HOW FLAST WORKS

With discussions on legal issues in social media there is always a risk that the other party will find out that you have posted and asked a question about your case and use that against you.

With FLAST we discourage discussion of a members personal case publicly, instead we do regular case studies of cases coming out of the Family Court and provide an environment for Lawyers to engage in discussions about those Court digests and members who have family law related issues the ability to interact with lawyers directly either through public discusion, private messaging or our recommended method is anonymously until you find the lawyer you would like to help you.

FLAST provides for social media discussions of legal issues where legal professionals and those with legal experiences can discuss legal issues in a safe environment without giving legal advice but still providing valuable legal information.

STEP 1 : Register with FLAST.

STEP 2 : Create a Profile and/or an anonymous profile if you wish the discussion to remain private while you interact.

STEP 3 : Post your question in the Discussion area or comment on posts and news.

STEP 4 : We notify our members who are legal professionals or members with relevant experiences and share the issue across our network of social media sites that cover legal issues.

STEP 5 : You can safely interact with your anonymous profile.

STEP 6 : You can make contact directly with Organisations and Professionals on FLAST and you can make that decision based on what you see in their profile, how they interact in the forum, any reviews that they may have received.  You can also purchase services directly from the Legal Professionals and Organisations through FLAST which gives you the added piece of mind that they will provide the highest possible level of service to you.

Join FLAST as a subscribed member for added services.

CLICK HERE TO JOIN

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Canfeld & Falkins [2020] FCCA 2570 (9 September 2020)

This is a parenting case where the primary issue at interim hearing was the choice of supervisor for the mother's time with the children in circumstances where the continued cost of professional supervision was not sustainable. 

Facts:

The three children of the relationship (aged 16, 11 and 8) live with their father and spend time with their mother on a supervised basis.  The arrangement however was not working due to, inter alia, a lack of commitment by the parents and the cost of the supervision.  The mother sought for her time with the children to be supervised by "Mr L" instead, beginning with Sundays from 9am to 5pm and then progressing to a fortnightly basis from 9am Saturday to 5pm Sunday.  The independent children's lawyer (ICL) supported this position.

The father proposed that the mother be granted no time but if time was to be given, then it is to be supervised by way of a professional supervisor. 

Being an interim application, the Court was required to review authorities on the assessment of risk to children when dealing with interim matters. Unlike final hearings where the evidence can be tested, this is not possible when dealing with interim applications due to less time available.  The Court referred to some of the leading authorities about decision making in interim cases. 

Issue's:

  • Can the mother's time be supervised by a non-professional person when the continued cost of professional supervision is not maintainable?
  • What is the appropriate way to deal with risk assessment at an interim hearing?

Law:

Findings:

The Court made orders for the mother to spend time with the children to be supervised by Mr L.  In coming to this decision, Judge Altobelli included a number of paragraphs from his own decision in a matter called Insley & Insley [2018] FCCA 438, where he had previously discussed some of the authorities about decision making in interim cases:

In Goode & Goode [2006], the Full Court warned against making findings of fact where findings are not possible.  The Court did not rule out making findings of fact and, it must be remembered that findings can be made on the basis of uncontested matters or admissions.  To the extent, moreover, that findings may be differentiated from inferences, inferences may certainly be drawn from all of the material available before the Court.  [64]... [T]here have been later Full Court decisions that suggest in that, particularly in cases where there are allegations of family violence, a more nuanced approach is warranted.  For example, the Full Court in SS & AH [2010] FamCA 13... noted that sometimes judges will have little alternative but to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  The Full Court stated that it is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.  Nonetheless, the Full Court warned, findings must be couched with circumspection.

[65] The Full Court in Marvel & Marvel (No.2), in referring to its earlier decision in SS&AH stated at [120] that decision-making in interim proceedings is difficult, and thus a conservative approach is warranted, or one which is likely to avoid harm to a child. [66] In Reece & Reece, the Full Court warned at [76] about the consequences of failing to have regard to expert evidence simply because it was untested in cross-examination...

[67] In Deiter & Deiter, the Full Court suggested that s60K (now s67ZBB) of the Act signalled a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously.  In an ideal world, these allegations could be dealt with at a discreet issues hearing, or an expedited final hearing.  In reality, in a registry of this court where almost all of the cases involve allegations of family violence, neglect, abuse, drugs or alcohol and mental health, neither a discreet issues hearing, nor expedition is possible.  

