Freedom Law

Why hire Freedom Law for your family law needs?

WHY HIRE FREEDOM LAW, THE FAMILY LAW SPECIALIST?

Serving Southeast Queensland for 25+ Years

When it comes to finding the right family lawyer, you need someone who genuinely cares about your case. Choosing the right lawyer is an integral part of the family law process, and you can’t afford to risk the future or financial security of your family on the wrong representation. With Freedom Law, The Family Law Specialist on your side, you can trust that your case will be in safe hands.


Ready to learn more about our firm? Book a free confidential consultation 1300 365 108


Why You Should Consider Freedom Law, The Family Law Specialist

  • We are 100% focused on family law – Family law is all we do, and we have an impressive record of results that demonstrates our capabilities.
  • Your lawyer will be there when you need them – We know that you want to have access to your lawyer. We are readily available to our clients.
  • You can get to know us in an initial consultation – Your choice of legal representation is too important to leave to chance. Get to know us before you make a decision.
  • You can work with an accredited family law specialist – When your future is uncertain, you can find comfort in knowing that you have an accredited family law specialist on your side.
  • We are backed by 25+ years of legal experience – We have been handling cases in the Family Court and Federal Magistrates/Circuit Court systems for decades.

Freedom Law, The Family Law Specialist

Is Ready to Fight for You

When you work with Freedom Law, The Family Law Specialist, you will have a lawyer with the skill to represent you no matter how complicated your case may be. Our team is highly experienced and lead by an accredited family law specialist.

We focus on family law because we care deeply about families and what happens to them, especially in times of change and transition. That concern means your lawyer will have the time and consideration to answer your calls and assist you in accomplishing your goals.

Your family deserves legal service that fits your needs – not a one-size-fits-all solution. Our in-depth knowledge of  family law and our extensive experience in negotiation, mediation, arbitration and litigation means that we have a wealth of knowledge to draw from in finding solutions that fit you.

Schedule Your Consultation: 1300 365 108

Regardless of the family law matter you currently face, you need a lawyer who will not only provide sensitive counsel, but fight for your best interests. You need a lawyer who gives you confidence, and one who will stand by you. This is what you will find at Freedom Law, The Family Law Specialist.

Call our office today on 1300 365 108 to learn more

 

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Sunshine Coast / Brisbane / Gold Coast / Townsville

Family Court expert referred to Medical Council

Family Court expert referred to Medical Council after parents lodge complaints

Expert:

A recent article from ABC News Australia

Updated 

They’ve been described as the “gods of the court” — the report writers whose written assessments can affect the Family Court’s decision on which parent gets custody of their children.

Key points:

  • Practitioner who performs expert witness work in family court under inquiry
  • Parents lodged series of complaints with health regulators
  • Family Court says private report writers “not compelled to comply” with its standards

For parents who say the report writer got it wrong, the choice is stark: pursue the legal “fight of your life” to overturn the report or accept losing custody of your kids.

Family report writers are usually social workers, psychologists or psychiatrists.

Now, a group of parents has banded together to launch a challenge against one report writer in New South Wales, alleging his practices “place the public at risk”.

The group has accused him of a string of failures including “grossly inaccurate and incomplete” recording of interviews, “misdiagnosis”, and that he “applies unscientific theory”, particularly in response to allegations of child abuse and family violence.

Their campaign has resulted in the alleged problem practitioner being referred to the Medical Council of New South Wales, a body that has the ability to suspend the practitioner’s registration if it believes the public is at an immediate risk.

One member of the group has told the ABC the work of the report writer had caused “irreversible damage” to their family.

“Our lives are certainly never going to be the same again and I feel open disgust for a system that tolerates somebody who is so obviously acting outside the law and outside his expertise,” Kellie* said.

“If a report is wrong and the court relies on it, it destroys lives, particularly the children’s.”

The group of parents hope their action will bring renewed scrutiny to the regulation of Family Court report writers, who critics say can operate “beyond the rule of law”.

“We certainly see it as a milestone shift in the regulator’s position because they’ve held the wrong position for years that these [practitioners] engaged by the court are beyond the reach of regulation and in a sense, beyond the rule of law,” Kellie said.

