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COURT OF APPEALS FINDS TRIAL JUDGE ERRED WITH VAGUE ORDERS AND UNDUE WEIGHT GIVEN TO PSYCHIATRIC EVIDENCE AGAINST MOTHER

Pinson & Pinson [2020] FamCAFC 8 (17 January 2020)

This is a case where a mother challenges the interim parental orders allowing her only to a supervised time nominated by a Contact Centre and giving child custody to the father.

Facts:

Ms. Pinson (Mother and Applicant) filed an Application for an extension of time to file a Notice of Appeal against the interim parenting orders. The order provided for the parties' eight-year-old daughter to live with Mr. Pinson (Father and Respondent) and to spend only supervised time nominated by a Contact Centre with Ms. Pinson. It also ordered Ms. Pinson to pay the costs of supervised time. Finally, it directed a series of injunctions, designed to prevent her from having any contact with her child outside the ordered supervised time, to Ms. Pinson. Ms. Pinson challenged the form of the order made by the trial judge concerning supervision or supervised time for her being "as nominated by the Contact Centre," and the trial judge's use of psychiatric evidence in the case.

Issue:

Are there substantial issues to be raised on the appeal that will warrant an extension of time?

Held:

(Kent, J) Yes.

Determining whether to extend time necessarily involves consideration as to whether an applicant establishes that there is a substantial issue to be raised on appeal.

Ms. Pinson raised that the order providing for a supervised time nominated by the Contact Centre is vague and ambiguous. She also challenged the trial judge's use of psychiatric evidence, which have driven the trial judge to order for the child to live with Mr. Pinson, and not with her. The Court explained that the order regarding giving Ms. Pinson supervised time nominated by the Contact Centre only is not sustainable as it might be seen as delegating judicial power to a third party. The Court also found that the trial judge was in error in using psychiatric evidence in coming with the decision.

Observing that there are substantial issues to be raised in the appeal, the Court granted the extension of time for Ms. Pinson to file her Notice of Appeal.

The Court found, based on Ms. Pinson’s Notice of Appeal, that there are substantial issues to resolve. First, the order providing for a supervised time nominated by a Contact Centre might arguably be seen as delegating judicial power to a third party. Second, the use of the trial judge of evidence raised by a psychiatrist that driven the trial judge’s decision to order for the child to live with her father and not with her father. Hence, the Court gave weight to these substantial issues in granting the application for an extension of time for Ms. Pinson to file her Notice of Appeal.

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Comments (11)
  • Annette-Marie McMillan I’m going through similar atm

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    • Rose Flast Annette-Marie McMillan Thank you for sharing that you relate to the case. It must be tough, but know that there are people who will be able to discuss and help you with your situation. Find strength from other's experiences. I invite you to join FLAST. It is not only a case digest website, but it is also an avenue where you can discuss your legal issues with those with legal experiences who can provide legal information without giving legal advice. Besides, it is a safe environment for sharing your legal concerns as you can stay anonymous if you want. :)

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        • Monica Simpson Yep, I relate to this, my ex is has lied to police and me and I'm the one who is criminally charged with common assult, I grabbed my son's ear for a matter of seconds to get his attention, I was and have evidence of not being able to speak properly and had impacted ear was making me deaf in one ear at the time, they told police I dragged him thru the house, now as the actions have been downgraded to grab and tank of the ear I have plead an early guilty and co operating I have to wait another week for sentencing and as this is wrapping up tried to put a dvo on me with our two youngest kids, of I could afford a solicitor I had a good chance at winning this but I simply can't do it....he's been told legally to get his shit together and have evidence while in adjournment phase but until then I can't get the legal aid application in waiting for sentencing of assult charge.....he's the one with PTSD and used previously 6 attempts of suicide with the plan for the next time and my kids are safe with him???? He's not allowing me to call my children let alone see them and our 5 yr old screams and shouts for me when I have run into them or spoken to them on the phone.....he's stopped me contacting them on the 16 Dec and I have a funny feeling he's even changed their schools......and here I am with this assult charge and can't do anything about it but still expects money from me for child support living off of 690 a fortnight with 400 of that in rent.....I feel for this lady, we are mums and we sacrifice our lives for our children sometimes and we are the bad ones? All this and seeing it for what it really is in the real world like this makes me more and more wanting to be an advocate in some way for the victims of dv be or physical financial mental and emotional.....we need to find the loophole that judges are overseeing and we need to find a way these narcissist exs are lieing to make themselves feel better but the children that are caught in the crossfire and traumatised are the ones that need the help, they are the ones who need to have someone listen to them and be their mouths in the larger scale of court.....it's always the kids that suffer

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          • Monica Simpson I relate

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