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New Discussions
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My ongoing child proceedings have been transferred from the Western Australia Court System to Queens…
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  •  · Riley, I understand what the situation is and I am not a FDRP (Family Dispute Resolution Practitione…
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My case originally was filed in the Magistrates Family Court of Western Australia and has now been t…
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  •  · Dear Riley, It appears that you would because the only documents you are otherwise permitted to file…
When seeking a Subpoena, does it need to be in relation to an 'open case'? I'm embarking on an 'Appl…
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  •  · Elisabeth HA thank you but custody orders were finalised via consent in 2019. Since then, the situat…
American mother of dual citizen children and with permanent residency in Australia retains the child…
What area of the Family Law Act the court gets its authority to force drug testing?
What is the process to have the courts take action against the other party for perjury? I have put i…
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  •  · I guess the point is the process does not work.   The Court may decide for itself or upon applicatio…
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I dare say you are right, I am just wanting to be clear so I can move on. Obviously, the mother's counsel says the father has not put forward fixed firm plans, I was just unsure whether counsel is responsible for the rest of the paragraph.

So you're saying p 47 is equivalent to:

47. The mother’s counsel forcefully submitted that the father had not put forward any fixed firm plans about how he would care for the children if they returned. He said It would be a bit difficult for him to do so and it might mean him giving up his job at the moment which would put the mother’s child support in peril.

I agree it is more likely than:

47. The mother’s counsel forcefully submitted that the father had not put forward any fixed firm plans about how he would care for the children if they returned. I concur that It would be a bit difficult for him to do so and it might mean him giving up his job at the moment which would put the mother’s child support in peril.

even though in p48 her Honour returned to expressing her own views:

48. The evidence of both of the parties however is that the paternal grandmother has been ready [...]

 

It is clear that is an argument put forward by the mothers counsel. 

So anyone in a similar position ought to consider "putting forward any fixed firm plans about how he would care for the children if they returned." as a pre-emptive strategy and cover the objection of how it "difficult for him to do so" as for the mother's child support well obviously if she is no longer the primary carer it will affect her eligability but that is an irrelevant consideration really.

Another example where I'm finding it difficult to ascribe sentiments to individuals below. Who thinks it would be a bit difficult for the father to look after the kids on his own? The judge or the mother's counsel? Who is saying that him giving up his job may mean the mother may lose her child support?

"47. The mother’s counsel forcefully submitted that the father had not put forward any fixed firm plans about how he would care for the children if they returned. It would be a bit difficult for him to do so. It might mean him giving up his job at the moment which would put the mother’s child support in peril."

I couldn't believe the line which read (including emphasis):

"The court is without sympathy for the mother, she has usurped to herself the right to make decisions."

.. and I was right not to believe it.

Interesting case, however, including that it was delivered on the spot.

I am a bit worried that the judge uses big words unnecessarily to hide things that should have been revealed and explored further... 

"34. I should interpolate and say that [the mother's] answers on this question were equivocal and prevaricating." 

...really his Honour is saying,

"34. I should mention that the mother's answers were ambiguous and I wasn't sure what she meant."

Well, if he wasn't sure what she meant, he could have asked her.

I am conscious of commenting on judgments where I don't understand everything - so I'm building a computer model to simplify judgements. Still, there is ambiguity, as indicated below, and I would appreciate if someone could tell me who said what. Clearly, the mother said "the children could spend time according to the father in accordance with their wishes".

But who has decided, "X does not enjoy camping." The judge or the mother?

I am inclined to think it's the mother.

Equally the comment "The children miss out on friends as a result of the father's lack of flexibility." could be a damning indictment from a judge or merely criticism from an ex-wife.

This could have been clarified by the judge by his saying, "This is what the mother says and this is what I think of her comments." Instead, we are left with the suspicion that his Honour has devoted two paragraphs to summarising the mother's view without making it entirely clear that that is what he is doing.

