Posts of Myra Moody RSSFri, 29 Mar 2019 04:18:40 GMTDoonan & Bradshaw [2014] FCCA 2666 (28 November 2014) Can your Facebook posts be used against you as evidence in the Family Court? YES IT CAN! ANYTHING you say or post on social media whether intentional, implied, and mistaken, including emails to the OP family may be used as evidence in Court. In this challenging parenting case concerning the best interests of two young children, which comprises of competing applications for the children to live primarily with each parent, Facebook posts were referred to throughout by both parties who were regarded as ‘flawed personalities.’ The mother had posted such things on Facebook as “I don’t regret having my kids, but I regret having them with such a selfish b@#*&%d! “Who the f@#*k favourites kids?” Additionally, the mothers new partner posted such things as “Listen here hero don’t be threatening me with guns!!! I have my licence too f@#*#t..!!! N good on u for 13yrs of kickboxing coz ur gonna need it I was brought up on the streets!!! Anytime any place anywhere.” It was subsequently established the mother’s partner’s behaviour was wholly consistent with the Facebook posts. The Judge affirmed that the mother’s partner is no stranger to violence. The Judge remarked at [189] ‘the mother is plainly still a person lacking in self-control, the offensive nature of her stupid Facebook posts makes this clear.’ The mothers offensive Facebook posts highlighted to the Judge that her behaviour is childish for her age. The Judge was concerned with the nature of Facebook posts from all involved, whilst the posts were not the determinative factor in this case, they significantly assisted the Judge in forming a view of the parties involved.  FACTS SUMMARY: Separated children aged 5 and 3. Both parents seek for the children to live with them and spend time with the other parent. Substantial cross allegations of drug and alcohol abuse. Mother has re-partnered; the new partner is aggressive and prone to violence. The Fam... Read more

]]>Fri, 29 Mar 2019 04:18:40 GMTMcClelland & Rhodes [2019] FCCA 357 (27 February 2019) The Judge agonised with making the decision in this case... This dispute comprises of whether the applicant should remain having a role in the child’s (aged 5) life.The applicant and the biological mother were in a same sex de facto relationship for 16 years. The relationship ended before the child’s conception however, they remained residing under the one roof after they broke up additionally, they were still both trying together to succeed in a pregnancy for the biological mother through artificial insemination. They both decided the applicant would have a parental role in child’s life following his birth and they continued to reside together and for both of them to be involved in parenting of the child until he was about 14 months old. Moving forward, the biological mother eventually wanted to default on this agreement and developed a highly resistant attitude for the applicant spending time with the child.The biological mother became obsessed with the fact she is the child’s biological mother and that the applicant has no biological connection with the child. The biological mother lacks comprehension of the complexity of the case and cant understand why the applicant may even have a possible right to seek parenting orders for the child. There’s also a little twist...the mother didn’t actually fall pregnant by artificial insemination, she had a sexual relationship with a local man who is married and has other children (confirmed by DNA test) this did not become known to the applicant until proceedings commenced. Both women were deemed highly capable of meeting the child’s needs, he is developmentally delayed. The child is well loved and has a warm relationship with both women. FACTS SUMMARY Both women were in a same sex relationship, which ended before the child’s conception. They both continued residing under the one roof after they broke up and were both trying together to achieve the biologi... Read more

