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FLAST CASE BRIEF : MADDOX & NEMET [2019] FCCA 1078

When communication breaks down and you can no longer effectively co-parent what do you expect the Court will do to solve the impasse?

This case involved a dispute and the Court had to consider whether parents who cannot communicate ought to have equal shared parental responsibility for their almost 15-year-old daughter? 

How much time the girl should spend with her father in circumstances where the parents neither like nor trust each other?

HELD : 

When I consider the evidence of the parties, which shows an inability to communicate in order to properly consult about major decisions to be made in relation to the Child’s welfare ...I find that it is not in the child’s best interests for her parents to have equal shared parental responsibility for her.

The mother shall have sole parental responsibility for the child and the child shall live with the mother.

When I consider all those issues, I find that it is in child’s best interests to spend substantial and significant time with her father[4], and I will therefore make orders that she spend time with him during school terms on each alternate weekend from the conclusion of school on Thursday to the commencement of school on Monday, or Tuesday if Monday is a non-school day.

If you are having trouble communicating with your ex in co-parenting matters why not consider FLAST's moderated communications account.

WHAT IS OUR MEDIATED COMMUNICATION MEMBERSHIP ACCOUNT?

This new FLAST service is for those in relationship breakdowns with difficulty communicating.

Instead of arguments, fights and emotions running wild, why not try a mediated communication membership?
Through moderated and mediated communications, we will foster positive discussions in the best interests of the parties by promoting positive co-parenting communications and preventing emotionally charged conversations.

With mediated communication membership accounts, we provide a communication system where you can send messages to each other and before it arrives to the other party the message is reviewed by our nationally accredited mediators, if it is moderated, it is returned to sender with a reframed alternative which conveys the same message in a more neutral way with reduced risk of ambiguity. Positive, Clear Communication is fostered.

It is also ideal for parties who have already started a new relationship where there are some issues of trust in you and the ex. communicating, if helps foster that trust in new relationships as well if your new partner knows the communications are being moderated and a print out of the conversations is provided each month for your records.

Click here to find out more about how Family Moderated Co-parenting Communications could help you. 

FLAST CASE BRIEF : AQUARO & AQUARO [2019] FCCA 1140


This case involved and interim orders where the Court had to consider competing parenting proposals with both parents wanting  the Children live with them.


There were allegations of alcohol abuse by the Mother along with mental illness.  The Court needed to consider the best interests of the Children and whether there was an unacceptable risk.  

The most serious allegations against the mother was on 6 February 2019 when the Mother drove a car with the Children in it whilst intoxicated when collecting the Children from school. Later that day the Mother was taken to the Town E Hospital by her brother and the maternal grandmother and was found to have a blood alcohol concentration of 0.224.

It was held that it is in Children’s best interests to live with the Father on an interim basis and if there was time with the mother that the mother first be subject to drug and alcohol testing 24 hours immediately prior to the commencement of any time spent with the Children and the Maternal Grandparents should be in substantial attendance of time spent between the Mother and Children.

The Court made further orders that the mother have a psychiatric assessment and both parents undergo psychological counselling and a parenting course.  

The father was also ordered to complete a Men’s Behaviour Change Course.

Finally after considering all the relevant evidence and balancing the risk to the Children with the benefit of an ongoing relationship with their Mother and Father, the Court determined that for the interim the children should live with the father as a conservative and prudent measure for the interim.

With the judge stating : "In my opinion it balances managing the possible risk of the Mother relapsing again into excessive alcohol consumption and protecting the Children. A line was drawn with the 6 February Incident when the Mother drove the Children whilst intoxicated. Not only did the Mother put herself and the Children at risk but other members of the community as well."

To read the entire case click here [2019] FCCA 1140.




In family law related cases we see all too often the problem of domestic violence against women and children who are in a vulnerable position as a result of the break-up.

If an offender repeatedly breaches a bond and an apprehended violence order-imposed by the Court and continues to inflict violence upon a woman in breach of orders that involved similar past behavior and the same victim, he should expect to be imprisoned, and not for an insubstantial period.

This applies especially in cases of the more vulnerable victims such as
Unemployed persons, Person's cut off from friends and family, person's with disabilities.

Even more so if it involves crimes against children, o
ne of the statutory aggravating features is that if the offence was committed in the presence of a child under 18 years of age and/or party to the protection order.