[70] The Full Court in Enmore & Smoothe explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurred.  However, that is not to suggest that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse.  [71] In 2015, the Full Court in Eaby & Speelman [2015] FamCAFC 104 at [18] expressly stated that the comments of the Full Court at [68] in Goode did not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts...

After analysis of the relevant authorities His Honour proceeded on the basis by ascertaining whether the risk of harm to the children could be addressed by supervision by Mr L or only by a professional supervised contact service.  With respect to the terms of supervised time, it was more a practical question.  The Court accepted the mother's case that continuing to pay for private professional supervision was not feasible.  Although it appreciated that private non-profession supervision as that to be offered by Mr L would mean that there would be no written report, the Court felt nonetheless that appropriate supervision could be carried out by Mr L.  

This case demonstrates that although the Court cannot test the evidence at an interim hearing stage, it does not automatically mean that it cannot make a finding of fact.  It will however ultimately side on caution especially where there are competing versions that go to the question of risk to children.  The Court will then assess whether the risk of harm can be addressed by some other means.  In this case the Court deemed that the risk of harm could be addressed via the supervision by Mr L and it was not confined to making orders for supervision only by a professional supervisor. 

Family courts at breaking point as Chief Justice Will Alstergren admits parents face ‘unacceptable delays’

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If you are a self-represented litigant, this service is designed to provide you with the guidance you need to draft your own written evidence.  Even if you feel that you have written an effective affidavit, it is always worth having it looked at by a solicitor before it is filed.  A solicitor can draw to your attention any possible defects with respect to compliance with the rules of evidence and provide useful feedback on the formatting and content of the document.  Whether you need help with the drafting itself or just settling the document,  this service is designed to work around your personal needs.

Queensland had the highest crude divorce rate of 2.5 divorces per 1,000 estimated resident population, while the Northern Territory had the lowest of divorce rates in Australia at 1.7 per 1,000 estimated resident population.

Via Simon Mayers 

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This service provides assistance for self-represented litigants to help prepare their draft consent orders and have it reviewed by a current practicing lawyer to ensure the content and form are in compliance with the legislative and regulatory requirements. 

Price includes up to 2 hours of drafting support and 2 hours of review by a legal practitioner with a letter of advice and any recommendations.

CONGRATULATIONS TO VAN BEVEREN LAWYERS - NOMINATED TOP 3 FAMILY LAWYERS IN GEELONG!

Van Beveren Lawyers are thrilled to be included in the Top 3 Family Lawyers in Geelong on Three Best Rated.


"John Van Beveren is the principal lawyer at Van Beveren Lawyers. His particular interest is in providing a compassionate experience of the legal system, particularly family law. John is especially attuned to the needs of small enterprise and startups after running his educational centres and online businesses for over ten years. Van Beveren & Associates is a Geelong-based boutique law firm with a compassionate approach towards their clients who are often dealing with some of the most challenging situations life can serve up. Every day, they help families from Geelong and the Surf Coast navigate relationship change, planning a will or estate, buying or selling a home, negotiating a mortgage, or appearing in court. Their team are here to help with sound legal advice to ensure you to find your way through successfully."

Congratulations to the team

John Van Beveren Scarlett Kennedy Akasha Rose 🌈 Roxanne Van Beveren Danny Jovica

    #familylaw

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Looking for support during change? Inspiring you to stay positive during separation.

The Happy & Hopeful Family Law Package is a fixed-cost package for those taking their first step in family law. If you have a family law concern and don't know where to start, let us support you on your path back to happiness and hope.

Separation can be complex. It is extremely important to obtain specialised legal advice relevant to your situation so that you can make the best informed decision about:

  • the best interest of your children; and
  • your property & maintenance entitlements or obligations.  

The choices you make now can have repercussions long into the future for you and your family. Our lawyers are committed to supporting your to feel empowered on your path to future financial and emotional independence.

After you have made an initial enquiry with us, we are usually able to book a family appointment within 1-2 business days, depending on availability.

Please note the other party will need to seek independent legal advice at their own cost from another solicitor.

