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Do both parents need to consent to DNA testing? During Relationship, father disclosed that he had 2 …
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  •  · A legal paternity test is one that, by law, complies with the Australian Family Law Act (FLA). This …
Hello! Heading into mediation soon as the father is requesting 8/5 night split and half school holid…
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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…
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A legal paternity test is one that, by law, complies with the Australian Family Law Act (FLA). This kind of test is more stringent and may require additional DNA samples that are carefully tracked. They can be used as part of a court case.

So here's the part where we answer whether it is legal to refuse a paternity test. In short, yes; but it might not be a good idea to do so.

"The FLA gives the court a power to order a 'parentage testing procedure' where a child's parentage is in issue in proceedings under the FLA or the CSAA [Child Support (Assessment) Act 1989]. The court may make the order in relation to the child, the mother, or any other person who might assist in determining the child’s parentage.   "If an adult contravenes an order, or withholds consent on behalf of the child, the court may draw such inferences as appear just in the circumstances."

So a court can order you to do a paternity test, but it can't physically force you to do it. If you do refuse to take a court-ordered test, that action will be taken into account in a court case and you may still be 'declared' as the father. 

Perhaps the most troubling aspect of this judgment is that Judge Lapthorn does not really help report writers understand what they need to do to ensure their reports will not be thrown out. The result of such confusion may be significant for a lot of people.

Certainly, his Honour is right to tell report writers to pull their socks up, but equally report writers are entitled to ask, "How high?"

There is some irony in Judge Lapthorn saying, in effect, that "experts need to show us the facts they base their opinions on" and yet his Honour did not show us the passages of the report he decided to throw out.

I guess we just have to trust him.

I agree context is very important and often overlooked by judges. It is very easy to criticise someone when you are blind the their circumstances.

Some judges, to their credit, put the evidence in front of the reader and say, for example, "Here is what the father wrote to the mother and which I interpret as follows..."

That doesn't solve the understanding-the-context problem completely, but I find it comforting to be able to read what it is that a judge is basing their decision on.

Maybe it's just my imagination, but Judge Terry seems to make a habit of making findings based on evidence she does not wish us to see. For example, I would have like to read, in full context, "the things" the father is supposed to have said here:

  1. Some of the things the father said in his affidavit suggest that he has committed acts of coercive and controlling family violence, even though he is not prepared to put that label on it.

I also agree with you that the legal profession's tendency to focus on negative consequences of behaviour and ignore positive ones is a mistake.

 

The most obvious concern about Judge Terry's judgement (and others before and after) is the context of the judicial officers reasoning in his/her decision.

THIS is where the core of the problem lies within the family law jurisdiction.

Every act of human behavior brought to light in a trial or hearing tends to focus on negative aspects of human behavior with a strong emphasis on negative feeling and emotion while not EVER give any merit or acknowledgement to positive consequences or outcomes of that kind of behavior.

For example, cameras in the house may have been for the protection of the husband or children, but here you have a judicial officer grossly insinuating the act in favor of the applicant ex wife. Raises so many questions. For one, his wife claims he raped her. The context of these claims, having cameras installed in the house for each parties protection doesn't seem like such a bad idea.

The judicial officer must have the capacity to make a judgement call on the circumstances and not be influenced by emotion, feeling or prejudice.

NOW, i'll stick my neck out and say this bluntly, if a judicial officer cannot disconnect from these 3 aspects (Emotion, Feeling, Prejudice) regardless of the claim behavior or social acceptances, that person should not be in the position to make detrimental judgement calls.

The adversarial approach has to be junked or at the very least the judicial officers must focus on positives more than determining outcomes on negatives or prejudice traits. 

I don't disagree with you most of what you're saying, and I agree men should be cautious. I'm just saying if the professionals reluctant to put their credibility on the line doesn't stop ordinary votes from working together to try to rebalance the system. We can urge others to "require more stringent standards of representation" and teach and enforce "procedural processes within the industry" but if we just push the work-load onto someone else they may just ignore us.

Re: Judge Terry: Personally, I think removing an 8 year old and 11 year old boy from their primary residence and disallowing contact because of "cameras in the house" etc. seems, at least at first blush, at odds with what I would expect from most family law judges.

This is not isolated to a Judge Terry, this is a phenomenon plaguing the whole family legal system in the western world. The family courts and law still have the responsibility to maintain accountability, integrity, honor and fairness for the better of society.

At present the family courts represent quite a rogue entity, who demonstrate a fear to challenge lies, prejudice and exploitation of human health conditions, specifically mental health. Certainly more stringent standards of representation and procedural processes must be taught, commended and enforced within the industry. 

Police officers, social workers, family therapists, family report writers, doctors, lawyers, judicial officers are reluctant to put their credibility on the line, stick their neck out as professionals and challenge "the downstream flow of what is accepted as normal by society". 

Quite astonishing considering all the social expectations and behavior of genders has changed quite simply into a 'world nobody can recognize nor comprehend'. The fear of getting sued has clouded many a professionals judgement on their very own behavior and responsibilities.

The safest approach of accepting precedent case law simply doesn't hold up any longer, when professionals can exploit weaknesses and ambiguity in past judgement(s).

If this is quite the transitional period with no foreseeable solution at hand the safest play for men and some minority women, is don't play the game. 

Yes, it's tough for blokes but no need to lay down and die just yet.