"28. Under cross-examination by counsel for the Independent Children's Lawyer, the mother confirmed that the children could spend time with the father in accordance with their wishes during school holidays. It could be each term holiday if the children wanted to go. There had been problems recently because the children did not want to go. X has had chicken pox a while back. At Christmas, Y did not want to go and X was crying, also not wanting to go. The children say the father does not spend time with them.
29. X does not enjoy camping. The children miss out on friends as a result of the father's lack of flexibility. Y did not want to go at Christmas and not at Easter. She tells him, "You have got to go." She is not trying to stop time with the father. X is a teenage girl and does not want to go. They get along with the father, but sometimes they do not. There was an argument on Christmas Eve between the father and the parental grandfather in front of X. The relationship with the father is up and down."

Another attempt at trying to identify the key issues involved for each of the people concerned...

What are the key issues as far as each of the participants are concerned?

Mother

  1. That she cares for the couple’s 20 year old disabled daughter.
  2. That she is really short of money.
  3. That the father has spare money and responsibilities as the father.

Father

  1. That the child was happy spending 50/50 times shuffling between parents when she lived in Tasmania.
  2. That the mother showed no concern for their daughter’s best interests when moving her to Melbourne for trivial reasons.
  3. That he has no money, has bills coming in and is overdrawn.
  4. That the daughter can work, she had a job at McDonalds.

Judge

  1. The law says parents should pay for adult children who need financial assistance. (P29)
  2. The child and mother need some assistance.
  3. The law says I need to look at how much each parent has got/gets and how much each parent needs (P30).
  4. That X needs to stay in Melbourne for medical reasons.
  5. That the father isn’t as poor as he says he is.
  6. The psychiatrist's report showing the daughter has a very limited IQ and multiple psychological difficulties.

There may be some value in speculating, as suggested by her Honour at the end of her judgment. People need to know what to do to protect their assets in the case of divorce.

I've been told that many nowadays are preferring to stay single rather than tread this minefield.

There is little value in speculating.  These cases and judgments serve as lessons for anyone with similar circumstances of what to look out for and where potential foreseeable risks are.  For instance a person in a similar situation now may insist not only does the potential spouse have a lawyer advise them but also has a medical report from a psychologist to say they are of sound mind at the time they are signing.  Ahhhh the joys ot true love.

Danny Jovica 

We could examine every nook and cranny but I'm worried we might get lost in detail.

I wonder whether it would be better to focus on what might be the key issues? I'm guessing you think the key issues are these:

  1. Why didn't the wife renegotiate the agreement between when they signed it (Dec 2012) and when they married two years later?
  2. Did the wife's lawyer advise her that she was in no fit state to sign a prenup having just had a stillbirth? 
  3. Did the social worker and psychologist, who each saw the wife on one occasion, take notes that could have had a significant impact on the case?

By contrast, her Honour says the key issues are (P38):

  1. Did just having had a stillbirth seriously cloud the wife's judgement when it came to signing the prenup?
  2. Did the husband take advantage of that?

For each court judgment we examine, we could discuss what the key issues might be before we discuss anything else.

What do you think?

Danny Jovica 

We could examine every nook and cranny but I'm worried we might get lost in detail.

I wonder whether it would be better to focus on what might be the key issues? I'm guessing you think the key issues are these:

  1. Why didn't the wife renegotiate the agreement between when they signed it (Dec 2012) and when they married two years later?
  2. Did the wife's lawyer advise her that she was in no fit state to sign a prenup having just had a stillbirth? 
  3. Did the social worker and psychologist, who each saw the wife on one occasion, take notes that could have had a significant impact on the case?

By contrast, her Honour says the key issues are (P38):

  1. Did just having had a stillbirth seriously cloud the wife's judgement when it came to signing the prenup?
  2. Did the husband take advantage of that?

For each court judgment we examine, we could discuss what the key issues might be before we discuss anything else.

What do you think?

Phil Bachmann  I found the decision unusual in that there was a large gap between signing and the parties getting married and plenty of time for the Wife to renegotiate the agreement PRIOR to the Marriage.  So firstly the arguments of the Husband in defence ought to have focussed on that elapsed time. 