Normal Cost: $2500
You pay only: $695

You receive:

One 1 hour appointment with a family lawyer;

A written report advising you about;

  • your situation 
  • your options; 
  • likely outcomes;
  • family law issues relevant to you; and
  • an estimate of ongoing legal costs if applicable.

As an expert team of dedicated professionals we aim to provide a friendly, family atmosphere with a reputation for timely, personalised service. Based in Geelong, practising Australia wide. 

Reach out to us via phone or email today. [email protected] or 0429 312 986 to see if this service is a fit for you.

 

Are you responsible for a child and owed child support? If so, you aren’t alone. It’s challenging enough to be the primary caregiver without experiencing the compounding effects of being denied basic resources. Van Beveren Lawyers can provide you with effective & affordable relief to help to recover unpaid child support large or small.

 

Child Support Collect
If your child support is collected by Services Australia via Child Support Collect, Services Australia can use its enforcement powers to make people pay unpaid child support in the following ways:

  • withholding income;
  • enforcing tax return lodgement or intercepting tax refunds;
  • working with third parties;
  • employer or bank account deductions;
  • issuing overseas travel bans & denying passports;
  • setting liens on a property;
  • litigation;
  • prosecution;
  • reporting child support debts to credit bureaus;
  • suspending or revoking drivers, professional, occupational, and recreational licenses.

If your child support is registered as Child Support Collect, the first place to contact is the Child Support Agency. However, Services Australia may decide not to chase a debt where the paying parent who owes the child support:

  • is incapacitated and cannot work;
  • has no assets and no income;
  • lives in a country that does not enforce Australian child support debts; or
  • the cost of chasing the debt is more than the amount of money owed.

Private Collection
If you have not registered your child support as Child Support Collect, or it is self-managed, then you are responsible for collecting and enforcing any unpaid child support debt yourself.

 

Debt recovery steps
1. Fill out our Family Law form
Van Beveren Lawyers have a form specifically for Family Law clients to help us support you quickly and efficiently. Fill out the form to get started.

2. Letter of demand
Van Beveren Lawyers will draft a letter of demand addressed to the paying parent who owes the child support debt. A letter of demand sets out:

  • what debt is owed;
  • whom the debt is owed to; and
  • when it must be paid.

Letters of demand are effective tools for letting the other party know you are taking the matter seriously and creates a window for discussions, negotiation, or for the paying parent to pay the debt in full without the need to take further legal action.

 

3. Court proceedings
If the paying parent who owes the child support debt does not respond to our letter we may advise initiating court proceedings.

It is highly advisable to get competent legal advice before commencing any court proceedings. Court proceedings may be expensive and time-consuming. If you decide to proceed with a court application and you are not successful in proving your case, a court may order you to pay the costs incurred by the other party for the court proceedings, as well as being responsible for your own legal costs.

To begin court proceedings, we will work with you to file the following documents:

  • Initiating Application (Family Law)
  • Affidavit
  • Financial Statement
  • Enforcement Warrant — Seizure & Sale of Property (if the person who owes the debt owns any personal or real property)
  • Third-Party Debt Notice (if the person who owes the debt is owed money by someone).

These documents are witnessed by your lawyer and then filed at the Family Law Courts Registry.

There must be four copies filed of these documents—one for the court to keep, one for your file, one to be served on the DHS and one to be served on the paying parent who owes the child support debt. The court will stamp (seal) the documents and provide a court hearing date.

 

4. Serving documents
We will arrange for legal service of the documents on the paying parent who owes the child support debt. ‘Service’ is a legal term used to describe giving or delivering court documents to another person in a way that satisfies the court that the person has actually received them.

You can’t personally serve the documents yourself. We arrange a ‘process server’ on your behalf —a person who delivers or ‘serves’ documents by handing them to the person concerned.

 

5. Enforcement
If the debt recovery proceedings are successful, the court may make one or more of the following orders for the payment of arrears:

  • garnishment of the debtor's assets or income (Part 20.4 of the Family Law Rules 2004 & rule 25B.10 of the Federal Circuit Court Rules 2001);
  • sequestrating the debtor's estate or appointing a receiver (Part 20.5 and 20.6 FLR, & rr 25B.11 and 25B.12 FCCR);
  • for seizure and sale of the debtor's personal or real property (Rule 20.07 FLR, r 25B.13FCCR).