We could, for example, examine Judge Terry's judgments carefully to see whether she is in fact suited to being a judge and ask that she be removed if she is not.

One would think "kidnapping" would have to be reported at the very instance the child went missing. If the child has been with the father for 6 months and more and the mother hasn't made an effort, you would think she has forfeited her claim to a child being kidnapped to more so abandoned by her part.

(Without prejudice or insinuating this as being your scenario)

Just because the father died, as a consequence the child is in the paternal grandparents care and the mother has had a change of heart, it doesn't justify the mother to claim the child thereafter. *Using kidnapping argument is very petty and counter productive as opposed to an open honest claim that you would like a child reintroduced into an estranged parents life.

The mother would have to be reintroduced to the child on a initial limited level then more time can be had with the child. 

In family law disputes and/or proceedings especially when children are involved it must be emphasized that TIME is always the ENEMY for either party. The longer you put things off the more detrimental consequences are later had.

Added a Digest 

Allegro & Oswald [2021] FCCA 1442 (21 January 2021)

The mother opposes the father's application for unsupervised time with their children.  The mother alleges that their child Y has made disclosures that the father sexually abused her.  The mother applied to strike out evidence provided by the jointly appointed Court expert. 

Facts:

The mother alleges that Y has made disclosures that the father has touched her inappropriately, that such poses an unacceptable risk of harm for this child spending any unsupervised time with the father. 

The father seeks an order that both children live primarily with him.

With regard to the evidence, the father and the Independent Children's Lawyer argue that the Court should make an order applying subsection 69ZT(3)(iv). 

Senior Counsel for the mother argues that the Court should apply section 79section 102 and section 135 of the Evidence Act which do not fall within the exclusion of section 69ZT, subsection (1) of the Family Law Act

The mother, through her Senior Counsel, has invited the Court to strike the two affidavits from the jointly appointed Court expert, Mr B, annexing his family reports.  Such evidence expressed that it is unlikely that the father sexually abused Y.  The argument raised by Senior Counsel was that Mr B, in his reports, advances opinions inadmissibly that fall within the sole domain of the Court. 

Issue:

Whether or not the child has been sexually abused by the father.

Applicable law:

Family Law Act 1975 (Cth) ss.69ZT117 - provides that the Court may apply rules of evidence if it is satisfied that the circumstances are exceptional and has taken into account its important, the nature of subject matter of the proceedings, the probative value of the evidence, and the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.

Evidence Act 1995 (Cth) s 79 - provides that if a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person. 

Evidence Act 1995 (Cth) s 102 - provides that credibility evidence about a witness is not admissible.

Analysis:

The case provides for circumstances that are considered exceptional because the allegations raised by the mother are serious in their implications for the child’s relationship with each of the parents – but particularly the father.  With the best evidence available to the Court, there either has been some sexual abuse of this child or there is some risk of it or there has not been. 

Contrary to the argument that was advanced alleging that the family report writer did not satisfy the test in relation to opinions expressed being wholly or substantially based on the specialised knowledge, Mr B, the jointly appointed Court expert, in his curriculum vitae, set out in his affidavits, indicates extensive experience in addressing issues of the risk of sexual violence by alleged perpetrators.  However,  Mr B has failed to set out in his report the basis of his conclusion of the factual issue that there was unlikely to have been any sexual abuse of Y by the applicant or that there is unlikely to be a risk of him doing so in the future.

Conclusion:

The Court concluded that application of rules of evidence is warranted in this case.  Mr B's part of the evidence alleging that there sexual abuse was unlikely is deemed inadmissible. 

The Court ordered that the applicant father should not be permitted to personally cross-examine the respondent mother; and the respondent mother not be permitted to personally cross-examine the applicant father. 

The parties and the children are ordered to attend upon a Family Consultant as directed by the Manager Child Dispute Services on a date and time to be advised for the purposes of preparation of a family report.  The Federal Circuit Court of Australia is responsible for payment of the cost of preparation of the family report.

    • There is some irony in Judge Lapthorn saying, in effect, that "experts need to show us the facts they base their opinions on" and yet his Honour did not show us the passages of the report he decided to throw out.

      I guess we just have to trust him.

      0 0 0 0 0 0
      • Perhaps the most troubling aspect of this judgment is that Judge Lapthorn does not really help report writers understand what they need to do to ensure their reports will not be thrown out. The result of such confusion may be significant for a lot of people.

        Certainly, his Honour is right to tell report writers to pull their socks up, but equally report writers are entitled to ask, "How high?"

        0 0 0 0 0 0
        This is a subscribed member area, you can't 'Comments Post' until you join FLAST.
        Added a Digest 

        Raymont & Barrille [2021] FCCA 1325 (25 June 2021)

        The mother seeks an interim order made for her to have sole parental responsibility over X.  The father, on the other hand, seeks unsupervised time with X.  The Court, in deciding the dispute, assesses the risks posed to X by the father's mental health and history of drug use. 

        Facts:

        Since the parties' separation, their child X has not spent any time with the father since separation to date.  The mother alleges that the father poses a significant and unacceptable risk to X due to his criminal history, drug use and mental health.  As such, the question of time between the child and the father should be determined after the father has been assessed by a psychiatrist in respect of his mental health. 

        The father presses the Court for orders that he spend time with the Child from daytime on Sundays to alternate weekends. 