One Sydney-based psychologist with more than 30 years’ experience told the ABC he saw the work of the alleged problem practitioner after several parents came to him seeking a second opinion.

The psychologist, who did not want to be named, said on several occasions he prepared secondary reports that were submitted to court.

“The work I’ve seen has had dramatic effects upon the parents involved and I reached different conclusions, very different conclusions,” he said.

“It’s questionable that someone should diagnose a personality disorder based on a few interviews only, particularly in an acrimonious situation.

“The difficulty is judicial or legal decisions are made on that where people may lose custody of their children when there may be very little basis for that.”

Do you know more about this story? Email Specialist.Team@abc.net.au

Family report writers known as ‘gods of the court’

The type of practitioner at the centre of the group’s complaints is referred to by the court as a single expert witness, and by the legal community as a family report writer.

They work either internally as employees of the court or as external contractors. Those employed by the courts are referred to as family consultants.

In family law matters, report writers meet with families, make an assessment of issues within the case and prepare a report of recommendations for judges to consider when deciding the best arrangement for children involved in custody battles.

Concerns about these practitioners go beyond one case and extend to the lack of governance over the entire process of report writing.

In an overburdened court system, barristers and lawyers have told the ABC the recommendations in expert reports can be heavily considered in deliberations.

One parent advocate told the ABC challenging a family report, or “counteracting the gods of the court”, would be “the fight of your life”.

Similar comments were made in submissions to last year’s parliamentary inquiry into Australia’s family law system.

In December, that inquiry handed down its report and recommended “abolishing private family consultants” as well as establishing a “national accreditation system” that included a “complaints mechanism for parties when family consultants do not meet the required professional standards”.

Private report writers ‘not compelled to comply’ with standards

The practitioner at the centre of the recent complaints is a private family report writer, or, a single expert witness. Currently, there is no accreditation for conducting this kind of work.

Family report writers do not need to have clinical experience, and while specialised training in dealing with violence and abuse allegations is encouraged in a set of guidelines, it is not compulsory.

The Family Court of Australia said an accreditation system for internal family consultants “would be unnecessary” as that work is already the responsibility of the courts.

In a submission to the current Australian Law Reform Review, Family Court Chief Justice John Pascoe said:

“An accreditation scheme which allows parties to ascertain that a private report writer has acquired and maintained the required competencies and works to a high standard could greatly assist both litigants and the court to which the report would be submitted.”

The courts that hear family law matters — currently, the Family Court of Australia, the Federal Circuit Court and the Family Court of Western Australia — developed the Australian Standards of Practice of Family Assessments and Reporting.

The court said “these standards are an outline of what the court considers to be good practice” and private report writers were “not compelled to comply”.

Courts give report writers ‘monopoly position’

Attorney-General Christian Porter said the Federal Government’s legislation to reform the courts would streamline administrative issues, focusing on costs to litigants, delays and the skill level of those working in the system.

“Largely a regulatory regime would be for government, but equally there is a massive ability through the rules of court to ensure there are certain standards that have to be met by experts and that is a process which has to be designed in the court,” he said.

Australia’s federal courts:

  • High Court of Australia
  • Federal Court of Australia
  • Supreme Court
  • Family Court of Australia
  • Federal Circuit Court of Australia

Family law matters are dealt with in the Family Court and the Federal Circuit Court (FCC) as well as the Family Court of Western Australia.

“At the moment you’ve got two different courts with two different sets of rules dealing with essentially the same matters which has proven to be a great failure.”

Mr Porter said the planned amalgamation of the Family Court of Australia and the Federal Circuit Court would help, “ensure that costs of experts of a variety of types are kept to a minimum”.

In some judgements, parents are ordered to pay several thousand dollars each for a single report.

In some cases, judges name the private family report writer parents who must engage in interim court orders, but there is no regulation for what that practitioner can charge.

Federal Liberal MP Craig Kelly has campaigned for regulation of these practitioners, particularly their fee structure.

“They should be given a list of people they can go to to get this done,” Mr Kelly said.

“To allocate it to one person where one person is given basically a monopoly position where they can charge whatever they want is against every principle of justice, of fairness and equity and every economic principle we abide by,” he said.

Parents turn to health regulators

The Family Court and the Federal Circuit Court have a complaints process for report writers employed internally.