The Family Law Act Part VII Division 13A provides sanctions for contravention of orders made under that Act. A court can imprison a person who contravenes a parenting order for child maintenance when they do not pay child maintenance after being ordered to do so.
Need further advice?

About Van Beveren Lawyers

Van Beveren Lawyers based in Victoria provide high-quality, timely and tailored legal solutions with price certainty Australia-wide. We focus on quality services, building relationships and forging long-term partnerships. Together, we invest in your ongoing success.

 

Our Family Law team specialise in:

  • Cohabitation Agreements
  • Financial Agreements
  • Parenting Agreements
  • Separation Plans & Divorce
  • Child Support Enforcement

[email protected] or 0429 312 986

As part of many family law property settlements, property may need to change hands. Property may pass from one partner to the other, be sold, or new property bought. If you have any conveyancing concerns, Van Beveren Lawyers provide a complete fixed fee conveyancing service (plus disbursements) where we review contracts and add special provisions free of additional charge. 

 

What's included:

  • Unlimited Pre-signing Review of Contracts
  • Drafting of up to 5 Special Conditions
  • Solicitor Handling your Purchase
  • Principal Supervising your Purchase
  • Unlimited Extensions
  • Current Title Search
  • Check Title Search
  • Survey Plan
  • Land Tax Clearance Certificate
  • Rates Balance Check
  • Special Water Meter Reading
  • Bank Cheques at Settlement

Our quote is for whole conveyancing process, our time and expertise. Property transfers can be done entirely online via phone, post and online. There’s no need for you to come into the office. Please note that disbursements will be invoiced separately once advised. 

Additional Services
These are additional services not included in the conveyancing package that you may request:

  • Property Consent Orders
  • Mortgage negotiation
  • General Power of Attorney drafting / review
  • Deed of Rescission / Variation drafting / review
  • Caveat Lodgement
  • Licence Agreement drafting / review
  • Land Contract Review – Off-the-Plan property

As an expert team of dedicated professionals we aim to provide a friendly, family atmosphere with a reputation for timely, personalised service. Based in Geelong, practising Australia wide. 

Reach out to us via phone or email today. [email protected] or 0429 312 986 to see if this service is a fit for you. 

 
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In the disruption to our lives that separation and divorce can cause, updating our will is often the last thing on our minds. And yet, many of us would want to change will and forget that, until we do, the old beneficiaries and powers of attorney stay in effect. 

If you want to change who will inherit your estate or have powers of attorney for you in the case of illness, we recommend updating your will as soon as possible. Updating your will and powers of attorney, or even writing new ones, is a very simple process that only takes an hour of your time. 

As part of our fixed price Wills and Powers of Attorney service we provide:

  • Two half hour consultations with a lawyer
  • Drafting of your will and powers of attorney covering medical, financial and guardianship decisions
  • Documents prepared and signed within 1 week or sooner
  • Final meeting to ensure that all documentation is signed correctly
  • Two certified copies of documents prepared on your behalf
  • Optional storage of your wills.

The package includes:

  • Two 30 minute consultations
  • A standard Will
  • A standard Financial Power of Attorney
  • Appointment of Medical Treatment Decision Maker
  • Advance Care Directive
  • Statement of Wishes

As an expert team of dedicated professionals we aim to provide a friendly, family atmosphere with a reputation for timely, personalised service. Based in Geelong, practising Australia wide. 

Reach out to us via phone or email today. [email protected] or 0429 312 986 to see if this service is a fit for you.

In the disruption to our lives that separation and divorce can cause, updating our will is often the last thing on our minds. And yet, many of us would want to change will and forget that, until we do, the old beneficiaries and powers of attorney stay in effect. 

If you want to change who will inherit your estate or have powers of attorney for you in the case of illness, we recommend updating your will as soon as possible. Updating your will and powers of attorney, or even writing new ones, is a very simple process that only takes an hour of your time. 

As part of our fixed price Wills and Powers of Attorney service we provide:

  • Two half hour consultations with a lawyer
  • Drafting of your will and powers of attorney covering medical, financial and guardianship decisions
  • Documents prepared and signed within 1 week or sooner
  • Final meeting to ensure that all documentation is signed correctly
  • Two certified copies of documents prepared on your behalf
  • Optional storage of your wills.

