never want my ex to know about this.
- They will not send this report to all parties prior to the hearin (due to above).
- Cafcass advised me to talk to court usher on the day, to ask that judge NOT read the part about the non-mol.

Q. Will the judge respect this?

I am sick with anxiety. I had NO idea that my ex would ever find out about me attempting to protect myself against my ex's EA (and failing).

I am self-representing.

FV45 Tue 24-Jan-17 10:04:06

Also, can I take a friend in with me?

I had thought that I couldn't but reading a bit I see that if they are acting as a McKenzie Friend then I can. I thought a MF was a defined role, but it's actually just a term for someone other than a lawyer who supports someone in court. Is that right?

Do I need to tell the court in advance?

aginghippy Tue 24-Jan-17 10:22:50

I did something similar for a friend of mine. I went with her and she asked the judge's permission at the beginning of the hearing. The judge asked my name and then allowed me to stay.

MrsBertBibby Tue 24-Jan-17 10:25:16

Yes, you can ask for your friend to come in as moral support, as a McKenzie Friend. It's up to the Judge whether s/he allows it. They generally do. No need to do anything in advance, just bring the friend along and tell the usher. Your friend cannot address the court, but can suggest things you might want to say.

Why is it so bad if your ex finds out about the non mol?

FV45 Tue 24-Jan-17 10:35:03

Thank you both.
And there was my friend thinking she'd be able to read her book!
Seriously, this really puts my mind at ease.

mrs Because it was not granted (ex-parte, it would probably have been granted with-notice, but I withdrew from that hearing (a failed ex-parte hearing will always be listed for a with-notice hearing...sorry, if you're a lawyer and know this), as I couldn't face him being given notice to attend court while we were still living in the same house) and it will backup his belief that I am wrong, he is right, I am unhinged etc etc.

Apologies for appalling grammar!

Familylawsolicitor Tue 24-Jan-17 10:37:41

The failed non mol bit sounds a bit odd procedurally.
Did you try to get one ex parte
(without notice to him) and were refused at the first hearing? Were you then given leave to withdraw your application because you didn't want to make it with notice to him? Were you not advised when you made the application it would have to be served on him after the first without notice hearing? I'm surprised he was not served regardless at the time when you made the application, as justice requires that a respondent is told of allegations and has an opportunity to respond as soon as possible. It's possible to have an initial order made short term without notice if you convince the court you or children would be at risk if he was aware, but he must be told immediately after the order is made informed of the allegations and given the chance to respond and object very quickly thereafter. He therefore was always going to know of your application at the time. Or did you fail because you hadn't served the application on him or some other procedural problem ?

Whether the judge tells him or not now is a matter for the judge. Are cafcass advising that he not be told? More chance if that is recommended. But again, if it's info that forms part of their recommendations the judge is likely to consider your ex has the right to see that. You may want to consider renewing your non mol application if you are seriously concerned about your safety with regards to his reaction.

You need to email the court in advance to request a MF come into court with you and explain briefly who they are. They can give quiet assistance but not speak on your behalf. It should not be someone who might be a witness eg someone who you might want to give a statement about your ex's behaviour. Your ex will be given the opportunity to object to the MF so try to have someone relatively unconnected with him.

Familylawsolicitor Tue 24-Jan-17 10:40:31

Cross post.
I see what I assumed with regards to the non mol was right. Are you still living together?

FV45 Tue 24-Jan-17 10:49:01

*Did you try to get one ex parte
(without notice to him) and were refused at the first hearing? *

Yes.

Were you then given leave to withdraw your application because you didn't want to make it with notice to him?

I was told it would be listen as an urgent with-notice hearing. I had already told my sol there was no way I would do that. In the end it was just listed along with everything else ie not urgent (telling me that the judge really didn't support me), and I formally withdrew.

Were you not advised when you made the application it would have to be served on him after the first without notice hearing?

No.

I'm surprised he was not served regardless at the time when you made the application, as justice requires that a respondent is told of allegations and has an opportunity to respond as soon as possible. It's possible to have an initial order made short term without notice if you convince the court you or children would be at risk if he was aware, but he must be told immediately after the order is made informed of the allegations and given the chance to respond and object very quickly thereafter. He therefore was always going to know of your application at the time. Or did you fail because you hadn't served the application on him or some other procedural problem ?

So, are you telling me that he knows anyway? This is the first time I have heard this. It failed because the judge said the situation wasn't bad enough to warrant an ex-parte injunction.

Whether the judge tells him or not now is a matter for the judge. Are cafcass advising that he not be told? More chance if that is recommended.