After hitting dead ends with the courts when trying to complain about private practitioners, both Kellie* and another advocate who spoke to the ABC had some success complaining to the relevant health authorities.

In NSW, the Health Care Complaints Commission (HCCC), the Medical Council, and the national health regulator, the Australian Health Practitioner Regulation Agency (AHPRA), govern registered health practitioners together under what’s referred to as a co-regulatory arrangement.

In this case, the HCCC received the parents’ complaints and decided to refer them to the Medical Council.

In one response to the group, the HCCC said there were, “concerns about the conduct” of the practitioner, “in relation to his use of particular clinical theories and his interview techniques” and that it was a, “broader issue of conduct outside of a specific family law case”.

The HCCC confirmed to the ABC it had received “a number of different types of complaints” about the practitioner.

The Medical Council does not have the power to investigate the claims, but can conduct inquiries and suspend a practitioner if there is an immediate risk to the public.

If it decides a full investigation is required, the complaints will be batted back to the HCCC and the public may be consulted.

The Medical Council told the ABC national law, “makes it an offence to disclose information about complaints” it receives, but each would be, “considered according to its facts”.

In May last year, the Federal Government directed the Australian Law Reform Commission to conduct a “comprehensive review” into the family law system. That inquiry is due to deliver its report to the Attorney-General in March 2019.

Mr Porter said if that inquiry returned recommendations about regulation of family report writers, the Government would take them “very seriously”.

‘The public doesn’t know how bad this is’

A former president of the Clinical Psychologists Association of Australia and a psychology clinic director at the University of Sydney, Judy Hyde, said the level of training family report writers were required to have was “scary”.

“The public doesn’t know how bad this is,” she said.

The players:

  • Judges/Magistrates
  • Barristers
  • Counsels
  • Independent Children’s Lawyers
  • Litigants (usually parents)
  • Children
  • Expert witnesses, particularly family report writers

“This is terrible because what they’re saying is, we’re prepared to have people with unaccredited training undertake assessments of very complex, specialised, difficult cases where people’s lives are based on the decisions that are made for them.

“For the rest of their lives it will have an impact.”

Ms Hyde made the point that other types of assessments have registers of approved suppliers.

“WorkCover requires you to have accredited training for WorkCover … that should be the same at least for the children that we’re trying to deal with and help manage their lives going forward,” she said.

Ms Hyde acknowledged family law was a difficult area of practice for assessors.

“There are complaints made by people who haven’t got what they wanted, but the fact is people are very poorly trained to actually manage these assessments anyway and the lives of our children are put at risk,” she said.

*Kellie’s name has been changed.

Topics: law-crime-and-justicefamily-lawlawsfamilyfamily-and-childrencommunity-and-societyaustralia

First posted 

Going underground – mother and children in hiding

Going underground – mother and children in hiding

A recent article by ABC News Australia about a real life case of a mother and children exiting normal life and going underground after consent orders for equal time with the father.

On the run

A mother and her children fled into hiding, avoiding police for three years. For the first time she tells the story of how she did it, and how she was caught.

Exclusive by Kristian Silva – ABC NEWS AUSTRALIA

They made their escape when it was dark.

Kate* and her two children, William and Ally, jumped into a car driven by someone they barely knew. As it sped off, they pulled a sheet over their heads and cowered in the back.

When the car stopped, they got out, climbed into another vehicle and the sheets went over them again until they arrived at an isolated rural property hours later.

It would be their home for the next few months before it came time to move again.

The children were barely reading age, but they got used to the drill. During the next three years on the run, they changed homes six or seven times.

Kate claimed she was fleeing domestic violence and protecting her children from emotional and physical abuse by their father, Gabriel.

Gabriel has always denied the allegations, which were also rejected by the Federal Circuit Court.

The court had ordered custody be shared equally between the parents, so Kate’s decision to vanish with her children was an act of blatant defiance.

As a result, she is spending the next 18 months in jail.

But like another recent high-profile case of a mother allegedly taking her twin young girls and hiding them in regional NSW, she didn’t pull it off alone.

She had a secret network of people helping her evade authorities every step of the way.