        If the Court deems there is an unacceptable risk to the child in spending unsupervised time with the father, then he presses the Court for an order for supervised time. 

        The parties agreed to place their names on the waitlist at a contact centre in Suburb B but only the mother attended. 

        The father says that because the wait list is close to 12 months at the contact centre in Suburb B that he will pay for private supervision of his time with the child. 

        The father produced to the court a diagnosis from a psychologist that he has Chronic Complex Post Traumatic Stress Disorder and Borderline Personality Disorder.  In 2016, the father served a 6 month sentence for  drug related offence.  In 2020, he was charged with and plead guilty to affray, resulting in a conviction, a fine and no bond.  The mother seeks an order for sole parental responsibility. 

        Issue:

        Whether or not X should spend supervised time with the father. 

        Whether or not the mother shall have sole parental responsibility. 

        Applicable law:

        Family Law Act 1975(Cth) ss 69ZL - provides that a court may give reasons in short form for a decision it makes in relation to an interim parenting order.

        Keats & Keats [2016] FamCAFC 156 - provides that in terms of a risk assessment, the Court is to determine that issue by weighing the probabilities of competing claims and the likely impact on the child in the event that a controversial assertion is acted upon or rejected

        Analysis:

        Mr C, the psychologist, recommends that the father attend ongoing psychological counselling to assist him to resolve the severity of his symptoms which are strengthened because of his dual diagnosis.  However, there is no evidence that the father presently engaged with psychological counselling as recommended by the psychologist.  Coupled with his past drug use and criminal behavior, there could be doubts that he will not put X at risk. 

        Supervision centres would have a protective mechanism so that if a parent appeared to be drug affected, it is possible for physical separation to occur as compared to an open or public space where there might only be private supervision.

        An order for sole parental responsibility is made when there is evidence that the parties have issues in respect of making long-term decisions concerning their child.  In the case at bar, there is the risk identified in the father's case which is that the mother may move with X to Queensland. 

        Conclusion:

        The Court ordered that child X shall live with the mother.  The child shall spend time with the father supervised by Suburb B Contact Centre or other appropriately qualified contact centre each alternate Sunday from 9am to 12pm; and if the contact centre is not able to supervise the father’s time with the child, the child shall spend time with the father for at least 2 hours each fortnight at times suitable to the parties and the contact centre. 

        The Court declared that an order for the mother to have sole parental responsibility on an interim basis will not be made.  Each party shall do all acts and things necessary to attend any appointments for assessment for suitability for supervision of the time the child spends with the father; participate fully in the assessment, and comply with the contact centre. 

        The father shall pay the costs of the supervision at Suburb B Contact Centre or other agreed contact centre.  The matter is listed for directions at 11:30am on 25 October 2021.

         

        Added a comment to Perjury 

        In the past demonstrating to a court that the other party is lying or at best misleading, would give credit to the truth where it was established and consequently a just and fair verdict would suffice.

        However in this current climate of 'brave and strong' testimonies, which judicial officer would dare question evidence from a woman (or mother) with consequences of perjury thereafter of establishing blatant lies, deception and misinformation within that parties evidence? Especially when there are children at stake.

        Lawyers are now exploiting this reasoning to gain a grossly bias advantage.

        After keeping an eye out on how the judicial system operating of recent times its obvious what is going on.

        It's no surprise men young and old are checking out of society and relationships in a mass exodus.

        My analogy is, if a seasoned gambler knows a casino has a house edge of 0.5 to 17.5% why on earth would a gambler play the game? If a woman has a grossly favorable edge in family law based on an unproven allegation, why on earth would a decent man gamble his life on an outcome which he is bound to lose every time on the basis of 'sociological balance of probabilities'? 

        Judge Terry thinks it's her role to change society and I'm pretty sure it isn't. Here is part of her Honour's rationale for removing the children from the father's home and not allowing him to see them at all:

        26. If the mother’s allegations are true the children would not themselves necessarily be at direct risk of harm from the father, but they would be subject to extremely poor role modelling in terms of the father’s attitude to women and to their mother in particular, which could have ramifications for the rest of their lives.

         

        Added a Digest 

        Hulls & Hulls [2021] FCCA 1326 (19 March 2021)

        Both parties seek sole parental responsibility over their children.  The Court doesn't take the evidence of aggressive behavior against the father as well as the father's claims against the mother into consideration when deciding the issue of whether or not joint parental responsibility would be in the best interest of the child. 

        Facts:

        Since 2008, there had been incidents between the mother and father that involved violence.  Some of which are due to the father being suspicious about the mother's infidelity, alcohol intoxication, and more.  Overall, the father's conduct towards the mother post separation has been intimidating.  In December 2015, orders were made for B and C to live with the mother and to spend time with the father in alternate weekends and half the school holidays plus other special occasions.

        In late 2017, following an incident in the mother’s home, C went to the father’s house where he has remained living since that time.  Since then, C has only seen his mother on a few occasions, probably numbering under 10.  The father says that it was four, the mother says that it was more than four.  C’s relationship with his mother has been detrimentally affected.  The father undermines the mother's relationship with the child as seen from the text messages sent between C and the father in April 2018 where the father told C that he should “piss in his mum’s pocket” in order to get what he wants. 

        Issue:

        Whether it is in the best interests of the child for the parties to have joint parental responsibility. 