The package includes:

  • Two 30 minute consultations
  • A standard Will
  • A standard Financial Power of Attorney
  • Appointment of Medical Treatment Decision Maker
  • Advance Care Directive
  • Statement of Wishes

As an expert team of dedicated professionals we aim to provide a friendly, family atmosphere with a reputation for timely, personalised service. Based in Geelong, practising Australia wide. 

Reach out to us via phone or email today. [email protected] or 0429 312 986 to see if this service is a fit for you. 

As part of many family law property settlements, property may need to change hands. Property may pass from one partner to the other, be sold, or new property bought. If you have any conveyancing concerns, Van Beveren Lawyers provide a complete fixed fee conveyancing service (plus disbursements) where we review contracts and add special provisions free of additional charge. 

 

What's included:

  • Unlimited Pre-signing Review of Contracts
  • Drafting of up to 5 Special Conditions
  • Solicitor Handling your Purchase
  • Principal Supervising your Purchase
  • Unlimited Extensions
  • Current Title Search
  • Check Title Search
  • Survey Plan
  • Land Tax Clearance Certificate
  • Rates Balance Check
  • Special Water Meter Reading
  • Bank Cheques at Settlement

Our quote is for whole conveyancing process, not just our time and expertise. Property transfers can be done entirely online via phone, post and online. There’s no need for you to come into the office. Please note that disbursements will be invoiced separately once advised. 

Additional Services
These are additional services not included in the conveyancing package that you may request:

  • Property Consent Orders
  • Mortgage negotiation
  • General Power of Attorney drafting / review
  • Deed of Rescission / Variation drafting / review
  • Caveat Lodgement
  • Licence Agreement drafting / review
  • Land Contract Review – Off-the-Plan property

As an expert team of dedicated professionals we aim to provide a friendly, family atmosphere with a reputation for timely, personalised service. Based in Geelong, practising Australia wide. 

Reach out to us via phone or email today. [email protected] or 0429 312 986 to see if this service is a fit for you. 

 

Warnell & Allenby & Anor [2020] FCCA 2517 (9 September 2020)  

This case involves a parenting proceeding commenced by the mother where she seeks the court to rule that the video recording presented by the father is inadmissible as evidence  

Facts:  

The parenting arrangements for X are the subject of dispute, with urgent proceedings having been commenced by the mother.  

On 27 June 2020, when the mother alleges that the father attended her residence and “kidnaped” X. In particular the mother asserts: (1) The father attended the home in the presence of his 14 year old child B and a friend called Mr K and (2) The father made threats to kill the mother, and physically assaulted her, including pulling her hair and placing his hand over her mouth so that she had difficulty breathing.  

The evidence that the father wishes to rely on is a video recording of the events that unfolded on 27 June 2020. The recording was taken by the father’s 14 year-old child B on his mobile telephone during the altercation. The father asserts that the recording was made available to him by the police who confiscated B’s mobile telephone and retrieved the recording.  

The mother pursues an objection asserting that the recording was illegally obtained by child B relying on s138 of the Evidence Act 1995 under the heading “Discretion to exclude improperly or illegally obtained evidence”.   

Issue:  

Is the video recording taken during the altercation admissible as evidence in a parenting proceeding?  

Law:  

  • S135 of the Evidence Act- the court may refuse evidence if its probative value is substantially outweighed by the danger that the evidence might:  
  1. Be unfairly prejudicial to a party; or 
  2. Be misleading or confusing; or  
  3. Cause or result in undue waste of time  

Analysis:  

From the mother’s perspective, an acknowledgement was made that the recording has probative value given it was a recording of an altercation between the parents in the presence of the child and resulting in not only the mother facing charges of aggravated assault but also an intervention order.  

The mother however asserts effectively that the probative value is outweighed because it is only a partial recording of the incident and the father is not on oath as to the motivations for the recording; which the court would have to assume fits within subsection (a) and (b) of s135 of the Evidence Act.  

Again however, the court has difficulty with this submission in circumstances where: 1. The mother has not made any enquiries as to whether additional recordings exist from that day; 2. The mother is not on oath as to those matters that she asserts the recording does not include and it is not clear to me because the court has not seen the recording what portion of the incident is contained in the recording. 

Conclusion: That the oral application by the mother to exclude the video recording taken on 27 June 2020 be dismissed. 