‘I went everywhere to get help’

The bitter custody battle between Kate and her ex-husband escalated in 2014.

As the case entered the time-consuming and costly Family Court system, Kate told the ABC she was scared not only for her life, but for her children.

She agreed to the custody arrangement in late 2014, but within two months had decided she didn’t want him to have any access.

“I went to the domestic violence taskforce, I went to the local politicians, I went everywhere to try and get help,” Kate says.

“I would not take the law into my own hands unless I felt it was an absolute necessity.”

Three weeks before Christmas that year, she did just that.

Kate talks guardedly about a secret network that helped her escape and hide with the children in various locations around Australia. She would not identify anyone involved, nor say how she came into contact with them.

Kate and the children were staying at her mother Helen’s home in Brisbane when the escape plan was enacted, but Helen had gone away for the weekend.

“She didn’t know we were going. I left her a note saying we weren’t going to stay,” Kate says.

Remembering that moment, she began to sob quietly.

The secret network

Kate and the children lived on remote acreages in places where there were no close neighbours or street signs indicating where they were.

They lived with families, but often had their own space and did not get too involved in the lives of their hosts.

“They were taking us on and taking a big risk. We stayed inside and did mostly home-schooling,” she says.

“At night time, I’d do odd jobs for the people I was staying with in exchange for putting a roof over our head and feeding us.

“I had no phone, no internet, no clocks, nothing. I had no idea of time. I didn’t pay any attention.”

Kate said while she and her mother are incredibly close, it was too risky to contact her or other friends.

According to court documents from a different case, Queensland police believe a network that hides runaway parents and children exists in Australia.

They have alleged the network helped move a mother and two daughters from north Queensland to the north of Western Australia, then to Perth and regional New South Wales.

It is not clear whether Kate’s network is the same group, although Kate admits being a close friend of the mother at the centre of that case.

Kate says she was oblivious to the massive search underway to locate her and the children.

The court issued a recovery notice, taking the rare step of releasing their names and photos to the media in 2015. The Australian Federal Police were looking too.

Kate is surprised that so much was done to find them, but admitted she did not think about it a lot.

“Domestic violence, mate … The fear of dying was greater than worrying whether the cops were coming or not.”

Father’s desperate search

Gabriel is about 10 years older than Kate and was her second husband.

Several years after they met, Ally was born and they were married. Three months after Ally’s birth, Kate was pregnant with their second child, William.

After things broke down a couple of years later, they tried to reconcile but decided to split for good in 2013.

Gabriel said he was committed to sharing custody of the kids.

“I never expected this,” he told a newspaper, six months after his children disappeared.

Gabriel declined to be interviewed for this story, saying he was now bound by the court’s secrecy provisions.

He went to extraordinary lengths to find his children, hiring private investigators and flying to New Zealand, Brazil and the UK to chase down leads. He did media interviews and put up flyers in shopping centres and parks around Australia.

In May last year, Gabriel called child recovery consultant Col Chapman.

Chapman claims to have located more than 100 children, sometimes travelling overseas to take them back from a parent who has left Australia.

He said he had encountered dozens of parents accused of domestic violence offences and that Gabriel did not fit the bill.

“He denies all the allegations, and he was aghast at his inability to defend himself,” Chapman says.

“How do you disprove a lie? How do you say ‘I didn’t do it?'”

Life on the run ends

In the end, all it took to locate Kate, William and Ally was a simple property search.

Kate says she chose to give up the security provided by the network because her mother had cancer. It had spread to her lungs and the prognosis was not good.

It was mid-2017 and Kate was still disconnected from the outside world, but the network decided she needed to be told about her mother’s condition.

Soon after, the family were driven back to Helen’s house in the middle of the night.

Kate and the children moved in, but remained in hiding. Helen had refused chemotherapy and Kate used her medical training to treat her.

Meanwhile, Chapman and his staff were closing in, having received a tip-off Kate was staying in a suburb 30 minutes north of Brisbane.

“We just hit that area hard with advertising in every chemist, every 7-Eleven, every IGA, every garage,” Chapman says.

“Then we did a property search. [Helen] had purchased a new property. We gave that to the AFP and they found the kids.”

Kate’s voice shakes as she describes what happened that day.