It does not matter whether the offender is a parent of the child or not, although if it is a parent this will be particularly aggravating.


Penalties and sentencing for breach of protection orders

The maximum penalties for breach of a protection order vary significantly across state and territory jurisdictions.The table below sets out the maximum penalties in each jurisdiction.

Jurisdiction

Maximum Penalty

NSW

Imprisonment for two years or 50 penalty units ($5,500) or both (s 14 of NSW Act)

Victoria

Imprisonment for two years or 240 penalty units ($27,220.80) or both (ss 123 and 27 of Victorian Act)

Queensland

Imprisonment for one year or 40 penalty units ($40,000) for first offence, and imprisonment for two years for third and subsequent offences within a period of three years (s 80 of Qld Act)

WA

Imprisonment for two years and fine of $6,000 or both (s 61 WA Act)

SA

Imprisonment for two years—but if breach of ‘intervention order’ under s 13 (order to undertake intervention program)—maximum penalty is $1,250 (s 31 of SA Act)

Tasmania

Tiered penalties: imprisonment for one year or fine of 20 penalty units ($2,400) for first offence to imprisonment for five years for fourth or subsequent offence (s 35 of Tas Act)

ACT

Imprisonment for 5 years or 500 penalty units ($50,000)or both (s 90 of ACT Act)

NT

Imprisonment for 2 years or 400 penalty units( $44,000) or both (ss 121, 122 of NT Act)

Under the Model Domestic Violence Laws, breach of a protection order is a summary offence which attracts a maximum penalty of:

  • $24,000 or imprisonment for one year for a first offence; and
  • imprisonment for two years for a second offence.

 Source : ALRC

FLAST Case Brief : ANESTIS & KLEMM (No.2) [2018] FCCA 2622

This interesting Family Law proceeding saw the Father subpoena the criminal records of the maternal grandfather and seek injunction against the mother due to her being a drug user,  the mother (and her father) objected to this on the grounds of relevance.

The Court held that the mother do undergo supervised random urine analysis drug testing on no more than one occasion each month forthwith upon the request of the Independent Children’s Lawyer and do provide the results of same as soon as they become available and that such testing be collected in accordance with the chain of custody protocol specified in AS/NZ 4308:2008.

That the mother be restrained and an injunction is granted restraining the mother from consuming illicit substances including cannabis or being under the influence of illicit substances while the child is in her care.

In regards to the subpoena, Mr Anestis, who is the father of the respondent mother in these two cases has objected to a subpoena, or at least objected to the inspection and copying of a subpoena to the police about him.

He says that it is fishing or it is oppressive and it is not relevant. The relevance is said to be that on the mother’s affidavit material, and indeed I think there are allegations from the father to a similar effect, the mother and the child spend time at the home of the maternal grandparents and in fact I was told from the bar table that she is in fact living with the maternal grandparents at the moment. 

The Court responded by stating that Illicit drugs, and in particular, methamphetamine use, are central in this case, it would appear, and it occurs to me that it is highly relevant to know whether or not the maternal grandfather with whom the mother is presently living, is himself involved in more serious drugs than the relatively minor cannabis that he has referred to. I think to that extent the subpoena is relevant. I do not consider it is oppressive. In all the circumstances, I do not consider it fishing. I think there is some basis for the inquiry.

The Court held that the objection to subpoena filed on 19 August 2018 in respect to the subpoena material produced by South Australia Police about the mother’s father, Mr Anestis, be dismissed.

The third matter that the father relies on is the family report I have mentioned dated 31 July 2018 where the family consultant expresses the view that as long as the mother’s illicit drug use continues there is a potential risk of harm to [X].

She recommends that the father have primary care of the child and that the mother spend time with the child under supervision. She said that should Ms Anestis return a negative hair follicle drug test then consideration should be made for removing her supervision requirements and increasing her time with [X]. Should she continue to return positive drug tests then her time with [X] may need to be re-evaluated.

The mother has been subject to regular testing and has produced a negative test. The picture appears to be that, after a period of abstinence, the mother had relapsed into methamphetamine use. There is evidence that she had used methamphetamine at times in the past. It may be because of the potentially serious consequences that she was facing as a result of the positive test in March 2018 that she has been shocked into abstinence.

It is on those bases that I have been asked to conclude that there is an unacceptable risk to [X] should she remain living with her mother and to make an order on an interim basis that she live with her father.