 

 

Naslund & Oberlin [2020] FCCA 2295 (19 August 2020) 

This case is about a father seeking for increased time with child even when the latter suffers emotional stress when separated from the child’s mother  

Facts:  

The Court ordered that child X’s time with his father be gradually increased which was in addition to the time earlier agreed upon by the parties. It was the mother’s position that that X was suffering emotional stress as a consequence of the agreed parenting regime.  

She has deposed that the increase from one overnight per fortnight to four nights per fortnight is too dramatic for X.  It is her evidence that X is currently displaying unsettled behavior, which she associates with his current level of interaction with his father.  

It was the Doctor’s opinion that X is suffering some level of emotional dysregulation as a consequence of being separated from his mother, given the undisputed evidence is that she has been his primary provider of care up to this stage.  

Issue: Should the court allow the increased time of the child with the father if the child suffers emotional dysregulation as a consequence of the increased time and being separated from his mother?   

  

Law:  

  • 60CC-How a court determines what is in a child’s best interest  

(3) Additional considerations are:  

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  

(i) Either of his or her parents; or  

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;  

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;  

Analysis:  

The central issue at this stage, should be on the likely effects of any change in X’s circumstances [section 60CC (3)(d)] at this stage given his tender years [section 60CC(3)(g)] and given his probable emotional susceptibility, as identified by Dr. B, to being separated from his mother, whether this be because he was subject to too early a separation from her or because of the mother’s over intense emotional interaction with him.  

In these circumstances, the court not consider that it would be in X’s best interests to change the current arrangements, which, although not ideal from the father’s perspective, do enable him to maintain a meaningful level of relationship with X.  

Conclusion: Hence, the current parenting arrangement will not be changed. X’s time with the father will not be increased. 

Barnard & Welsby [2020] FCCA  1721  (1 July 2020) 

This case involves a mother asking for a higher spousal maintenance from the father  

Facts:  

Ms. Welsby (wife) and Mr. Barnard (husband) were married in 2008 but separated md-2015. The parties have three children, X, Y and Z, nine years, eight years, and four years of age respectively.  

The wife sought the husband to pay her spousal maintenance in the sum of $399.65 per week payable weekly for a period of five years whereas the husband seeks to pay $90 per week for a period of three years or until the wife achieves a gross annual income of $70,000.  

Issue: Is the mother entitled the spousal maintenance of $399.65 per week from the father?  

Law:  

  • 75(2)- Matters to be taken into consideration in relation to spousal maintenance:  

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and  

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;  

Analysis:  

In exercising jurisdiction under section 74 in relation to the making of a spousal maintenance order, the Court must take into account only the matters referred to in subsection 75(2).  

The wife’s ability to engage in appropriate gainful employment is affected by her current employment skill levels and her ongoing responsibility for the day-to-day care and control of the children of the marriage who are under 18, being eight, seven and three years of age at the time of hearing  

Furthermore, the husband’s income is $2,884. The court further accept that his expenses are $2,757 per week. Accordingly, the husband has an excess of income over expenses of $127 per week. The wife seeks for $399.65 per week. While the standard of living of the wife can be raised by the making of a spousal maintenance order, it can only do so to the extent that the husband has an ability to pay that spousal maintenance.  

Conclusion:   

The court finds that the husband is liable to maintain the wife by a payment of spousal maintenance in the sum of $127 per week. 

  

Raywood & Gelston [2020] FCCA 2200 (14 August 2020)  

This case is about a father seeking for joint parental responsibility over is children even if he has charged on multiple occasions for breaches of the Intervention Orders and has a long history of mental illness  

Facts:  

Father seeks joint parental responsibility over his children.  He requests that the children spend time with him from Friday until Sunday during term times and from Thursday till Sunday during school holidays.    

The mother seeks sole parental responsibility over the children contending that:  

  1. The father has been charged on multiple occasions for breaches of the Intervention Orders  
  2. The father has had a long history of mental health difficulties arising out of attention deficit hyperactivity disorder and other matters. He even had significant mental health episode and was significantly suicidal in his ideation  
  3. She experienced family violence during the relationship inflicted by the father.  

Issue: Is the father entitled to shared parental responsibility over his child regardless being charged with multiple breaches of Intervention orders, being mentally ill and violent?  