]]>Wed, 27 Mar 2019 13:14:38 GMTHerbert & Herbert (No. 2) [2019] FamCA 79 (22 February 2019) We posted a case summary in February that involved a 15-year-old boy who was ordered to live with his father. The boy does not want to reside with the father, gets on his pushbike, rides home to his mother repeatedly, and refuses to leave.  The mother tries to take the child back to the fathers house multiple times, only to have the 15 year old jump on his bike and return back to her. It was established the mother contravened orders and visitations between her and the children were ceased Here is the link to refresh your memory FLAST CASE SUMMARY: Herbert & Herbert [2019] FamCA 5 (10 January 2019) This is now the follow up case to that where the mother who is self representing now seeks a number of orders on an interim basis. This includes but is not limited to, variation of interim parenting orders for the children to return to her care on the lead up to trial, for the ICL to be discharged and the Psychologist the father and children are attending to be restrained due to ‘conflict of interest.” FACTS SUMMARY The mother is presently restrained from seeing or contacting her two sons. The mother seeks interim parenting orders varying the current routine to return the boys to her care in the lead up to the trial. The mother seeks that the ICL be discharged. The father and the two boys are attending a psychologist for family therapy. The mother seeks to terminate the psychologist from providing family therapy to them, she claims there is a “conflict of interest,” - the father and psychologist work in the same building and share the lunchroom- claims the psychologist is lying to the court about it. ISSUE Has there been a significant change to warrant the boys living arrangements to be varied in the interim to the Mothers care? Has the ICL not been discharging her duties independently and professionallyto warrant dismissal? Is there a conflict of interest to permit the dismissal of t... Read more

]]>Tue, 26 Mar 2019 03:16:12 GMTPadbury & Wendon [2019] FamCAFC 41 (6 March 2019) Mr Padbury appeals from orders for the settlement of property, dismissing his application for a stay plus costs. The parties had begun living together in 2005 they then separated in 2016. Mr Padbury was a public servant; he began making contributions to his super fund in 1987. He became injured on duty, therefore he ended employment in 2014. He was successful in applying for the hurt on duty pension application. The primary Judge observed the “value” of the fund was an independent issue to how the fund “might be treated,” or “contributions towards it assessed.” The approach to the valuation of the superannuation interest was in accordance with the Family Law (Superannuation) Regulations 2001 (Cth); this produced a calculation of $1,341,059. The parties’ net non-superannuation property was valued at $2,148,700, this means that of a total net property pool of some $3.5 million, a significant percentage included Mr Padbury’s hurt on duty pension. The heart of the appeal claims that the primary judge “erred in principle by failing to give proper, genuine and realistic consideration to the merits of the competing claims made in relation to the hurt on duty pension.” Furthermore, Mr Padbury contributed to the fund for 18 years before living with Ms Wendon, however, the trial reasons also incorrectly state for a period of “some six to seven years.” Ms Wendon the respondent conceded the error, the matters the primary judge said required consideration did not receive it.   FACTS SUMMARY: APPEAL – PROPERTY  Appeal against property settlement orders including orders splitting Mr Padbury’s hurt on duty pension. Heart of appeal the judge “erred in principle by failing to give proper, genuine and realistic consideration to the merits of the competing claims made in relation to the hurt on duty pension. Errors of fact. ISSUE: Did the primary judge fail to consider the special features of the pension or the part... Read more

]]>Sun, 24 Mar 2019 23:16:03 GMTSkivington & Skivington [2019] FamCAFC 36 (11 March 2019) The husband pursued parenting and property orders and the wife filed a response to that application. The judge made an order directing the parties to attend mediation and the matter was adjourned for further directions. There were several adjournments that took place some of which the court motioned other times the parties requested for more time to mediate. The orders by consent instructed the parties they must attend mediation before the next mention date and for there to be no further adjournments, if the husband and wife failed to prosecute their claim, the matter would be dismissed on the next occasion. During the interim stages, the parties resolved the parenting issues and had agreed to a method of valuing the property. The judge was informed the parties expect on completion of mediation for the matter to be resolved. The matter was adjourned again in chambers at the parties’ request because the expected mediation had not occurred. The matter returned before the judge where the parties again requested more time to complete the mediation process. The Judge dismissed both the initiating application and response on the basis that the parties had failed to prosecute the matter. The wife appealed those orders, and claims the orders were complied with and that both parties were attending the mediation process, however the mediation process was incomplete, due to the mediator’s other commitments. The husband also conceded the judges orders were erroneous. FACTS SUMMARY: The husband pursued parenting and property orders and the wife filed a response to that application. Orders by consent instructed the parties that they must attend mediation before the next mention date and for there to be no further adjournments. The judge was informed the parties expect on completion of mediation the matter to be resolved. The parties again requested more time to complete the mediation process. The mediati... Read more

