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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. 

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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.




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: Shannon & Joles [2019] FCCA 374 (7 March 2019)

FEDERAL CIRCUIT COURT OF AUSTRALIA

This was a family law matter concerning , where there were allegations about the father’s mental health, family violence, and drug and alcohol abuse. The court considered the best interests of the child and found "no benefit to children of a relationship with their father" where risk of harm is evident and an order for no contact was made.

Examining the judgment it was noted at paragraph 36 of his Affidavit filed 7 February 2019 the father deposed: “I have no issue in respect of mental health.”

In cross-examination, however, he was much more fulsome, both about his past mental history record and his current mental health.

For example, in a Facebook message that the Father posted on 26 January 2019 he said, amongst other things, that he was “...losing my mind...”. The previous day a post included the words “...I’d love to go crazy...”.

In cross-examination he agreed that when he made that post his mental health was probably not stable. Whilst he denied thoughts of self-harm he explained that he “...already felt dead inside”. He accepted that these posts were a cry for attention. He expressly denied thoughts of suicide or harming anyone.

The Family Consultant noted the extensive evidence about the Father’s Facebook posts which, as will be seen below, strongly suggest that his mental health was at least strained, if not in crisis, at the time of posting. The Family Consultant was unsurprised, noting that it was consistent with both the Father’s character, and his history.

Perhaps the clearest evidence about the need to protect the children from harm, both physical and psychological, is the evidence of the series of Facebook posts made by the Father in the period 14 April 2018 to 26 January 2019.

Turning to the posts themselves, they bear some clear characteristics. They are abusive of the Mother (14 April 2018): “fuckn dumb slut of an X misses I obviously have aye heartless dogggg”. The same post was also threatening: “I’d stab a bitch for that LOL”.

On 11 July 2018 the Father posted his certificate of completion of the domestic abuse program but with the comment: “I am a qualified stalker and intimidator LMFAO”. Counsel informed the Court that LMFAO means “laughing my fucking arse off”.

Concerns about the Father’s mental health arise from posts he made on 5 August 2018, 2 September 2018 and 11 November 2018. The latter post says: “fuckn fuck this cunt of a world I hate it I hate women I hate fuckn everything”.

To read the full case click here SHANNON & JOLES [2019] FCCA 374 


FLAST CASE BRIEF: Cannon & Wescott [2019] FamCA 148 (12 March 2019)

Shocking Case, “the father” is restrained from spending any time or communicating with the children!

"There are times when the constant parade of misery in this Court threatens to take its toll on those charged with dispensing justice for children within the confines of applying the law pursuant to the Family Law Act 1975 (Cth) (“the Act”)."

This judgment came after the father was a no show at the hearing and just after the father abused the ICL and the Court in an Email.

The Court Orders

The mother shall have sole parental responsibility for the children.

Mr Cannon (“the father”) is restrained and an injunction hereby issues restraining him from spending any time or communicating with the children.

The father is restrained and an injunction hereby issues restraining him from initiating any communication with the mother.

In the current case, the applicant, did not bother to turn up to the hearing of his application for a parenting order.

A recent communication from the father to the independent children’s lawyer (“ICL”) was in these terms: (as per original) [ex 7]

I will when I am ready
The dumb c#$t could of fixed it himself, but he wouldn’t have the brains to reading all his mistakes in his family reports.
I’M TOTALLY THINKING OF PULLING THE PIN ON ALL THIS COURT SHIT!!!!
**YA ALL OVER PAID ACTORS**


His history as a "father" has a long criminal record that included pedophilia.

"It was during this time that it appears highly likely that the two female children were sexually abused by their father. Hardly surprising one might have thought."


The judgment is scathing of the "system", it is a short judgement and well worth reading, some quotes from the judge include:

"The Department of Child Safety, Youth and Women should not conclude that this order is intended to be an endorsement of the mother’s capacity to provide a safe and stable environment for the children in the long term"

"There are times when the constant parade of misery in this Court threatens to take its toll on those charged with dispensing justice for children within the confines of applying the law pursuant to the Family Law Act 1975 (Cth) (“the Act”). "

"The children have had a dreadful life to date but they, like so many children seen in this Court and various other courts in Australia, are what I consider can aptly be described as ‘the forgotten ones’.

"I say this because, for some people, it seems easier to turn away than to confront some harsh realities about a society that not only permits but encourages children to be born into households where their parents are incapable of providing safe, stable and loving homes and where the children are frequently subjected to the most horrific abuse."

A truly shocking case for all involved.