Cafcass normally send their report to all parties prior to the hearing. They will not do this due to the non-mol mentioned in the report, so yes they are supportive of my ex not being informed.

* But again, if it's info that forms part of their recommendations the judge is likely to consider your ex has the right to see that. You may want to consider renewing your non mol application if you are seriously concerned about your safety with regards to his reaction.*

Ha ha. I am afraid I feel entirely let down by the legal system when it comes to emotional abuse. Black eye....they would have got him out of my house pretty sharpish.
Ex is no longer in the family home so there is no crushing EA, but he still uses it as a means to control me via contact with our younger son, and hand overs can be very difficult. Not enough to warrant a non-mol order, but hopefully an undertaking within the court order.

You need to email the court in advance to request a MF come into court with you and explain briefly who they are.

Thank you. So, which is right....just turn up, or email the court in advance?

FV45 Tue 24-Jan-17 10:50:09

bold fails! Sorry.

MrsBertBibby Tue 24-Jan-17 11:19:36

Are you still with that solicitor? They should have served your application on him, but may not have done. The Court would not have served him. My guess is he doesn't know.

I really don't think his knowing is a problem. Your failed application demonstrates that these allegations aren't some recent invention. Presumably your allegations were truthful? It doesn't really matter what he thinks, it's the court's opinion that matters now.

Did your statement contain a para explaining why you needed the order without notice? Because if your solicitor forgot to put that in, the Judge's hands were tied.

I'm sorry you've not felt protected so far. Some judges are just a bit weird about ex parte orders. There was some frankly batshit stuff going on at Brighton a few years back, no idea if that's better now, as mercifully I haven't had to go there in ages.

I've never been aware of anyone emailing the court about bringing in a McKenzie friend, but there's no harm emailing ahead.

Familylawsolicitor Tue 24-Jan-17 11:26:34

The vast majority of MFs are approved who just turn up at court and ask the usher then and there but I have one judge at my local court who gets cross if no request has been made in advance first. I suspect she's a one off and I doubt the court will reply to the email before the hearing but if you email first you've covered all bases.

I'm sorry to hear about the experience you had at the ex p hearing too although without seeing the details of the EA I would generally advise it's quite hard to get an ex p unless there is physical violence.

No he probably doesn't know as you withdrew at the ex p stage. However good point by MrsB that it shows long standing concerns on your part - but to rely on that he's going to need to know now.

FV45 Tue 24-Jan-17 11:42:10

Are you still with that solicitor?

Yes and no. The divorce is finalised and my case was closed, but I contacted her just recently with regards to the CAO and we have spoken on the phone. I may buy an hour of her time. I have done most of the CAO work myself.

* They should have served your application on him, but may not have done. The Court would not have served him. My guess is he doesn't know.*

Let's go with that then!

I really don't think his knowing is a problem. Your failed application demonstrates that these allegations aren't some recent invention. Presumably your allegations were truthful? It doesn't really matter what he thinks, it's the court's opinion that matters now.

Of course they were truthful.
It matters A LOT to me what he thinks as I still have to have contact with him because of the children.
I completely understand that it's very important for the court to know the background, otherwise how can they make a ruling and I do understand that it's fair that ex knows why a specific ruling might be made, but there must be a way to do that w/o him knowing about the non-mol.

Did your statement contain a para explaining why you needed the order without notice? Because if your solicitor forgot to put that in, the Judge's hands were tied.

Yes it did. It was for this reason "whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately"

I'm sorry you've not felt protected so far. Some judges are just a bit weird about ex parte orders. There was some frankly batshit stuff going on at Brighton a few years back, no idea if that's better now, as mercifully I haven't had to go there in ages.

Thank you. She said it was draconian. I just sat there and cried for 2 hours.

FV45 Tue 24-Jan-17 11:48:37

I would generally advise it's quite hard to get an ex p unless there is physical violence.

yeah...well that sucks. The law has changed a lot when it comes to EA, but has a very long way to go.

MrsBertBibby Tue 24-Jan-17 13:54:17

I can think of a fair few non mols I've obtained with no violence involved. Including ex parte.

FV45 Tue 24-Jan-17 14:09:20

That's encouraging but makes me feel worse and also makes me feel more strongly that I don't want ex to know. Just fuels his beliefs about me. Maybe he's right....

MrsBertBibby Tue 24-Jan-17 14:14:01

OP, you say it matters a lot what your ex thinks. That's not going to help you. Your ex will never admit (at least not to your face, and probably not even in his inner being) that you are in any way justified. The more justification you have, the more wrong he will insist you are. This is 20 years professional experience talking, as well as 10+ years lived experience. He won't suddenly admit you're right. At best, he may subside a bit.