“The cops turned up around eight o’clock in the morning … it felt like a swarm of them. They scared the living shit out of me and mum,” she says.

“I begged them not to take us,” Kate says. “I said: ‘If I’d known you were coming I’d have killed us rather than go back to this shit.'”

Kate says it was flippant and spoken in the heat of the moment.

But authorities and Gabriel’s lawyers took those words extremely seriously.

Judgment day

Kate has not seen her children since that day last December. They now live with Gabriel.

In the foyer of the Federal Circuit Court in Brisbane, Kate has been hugging friends and trying to stay positive despite being charged with contempt of court.

While never charged with abduction or a criminal offence, Gabriel and his lawyers pursued her for failing to stick to the agreed custody arrangement from 2014.

Helen has also been charged with contempt of court for failing to inform authorities about her daughter’s whereabouts.

In the flesh, Kate looks different to the woman in the photos released when the missing persons search was underway.

She has lost weight but there is a sadness in her face. She says she misses her kids, and that years of sleepless nights and exasperation have taken their toll.

She also expresses anger at the Family Court system, arguing it does not give enough credit to women suffering domestic violence.

“It’s been absolute hell, what we’ve been through. And no-one listens. Everyone thinks its a freaking joke, but it’s not,” she says.

“It’s not just happening to me, it’s happening to loads of other women.”

Mother, grandmother jailed

In the courtroom, Judge Michael Jarrett is scathing when describing Kate’s actions. He says she showed “flagrant disregard” for the court when she absconded with the children.

He says Kate deprived the children of getting to know their father and inflicted trauma upon them because of the many times they shifted homes.

Judge Jarrett says Kate’s claims about domestic violence and emotional abuse of the children had no factual basis.

“On the balance of probabilities, I am completely unsatisfied [Kate] was subjected to the domestic violence or family violence she describes,” he says.

Judge Jarrett sentences Kate to 18 months in jail for contempt of court. None of it will be suspended, meaning she will serve the full term. A fine, he says, would be “inappropriate”.

There is a loud gasp in the courtroom. Some in the gallery anxiously whisper to each other to check if they heard the judge correctly. Others begin crying.

Kate is motionless and stone-faced.

Next, Justice Jarrett turns his attention to Helen. She too will go to jail for a minimum of three months, with a further three months of her sentence to be suspended.

“I have no doubt a custodial sentence will be difficult,” Judge Jarrett says to 74-year-old Helen.

“Court orders are to be obeyed and any breach will be dealt with.”

Justice Jarrett calls for the security officers. The women are to be escorted to the cells and in a matter of minutes their jail terms will begin.

Kate is visibly upset now, but has to hold it together in the time she has left to quickly talk with her lawyer and embrace her closest supporters.

Helen remains seated. Her face has turned white and she looks stunned.

Outside court, Kate and Helen’s lawyer confirms the women will not be appealing Judge Jarrett’s ruling.

“They’ve run out of money,” she says.

Even Gabriel’s legal team is surprised by the sentence imposed. They had only asked for a 12-month jail term for Kate and for Helen’s penalty to be wholly suspended.

Col Chapman says Gabriel initially didn’t want his ex-wife to be sent to prison, but was talked into it by his lawyers.

“The justice system must step in to send a message to other mothers that this cannot go on,” Chapman says.

A new beginning

William and Ally have spent the last eight months living with Gabriel, who has full-time custody of them for now.

He is hopeful of making the arrangement permanent by the end of the year.

Those close to Gabriel say he would be open to Kate having some contact with the children when she is released, but it would need to be heavily controlled.

He hasn’t forgotten what Kate said about killing the children, even though she maintains it was an empty threat.

The kids had vague memories of their father when they returned, but quickly settled in to their new routine. From time to time, they still ask after their mum and grandma.

They are yet to be told that both are now in prison. A counsellor will be consulted on how to break the news to them.

They are back at school for the first time in years. Gabriel wants to teach the children how to ride bikes. William is due to join a cricket club this summer. Ally will give ballet a try.

Chapman says Gabriel is making the most of his second chance at being William and Ally’s father.

“He’s loving it. He’s thriving,” he says.

Names of the mother, father, children and grandmother have been changed to comply with court regulations.

