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 GMTNunn v Pezzimenti [2021] VSC 313 (16 June 2021) The accused drove under the influence of drugs but the specific drug was not named in his charges; the omission was held as valid by the Magistrate and charges were amended to include the name of the drug and omit ‘or in charge of’ Facts: The accused, travelling north on Northern Highway, Kilmore, was intercepted by Leading Senior Constable Pezzimenti, upon which the former produced a Victorian driver license in the name of Allan Nunn. Pezzimenti then conducted a preliminary breath test which showed Nunn was not under the influence of alcohol. Nunn was then informed by Pezzimenti that he needed to undertake a preliminary oral fluid test. Failing to provide a sufficient sample of oral fluid, they went to the Kilmore Hospital to have Nunn provide a blood sample. The blood sample was sent to the Victorian Institute of Forensic Medicine for analysis which confirmed the presence of methylamphetamine, a prescribed illicit drug for the purpose of Section 55E of the Road Safety Act 1986. Two charges were filed but neither of the charges named the drug. In the Magistrates’ Court hearing, both charges were held as valid subject to an amendment including the name of the drug (methylamphetamine) and deleting the words ‘or in charge of’ to avoid duplicity of charge. Issues: Whether the original drug driving charges against the plaintiff were valid. Whether the charges were capable of amendment after the expiration of the limitation period. Applicable law: The Criminal Procedure Act 2009 - provides that charge-sheets should contain particulars necessary to give reasonable information as to the nature of the charge. Baiada Poultry Pty Ltd v. Glenister (2015) 257 IR 204; [2015] VSCA 344 - did not require specifics because what is reasonable is to be understood in the light of common law. Southgate Management Pty Ltd v Nitschke [2018] VSC 236 - provides the basis for what is a ‘spectacular omission’ The Road Safety Act 1... Read more

]]>Mon, 21 Jun 2021 07:16:40 GMTCapilano Honey Ltd v Dowling (No 4) [2021] NSWSC 264 (26 March 2021) This is a defamation case where the (first) plaintiff alleged that the defendants made assertions that the plaintiff’s company is selling “toxic honey” and also made other personal assertions about the second plaintiff. Facts: Hive and Wellness Australia Pty Ltd (formerly known as Capilano Honey Ltd, and hereinafter “Capilano”) is the first plaintiff in these proceedings. It has brought a claim against Mr Shane Dowling (the defendant) for the tort of injurious falsehood. The chief executive officer (CEO) of Capilano is (and has been for some time) Dr Ben McKee. He is the second plaintiff in this proceedings, and has brought proceedings against the defendant for the tort of defamation. The proposition of the plaintiffs is that the defendant has posted material on a website, Facebook, and Twitter that is harshly critical of Capilano and Dr McKee. The website is entitled the Kangaroo Court of Australia (“the KCA”), and the Facebook and Twitter accounts are closely linked to it. The fundamental assertion of the defendant about which the plaintiffs complain is that Capilano is in the business of selling honey to Australian consumers that is dangerous to their health, and in particular not properly tested for contaminants. Dr McKee, in light of his central role in Capilano, claims that he is implicated indirectly in that state of affairs by the defendant, and also that he is the subject of direct assertions by the defendant about his bad character. The publications that are the foundation of the alleged torts are eleven articles that the defendant is said to have digitally published between 17 September 2016 and 11 March 2017 on the KCA website, and that were repeatedly “linked to” and republished on other social media. The defendant submitted that the failure by the plaintiffs to provide test results that he submitted were called for invites an adverse inference about the quality and safety of Cap... Read more

]]>Mon, 29 Mar 2021 09:09:31 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

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