Secondly, the main question is whether the wife obtained independent legal advice PRIOR to signing.    Just like we see in post separation Binding Financial Agreements both parties are REQUIRED to obtain their own independent advice for the agreement to be binding, here the Wife did in fact obtain that independent legal advice and I am curious as to what that advice was in relation to her stillborn pregnancy and her state of mind at the time.  This does not appear to be in evidence and may in the interests of justice be something that the solicitor could be called upon to be a witness.  The Wife says "she therefore signed the agreement in spite of the advice she was given". 

It would appear the evidence was that advice given would be disadvantageous to the wife (however that may be par for the course in most pre-nups) but the question here is the wifes emotional state of mind at the time of signing and certainly that Lawyer who advised her could testify to that and what if anything she mentioned of the stillbirth at the time.   

Also open to review was the medical evidence ~ "The Wife reports receiving little professional assistance beyond a visit from a social worker at the hospital, a house call from a social worker a few days later where service agencies were discussed and one visit to a doctor and one to a psychologist at a time she could not recall" 

In particular the psychologist and social worker files on the issue could have been subpoenaed to see what the professionals said about her state of mind at the time.  

The judge may have got this one absolutely right, but then again, we dont have evidence from the Wife's lawyer as to why her state of mind was not an issue they considered in their advice and we don't have the medical records either that inform us of her state of mind at the time.  

It will be interesting to see what happens next in this case.






OK, so Judge Stewart tore up the prenup saying the husband did the wrong thing.

At the end of the judgment, her Honour thinks about what the 'right thing to do' would have been, but doesn't get very far...

"53. Perhaps rhetorically my decision in these proceedings has caused me to reflect on when it might have been that the Husband could have safely secured the Wife’s consent without putting the agreement at risk. Ultimately I have not been able to form a concluded view on that point. I suspect the answer would lie in the Wife’s recovery progress and any setbacks experienced by her. Having regard to the Wife’s presentation to Dr M, it may well be that she will never fully recover. That of course presents real issues with respect to parties entering financial agreements and may require careful consideration by legal practitioners."

In passing, I suggest 7 months is a long time to wait for a decision.

Why does this simple decision have to be so complicated?

If the reason that the father is struggling personally and that's why he can't file on time, perhaps those struggles should be made apparent. Is he intimidated by the process? Does he just want to stuff people around? Does he go into periods of depression where he can't function? Has he been waiting for legal aid who did not come back to him with an answer?


New South Wales Police handed a domestic violence victim's entire phone data to her perpetrator, a man who is also a senior member of an outlaw motorcycle gang, in a case which legal experts say could amount to serious misconduct.

One of those cases where the public should be informed of follow-up court events to ensure the court intervention has actually helped this family.

In P 70 the father reports that the child says the mother doesn't listen to her or allow her to have her own thoughts.

Judge McNab seemed to think (P 71) that it reflected very poorly on the father to report such things.

Can anyone find evidence noted by his Honour as to the perspective of the child on the issues raised by the father?

The digest does not mention the gym. As far as I can tell, the most noteworthy part of Judge McNab's judgment is what should happen at the gym.

I see from the transcript HH did try to employ more modern vernacular ie. "emotional father".
It is a term I have not heard before.

If "stepfather" is "antiquated terminology", why didn't his Honour use the new term. Which is what, by the way?

Do any lawyers here know what % of the true costs the $3,600 is likely to represent?

"The Respondent shall pay to the Applicant, as a contribution towards the Applicant’s costs incurred in these proceedings, the sum of $3,600..."


Riley, I understand what the situation is and I am not a FDRP (Family Dispute Resolution Practitioner) but a Nationally Accredited Mediator,  there are some significant differences and I invite you to book a time with me for a 15 minute chat, if after that you still feel the same way then fair enough, but these complex cases are what I deal with all the time and I tend to be able to get through to alpha males and help them understand the benefits of seeking peaceful and amicable resolution instead of war in the family courts adversarial litigation processes where no one ever "wins".

 

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