To read the full case and how and why the Court reached this judgment click here [2018] FCCA 2622.

FLAST CASE BRIEF : COFFEY & TILLMAN [2019] FCCA 1118

This was an unusual matter  involving two children (16yrs and 13yrs) with two unsuccessful attempts at Court ordered family therapy.

Each child was aligned and living with one parent and refusing contact with the other parent.

There was agreed sole parental responsibility for each child to the parent they live with and it was agreed each child may spend time with and communicate with the other parent if and as they wish.

Where children are voluntarily spending time with each other and the father seeks a court order for a further attempt at family therapy, the father seeks an order requiring children to spend time together in line with time currently being spent.  The mother and ICL both opposed the Fathers suggestion at another attempt of family counselling and for the children to spend more time together. 

The father’s proposed orders were not made, with the Court holding that while it would be desirable for the parents and children to voluntarily take part in family therapy, if one or both of the parents, or the children, are not committed to it then it will not work.

If they are all committed an order is unnecessary.

All an order will therefore do is create a potential avenue for the continuation, by way of contravention application, of these proceedings if further family therapy is not successful. That would not be in the best interests of the children.




FLAST CASE BRIEF : SYKES & GROFF & ORS [2019] FCCA 1079

We often hear about cases involving drug and alcohol abuse along with domestic violence, this case examines such a scenario, where the  court had to consider whether a father ought to have unsupervised time with a young child when there are serious allegations of family violence and drug abuse and he has failed to provide drug screens.  

It was held that the mother shall have sole parental responsibility for the child and the child live with the mother. 

Conditions for father to see child :

Within 72 hours of the date of these Orders, the Father shall make an appointment to attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee by telephoning 1300 37 84 83, and shall provide a hair sample (“the sample”) for drug testing purposes (“the drug test”), with collection to be conducted by a qualified and certified collector, and the drug test to screen for illicit substances for the 6 months prior to the provision of the sample.

To give effect to the above, the Father shall maintain his head hair at a length of not less than four (4) centimetres and he is hereby restrained by injunction from cutting, bleaching or dyeing his hair, or allowing any other person to do so, between the date of this order and the time of collection of the sample.

The drug test may screen for alcohol EtG and/or drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this order as required.

Until the father has provided a hair follicle drug test that complies and which shows an absence of any illicit substance for the previous 6 months, the child shall spend time and communicate with the father as follows:

(a) Provided that he has provided six consecutive urine drug screens within 24 hours of a request by the Independent Children’s Lawyer, showing no use of illicit substances, then from 9:00 a.m. until 1:00p.m. on Saturdays supervised by the paternal grandparents;

(b) If the father has not complied, then for 2 hours in each alternate week supervised by a professional Child Contact Service or Centre at such times as might be accommodated by the Contact Service or Centre; and

(c) at other times by agreement between the parties in writing.

To find out why the Court made this decision and read more on this case click here [2019] FCCA 1079.

FLAST CASE BRIEF : BUSCH & DYER [2019] FCCA 956

In this unusual case involving a Property dispute and a marriage lasting less than 2 years with the wife who came to Australia in 2009 and achieved permanent residence in 2016 after her marriage to the applicant. The husband deposed that the parties always had separate bank accounts. He deposed that the wife made no contributions to the utilities, rates and the like of the matrimonial home, and that the parties were so to speak, financially separate throughout the relationship.

The wife is now refusing to leave the matrimonial home until she got what she wanted, which is to stay until the end of this year or the husband pay her $25K to move out.  

The Court determined it was clearly not just and equitable to make an order adjusting the parties’ property interests.  Each party gets what they came in with, in the wife's case that was very little.  The wife is ordered to vacate matrimonial home within 21 days.




If one parents has filed notice of discontinuance on the court portal,
What happens from there?
ICL wants to go to hearing undefended for final orders.
Will this take place at our next hearing? Or will a final hearing be set for later?
Is the other parent able to change there mind and turn up to court? 

I will be going ahead for final orders. I just want to know the above. 

  • 4
  • Cameron McKenzie In civil proceeding Discontinuance can only occur with the consent of all parties. At a minimum the other parties have costs.

    A person cannot instigate proceedings, incur costs to others then abandon the action without consequences.