        Applicable law:

        Hulls & Hulls [2015] FamCA 1074 - held that in October 2008 there was a significant incident between the mother and father that led to an Apprehended Domestic Violence Order being taken out against the father and he being charged with assault and intimidation to which he pleaded guilty.

        Family Law Act 1975 (Cth) s 60cc - the best interests of the child should be considered in making Court Orders.

        Analysis:

        When the father gave evidence, he said that the mother had made all of these things up and he still denied the allegations of violence notwithstanding the fact that it appears, from His Honours reasons, that the father pleaded guilty to criminal charges including an assault.  Furthermore, C’s behavioural issues have not been addressed in any appropriate way by the father, notwithstanding the fact that the child has been in his primary care since late 2017.  There is no evidence with the father engaging in any psychological assistance for C, engaging with the school to see how he could best support C or, indeed, engaging with the mother to see how C could best be supported.  If the father is to have the benefit of an order for sole parental responsibility, this will teach C that he can continue to behave poorly and he will still get what he wants. 

        Conclusion: 

        Given the significant conflict that continues between the parents and the significant undermining of C’s relationship with the mother, the Court concluded that a joint parental responsibility would not be in the child's best interest.  The Court ordered that orders 3, 4, 5 and 6 of the orders made by the Family Court of Australia on 3 December 2015 discharged. The child C, born in 2005 (“the child”) shall live with the Father.  The child shall spend time with the Mother in accordance with his wishes.

        Added a Digest 

        Insley & Maidment [2021] FCCA 1399 (22 June 2021)

        Interim orders were made for X to live with her mother and spend time with her father.  The mother seeks for most of such orders to remain on a final basis but the father seeks equal shared parental responsibility for X.  The Court, in deciding whether or not the parties should have equal shared parental responsibility, considers their relationship with the child as well as the child's diagnosis. 

        Facts:

        In 2016 the Mother and X left the former matrimonial home and moved in with the Mother’s family because of safety concerns for herself and X arising from the Father’s anger management issues and concerns relating to the Father’s care of X including leaving X in the bath unattended, leaving keys in the front door for days and leaving appliances on.  The father denies these claims and asserts that the Mother was diagnosed with depression in April 2016 and moved to her parent’s home in mid 2016 because she was struggling with X’s care.  After separation the Mother only allowed the Father to spend time with X if it was supervised by either the Father’s mother or sister.

        In 24 July 2019, interim orders were made for X to live with her mother and spend time with her father each alternate weekend, Wednesday evening, on Father's day, on X’s and the Father’s birthdays and at Christmas.  X has been diagnosed with chronic neutropenia.  The Mother is seeking that many of those interim orders remain in place on a final basis.  The Father is seeking orders that the parties have equal shared parental responsibility for X, save that if there is an issue in relation to X’s medical needs he be the parent with sole responsibility for those decisions.  The father proposes orders be made for X to live with the Mother and that her time with him be increased incrementally over the next two years such that by June 2023 (when X will be halfway through Grade 1) X is spending five nights a fortnight with him.  He also seeks that X spend half of school holidays with him as well as special occasions.  The Father proposes that holiday time with him be built up in an age appropriate manner.  The Mother seeks a continuation of the order that she have sole parental responsibility for X’s medical decisions, that X live with her and spend time with the Father initially two nights a fortnight and by second term 2022 for three nights each fortnight, limited school holiday time and special occasions.  The Mother alleges the Father poses a risk to the child because of his lack of insight into the child’s medical issues as seen from his reluctance to accept the child's diagnosis and need to not immunize.  Both parties seek an order for sole parental responsibility in relation to medical decisions

        Issues:

        Whether or not the Father poses a risk to the child. 

        Whether or not X should spend substantial and significant time with the Father on an 11/3 arrangement as proposed by the mother. 

        Applicable law:

        Family Law Act 1975 (Cth) ss 60CA60CC - provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

        Analysis:

        The Mother provided that during her relationship with the Father she was subjected to financial, emotional and physical abuse and that for the very short time they were together after X’s birth, he was angry, careless and rough in his parenting of X.  Later on, the Mother told the Court that she no longer believes the Father would harm her or X and was able to acknowledge, albeit reluctantly, that X is no longer fearful of the Father and “appears” to enjoy spending time with him.

        The Father conceded that they argued regularly about finances and observed them to be people with quite different values.  However, he denies having physically, emotionally or financially harmed the Mother during the relationship.  It is the Father’s evidence that he is fully cognisant of X’s health needs.

        Conclusion: 

        The Court concluded that the Father does not pose a risk to the child.  The Court ordered all previous parenting orders discharged save for injunctive orders numbered 3 and 4 of the orders made on 14 November 2019 which remain in full force and effect.  The parties have equal shared parental responsibility for the child X who will live with the Mother and communicate with the Father during ELC/school terms, school holidays, and special occasions.  X’s time with the Father pursuant to order 4 herein shall be suspended and X spend time with the Mother prior to Mother’s Day, on X’s birthday and the Mother’s birthday, on Christmas Eve to Christmas Day, and for the Mother’s family’s annual camping trip. X’s passport be held by the Mother.  The Mother may make X’s passport available to the Father for the purpose of overseas travel no later than 7 days prior to the date for departure and the Father return X’s passport to the Mother within 7 days of their return to Australia.