Law:  

  • 61DA- Presumption of equal shared parental responsibility when making parenting orders  

(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:  

(a) Abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or  

(b) Family violence   

Analysis:  

The presumption of equal shared parental responsibility is plainly rebutted.  The father has committed family violence against the mother and the court accepts her allegations in their entirety, despite the father’s denials. The long history of Intervention Orders and breach thereof by the father, in a sense, speaks for itself. It is clearly in the children’s best interests that the mother has sole parental responsibility.  

Conclusion:  

Hence, the mother shall have sole responsibility over the children. 

 

Damgard & Abrola [2020] FCCA 2194 (21  July 2020) 

This case is about a father who took his child from the mother since the latter allegedly inflicted physical harm to their child 

Facts

The parties are already separated. On 30 June, the father went unannounced to the mother’s home and while the child was at home with the mother’s housemate, the father took X and has since not returned him.  The father says that the reason he acted in that way was because he is concerned about the child’s welfare. He said that once he had the child in his possession, he noticed that there were sores that looked suspiciously like cigarette butts in three places on the child’s body 

He took the child to a clinic wherein the report stated that “X has sores and rhinorrhoea” and then goes on to talk about the child’s treatment. There is no mention in the certificate that the sores look suspiciously like cigarette burns. The court asked the father whether there was any other investigation of what he had suspected may be cigarette burns.  He told me there was not any other investigation. 

Issue:  

Whether the mere suspicion that a child has been deliberately harmed is sufficient cause for the father to unilaterally take his child from the mother’s care 

Held

The court is not satisfied that there is any proper basis for the conduct of the father in removing the child unilaterally from the mother’s care.  He has had the child medically examined and there is nothing to suggest the child has been subjected to deliberate harm by any person.  There is nothing whatsoever to suggest that there was urgency of a kind which would require the immediate removal of the child from the mother’s care, and I am satisfied that the child ought to be returned to the mother’s care until all these matters can be properly explored and examined. 

Conclusion:  

Hence, the court orders that X should be returned and live with his mother. 

Adema & Hambleton (No.2) [2020] FCCA 2279 (23 June 2020) 

This case is about the arrangement of a 3 year old child where the mother is a drug addict  

Facts: The proceedings relate to parenting arrangement of X, a three year old child. It was the father's position that Ms Hambleton was in the grip of a serious addiction to methamphetamines, which had led to episodes of psychosis and hospitalisation on her part. The court ordered that X live with his dad and spend time with his mother regularly, with the time to take place at the home of the maternal grandmother and subject to her supervision. Mother asserts that the father had acted unilaterally and had deprived X of the comfort of the care of his primary carer by not allowing the child to interact appropriately with her. She also contended that the child is at risk of being sexually abused by his father. 

Issue: Whether or not the three year old child should be represented by an Independent Children’s Lawyer with respect to its parenting arrangements 

Law

  • Pursuant to Section 68L  of the  Family Law Act 1975 , an Independent Children’s Lawyer be appointed to represent the best interests of the child. 
  • According to 60CC, the primary considerations in determining the child’s best interest are: 
    • 1. the benefit  to  the  child of  having  a  meaningful  relationship with both of  the child’s  parents;  and 
    • 2. the need  to protect  the  child  from  physical  or  psychological harm  from  being  subjected  to, or  exposed  to, abuse,  neglect or  family  violence. 

In applying  the considerations set  out  in  subsection  (2), the court  is to give greater  weight  to  the consideration set  out  in paragraph  (2)(b). 

Analysis: Clearly he must know his mother very well.  However, The court need to protect him from the physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and I have to give greater weight, pursuant to  section 60CC(2A)  to protective concerns. 

Conclusion: Given the issues of child protection raised in the case and the significant levels of mistrust between the parties, it is appropriate that X be independently represented in the proceedings. 

The Risk Screening  Protections Bill will amend the  Family  Law Act 1975  to establish a Family Safety Risk Screening  Process which is to be carried out by a family safety risk screening person in relation to a party to family law proceedings, in order  to identify  persons at risk of family  violence, children at risk of abuse,  neglect or family  violence, or other risks  to the  safety of persons.  The process includes protections for sensitive information generated and confers immunity on court workers involved in family safety risk screening in the federal family law courts.