    Are you sure that the other party’s legal representation has not merely filed a notice to cease to act, which can occur if changing representation.



    • Cameron McKenzie From the FCC NOTICE OF DISCONTINUANCE
      1. This form is to be used if you no longer seek all or some the orders you sought in an application
      or response you filed in the Federal Circuit Court of Australia.

      2. If your proceeding is a creditor’s petition, a divorce, or a family law proceeding relating to the
      property of a party and one of the parties to the proceeding has died, you will need to obtain
      leave of the Court or a registrar before you can file this notice of discontinuance. In all other
      proceedings, unless you obtain leave of the Court or a registrar, you must file this notice of
      discontinuance at least 14 days before the date fixed for the final hearing of the application; see
      Subrules 13.01(2) and (3) Federal Circuit Court Rules 2001 (the Rules).
      3. You must complete address for service details in the footer on page 1. All correspondence
      concerning the notice will be sent to the mailing address inserted and all documents in the
      proceedings will be deemed to have been served on you if posted to that address. If your address
      details change, you must file a notice of address for service within seven days, and serve a copy
      on all other parties; see Rule 6.02.
      4. Once complete, you need to file the original and a copy of this notice for each party to the matter
      with the court registry. The Court will keep the original and return the copies to you. You will
      need to serve a copy on each other party to the proceeding and any independent children’s
      lawyer as soon as practicable, and keep a copy for your records.
      5. Filing this notice does not preclude any other party from continuing their case, and obtaining
      orders, including an order for costs against you. If you file this notice to discontinue an
      application in migration proceedings, unless the Court otherwise orders, you will be liable to pay
      the respondent’s costs; see Subrule 44.15(2).
      6. If you file this notice and an order for costs is made against you, any future application on the
      same or substantially the same matter will be stayed until the costs are paid; see Subrule
      13.02(3).

      • Cameron McKenzie Note 5. Filing does not preclude any other party continuing the case and 5 & 6 with respect to costs

        Is there somebody with legal training who is able to help me? 

        Background. 

        I fled dv with my two children, a recovery order was lodged to the courts and eventually granted on the interim due to extreme lack of representation on my part from legal aid, there is currently a avo against the applicant in the proceedings. 

        There is a final hearing scheduled in June and i have been given until 24th may to provide supporting documents, i am now currently self representing. 

        The hearing is being held interstate to my residence in the federal circuit court of australia. 

        Id like to know what action i can take against heresay evidence provided by applicant and id appreciate any support with my own affedavid and responses. 

        Thankyou. 

        • 5
        • Cameron Thompson Ive been through family court and hearsay evidence basically is struck out. At the beginning you bring up sections of evidence you wish to be struck out based on it being rank hearsay.
          Hearsay evidence is basically defined as a report etc made entirely by him disclosing things to them, and having witnessed nothing themselves.
          I got at least half my ex wife's evidence struck out like that.
          You dont have to really justify and explain each piece of evidence on why its rank hearsay I think, the judge would go through them 1 by 1 and determine that/ask questions if they want more info. Saves them time.

          • Brad Hill Brad Hill You can refute 'hearsay' evidence with your own, better evidence.

            •  Cameron McKenzie Whilst Brad is strictly correct that hearsay evidence is inadmissible under the Evidence Act. However, in family law matters issues of evidence and admissibility are somewhat flexible. The issue of inadmissible can be overcome if the court is convinced that the desirability of admitting the evidence outweighs the any prejudice to proceedings or natural justice. Additionally, under s69ZT of the Family Law Act (‘FLA’) the court may dispense with the rules of evidence as it is assumed the paramount interests of the child prevails (s60CA FLA).
              It generally good practice to ensure all evidence is relevant and admissible. Then seek leave if required to argue why the probative value of the evidence outweighs any challenge to admissibility. The court may conditionally admit evidence and afford such weight (if any) as see fit.

              FLAST CASE BRIEF:  NOLL & NOLL [2019] FCCA 1083

              This was an interim proceeding in a parenting matter before the Federal Circuit Court of Australia.  The father, by way of ABF Legal had made an application that the child lives with him and attend a local school,  there were issues of time spent with each parent, the mother was a registered sex offender represented by Thexton Lawyers. 