]]>Thu, 21 Mar 2019 04:45:21 GMTConlan & Tomlinson [2019] FamCA 93 (27 February 2019) The child is 8 years old and is subject to final parenting orders that provided for both parents to have equal shared responsibility. The child resides with the mother and spends time with the father. The child has a good relationship with both parents. However, the father subsequently applied to restrain the mother, and Interlocutory orders were made, the father alleged the mother had threatened to relocate the child to the United Kingdom for a period of time and enrol the child there for school; provisions were made regarding international travel. It’s important to note at this point, the mother had previously removed the child from school, enrolled and removed her from another school and then commenced home schooling without the fathers consent. The orders also state for a psychologist to support the child’s anxiety and the return of the child back to mainstream school. The mother- pending final orders, notified the father of her proposal to relocate with the child to the ACT, the father considered it but did not consent. The mother then relocated with the child, notifying the father of the location and the mainstream school the child was enrolled in. The father has now filed an application in a case seeking the return of the child to live within a 40 km radius of him with the mother, or for a recovery order for the child to live with him if the mother does not return. He sought orders related to schooling arrangements for the child and for costs. The relocation by the mother is in conflict with the orders made in relation to equal shared parental responsibility. The mother now seeks orders allowing the child to remain in the ACT and to ultimately relocate to the UK with the child. FACTS SUMMARY: Interim Parenting Orders. The mother made a unilateral change in the face of final parenting orders. The mother and child relocated to the ACT without the fathers consent. The mother further proposes ... Read more

]]>Wed, 20 Mar 2019 01:16:42 GMTKader & Winchester [2019] FCCA 244 (5 February 2019) The father seeks orders that both parents have equal shared parental responsibility for the child as well as orders for shared time. There has been no contact between father and child for 2 years and 8 months. The mother and father have made serious allegations against each other. The mother applied for a domestic violence order, the father subsequently was charged with a breach of those orders, for he attended the mother’s residence to collect his belongings. The mother opposes any interim order, which considered the father having any contact with his daughter, and submits any contact between the father and child whether supervised or not would put the child at risk. The mother claims the father had verbally and physically abused her and the child. The father denies the allegations, however does concede that he failed to buckle the child in the car seat once, resulting in the child falling out of her seat, he also admitted to having punched holes in the walls of the home on two occasions and acknowledged this was unacceptable behaviour. The father has attended all required sessions with a family therapist, as well as having attended all other court ordered programs, despite having no assurance he will see the child again and knowing the mother is adamant he will never spend time with their daughter. FACTS SUMMARY: Interim parenting orders. Father has had no contact with child over a period of two years and eight months. Father seeks orders that both parents have equal shared parental responsibility for the child as well as orders for shared time. The mother opposes any interim order for contact supervised or not. The father has admitted to an instance of family violence. The father has complied with all previous court ordered programs, therapists and courses. ISSUE: Does a self-confessed instance of family violence in the past from the father deprive his daughter from having contact with him... Read more

]]>Tue, 19 Mar 2019 01:39:09 GMTDepartment of Child Safety, Youth and Women & Brightman [2019] FamCA 80 (22 February 2019) The Department of Child Safety and the father applies for interim and final orders regarding the child who is nearly nine months old, she was born in New Zealand and has only ever resided in that country. The mother is Australian, towards the end of the relationship she expressed to the father that she wanted to relocate back to Australia to be with her family, the father who was born in New Zealand expressed he did not want to relocate to Australia. After separation the mother blocked the father on Facebook, and he was unable to contact her any other way. The mother relocated with the child (5 months old at the time) without his consent and now resides in QLD. Furthermore, the child was born with a disability from a birth injury, both parents and the child attended the first of a series of appointments in New Zealand, to begin the process for surgery in early 2019 to reattach nerves in her arm. The child has no movement in one arm from the shoulder to the fingers since birth. The father is concerned that, as a national of New Zealand, the child may not have the same access to treatment here as she will have in New Zealand. FACTS SUMMARY: The mother relocated the child to Australia without the father’s consent. Application under the Hague Convention for the return of the child to New Zealand Child has a disability from birth that requires surgery. Concern the child will not have access to treatment in Australia. ISSUE: Does the father have rights of custody for the child? Was there a wrongful removal of the child from New Zealand? HELD: Interim order made.  It was determined the father has rights of custody under New Zealand law, Care of Children Act 2004 (NZ). It was further established there is at first glance a case for a return order to be made from the supporting evidence. Interim orders were then made for the mother to surrender her and the child... Read more

