Posts of FLAST Pty Ltd RSSSat, 14 Dec 2019 00:06:12 GMTOverview In the recent case of Guild v Stasiuk, the Court was required to determine whether a prenuptial agreement was effective in ousting or excluding the Court’s jurisdiction to consider a wife’s claim for spousal maintenance after the couple had separated. The prenuptial agreement included an express provision that it was a financial agreement under section 90B of the Family Law Act, which allows engaged parties to reach an agreement about how their property will be divided if their relationship fails and also, if they choose, about whether spousal maintenance will be paid. If parties decide to deal with the issue of spousal maintenance in their agreement, section 90E applies. Section 90E (and section 90UH for de facto couples) states that a provision for spousal maintenance in a financial agreement is void if it fails to specify who is to receive the maintenance and how much the maintenance is. Void in this context means of no legal effect. The facts Before the wedding in 2008, a prenuptial agreement was signed in anticipation of marriage. The husband operated a business and received income from trusts that owned properties. The wife worked three days per week and was the main carer for the children. The parties had two children, who were the subject of a parenting dispute. The wife argued the husband had financially supported the family until 2018 and that they had enjoyed an affluent lifestyle. The wife sought an order that the husband pay spousal maintenance of $1,000 per week, family health insurance cover, and various expenses incurred in the running of the house where she lived with the couple’s two children. The husband argued the prenuptial agreement removed the power of the Court to make these orders. The prenuptial agreement The agreement included a provision entitled ’No Claim for Maintenance’, which provided: (The wife) agrees that in the event of the event occurring (and relevantly, the event is the permanent separation), that she will ... Read more

]]>Sat, 14 Dec 2019 00:06:12 GMTFLAST 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 #Parenting 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... Read more

]]>Fri, 24 May 2019 03:36:00 GMTFLAST CASE BRIEF : AQUARO & AQUARO [2019] FCCA 1140 This case involved #Parenting 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 Ch... Read more

]]>Thu, 23 May 2019 05:58:00 GMTFLAST Case Brief : ANESTIS & KLEMM (No.2) [2018] FCCA 2622This interesting Family Law proceeding saw the Father subpoena the criminal records of the maternal grandfather and seek injunction against the mother due to her being a drug user,  the mother (and her father) objected to this on the grounds of relevance.The Court held that the mother do undergo supervised random urine analysis drug testing on no more than one occasion each month forthwith upon the request of the Independent Children’s Lawyer and do provide the results of same as soon as they become available and that such testing be collected in accordance with the chain of custody protocol specified in AS/NZ 4308:2008.That the mother be restrained and an injunction is granted restraining the mother from consuming illicit substances including cannabis or being under the influence of illicit substances while the child is in her care.In regards to the subpoena, Mr Anestis, who is the father of the respondent mother in these two cases has objected to a subpoena, or at least objected to the inspection and copying of a subpoena to the police about him. He says that it is fishing or it is oppressive and it is not relevant. The relevance is said to be that on the mother’s affidavit material, and indeed I think there are allegations from the father to a similar effect, the mother and the child spend time at the home of the maternal grandparents and in fact I was told from the bar table that she is in fact living with the maternal grandparents at the moment. The Court responded by stating that Illicit drugs, and in particular, methamphetamine use, are central in this case, it would appear, and it occurs to me that it is highly relevant to know whether or not the maternal grandfather with whom the mother is presently living, is himself involved in more serious drugs than the relatively minor cannabis that he has referred to. I think to that extent the subpoena is relevant. I do not consider it is oppressive. In al... Read more

]]>Tue, 21 May 2019 23:54:11 GMTFLAST CASE BRIEF : COFFEY & TILLMAN [2019] FCCA 1118 This was an unusual #Parenting 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.

]]>Tue, 21 May 2019 05:14:00 GMTFLAST CASE BRIEF : SYKES & GROFF & ORS [2019] FCCA 1079 We often hear about cases involving drug and alcohol abuse along with domestic violence, this case examines such a scenario, where the  court had to consider whether a father ought to have unsupervised time with a young child when there are serious allegations of family violence and drug abuse and he has failed to provide drug screens.  It was held that the mother shall have sole parental responsibility for the child and the child live with the mother. Conditions for father to see child :Within 72 hours of the date of these Orders, the Father shall make an appointment to attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee by telephoning 1300 37 84 83, and shall provide a hair sample (“the sample”) for drug testing purposes (“the drug test”), with collection to be conducted by a qualified and certified collector, and the drug test to screen for illicit substances for the 6 months prior to the provision of the sample. To give effect to the above, the Father shall maintain his head hair at a length of not less than four (4) centimetres and he is hereby restrained by injunction from cutting, bleaching or dyeing his hair, or allowing any other person to do so, between the date of this order and the time of collection of the sample.The drug test may screen for alcohol EtG and/or drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this order as required. Until the father has provided a hair follicle drug test that complies and which shows an absence of any illicit substance for the previous 6 months, the child shall spend time and communicate with the father as follows:(a) Provided that he has provided six consecutive urine drug screens within 24 hours of a request by the Independent Children’s Lawyer, showing no use of illicit substance... Read more

]]>Tue, 21 May 2019 01:51:38 GMTFLAST CASE BRIEF : BUSCH & DYER [2019] FCCA 956 In this unusual case involving a Property dispute and a marriage lasting less than 2 years with the wife who came to Australia in 2009 and achieved permanent residence in 2016 after her marriage to the applicant. The husband deposed that the parties always had separate bank accounts. He deposed that the wife made no contributions to the utilities, rates and the like of the matrimonial home, and that the parties were so to speak, financially separate throughout the relationship.The wife is now refusing to leave the matrimonial home until she got what she wanted, which is to stay until the end of this year or the husband pay her $25K to move out.  The Court determined it was clearly not just and equitable to make an order adjusting the parties’ property interests.  Each party gets what they came in with, in the wife's case that was very little.  The wife is ordered to vacate matrimonial home within 21 days.