              Sometime shortly after separation the Wife went to stay in a house with some other occupants, one of whom was underage. On or about 6 April 2016 the Mother was convicted in the County Court of Victoria of two counts of sexual penetration with a child under 16. The Mother was sentenced by to a two year community corrections order and 150 hours of community service. At the time of the offences the Mother was aged 25 and the victim reportedly was aged 15. The Department of Human Services was involved in advising the Father that the Mother had been registered as a sex offender for life.

              HELD
              The Applicant (Father) and the Respondent (Mother) have equal shared parental responsibility for the child.

              the child live with the Father.

              the child spend time and communicate with the Mother as follows:

              (a) During school term time each alternate Wednesday from the conclusion of school or 3.15 pm to the commencement of school or 8.45 am on the following Monday.
              (b) For half of each of the school holidays on a week about basis, as follows:
              (i) In even-numbered years, with the Mother in the first week of each of the school holidays;
              (ii) In odd-numbered years, with the Father in the first week of each of the school holidays.
              (c) As may otherwise be agreed between the Father and the Mother in writing (including text or email).


              the child shall commence spending time with the Mother pursuant to Order (4)(a) from Wednesday 15 May 2019.
              Education
              the child be forthwith enrolled at School A, Town B (School) to commence immediately.

              The Father authorise the School to:

              (a) Provide to the Mother, at the expense of the Mother, copies of all reports, notices and applications for photographs in relation to [X].
              (b) Communicate with the Mother either by telephone, in writing or by personal attendance, in relation to [X]’s progress.
              (c) Allow the Mother to attend all functions to which parents are invited.

              The Mother is at liberty to attend school events, parent-teacher interviews and the like to which parents are invited.

              To read the entire case click here FLAST CASE BRIEF:  NOLL & NOLL [2019] FCCA 1083

              Legislation Considered:
              Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA

              Sex Offenders Registration Act 2004 (Vic)

              Cases cited:
              AMS v AIF (1999) 199 CLR 160
              Eddington & Eddington (No 2) [2007] FamCA 1299; (2007) FLC 93-349
              Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422
              Keats & Keats [2016] FamCAFC 156
              Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348
              Mazorski & Albright ([2007] FamCA 520; 2007) 37 FamLR 518
              McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
              MRR v GR [2010] HCA 4
              U v U [2002] HCA 36; (2002) 211 CLR 238
              Ulster & Viney [2016] FamCAFC 133
              Waterford & Waterford [2013] FamCA 33

              If only one parent is listed on the birth certificate and the parent not listed kidnapped the child, would police be able to recover the child instantly due to that parent not being listed? 

              I know in the typical situation a recovery order should be filed. But what’s if there’s no court orders and that’s parent isn’t looking listed on birth certificate? 

              • 6
              • Without any orders in place the situation is high risk.

                No one can advise you what to do now as the situation is best guided by you and your conscience.

                You are right in saying that with no orders in place there is little the Police can do to help.

                However the question is also about co-parenting until the child/children involved reach 18 years of age.

                If you have an agreement in place and now you dishonor that agreement due to nothing else but your fear then how are you possibly going to co-parent for years to come.

                Insofar as the CSA not recognizing him as the father, this does not limit the Family Court from recognising him as the father. 

                If you need to remove doubt get a DNA test but even then the Family Court may still recognise him as the father or as having paternal rights to time with the child depending on how many years they have known each other.





                • Thank you for your responses. 

                   

                  We have been in court but OP has now withdrawn the application and does not want to see the child. 

                  I have made multiple proposals. 

                  We have agreed on a contact centre. But my concern is every contact centre has had the same sort of response. Where if a supervised parent forcibly removes a child they can’t step in and physically take the child and will just let the parent go with the child. 

                  I will be going to see the centre this week and will be expressing my concerns and asking for them to explain their procedures. 

                   

                  Since my post I have received an email from my lawyer. She’s spoken with the ICL and the ICL wants to go ahead to an undefended hearing and give me SPR.

                  So I’m feeling very relieved that we will indeed have orders protecting the child. 

                  The child is a 12 month old baby. 

                   

                  I do intend to co parent as best I can. Though that’s hard with someone who won’t respond with anything constructive and responds with saying he will see the child when the child is grown. 

                   

                  My lawyer said if I feel the child is too at risk our next visitation is by agreement and is not court ordered so I would not be contravening orders if I withheld. However, I don’t intend to withhold the child. I’m happy for the visit to go ahead as long as I have a plan in place and know the ins and outs of the situation and what I can do. 