]]>Mon, 18 Mar 2019 01:06:09 GMTGorman & Gorman and Anor [2017] FamCA 257 (7 April 2017) Can your Facebook posts be used against you as evidence in the Family Court? YES IT CAN! ANYTHING you say or post on social media whether intentional, implied, and mistaken, including emails can and will be used as evidence in Court. In this particular case, the child currently lives with his great aunt, the applicant, who is the aunt of the father. The child has resided with her for a year, the parents struggle with substance abuse, mental health and family violence. The child has a half-sister, who is also not residing with the parents. Both of the child’s parents have been in and out of jail while the proceedings were on foot. Both parents did not appear at the  trial. The great aunt is seeking sole custody of the child; several Facebook posts were used as evidence to support the great aunts application. The Facebook posts revealed the mother had relapsed with her drug issues and needs to go back to rehabilitation, she also exhibits what appears to be on and off relationships in the Facebook posts with both fathers of the children who pose an unacceptable risk to the child. The ICL and Family Consultant both supported the great aunts application. FACTS SUMMARY: Application by a non-parent Young child. Where the parents do not participate in the final hearing. Where the parents present an unacceptable risk to the child. The ICL and Family Consultant support the application. ISSUE: Do the parents pose an unacceptable risk to the child? Is it in the child’s best interest for the Great Aunt to have sole custody? HELD: It was ordered for the great aunt to have sole parental responsibility for the child and to live with the great aunt. It was determined in accordance with s 60CC that both parents are not in the position to exercise parental responsibility or have capacity to care for the child. Both parents currently present an unacceptable risk of harm to the child. At present the child ... Read more

]]>Fri, 15 Mar 2019 02:45:53 GMTTeke & Cefai [2019] FamCA 114 (26 February 2019) The mother is seeking to discharge 2012 consent orders, the father has not complied with at all; he has effectively not been in the child’s life for eight years and has provided no financial support. The mother now seeks orders for the child to live with her, to have sole parental responsibility for all major decisions and the daily responsibility for the child’s care. The crux of the orders is to change the child’s surname. The child is almost 9 years of age and expresses to be known by the surname of her mother. The fathers surname allegedly causes her distress when called at school, she does not understand why she has to have that surname, for she does not know where her father is or, who he is. The father did not turn up to any of the proceedings and the mother was granted sole parental responsibility, however the question of the matter arose with the Family Courts jurisdiction to approve a change of child’s surname application, for Section 4 of Births, Deaths and Marriages Registration Act (Vic) 1996 requires the County Court Victoria to approve the applications. FACTS SUMMARY: The mother is seeking to discharge 2012 consent orders. The mother now seeks orders for sole parental responsibility and for the child to reside with her. Changing the child’ surname centre of the case. Father of child absent virtually all child’s life. Father has not appeared for any of the proceedings. ISSUE: Is it in the best interest of the child to grant sole parental responsibility to the mother and change the child’s surname? If the court grants the change of surname, how can the Registrar of Births, Deaths, and Marriages use that approval, having regard to the wording of s 26 of the relevant State Act? HELD: The mother was granted a discharge of the 2012 consent orders and was awarded sole parental responsibility for the child. It was ordered for the Registrar of Births, Deaths of Marriages to the change t... Read more

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