         

        Added a Digest 

        Valant & Calaway (No 2) [2021] FCCA 1437 (19 May 2021)

        There are concerns about the child's welfare when in the mother or the father's care.  The mother sought for the child to live with her and spend regular time with the father.  It is unclear whether the child welfare authorities are aware of the issues regarding the parties' parenting capacity. 

        Facts:

        In 2015, a parenting order having X live with the mother and spend regular time with the father was made.  In February 2018, the mother filed an Application in a Case since X was withheld by the father in Victoria due to concerns about the child being exposed to drug use and family violence if with the mother.  Involvement in car chase and theft was also raised against the mother. 

        Ms Ryder, the Independent Children's lawyer had been made aware of how a child who had been in the care of the father died from inflicted injuries.  That child’s mother (the father’s partner) was charged and subsequently convicted.  The father has now filed a Notice of Discontinuance.  Ms Ryder proposed were that the child live with the mother and spend time with the father.

        Issue:

        Whether the Court should make an order for the child to spend significant or  substantial holiday time. 

        Applicable law:

        Family Law Act 1975(Cth) - provides that in making Court orders, the welfare of the child should be considered. 

        Analysis:

        A final order would be appropriate if the Court is satisfied that the Department of Child Protection in South Australia indicated to the Court that they were aware of the overarching child protection issues in this matter.  To avoid child welfare issues from falling between the gaps, the Court should not dispose of the matter simply to abnegate responsibility and pass it onto child welfare authorities. 

        Conclusion: 

        The Court did not make final orders considering that there are real concerns about the welfare of the child. 

        Added a comment to Perjury 

        The main problem is 'materiality' and it is more of a problem where the rules of evidence aren't applied, which of course, in 12A proceedings they rarely are.

        Added a Digest 

        Penton & Dawkins [2021] FCCA 1502 (2 July 2021)

        The mother disputes the proposal of the father to have a gradually increasing time with their child because of the adverse behavior exhibited by him.  The mother alleges that there were instances of family violence, abduction of X from a supervised contact center, stalking, and more. 

        Facts:

        The parties had an only child, X, born in 2015.  The father has an older daughter, Ms G, now aged 26 and lived in Sydney at the time of the trial.  Since X's birth, the mother worked part-time since X's birth except for a six-month period in X’s first year during which the mother was required to work full-time to complete a particular qualification.  The father took 12 months leave from work following X’s birth before returning to full-time work.  X has a loving relationship with both parents. 

        The mother deposed that the father would at times express intense anger towards her about his father.  When X was born, that anger has been directed towards her as they held strong and differing opinions about various issues.  On 25 April 2017, Ms G, telephoned the mother, crying about the father's anger about her getting a small tattoo and the father preventing her from seeing X.  The mother tried to discuss disagreements with the father but he covered her mouth, shook her, and told her to shut-up.  When the mother told the father that she was calling the police, the father snatched the phone and ran outside.  She drove to the police station and made a report.  The mother went to a friend's house before driving to Sydney where she and X stayed for several days.  The father pleaded guilty to the charge of common assault and received a 12 month good behaviour bond. 

        Issue:

        Whether or not it is in the best interest of the child for the orders sought by the father to be granted. 

        Applicable law:

        Family Law Act 1975(Cth) s 4AB(1) - defines family violence as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family ... or causes the family member to be fearful”.

        Family Law Act 1975(Cth) ss 60CA60CC(2), 60CC(2A) - provides that whenever a Court makes a parenting order, it must regard the best interests of the child as the paramount consideration.

        Family Law Act 1975(Cth) s 60CC(3) provides for the additional considerations such as any views expressed by the child and any factors such as her maturity and level of understanding

        Family Law Act 1975(Cth) s 68B, 68C - provides for the means which the mother and child could be afforded protection. 

        Analysis:

        The child may be indirectly affected psychologically by the psychological harm caused to the mother by the father.  The mother and the child has a close relationship with the mother's anxiety risks the child being affected.  As submitted by the senior counsel for the mother, the extent of the protective measures required for X to be safe renders it impossible for the child to have a meaningful relationship with her father.

        Conclusion:

        The Court ordered all previous parenting orders in relation to the child, X, born in 2015 (“the child”), are hereby discharged.  The mother shall have sole parental responsibility for the child who shall live with her and not have any time or communication with her father unless otherwise agreed in writing by the mother.  The mother is authorised to obtain an Australian passport as well as arrange for international travel for the child without the father's consent. 

        Added a Digest 

        Leary & Gilbert [2021] FCCA 1438 (20 May 2021)

        The father is seeking a recovery order concerning a child who is eight years old.  The father alleges that the child is exposed to unstable living arrangements in the mother's care.  The mother failed to appear at the hearing.

        Facts:

        On 13 May 2021, the mother was served by the father's application for a recovery order of their child who is eight years old.  The applicant father says that this child lived in an unstable existence between him and the mother up until the middle of 2020 when the child was left with a relative in Town C.  In September 2020 the child then went to live with the father in Town B where she has been enrolled in school.  The father’s counsel made submissions that there is no evidence that the child is enrolled at a school in Darwin, where the mother currently resides.  The mother has not appeared by telephone, where the Court dealt with the application nor at the Darwin Registry or in person at the courtroom in Darwin.

        Issue:

        Whether or not the child should be returned to the father's care. 