Credits

First posted 

 

Formal property settlement – why bother?

Formal property settlement – why bother?

There are some very good reasons why it is best to arrange a formal property settlement through your lawyer:

  1. No more claims – A formal property settlement finalises all financial claims between partners under the Family Law Act. No matter how amicable you are at the time of separation, this can change and unless you have a formal property settlement, your former partner can still make a claim years down the track – which will take into account the property you have now, not the property you had at the time of separation!
  2. No stamp duty – Why pay stamp duty to gain half of the house you already own half own? A formal property settlement means that the state government gives you a break on stamp duty if you are taking on the home as part of the property settlement. Even if you decide you don’t want a formal property settlement and prefer to pay the stamp duty, if you are relying on getting refinance, your lender will likely make it a condition that you get a formal property settlement.
  3. Superannuation shifting – If part of the deal is that superannuation is moved around between each parties’ super accounts (eg. so that you both walk away with similar super balances) this can be made possible by a formal property settlement.

Trust is a wonderful thing when everyone is still friendly (if not friends anymore). But when things become unfriendly (perhaps because of new partners on the scene, divided views about arrangements for children, child support problems), trust is usually the first thing to disappear and getting legal advice and action to pursue legal rights becomes a priority.

At Freedom Law, we keep the complex simple for you. Call us today for an obligation-free consultation to discuss the best way forward for you and your finances.

Sunshine Coast / Brisbane / Gold Coast

 

Poor litigant does not prevent an indemnity costs order

Poor litigant does not prevent an indemnity costs order

In the recent case of Kappel & Carlsson (No.2) [2018] FCCA 2973 (24 October 2018), the court made it abundantly clear that a “poor” litigant will not avoid a costs order, including an indemnity costs order, if they are unsuccessful:

  1. Ms Agresta brought to my attention a decision of the Family Court of Australia to the effect that an order for the payment of costs is a rarity and should only be made when exceptional circumstances are found to exist. I disagree. The family law jurisdiction does not stand outside of mainstream jurisprudence administered in the Commonwealth courts throughout Australia. Cases under the Act attract cost considerations by reason of the elements of s 117(2A). Nowhere in s 117(2) or s 117(2A) is there expression of the concept that indemnity costs orders should only be made in exceptional circumstances.
  2. To the contrary.
  3. Section 117(2) proceeds on the basis that the court may make such costs orders as the court considers just where the court is of the opinion that there are circumstances that justify the making of such an order. The making of a costs order is subject to the considerations in, among other sections, subss 117(2) and 117(2A). But the threshold point is that, in the absence of legislation forbidding the making of a costs order, the court is entitled to make a costs order, the only issue being the basis on which those costs are to be paid.
  4. The usual position is that costs are ordered to be paid on a party and party basis. In Colgate-Palmolive, Sheppard J traced the evolution of the learning on point. There, his Honour distilled the collection of propositions of fact and law that enable a court, acting properly in the exercise of its unfettered jurisdiction, to make a costs order, to order their payment on an indemnity basis. While it was true that Sheppard J’s distillation was unique to that time, it catalogued a very large number of authorities on point. By no means was the point undecided by 1993 that indemnity costs could be ordered. For that matter, Shepherd J referred to the settled practice for centuries in England, it being an entrenched practice in Australia, that costs were ordinarily ordered on a party and party basis but even as long ago as 1887, in the Chancery case of Andrews v Barnes,[6] the Court of Appeal spoke of the discretionary power to award costs as between solicitor and client “as and when the justice of the case might so require”. Importantly, over a century ago there was nothing to suggest that indemnity costs orders were rare or should be made only when exceptional circumstances existed. Expressed in such extremist terms, that has never been the law.
  5. The circumstances in which indemnity costs may be ordered were catalogued by Sheppard J. Yet his Honour said as follows –
    It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for the payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge…
  6. A [poor litigant] is not a reason for refusing to make a costs order on a particular basis. The basis for the making of the order and the factual matrix surrounding a person’s ability to meet such an order are two different things. Whether or not the applicant is impecunious, whether he can meet in order for the payment of $26,233.90 or whether he could be assisted in paying that sum (if so, by whom and by when) all fell beyond the factual arena of this litigation.
  7. Litigants in the family law arena should be treated no differently to other litigants before this court where legislation empowers a judge to make a costs order and established authorities make statements of principle about the basis on which such a costs order can be properly made.

