Top Posts RSSWed, 23 Jan 2019 03:27:16 GMTThis is the National Domestic and Family Violence Bench Book.This is a recognized legal resource recognized and used by the Australian Family Law Courts when dealing with matters concerning Domestic Violence and Family Violence.It covers issues such as :3.1. Understanding domestic and family violence 3.1.1. Physical violence and harm 3.1.2. Sexual and reproductive abuse 3.1.3. Economic abuse 3.1.4. Emotional and psychological abuse 3.1.5. Cultural and spiritual abuse 3.1.6. Following, harassing and monitoring 3.1.7. Social abuse 3.1.8. Exposing children to domestic and family violence 3.1.9. Damaging property 3.1.10. Animal abuse 3.1.11. Systems abuse 3.1.12. Forced marriage Click on this link to read more National Domestic and Family Violence Bench Book.... Read more

]]>Wed, 23 Jan 2019 03:27:16 GMTSargent & Selwyn (No.3) [2018] FCCA 2836 (4 October 2018). The was a Final #parenting hearing to decide whether or not the parties should have equal shared parental responsibility.SummaryThe primary issue was the communication between the parties, with neither party prepared to give an inch and every little molehill becoming a mountain of communication to reach any sort of resolution created a situation where shared parental responsibility was unworkable. The Court was also asked to consider whether or not there should be an equal time arrangements, however that presumption was rebutted.Other aspects of the final hearing covered practice and procedure, interlocutory applications, s.67ZBA application and an application to transfer to Family Court and application for costs certificate. Issues The key issues in this case centre on the parties’ communication and their rigidity of approach and whether or not these difficulties are such that the mother should exercise sole parental responsibility and the father’s time during school terms should be reduced. The father seeks an order that the parties continue to exercise equal shared parental responsibility. The mother seeks sole parental responsibility for Thomas. The ICL supports the mother’s position. The father seeks that from 2019 he have equal time with during school terms as well as during school holidays. The mother seeks that the father’s time be reduced to two nights a fortnight during school terms and that the holidays be shared equally. In her written submissions she modified her position to the father spending time with [X] three nights a fortnight from Friday after school to before school on Monday on alternate weekends.EPIC The father’s trial affidavit is in four volumes. The annexures total 889 pages. They include several email exchanges and diary notes covering various topics dating back to 2012. The annexures also include extracts of transcripts from various court appearances in these proceedings a... Read more

]]>Tue, 22 Jan 2019 02:45:47 GMTFLAST CASE STUDY BRIEF -  #Appeals  CASE : Janos & AltonCITATION: [2018] FamCAFC 209 (2 November 2018) DETAILS : Where the respondent concedes error by the primary judge and where there was appealable error.  The Appeal was allowed and #ConsentOrders made (Note good example of consent orders within Judgement). #COSTS & COSTS CERTIFICATES – Whether costs certificates should be ordered.  The appeal succeeded upon questions of law and Costs certificates were ordered for both parties and the Independent Children’s Lawyer for the appeal and rehearing.Key Issues (AT) :COSTS (7) The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.(8) The Court grants to the respondent and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent and the Independent Children’s Lawyer in respect of the costs incurred by the respondent and the Independent Children’s Lawyer in relation to the appeal.(9) The Court grants to the appellant, the respondent and the Independent Children’s Lawyer costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties and the Independent Children’s Lawyer in respect of the costs incurred in relation to the rehearing.(7) (7) Subject to these Orders (or agreement in writing between the parties) the Mo... Read more

]]>Thu, 29 Nov 2018 01:48:45 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 : 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 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 GMTHenley & Henley [2019] FamCA 101 (28 February 2019) The father sought to re-litigate final parenting orders in 2018. It was determined there was no sufficient change of circumstance to justify re-litigation on any issue other than that remitted for rehearing by the Full Court. Fast forward to 2019, the father is seeking an equal time regime with child A, to support his argument in preparation for the hearing of the remitted matter, the father sought leave to issue a subpoena directed to the Principal of W High School for the attendance records for the mothers other child F (from a previous relationship). The father alleges child A had significant absences from school (28 days in 2018) whilst in the mother’s care, which he says occur because the child is taken from Adelaide to Town P so the mother can spend time with her boyfriend. The father asserts child F attendance records will align with child’s A attendance records to support his claim, he then plans to argue that an equal time routine will reduce the number of absent days for child A (the child will be with the mother less). The mother asserts the child’s absences from school are of no concern to the school staff as “all absences have been explained.” In support of that argument, she attached a copy of a letter from the child’s school. However, the Registrar refused the father’s request to issue the subpoena “on the ground of lack of sufficient legitimate forensic purpose.” The father now seeks a review of the Registrar’s decision.   FACTS SUMMARY: Review of Registrar’s decision to refuse the father’s request to issue a subpoena for school attendance records. The refusal is on the ground of lack of sufficient legitimate forensic purpose. The solicitor for the mother conceded that at trial the Court would need to determine the genuineness of the mother’s explanation for absences. The extent of absences from school of both children on the same day could possibly throw light on the issues in the... Read more