                   

                  Our current orders would still be in place which states supervised access at the centre only. 

                  So it would be, if I’m correct, that the police would in fact be able to remove the child of the OP we’re to kidnap the child. 

                   

                  What other things would police consider when trying to determine whether they feel they’re a parent of the child or not? You’ve said that birth certificate is not the only thing that would be used to determine parentage and mentioned child support. Which is why I’ve stated no child support is paid and they continuously state they’re not the child’s parent. 

                  So other than this? Just so I can learn. 

                  • reply to Miranda.

                     

                    Yes, we currently have interim orders. These were consent orders agreed upon between both parents and their lawyers and the ICL.

                    The father was to travel to the mothers area and see the child at a contact centre for 3 months. Then assess how the father and child are going.

                     

                    There’s not enough evidence to show the fathers behaviour (and is likely a big reason of the refusal to use the contact centre).

                     

                    The ICL hasn’t read much of our material, I honestly don’t know what she’s actually read at all.

                    But she seems to be on the fathers side even my lawyer has said this.

                    Judging by what my lawyer has said, she still wants orders for the father to see the child despite the father doing nothing to see the baby, withdrawing from court, and stating he refuses to come and see the baby. She’s aware he’s not complied with any of our orders and has said the father may be finding it too hard to use the contact centre.. I’m not sure what she means by this, but it makes no sense to me at all. The centre we agreed on is a great centre and registration and intake is very straight forward.

                     

                    The father is highly controlling, possessive, aggressive and abusive and very very manipulative.

                     

                    ICL wants the father to have unsupervised. Even though he’s done nothing to see the child.

                    My lawyer said the ICL doesn’t really believe what I’ve said and that what he’s done isn’t bad enough or recent enough. Basically said he needs to start physically abusing the baby before anything will be done.

                     

                    My recent issue is that I know what he is like. I’ve lived with him and dealt with him.

                    He no longer has access to me despite his efforts (such as trying to have it court ordered that I am to be in the visits and trying to have it court ordered that he can call me and not be in breach of the dvo. I’m still getting calls from a blocked number with ‘someone’ just sitting and breathing on the phone).

                    He wanted me to abort the child. I don’t believe this is so much about the child and is more about wanting to be around me. He still seems to think there’s a chance I will take him back. 

                     

                    i don’t want to simply cut off the father though. 

                    I just want the child to be able to be safe.

                     

                    OP filed for court last year. 

                    We have court coming up this month. 

                    ICL asked us both to send proposals. 

                    I sent my proposal. Part of my proposal was that OP was to get a drs certificate stating they have no diagnosable mental health condition before moving to unsupervised.

                    i received no response to the proposal and OP made no proposal. 

                    Yesterday OP emailed me, my lawyer and ICL notice of discontinuance withdrawing from court. Today that was up on the court portal and is now stamped. 

                     

                    What happens from here? 

                    I spoke to my lawyer and said I would like to write up consent orders and have OP sign them. She said I’m unable to do this. She said once that’s in the portal everything is finished, no more hearings at all and I can’t do any consent orders. 

                    I was told that to withdraw from court both parties must agree and sign something to withdraw. 

                    Is this true? 

                    Am I really not able to send OP consent orders? 

                    • 4
                    • Brad Hill Is your solicitor legal aid funded.?

                      • Yes, my lawyer is legal aid funded and has been very keen to try and have me agree to anything the OP requests even when it’s not in the child’s best interest. 

                         

                        would the previous orders still stand? Our previous orders state the OP is to have supervised access at the centre we agreed on. OP has not done this.

                        Thank you, I was unsure if the next court date would still go ahead and I might be able to present my proposal for consent orders and have OP agree or the judge to make them file. 

                         

                        Im unsure if I should just leave things as they are and leave it up to OP or I should file in my state. 

                         

                        Ive tried to discuss with OP about seeing the child. OP simply will not discuss anything. 

                        The only time OP wishes to say they ‘won’t walk away’ is when CSA contacts them about another application I’ve put in and then OP denies parentage again and again. 

                        • I have since received an email from my lawyer. She’s spoken with the ICL. 

                           

                          ICL agreed with me in that we should have orders in place and to continue to an undefended hearing for final orders to stop further litigation as he may file again years down the track. 