        Applicable law:

        Family Law Act 1975 (Cth) - provides that the Court, in making parenting orders, should consider the welfare and stability of the child. 

        Analysis:

        Where there is every indication that the child is not enrolled at a school in Darwin, it would appear that the child has been removed from stable circumstances and is now living in circumstances that are unclear.  Upon the police welfare check on the child, it was concluded that she appeared to be okay. 

        Conclusion:

        The Court ordered that the child X born in 2012 live with the father.  The mother is ordered to immediately deliver the child to the father or to some other person(s) he nominates in writing to receive the child on his behalf at such place as the applicant father and mother agree failing which a recovery order do issue.

        Added a Digest 

        Oakins & Faberman [2021] FCCA 1406 (7 April 2021)

        Parties separated due to extensive history of family violence.  The mother also alleges sexual assault against the father.  The Court assessed the risk of harm to the children in determining whether or not the father should be able to spend time with his children. 

        Facts:

        The mother applied for a recovery order in relation to X and Y, her children with the father who had retained them after their separation.  The mother made a complaint to the police that the father has been charged with a serious criminal offence of rape.  On 28 September 2020, an order was made for the children to be immediately returned to the mother’s care and for them to live with the mother and spend no time with and have no communication with the father.  The father is seeking an order that the children spend time with him each Saturday from 10.00am until 4.00pm for three months and thereafter each alternate weekend from 10.00am on Saturday until 4.00pm on Sunday.  There are some extremely serious allegations of wide ranging, pervasive family violence raised by the mother.  Very close to the day of separation, the father has been charged with sexually assaulting the mother.  The mother also gave evidence about cameras installed by the father within the house.  The father has made admissions about the cameras but reasoned it was to avoid intruders.  He also suggested marriage close to the date of separation with the mother. 

        Issue:

        Whether or not an order should be made for children aged 10 and 7 to spend time with their father.

        Applicable law:

        Family Law Act 1975(Cth), s 60CC - the court, in making its findings should consider the benefit to the children of having a meaningful relationship with both of their parents.

        Analysis:

        The Court will have to forego the consideration of having a meaningful relationship with both parents if the mother has put forward sufficiently convincing evidence to cause the father to be charged with a sexual assault, a charge which is due to be heard in the District Court.

        If the mother’s allegations are true the children would not themselves necessarily be at direct risk of harm from the father, but they would be subject to extremely poor role modelling in terms of the father’s attitude to women and to their mother in particular.

        The mother could be at risk of harm if an order is made for the father to spend time with children because of the disturbing possibility that he is obsessive and jealous in relation to the mother.  This is as per his admission about the cameras and his own story about taking the mother to a courthouse and suggesting they get married close to the date of separation.

        Conclusion:

        The Court ordered on interim basis that X and Y live with the mother who shall have sole parental responsibility for the children.  The mother is not permitted to relocate the children from the Region B area without an order of the court.  The father shall spend no time with and have no communication with the children.  The father is restrained and an injunction is granted restraining him from removing the children from any school, day care centre, extra-curricular activity or from the care of any person in whose care the mother has placed the children.

          • Judge Terry thinks it's her role to change society and I'm pretty sure it isn't. Here is part of her Honour's rationale for removing the children from the father's home and not allowing him to see them at all:

            26. If the mother’s allegations are true the children would not themselves necessarily be at direct risk of harm from the father, but they would be subject to extremely poor role modelling in terms of the father’s attitude to women and to their mother in particular, which could have ramifications for the rest of their lives.

             

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            • After keeping an eye out on how the judicial system operating of recent times its obvious what is going on.

              It's no surprise men young and old are checking out of society and relationships in a mass exodus.

              My analogy is, if a seasoned gambler knows a casino has a house edge of 0.5 to 17.5% why on earth would a gambler play the game? If a woman has a grossly favorable edge in family law based on an unproven allegation, why on earth would a decent man gamble his life on an outcome which he is bound to lose every time on the basis of 'sociological balance of probabilities'? 

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              • I don't disagree with you most of what you're saying, and I agree men should be cautious. I'm just saying if the professionals reluctant to put their credibility on the line doesn't stop ordinary votes from working together to try to rebalance the system. We can urge others to "require more stringent standards of representation" and teach and enforce "procedural processes within the industry" but if we just push the work-load onto someone else they may just ignore us.

                Re: Judge Terry: Personally, I think removing an 8 year old and 11 year old boy from their primary residence and disallowing contact because of "cameras in the house" etc. seems, at least at first blush, at odds with what I would expect from most family law judges.

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                • The most obvious concern about Judge Terry's judgement (and others before and after) is the context of the judicial officers reasoning in his/her decision.

                  THIS is where the core of the problem lies within the family law jurisdiction.

                  Every act of human behavior brought to light in a trial or hearing tends to focus on negative aspects of human behavior with a strong emphasis on negative feeling and emotion while not EVER give any merit or acknowledgement to positive consequences or outcomes of that kind of behavior.

                  For example, cameras in the house may have been for the protection of the husband or children, but here you have a judicial officer grossly insinuating the act in favor of the applicant ex wife. Raises so many questions. For one, his wife claims he raped her. The context of these claims, having cameras installed in the house for each parties protection doesn't seem like such a bad idea.

                  The judicial officer must have the capacity to make a judgement call on the circumstances and not be influenced by emotion, feeling or prejudice.