1300 365 108

Actuarial risk assessment for child abuse and neglect

Actuarial risk assessment for child abuse and neglect

The recent case of Halloran & Halloran [2018] FCCA 2825 (5 October 2018) explored the use of actuarial risk assessment for child abuse and neglect:

      1. At paragraphs 88 to 91 inclusive, Dr A makes an evaluation based on the Ackerman-Schoendorf Custody Evaluation Scales. This information will be reproduced in full because it seems to have influenced Dr A’s concerns about the risk to the children from both parents.
        Ackerman-Schoendorf Custody Evaluation Scales (ASPECT 1992, 1994)

 

[88] ASPECT is a tool to aid clinical decision-making about parental fitness to exercise parental responsibility and provide a child’s principal residence. It incorporates standardised scales, questionnaires and clinician observations in order to quantify parental characteristics related to effective custodial parenting. In this case the short form was used since the longer form incorporates results from tests (WAIS, Rorschach, MMPI-2) which were not administered. Across three subscales the ASPECT rates child-parent relationships, parenting practices, and the overall psychological well-being of each parent (including ability to provide a suitable home environment and appropriate social support networks), the weighted average scores of which yield a Parental Custody Index or PCI. The PCI was constructed to assess the general appropriateness of the parent’s presentation, emotional and cognitive capacity to provide effective parenting and a suitable home/social environment. A statistically significant difference between PCI scores identifies the parent with the higher score as the more effective parent. When both parents are rated highly effective ASPECT will not assist with decision-making. In this case neither parent is rated effective, but the mother’s score is lower due to substantiated physical child abuse and associated court proceedings.

 

Actuarial risk assessment for child abuse and neglect

 

[89] Both parents were actuarially-rated for child maltreatment recidivism risk. Research indicates that actuarially-calculated ratings of recidivism risk for a variety of anti-social behaviour (spousal abuse, child abuse, sexual offences, violent offending) are much more accurate predictors of re-offending that unaided clinical judgement. The South Australian Department of Family and Community Services developed a risk assessment scale in 1995 which was re-validated in 1998 on 674 families confirmed for abuse who were followed up for 12 months (cf. Johnson, Wagner & Wiebush, 2000). (NB. FACS has developed a modified version of this instrument but as there is no validation data available I prefer to use the older instrument).

SA Risk Assessment Scale (1997 version)

Percentage of standardization sample in that range subsequently confirmed for any type of maltreatment

LOW RISK (scores -2 to2)

3.4%

MEDIUM RISK (scores 3-7)

18.2%

HIGH RISK (scores 8-10)

27.7%

VERY HIGH RISK (scores > 11)

43%

[90] Based on case history relating to prior parenting deficits for each parent, as well as concerns which emerged at interview, I rated the father on Neglect/Emotional Abuse scale. I rated the mother on the Physical Abuse Scale (since that is the documented basis for prior notifications/ investigations/ police charges for assaulting [V]) The actuarially-calculated risk of neglect for the father is high. The actuarially calculated risk of physical abuse for the mother is high. The SA instrument includes four discretionary policy overrides, which immediately elevate a parent’s risk to very high. One of these overrides includes assault causing actual bodily harm which requires medical treatment. If applied regarding [V]’s assault in 2013 that places Ms Halloran in the very high-risk group.

[91] The baseline population risk of child maltreatment is not precisely known but is often assumed to be about 5%. As shown above, 27.7% of children restored to parents in the high-risk group were later confirmed for maltreatment in the SA study. Normally protective parents would not entrust their children to a school or child care centre which boasted that only 30-40% of their staff were likely to be dangerous to children. In fact, most parents would probably decline to entrust their children to a service boasting that less than 20% of their staff were likely to harm children whereas at least 80% were safe, competent caregivers. However, many caseworkers and judicial officers in the Children’s Court apparently find these to be tolerable risks for other people’s children, as maltreated children are often restored to parents actuarially-assessed as medium risks, whereas risk levels of high – very high risk are more likely to be deemed intolerable.