This case can be found on FLAST Channels on .  Case : Cannon & Wescott [2019] FamCA 148 (12 March 2019)

  • Reading section 10 of the judge's comments I am reminded of the adage 'an ounce of prevention is worth a pound of cure'  .......children from functioning two parent families are, I'd suggest, "our country's most important asset" - those children whom make good (break the cycle) from single parent households are the fortunate minority.  Good law, thoughtful law gives due consideration to process, cost, equity, time and creates natural disincentives that would do violence to civil society.  (As an aside I am not convinced that the ALRC's Family Law System 2019 recommendations to the Attorney General give due consideration to 'prevention' but rather favour 'cure'.)

     

    10. The millions of dollars routinely wasted by governments of all persuasions on endless enquiries and royal commissions into child safety could actually make a real difference if redirected to the lives of these forgotten children. Children are this country’s most important asset yet the courts and front line services such as the variously named Departments of Child Safety and Police, charged with trying to protect them, are simply starved of sufficient funds to make a difference. Foster carers are few and far between and time and time again parents are afforded second chances at the expense of their children

    FLAST CASE SUMMARY  

    Case : Bangi & Belov [2019] FamCA 42 (6 February 2019)

    - Time With

    This case involved one child, 13 years of age, where the matter was remitted by the Full Court for to the Family Court for consideration of a discrete issue.

    The dispute relates to the proportion of time the child will spend with each parent during school terms, the dispute arose because the police have attended the mother’s residence on multiple occasions due to reported and conflict between the mother and her [new] partner.

    The father seeks more time in the father’s household and less time in the mother’s household to reduce the child’s risk of exposure to violence, conflict and alcohol abuse. The father sought orders whereby the child live with the mother on alternate weekends and for one night in each intervening week during school term and otherwise with him.

    Parental Responsibility

    Additionally there was a dispute as to which school the child attends and an order is made specifying which school the child will attend.

    Practice and  
    Where the father seeks to rely on findings made by an earlier Court in the same proceedings, the Courts consideration of case law and s 69ZX of the Family Law Act 1975 (Cth). Where the Court is able, but not required, to adopt unchallenged findings made by the trial judge in earlier proceedings.

    Issue : Although in her written submissions the mother objected to all of the affidavits in the father’s case, the only objection she pressed at the commencement of the hearing was in respect of the affidavit of Mr JJ. The father’s counsel said that the deponent would not be available for cross-examination. In the normal course, an affidavit would be excluded where the deponent is not made available for cross-examination, without a justifying circumstance.

    Reasoning: However, as with other aspects of the proceedings, the affidavit in question was part of the evidence before Hannam J in the earlier hearing. The evidence of Mr JJ was not challenged in those earlier proceedings. That is because the mother failed to attend the parts of the hearing which occurred after that affidavit was sworn and filed. However, there was no appeal by the mother in relation to the orders of Hannam J and although she attended a procedural hearing (about expedition) she failed to attend at the hearing of the father’s appeal. As a result there was no challenge on appeal to the findings of Hannam J in respect of Mr JJ’s evidence.

    HELD : 

    Where orders are made that the child lives with the father and spends substantial and significant time with the mother.

    Additionally in regards to schooling : I have ordered that he mainly live with his father. Largely for that reason I ordered that the child attend the public School (as opposed to private school mother wanted) nearest the father, commencing in the 2019 school year.


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    Doonan & 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 Family report writer recommends the children to live with father.
    • Both parents are deemed flawed.

    ISSUE:

    • What parenting arrangement will be in the children’s best interests?
    • Are the children at risk with the mother’s partner?

    HELD:

    It was determined it was in the children’s best interest to live with father and spend time with mother as per recommendation by the report writer.

    This matter was determined pursuant to s.60CC of the Family Law Act.

    The children have lived mainly with the father as their primary carer all their lives, except for the instances when the mother has over held the younger child. Both parents have ‘flawed personalities’ however they both love their children.

    The Judge agreed that the father’s concerns about the mother’s partner are reasonable.The Judge did not order the fathers proposal to prevent the children from being brought into contact with or left alone with the mother’s partner, for this would not work. The Judge has confidence that the mother’s partner statement that he never hits the children is truth, however, the Judge expresses doubt that may be the case with women.