                  NOW, i'll stick my neck out and say this bluntly, if a judicial officer cannot disconnect from these 3 aspects (Emotion, Feeling, Prejudice) regardless of the claim behavior or social acceptances, that person should not be in the position to make detrimental judgement calls.

                  The adversarial approach has to be junked or at the very least the judicial officers must focus on positives more than determining outcomes on negatives or prejudice traits. 

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                  • I agree context is very important and often overlooked by judges. It is very easy to criticise someone when you are blind the their circumstances.

                    Some judges, to their credit, put the evidence in front of the reader and say, for example, "Here is what the father wrote to the mother and which I interpret as follows..."

                    That doesn't solve the understanding-the-context problem completely, but I find it comforting to be able to read what it is that a judge is basing their decision on.

                    Maybe it's just my imagination, but Judge Terry seems to make a habit of making findings based on evidence she does not wish us to see. For example, I would have like to read, in full context, "the things" the father is supposed to have said here:

                    1. Some of the things the father said in his affidavit suggest that he has committed acts of coercive and controlling family violence, even though he is not prepared to put that label on it.

                    I also agree with you that the legal profession's tendency to focus on negative consequences of behaviour and ignore positive ones is a mistake.

                     

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                  Added a Digest 

                  Danyon & Danyon [2021] FCCA 1400 (3 May 2021)

                  Wife sought a property division of 50 per cent and pursuant to which disclosed full financial assets. The Husband failed to make a full and frank financial disclosure. The Court, in deciding whether or not to grant the order sought by the wife was guided by the Holy Trinity principles. 

                  Facts:

                  The parties commenced cohabitation when they married in 1994 and they separated in August 2019.  Immediately following separation, the Wife paid one half of the mortgage payment on the matrimonial home and the Husband paid the other half.  One of the children continued to reside in the matrimonial home after separation of the parties.  The Wife ceased making mortgage payment when such child left the matrimonial home.

                  On 5 October 2020, the Wife sought an Order that there be a 50/50 division of the parties' property and superannuation entitlements. She also sought Interim Orders that the Respondent Husband, Mr Danyon (‘the Husband’), file his responding material within 21 days and an order that the parties' former matrimonial home be sold and the balance held on trust pending final order.   

                  Interim Orders of the 8 February 2021 and a letter dated 11 February 2021, were personally served by Mr E, the process server, on the Husband at the former matrimonial home.  Post separation, the parties were advised that the matrimonial home would achieve a significantly better value if the property was improved for the purposes of sale.  The Wife offered to finance such improvements on the basis that she would borrow the funds, some $10,000 to undertake those improvements.  The Husband failed to sensibly cooperate to have the property properly presented to sale for his benefit and the Wife's equal benefit.  Due to the Husband's failure to disclose necessary financial information, the Court was unable to determine all of the parties assets and financial resources.  The Wife made full and frank disclosure of financial assets to the Court. 

                  Issue:

                  Whether or not the Wife should be granted 50 percent of the parties' property and superannuation entitlements. 

                  Applicable law:

                  Family Law Act 1975(Cth), ss 75(2)79106A117 - provides for the matters to be taken into consideration in relation to spousal maintenance. 

                  Weir & Weir [1992] FamCA 69(1993) FLC 92-338 - used the three-leaf clover or the Holy Trinity as a basis of consequences in property litigation where there is nondisclosure.

                  Analysis:

                  Under the first limb of the Holy Trinity, the Court shall favor the party who complies with the duty of financial disclosure, in this case, the Wife.  The second limb draws the inference that some aspects of what the Husband has not disclosed does not suit the case.  The third limb would not be applicable in this case because it applies when the parties have told the Court that they have disclosed everything. The Husband never maintained that he has made full and frank disclosure. 

                  Conclusion:

                  The Court ordered that the husband pay the wife the fixed sum of $7,000 to be paid from the proceeds of sale.  The B Street, Suburb C property shall be placed upon the market and sold.  The parties shall do all acts and things and sign all documents as may be required to list such property for sale within 7 days of the date of these Orders with the Real Estate Agent agreed between the parties to be appointed.  If within twelve weeks of the date the property is not sold, the parties shall procure a sale by public auction. 

                  Added a Digest 

                  Enami & Farag [2021] FCCA 1401 (15 April 2021)

                  Mother opposes the father's application to spend time with their children.  The father claims that the mother is making false allegations against him because he does not cooperate with the mother's desire to relocate to UK with their children.  The mother alleges family violence against the father. 

                  Facts:

                  The parties cohabited in 2005, married in 2007 and separated in 2010 when the Mother relocated with W, their eldest child. The father initiated Hague Convention proceedings.  The Mother and W then returned to Australia and the Father’s parents and W resumed to live together as a family.  In 2020 the Mother, the Father, the three children and the Paternal Grandparents relocated to Australia.  The Father lived between Country B and Australia and would reside in Country B for a period of four or five months in each year when he would live with his family and cohabit as man and wife with the Mother of his children.  The Mother left the former matrimonial home on 25 January 2021.  She contacted the police who took out an intervention order on her behalf and a final intervention order was made on 29 January 2021 when the Father was represented but without admission.