Purpose of the Bill: To protect the sensitive information generated through the  risk screening  process.

The Bill would amend the Family Law Act to provide that:

  1. family safety risk screening information is CONFIDENTIAL and cannot be disclosed, except in limited circumstances
  •      Disclosure of family safety risk screening information would be allowed in the following circumstances:  
  • to protect a child from the risk of harm
  • to prevent or lessen serious threats to the life or health of a  person, or to the property of a person.
  • to report the commission or likely commission of an offence involving  violence against  a  person or intentional damage  to property, or
  • to assist an independent children’s lawyer.
  •      Disclosure of family  safety  risk screening  information would also be authorised  where disclosure  was made:
  1. in order to comply with a  Commonwealth, state or  territory  law
  2. to the party  who undertook the relevant  risk screening
  3. with the consent of the  party  who undertook the  risk screening  or,  if the  party  is a child, with the  consent of  a  court
  4. to another risk screening person, or
  5. in order to provide non-personal information for the purposes of  research  relevant to families.

    2. family safety  risk screening  information is  INADMISSIBLE, except in limited circumstances

  • amendments would ensure  that family  safety  risk screening  information is inadmissible  in any  court  or  legal proceedings
  • It would also  ensure  that evidence  of anything  said, or any  admission made,  by  or  to a person to whom a  family  safety  risk screening  person refers a  party  is inadmissible  in  any  court  or  legal proceedings.  
  • An exception would apply where  family  safety  risk screening  information or  evidence indicates that a child has  been abused  or is at risk  of 

    3. court workers, for  example  registrars  and family  counsellors, have  IMMUNITY  when involved in risk screening 

  • The amendments would  also ensure  that a  family  safety  risk screening  person, when performing  his or her functions as a family  safety  risk screening  person, has the same protection and immunity  as that afforded to a judge  of the  Family  Court of  Australia  in performing  the functions of a 

 

Conclusion

 

Hence, The  Bill will ensure  that  parties to family  law proceedings  can freely  and  confidently participate in the  risk screening  process, without fear of  their responses being  used  against them in their family  law  (or  other) proceedings. This is particularly  important for  protecting family  violence  victims in high-risk  cases,  and for  maintaining  the accuracy  and  reliability  of the risk screening  information used to triage  matters.  

 

This case is about a father which seeks to reopen a case due to the incompetence of his former counsel and introduce new evidence on  

Khadem & Penk [2020] FamCAFC 211; (27 August 2020) 

Facts:  

Counsel for the father sought to reopen case recalling the mother, the Family Consultant and the child’s psychotherapist and cross examining them again. It was the father’s position that his former counsel had failed to comply with the father’s instructions as to how cross-examination of those three witnesses was to take place. The father also sought that he give further evidence by way of examination about an incident on 23 February 2015 and the text messages that had passed between the parties at that time. 

Issue:  

  1. Whether or not the alleged incompetence of the counsel of the father during cross-examination is a sufficient cause to reopen the case 
  2. Whether or not the father may adduce receive further evidence on appeal 

Legal Basis:  

  • The Full Court in OP v TP (Conduct of Counsel)  [2002] FamCA  1155;  (2002) 30 Fam LR 281 at [124] stated: 

 ...from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made. 

  • Section 93A(2) of the Act provides for a discretion in an appeal for the Court to receive further evidence upon questions of fact. 
  • Rules 1.10 and 10.12(d) of the Family Law Rules 2004 (Cth), allow this Court to make an order on its own initiative in circumstances where an application has no reasonable likelihood of success. 

Analysis: 

1. the father must be able to establish on appeal not only the decisions were wrong or incompetent, but their effect was likely to have brought about a different result if they had not been made. The father did not assert what difference the further cross-examination of the witnesses (on issues already canvassed) would have made to the outcome of the case. 

2. On the face of the father’s application and his affidavit evidence in support, the criteria for admission of further evidence on appeal is not met. Taken at its highest, we are of the view that the further evidence, if accepted, would not demonstrate that the orders under appeal are erroneous. We are not satisfied that had this evidence been available it would have produced a different result. 

Conclusion: 

Further examination of the witnesses and additional evidence will unlikely change the result of the case. Hence, the appeal shall be dismissed. 

 

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