    Legislation: 

    Family Law Act 1975s.60CC

    Goode v Goode  [2006] FamCA 1346

     

     

     

     

     

    McClelland & 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 biological mother a conception mother by artificial insemination.
    • They both agreed that they would both parent the child conceived by the mother.
    • After eighteen months, the biological mother wanted to default on this agreement and became resistant to the applicant spending time with the child.
    • The child is now 5 years, and is developmentally delayed but has a fond, loving relationship with the applicant.
    • After proceedings began, the biological mother disclosed that the child had not been conceived by artificial insemination but had been conceived as a result of a sexual relationship with a local man.
    • The local man has been confirmed by DNA testing to be the father of the child but has never wished to be a party to the proceedings and spends limited time with the child.
    • The ICL supports the applicant for time spent with the child, the Family Report Writer also sympathises with the applicant, however cannot agree with the applicant orders sought.

     

    ISSUE:

    • Does the applicant have standing to apply for parenting orders?
    • If the applicant does have standing for parenting orders, will it be in the child’s best interest to facilitate time spent with the applicant?

    HELD:

    Application dismissed. It was ordered that it’s not in the child best interest to continue visitations with the applicant. The Judge provided the applicant an extra two visits with the child before ceasing, so they could both say goodbye to each other.

    It was determined the applicant did have standing to bring forth the parenting application pursuant to s 65C(c) of the Family Law Act 1975. The judge asserts that this application cannot be rejected just because the applicant has no biological connection to the child. It was established that due to the involvement of the applicant in the child’s life since his birth, proves the respondent is a person concerned with the care welfare or development of the child.

    Furthermore, the Judge determined this matter by applying the child’s best interests as the paramount consideration pursuant to s. 60CC(2)and (3) of the Family Law Act 1975.

    The judge rationalises that some of the facts in this case can be comparable to the case ofAldridge & Keaton [2009] FamCAFC 229, where it was determined the applicant could spend regular time with the child. In saying that though the judge asserts that every case has it’s own individual facts to consider, and determined that it would not be in the child’s best interests for the child to spend time with the applicant in this particular situation, due to the biological mother’s hostility towards the applicant that will not change, the high possibility of conflict at changeovers, the mother’s mental health and the distance the parties live apart. It was acknowledged that the child will feel a great loss however, the Report Writer asserts that the child can overcome this and that it wont be detrimental to him in the long term. The Judge and the Family Report Writer expressed significant sympathy for the applicant’s outcome.

     

    Legislation:

    Family Law Act 1975 (Cth), ss.60CC61DA65C

    Cases cited: 

    Aldridge & Keaton [2009] FamCAFC 229

    Church & Overton & Anor [2008] FamCA 953

    Hearn & Sempers [2017] FCCA 3557

    Mankiewicz & Anor & Swallow & Anor [2016] FamCAFC 153

    McCreadie & Oram & Anor  [2018] FCCA 2318

     

    Herbert & 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 the Family Psychologist?

    HELD

    It was determined during the previous orders the 15 year old boy had missed a significant amount of school whilst in the mothers care, the court is presently satisfied the boys have been attending school whilst they are in the fathers care, the ICL asserts that there should be no change to the existing orders for the present time.The mother did not provide acceptable evidence to change the boys living arrangements to return to her care. The application was dismissed.

    Furthermore, in relation to the matter of terminating the current ICL in favour of a new one, the mother did not sufficiently demonstrate that the ICL is not discharging her responsibilities independently and professionally. It was stated that it’s not an adequate reason to discharge a ICL just because they are not acting in a way that agrees with the parents’ expectations.The application was dismissed.

    Moreover, the evidence specified by the mother does not warrant restraining the psychologist from seeing the father and the children. However, the Judge informed the mother that she has an opportunity to challenge the psychologist in cross-examination at the trial if she wanted to try to discredit her. The application was dismissed.

    In conclusion, the judge informed the mother that this matter may be resolved without the need to go to trial if she had a family lawyer advising and representing her; she was directed to the QLD Law society to seek assistance in locating a possible family lawyer who may represent for her trial on a deferred payment basis.

    Skivington & 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 mediation process was incomplete, due to the mediator’s other commitments
    • The Federal Circuit Court Judge dismissed the parties' initiating application and response for failure to prosecute the matter.
    • The wife is appealing; the husband concedes the orders were erroneous.

    ISSUE:

    Did the judge fail to comply with the requirements of Rule 13.12 of The Federal Circuit Court Rules 2001 (Cth)?

    HELD:

    The appeal against the orders were allowed.The initiating application and response are remitted to the FCC for a rehearing with a different Judge. The court grants both parties a costs certificate.