                           

                          There’s currently interim orders in place. (Stating OP is to use the contact centre we agreed on for 3 months. He hasn’t even been to ONE visit.)

                           

                          I haven’t made an application for costs. I have legal aid. 

                          FLAST CASE BRIEF : SERRANO & RAY [2019] FCCA 878

                          This case involves a Parenting dispute and the father withholding children due to allegations of child sexual abuse and child protection in breach of orders of the Court.

                          The father’s affidavit material from last year, 2018, alleged that the child disclosed to him that she had sex with men at the mother’s home,  that was reported to the police and after some preliminary inquiry, the police did not make any further investigation.

                          Child's disclosure :
                          "...But at night, mum lets people through the window, and I don’t know anyone but mum. When I’m in bed, people touch me where I don’t like to be touched, like up and down."

                          The Court considered the best interests of the child and placed an injunction against the father about further disclosures of sexual abuse and the father is restrained and an injunction is granted restraining him from presenting the child to any psychologist, counsellor or medical practitioner with the intention of eliciting or facilitating any disclosure of sexual abuse by the child.....

                          In the circumstances, I am not convinced that there is an unacceptable risk, should I make an order, or indeed a recovery order for the return of the child, and I will do so.

                          Read the entire judgment here SERRANO & RAY [2019] FCCA 878

                          The Legal Drafter changed a profile picture

                          FLAST CASE BRIEF : IBBOT & BAUMER [2019] FamCA 138

                          This is a family law matter concerning children and parenting.  The final judgment has been reserved and the father as made an to re-open a trial that concluded on 16 November 2018 and for new evidence to be adduced.

                          The father alleges that he has not seen or spoken to the two children (both boys) aged eight and five, since before the trial  and the orders currently in place do not provide for the children to spend any time with the father.  These orders were not sought to be varied at the trial while the judgment is reserved.

                          The father filed an affidavit in support of the Application in a Case. In that affidavit the father deposes to not having seen the boys since September 2018, including not being allowed to see them on Christmas Day 2018, nor being allowed to provide them with bicycles that he had purchased them for Christmas. He also deposed to not being “allowed ... to speak to [the] children via telephone since the Hearing in November 2018”.

                          A second affidavit of the father was filed on 5 March 2019. It contained the deposition of the father that he “will not be attending a Contact Centre now or in the future as [he has] done nothing wrong to require supervision”.

                          He also said:


                          I will accept time with the children from 9:00AM Saturday until 4:00PM Saturday unsupervised and from 9:00 AM Sunday until 4:00 PM Sunday unsupervised every second weekend as well as school holiday time. However... the mother cannot encourage a meaningful relationship between myself and the children. I say that it is not in the best interest [sic] of these children to live with the mother and I am prepared to accept a live with order. I asked this Honourable Court for a change of residence for the children.

                          Determining the parenting proceedings involves determining allegations made by the mother that the father has perpetrated sexual abuse against one or both of the boys and that they would be placed in a situation of unacceptable risk if they have unsupervised time with him in the future.

                          The Judge said with respect to the father and his solicitor, I do not consider that the evidence would affect the result of the case. The father’s solicitor would know, even if the father does not, that this Court is not going to make its determination as to whether the orders should provide for the children to spend supervised or unsupervised time with the father on the sole basis of whether or not the father is willing to be supervised at a contact centre. The provisions of ss 60CC(1), (2) and (2A) of the Family Law Act 1975 (Cth) make it clear that greater weight is to be given to the consideration of the safety of the children than to the consideration of the need to maintain a meaningful relationship between the children and both their parents.

                          The judge went on to examine the father's claims that the mother was not allowing telephone communication with the children and said to be clear, the ICL submitted in very few words that there was no merit in the father’s application. She quite rightly submitted that if the father has a complaint that the mother has not been complying with the interim orders that provide for telephone communication as she is required to, that he should be filing an application for her to be dealt with for contravention of those orders not an application to re-open the trial. She also quite rightly submitted that he should have focused his efforts, whilst waiting for the judgment, on finding a supervisor or a supervising centre that would meet with the approval of the mother and the ICL, or, I add, at least of the Court.

                          The Court considered in this case that the mother would suffer significant prejudice if the matter were re-opened.

                          HELD : The Application in a Case is dismissed.

                          ... or jump to: 2018
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