]]>Wed, 13 Mar 2019 10:43:18 GMTMichaelson & Michaelson [2017] FamCA 174 (23 March 2017) This case summary is another example demonstrating one parents conduct post separation that included social media; this was an international relocation case where the children (17 & 13 years) expressed firmly their refusal of seeing the father and their desire to relocate with the mother to the UK. Post separation the fathers conduct greatly upset the children; this included but is not limited to: posting comments about the family breakup on Facebook to be seen by all. The boys saw the posts and some comments on the father’s posts were derogatory of the mother.He also posted on Facebook a copy of the temporary protection order that was made against him, it identified the children, the mother and their address, a number of comments on the post were made and some were derogatory of the mother. Additionally, the father posted a photo of himself holding a sign criticising the mother for withholding the children from him, many of the posts were on a public Facebook page called ‘the Australian Brotherhood of Fathers. It was determined the father demonstrated a lack of insight into how his behaviour affects the children. The relationship was so impaired between them, it was established the children were “likely to further resent their father” if they were unable to relocate. The order was granted for the boys to relocate with the mother with hopes it would assist in some way in repairing their broken relationship with the father. ANYTHING you say or post on social media whether intentional, implied, and mistaken, including emails to the OP family can and will be used as evidence in Court. This is why at FLAST.COM.AU we are managing it quite strictly in terms of member privacy. As such we ask you to first register on our website FLAST.COM.AU and create an account, and then go one step further and create an anonymous profile.Using that Anon profile you can post a question in the #Discussion section of the... Read more

]]>Fri, 08 Mar 2019 08:15:11 GMTBradbury & Lander [2019] FamCA 22 ( 24 January 2019) Can your Facebook posts be used against you as evidence in the Family Court? YES IT CAN! The Mother has contravened parenting orders by posting on Facebook domestic violence and narcissist material that were an implied reference about the father. It is important to note the father was not named in these posts. The mother was required to prove to the court there was reasonable excuse for contravention. The mother was relying on the grounds there was a lack of understanding of her obligation that made her breach the orders. The mother believes denigrating did not occur because she was speaking the ‘truth’ about the father on social media, although she also concedes that calling the father a “vile human being” could be denigrating. The mother claims she did not identify the father on social media. The mother is an educated woman, and the court also deems her highly intelligent, moreover, the mother was also contacted by the husband’s lawyer that her conduct (that’s she fully concedes to) is a contravention of the orders and if she continues, it will be taken to court. The mother was required to answer/prove specifically to the ‘lack of understanding’ this is just one example below were she may have gone awry. [72] The Mother’s other claims, about the posts relating to domestic violence, or to her experiences in relation to domestic violence, do not explain either how they flow from a misunderstanding of the obligations attaching to the Orders, or how the posts were causally linked to such a misunderstanding. There was insufficient evidence provided by the mother to the court that demonstrated she did not understand her obligations with social media nor that she didn’t understand the IMPLIED REFERENCE about the father, which is also covered by the prohibition against degeneration inthe orders. What you can take away from this is ANYTHING you say or post on social media whether intentional, implied, and m... Read more

]]>Fri, 15 Feb 2019 05:43:33 GMTChard & Yong [2019] FamCA 26 (25 January 2019) FACTS: Mr Chard, and Ms Yong, have one child, X born in 2015.  The parties married in 2014 and separated on 9 October 2016.  Interim orders were made in the Federal Circuit Court providing for the child to live with her Mother and have supervised time with the Father. The Father has not been spending time with the child since May 2018, he contacted the Mother’s lawyer and wrote that he would no longer be attending B Group for time spent with the child. The Father has not had unsupervised time with his daughter since orders were made by consent in the Federal Circuit Court in March 2017. Both parties have allegations of domestic violence against each other. The Mother claims the Father has mental health issues. The Mother wants supervised visitations to protect the child from any harm that may be caused by neglect, in relation to the Father failing to care for her adequately, due to alleged mental health issues. The Father now seeks unsupervised visitations and shared parental responsibility for the interim orders, the father intends on seeking Final Orders that the child live with the parents in a shared care arrangement on a week-about basis.   ISSUE: Should there be supervised or unsupervised time with the Father? HELD: The father is to have supervised visitation until further orders. The matter is listed for further interim hearing, for a period of two hours at 10am on 18 April 2019.  The Father sought orders for equal shared responsibility, nonetheless neither party made any submissions in relation to this however, the court states at [32] ‘during this interim period, the current position where there is no order in relation to parental responsibility, and thereby both parents hold parental responsibility, is preferable’. The Mother said that despite there being no evidence that the Father has directly harmed or threatened harm to the child, supervision is justified, there was not a phys... Read more

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