                  The Father sought orders for a watch list order to prevent the children leaving Australia and orders for time with the children.  The Independent Children's Lawyer made an oral application with the Court to transfer the matter at the Family Court of Australia in circumstances where the matter is already a live international relocation.  The solicitor for the Father, Mr MacDonald, and the solicitor for the Mother, Mr Ng, both agree that the matter should, in administration of the business of the Federal Circuit Court and the Family Court be transferred to the Family Court of Australia.  The Registrar listed the matter before the Court and noted that the Department of Families Fairness & Housing are still investigating allegations of family violence against the Father.  The Registrar views that the matter needs the guidance of a family consultant.  The Independent Children's Lawyer informed the Court and the parties that it was premature for the Court to consider the Father's application since the Department of Families, Fairness and Housing had not completed its investigation.

                  Issue:

                  Whether or not it is in the best interest the children to spend time with their Father. 

                  Applicable law:

                  Family Law Act 1975(Cth), ss 60CA60CC - provides that the Court, in making an order, should determine what is in the child's best interest considering the benefit to the child of having a meaningful relationship with both of the child’s parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

                  Analysis:

                  The Father's case is that the Mother's family has always strongly opposed the union of the Mother and the Father, that they are conspiring to make false allegations if he does not cooperate with the relocation of the Mother to the United Kingdom with their children.  The Mother's affidavit provides a long history of a violent relationship with the Father in which both she and the children have been repeatedly and continuously subjected to significant violence and abuse at the hands of the Father. 

                  In assessing the risks of these allegations to the children if these allegations were true, children are likely to be very traumatised by being presented with the Father either in the presence of the Paternal Grandparents or at a supervised contact centre.  If the Father's allegations turn out to be true my orders are an injustice to the Father and a continuation of a process of alienation and manipulation of the children which is significantly contrary to their welfare.

                  Conclusion:

                  The Court, in balancing the two risks presented by the parties, have concluded that the risk of harm to the children of time with the Father at this point in time is the greater risk to them.  Still, a Watchlist Order is made in regard to the children so that the children cannot be removed from the Commonwealth of Australia, which is a fear that the Father has.  This order ceases to have effect 2 years after the date on which it is made.  The Court ordered the matter to be transferred to the Family Court of Australia to be listed on a date to be advised by that Registry.  The children X born in 2009, Y born in 2011 and Z born in 2017 ('the children') live with the Mother.  The Father and paternal grandparents be and are permitted to communicate with the children (and not the Mother) by letters, cards (in English) and gifts to the children by provision of same to the Independent Children's Lawyer and if appropriate will forward same to the Mother's solicitor for the Mother to provide/read to the children.

                  Added a Digest 

                  Rathburne & Barnaby [2021] FCCA 1338 (22 June 2021)

                  Mother opposes final parenting orders made in January 2015 in her absence.  She alleges that her mental health has improved and such change of circumstance should warrant the Court to revisit the final parenting order. 

                  Facts:

                  The mother asks the court to reconsider the final orders made on 19 January 2015, a hearing she was absent to, in relation to parenting orders over her children X, aged 16 years and Y, aged 10 years.  The final orders provide that the father shall have sole parental responsibility for the children who were ordered to live with him and spend time with the mother each alternate weekend.  The father opposes the mother's application alleging that there has not been a sufficient change which warrants the court to revisit the previous parenting arrangements. 

                  The previous order was granted pursuant to the father's allegations regarding the mother's inability to facilitate the children's school attendance.  Orders were made by consent at the first substantive hearing on 6 May 2014, providing for the children to remain living with the mother, and otherwise spend alternate weekends with the father, together with additional touch base time each Wednesday after school.  On 19 January 2015, the mother was unrepresented and was unable to attend the hearing which finalized the proceedings in favor of the father.  The mother was given liberty to reinstate the proceedings within 35 days.  The mother commenced the current proceedings opposing the final orders alleging that her mental health has improved.

                  Issue:

                  Whether or not there is a significant change of circumstances on the part of the mother.

                  Applicable law:

                  Rice v Asplund [1978] FamCAFC 128(1979) FLC 90-725 - provides that before a court entertains an application to reverse an earlier custody order, the court would need to be satisfied by the applicant that there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.
                   
                  SPS & PLS [2008] FamCAFC 16 - the sufficiency putting of new events to provoke a new inquiry is determined through the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them”.

                  Analysis:

                  While the mother may not have known of the date of the hearing at which the final order was made, there can be no doubt that she was aware that proceedings were before the court, given her previous engagement in the proceedings; illustrated by the fact that she filed documents in the proceedings and her legal representation.

                  At the time that the mother commenced these proceedings on 31 July 2020, limited information was provided to the court.  No explanation or context as to why the mother stopped participating in the earlier proceedings; and no real particularity, specificity or context to various allegations was made by the mother to ground her application.

                  Despite the mother's engagement with mental health services and taking prescribed medication at least up to September 2020, there is still some doubt that the mother has all of her personal difficulties under control, and in particular her cannabis use.  The difficulty that this creates for the mother is that because her cannabis use is described by her treating professionals as being something that puts her at “chronic enduring risk”, it is an unaddressed matter that is of deep concern.

                  Conclusion:

                  The mother’s failure to attend the hearing on 19 January 2015 and her alleged improved mental health does not qualify as a significant change of circumstances.  The Court ordered that the Initiating Application of the mother and the Response filed by the father be dismissed.  The proceedings otherwise are dismissed as finalized. 

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