Looking back, I think I can see what your problem was. Were you asking the Court to remove him from the home at the without notice hearing? I ask because you say the judge said "draconian". That's straight from the case of Chalmers v Johns, which applies to ouster orders. It is in my experience pretty easy to get an ex parte non molestation order, but an occupation order throwing someone out is a very different matter. If your solicitor didn't explain that, she should have.

FV45 Tue 24-Jan-17 14:55:09

Mrs I understand what you're saying, it's just very hard for me. He only left the home in Oct.

No, I was not asking for an occupation order, I know that it would have been very, very unlikely to have been granted and my sol was clear about that.

The non-mol was to stop him harassing, threatening, controlling & verbally abusing me either directly or via text and email. The judge said it was "very sad" but not enough to grant ex parte. I had a GP letter, police incident numbers, letters from friends, my own diary, but still not enough.

I have 2 threads on Relationships so won't duplicate it all here.

babybarrister Tue 24-Jan-17 16:51:32

Message withdrawn at poster's request.

FV45 Tue 24-Jan-17 17:35:13

I don't understand. I thought ex parte was supposed to offer protection.
I feel sick with anxiety that i will be with him in court as it's read out. Really? Surely the fact it was not granted means the law decided his behaviour wasn't a concern.

My friend knows everything about me.

FV45 Tue 24-Jan-17 17:46:37

In what situation would someone have a friend that didn't know what had been going on? That would just be some random stranger. Or have I misunderstood? I just want her for support.

babybarrister Tue 24-Jan-17 19:48:55

Message withdrawn at poster's request.

MrsBertBibby Tue 24-Jan-17 20:22:59

OP, the judge isn't going to read the CAFCASS letter out. S/he will just give the CAFCASS duty officer the nod to hand out copies. Always supposing s/he's brought any, they're so strapped they generally try to ponce the Court's toner and make them do copies.

Your position is quite sane: you said you'd be too scared to make your application on notice, and blow me down, what happened when the Judge ignored that? You were as good as your word. Something for that particular judge to think about.

If I were acting for you, I'm pretty sure I'd want those non mol papers disclosed, since they show your raising the issues before his application.

FV45 Tue 24-Jan-17 22:35:54

baby thanks for the clarification. I am aware of how the non-mol would have gone had I chosen to proceed with the with-notice application i.e. that he would have been served papers. I was (am still am not) strong enough to risk it not being granted. I am aware that EA is not as clear cut as physical abuse so I knew I was taking a risk. It was my last hope. I needed to feel I was being proactive in protecting myself (and kids) from his EA.
Him knowing that I tried and failed (yes I know I didn't do with-notice, but you know what I mean I hope), just adds to my feeling that he's got one over me.

Anyway, I thank you all for sharing your knowledge, as hard as it is it is better to be armed before I go to court (it was me that applied BTW).

I am getting very tearful and anxious thinking about it. What's done is done but I wonder whether I would have applied for the injunction had I known I would be in this position. My sol knew I would be applying for a CAO once he'd left the home.

FV45 Wed 01-Feb-17 23:44:21

My police reports and non mol were disclosed. His barrister just told me in a casual way he'd told ex. In public with me in bits.
I'd already spoken about my concerns with cafcass but she didn't get to speak to barrister before he told ex.
I understand the process but do think it could have been handled better and I do think it will prevent victims of domestic abuse speaking up.

Anyway Final Order achieved so onwards and upwards. Ex was told to grow up.

FV45 Thu 02-Feb-17 11:22:21

My sol said "I am sorry that the hearing was stressful yesterday. Unfortunately, the system is not perfect and has a long way to go in sensitively dealing with victims of domestic abuse. Changes are being made but not quick enough"

It means a great deal to me to have this acknowledged.

And the whole taking friend into court was very confusing.

My sol said I could and she didn't need to take anything, but would be courteous of me to tell my ex's sol which I did.

When reading the court forms on Tuesday I saw it said "DO NOT BRING FRIENDS AND FAMILY", so I called to check. He said it was OK, that the note was there to stop people bringing crowds in. I asked whether she needed to bring anything and was told no.

We get into the Court room and she was initially told she couldn't come in. Really dismissive and quite aggressive attitude by the magistrate. I stood up for myself and said that I'd phoned to check and been told she could come in. So she accepted that and then barked "who is she, does she even have a cv?", so again I said what I'd been told.
She was allowed in. But why does this happen? Are there not black and white rules? I was on the verge of tears as it was, and this sort of thing just makes an already stressful situation much worse. Just stinks of throwing their weight around.

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