]]>Fri, 17 May 2019 01:49:23 GMTFLAST CASE BRIEF:  NOLL & NOLL [2019] FCCA 1083 This was an interim proceeding in a parenting matter before the Federal Circuit Court of Australia.  The father, by way of ABF Legal had made an application that the child lives with him and attend a local school,  there were issues of time spent with each parent, the mother was a registered sex offender represented by Thexton Lawyers.  Sometime shortly after separation the Wife went to stay in a house with some other occupants, one of whom was underage. On or about 6 April 2016 the Mother was convicted in the County Court of Victoria of two counts of sexual penetration with a child under 16. The Mother was sentenced by to a two year community corrections order and 150 hours of community service. At the time of the offences the Mother was aged 25 and the victim reportedly was aged 15. The Department of Human Services was involved in advising the Father that the Mother had been registered as a sex offender for life. HELD : The Applicant (Father) and the Respondent (Mother) have equal shared parental responsibility for the child. the child live with the Father. the child spend time and communicate with the Mother as follows: (a) During school term time each alternate Wednesday from the conclusion of school or 3.15 pm to the commencement of school or 8.45 am on the following Monday.(b) For half of each of the school holidays on a week about basis, as follows:(i) In even-numbered years, with the Mother in the first week of each of the school holidays;(ii) In odd-numbered years, with the Father in the first week of each of the school holidays. (c) As may otherwise be agreed between the Father and the Mother in writing (including text or email). the child shall commence spending time with the Mother pursuant to Order (4)(a) from Wednesday 15 May 2019.Educationthe child be forthwith enrolled at School A, Town B (School) to commence immediately. The Father authorise the School to: (a) Provide to the Mother, at the e... Read more

]]>Tue, 14 May 2019 02:05:34 GMTFLAST CASE BRIEF : SERRANO & RAY [2019] FCCA 878 This case involves a Parenting dispute and the father withholding children due to allegations of child sexual abuse and child protection in breach of orders of the Court.The father’s affidavit material from last year, 2018, alleged that the child disclosed to him that she had sex with men at the mother’s home,  that was reported to the police and after some preliminary inquiry, the police did not make any further investigation.Child's disclosure :"...But at night, mum lets people through the window, and I don’t know anyone but mum. When I’m in bed, people touch me where I don’t like to be touched, like up and down."The Court considered the best interests of the child and placed an injunction against the father about further disclosures of sexual abuse and the father is restrained and an injunction is granted restraining him from presenting the child to any psychologist, counsellor or medical practitioner with the intention of eliciting or facilitating any disclosure of sexual abuse by the child.....In the circumstances, I am not convinced that there is an unacceptable risk, should I make an order, or indeed a recovery order for the return of the child, and I will do so. Read the entire judgment here SERRANO & RAY [2019] FCCA 878. ... Read more

]]>Fri, 10 May 2019 03:09:00 GMTFLAST CASE BRIEF : IBBOT & BAUMER [2019] FamCA 138 This is a family law matter concerning children and parenting.  The final judgment has been reserved and the father as made an #ApplicationInACase to re-open a trial that concluded on 16 November 2018 and for new evidence to be adduced.The father alleges that he has not seen or spoken to the two children (both boys) aged eight and five, since before the trial  and the orders currently in place do not provide for the children to spend any time with the father.  These orders were not sought to be varied at the trial while the judgment is reserved.The father filed an affidavit in support of the Application in a Case. In that affidavit the father deposes to not having seen the boys since September 2018, including not being allowed to see them on Christmas Day 2018, nor being allowed to provide them with bicycles that he had purchased them for Christmas. He also deposed to not being “allowed ... to speak to [the] children via telephone since the Hearing in November 2018”. A second affidavit of the father was filed on 5 March 2019. It contained the deposition of the father that he “will not be attending a Contact Centre now or in the future as [he has] done nothing wrong to require supervision”. He also said: I will accept time with the children from 9:00AM Saturday until 4:00PM Saturday unsupervised and from 9:00 AM Sunday until 4:00 PM Sunday unsupervised every second weekend as well as school holiday time. However... the mother cannot encourage a meaningful relationship between myself and the children. I say that it is not in the best interest [sic] of these children to live with the mother and I am prepared to accept a live with order. I asked this Honourable Court for a change of residence for the children. Determining the parenting proceedings involves determining allegations made by the mother that the father has perpetrated sexual abuse against one or both of the boys and that they would be placed in a si... Read more

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