    In determining this matter Rule 13.12 of The Federal Circuit Court Rules 2001 (Cth) provides:

    13.12 Dormant proceedings (1) If a party has not taken a step in a proceeding for 6 months, the Court may, on its own initiative, order that the proceeding, or a part of the proceeding, be dismissed. 

    (2) The Court must not make an order under subrule (1) if: 

    (a) there is a future listing for the proceeding or a part of the proceeding; or 

    (b) an application in a case relating to the proceeding has not been determined; or 

    (c) a party to the proceeding satisfies the Court that the proceeding, or part of the proceeding, should not be dismissed; or 

    (d) the Court has not given the parties to the proceeding notice under subrule (3). 

    (3) The Court must, at least 14 days before making the order, give each party to the proceeding written notice of the date and time when it will consider whether to make the order. 

    (4) Notice under subrule (3) must be sent by post in an envelope marked with the Court's return address: 

    (a) to each party's address for service; and 

    (b) if a party has no address for service--to the party's last-known address. 

    It was established the matter was not “dormant” for the parties had attended mediation in accordance with the order, although the mediation was incomplete, due to the mediator’s other commitments. Whilst the process may have been slow going it was still in motion, the parties had therefore “taken steps to advance the proceedings.”

    Furthermore, the judge stated at [10] “no evidence was tendered or relied upon on the adjournment application to explain why orders had not been complied with” contrary to this, a transcript extract from the submissions made on the adjournment application at [1] was included in the judges reasons.

    It was determined the judge had erred in failing to consider the actions of the parties that demonstrated they were in fact prosecuting the proceedings. The judge did not clarify why the partial settlement and the incomplete mediation process were inadequate to avoid the proceedings being rejected. 

     

    Conlan & 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 relocation to the UK with the child.
    • The father has applied for orders seeking the child be returned to the area with the mother, if the mother does not return, for the child to reside with him.
    • The mother seeks to remain with the child in the act with intentions to ultimately relocate to the UK.

    ISSUE:

    Is it in the child’s best interest to remain in the ACT with the mother?

    HELD:

    It was ordered for the child to be promptly returned to the town to the fathers care, the exception is if the mother returns as well, then the child will live with her and have access to the father. The mother may also select the school for the child, however she is prohibited to change the school without the consent from the Father.

    If the Mother does not return with the child, she will remain with the father and time spent with the mother will have to be considered. Furthermore, it was established the mother’s conduct was in contravention of the final orders, however, punishment for breach was not a concern in these proceedings.

    The court considered the child to remain in the ACT with the mother, nonetheless there was significant concern regarding the accumulative instability in the child’s life over a period of time from the choices and conduct by the Mother

    It was stated at [35] the child had changed schools once and then been removed from school completely to be home-schooled. She has then changed home, changed city, and enrolled in a new school and now there is a proposal that she may relocate to a new country.

    It was therefore determined in the best interest of the child that there is a significant need for her to be provided stability, at the very least during the circumstances of the current proceedings, even if it means abrupt interruption for the child and possible amendment of primary carer.

     

    Legislation and Principle Cases

    Family Law Act 1975 (Cth) s 65DAA  s 60CC  

    Goode v Goode  [2006] FamCA 1346

    Morgan v Miles [2007] FamCA 1230;  (2007) FLC 93-343

    Rice & Asplund [1978] FamCA 84;  (1979) FLC 90-725

    U & U [2002] HCA 36;  (2002) 211 CLR 238

    Kader & 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?

    HELD:

    Pending a final determination of the orders, the mother has sole parental responsibility for the child; the child is to reside with the mother.

    It was ordered for the Mother to attend a Psychologist to deal with concerns developing from the child spending time with the Father, additionally, both parents are ordered to complete the Post-Separation Parenting Orders Program. Furthermore, the father was granted supervised visitations initially at a contact centre, after no less than 10 visits at the centre with the child, both parents must attend the family report writer for the arrangement of an updated Family Report.

     The courts position in this instance pending the final orders, were that contact should be returned between the father and the child in the best interests of the child. The judge concluded that a previous history of a parent behaving unreasonably does not always mean the child will be devoid of a meaningful relationship with the parent later on, this of course relies on the parent to behave reasonably in such a way to demonstrate the best interest of the child will be satisfied.

    There has been some time between contact with the father and the child (2 years and eight months) therefore, supervised visitations at the contact centre will provide the opportunity to determine if the father is capable of behaving reasonably with the child, it was established the probability of the father causing harm to the child at the contact centre is minute.

    Legislation:

    Family Law Act 1975 (Cth), ss.11F60CG60CC60CA

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