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Forensic psychology and its role in parenting matters

Forensic psychology and its role in parenting matters

In the recent case of Halloran & Halloran [2018] FCCA 2825 (5 October 2018), an executive summary of relevant matters under the Family Law Act as they applied to this case was prepared by the appointed forensic psychologist:

The Reports of Dr A

  1. Dr A is a consultant forensic Psychologist appointed by the Court to provide a Single Expert Report in this matter. The interviews with the family were conducted on 3 and 4 October 2017, and her Report dated 19 October 2017 was released to the parties on 23 October 2017. At the time of the interviews, Dr A had available to her all of the evidence of the parties, including a substantial volume of documents produced on subpoena.
  2. Dr A’s executive summary, found at pages 6 and 7 of her Report, is a very useful digest of her evaluation and is reproduced below:
Issue
Evaluation
  1. The benefit to the children of having a meaningful relationship with either parent or any other persons.
All children will benefit from a lasting sense of family belonging. Meaningful relationships between mother & [V], [W] or [X] seem impossible now
Whether the children are at risk of any physical or psychological harm from abuse, neglect or family violence.
At risk of neglect of medical needs ([W]) & emotional needs in care of father (all); at risk of physical harm in care of mother (older three).
The nature of the parents’ relationship, the impact of this relationship on the children.
Toxic. Source of trauma for all the children. No prospect of co-parenting.
Any views expressed by the children and any factors that may affect the weight to be accorded to those views.
[V] has run away; [W] cannot speak; [X] asks for no contact with mother /residence with father: [Y] & [Z] show some interest in seeing mother. These are traumatised children who cannot evaluate their best interests objectively.
The relationship between the children and with each of their parents and any other relevant person.
[V]: hostile to mother, father cannot control her; [W]: physically dependent, non-verbal; [X] close to g/p/parents & father; [Y] seems closest to p/g/parents; [Z] has affectional ties to both parents.
The willingness & ability of parents to facilitate/ encourage relationships between children & the other parent.
Apparently neither willing nor able during the marriage or since.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either parent/ other person
[Z] (and perhaps [Y]) might draw inferences harmful to their self-esteem if they had no contact with mother.
The capacity of each parent or any other person to provide for the needs of the children, including emotional and intellectual needs.
Suboptimal due to their intrinsic personal characteristics. Abuse of older siblings was previously substantiated for the mother. The father is not authoritative, cannot parent strategically and seems not to be a proactive advocate for [W].
The attitude to children/ responsibilities of parenthood of parents /relevant persons.
Father- marginally adequate for [X], [Y] and [Z]. with support. The p/g/parents seem committed to the children.
The extent to which each parent participates in children’s lives/decisions
Court findings about whether the father has been negligent about the NDIS/wheelchair will cast light
The effect on children of spending equal/significant time with each parent
Deleterious. Out of the question
The mental state of the both parents in so far as it relates to parenting issues.
Neither is sufficiently stress-hardy to effectively parent 5 children, one of whom is seriously disabled
Whether parents have any psychological issues affecting parenting capacity
Both show warped information-processing and evasiveness of responsibility. See previous point.
Whether or not any treatment or therapy is recommended for parents or children. If so, the nature of any treatment or therapy.
1:1 adult counselling has not been helpful for the family situation in the past and is unlikely to be helpful now. The children benefit from supportive counselling
Whether the practical difficulty & expense of the children spending time with other parent will substantially affect the children’s direct contact with both parents
Interim – no, Long-term-probably. Supervision by grandparents on either side is unsuitable. Agency supervised contact will be costly long-term
The maturity, sex, lifestyle, background (including lifestyle, culture and tradition) .
Not a determining issue
Any family violence order that applies or has applied to the children/ family member
Not currently in force
Any other matter the Court Expert considers relevant.
This is a child protection matter better suited to the Children’s Court. [W] needs advocacy to obtain NDIS benefits. She urgently needs a wheelchair.

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I’ve just been handed a Notice to Appear – what is this?

I’ve just been handed a Notice to Appear – what is this?

In a wide range of offences now, police are empowered to require an accused person to attend at the Arrest Court in Roma Street, Brisbane or in a Regional Magistrates Court by issuing a document called a Notice to Appear.

That Notice to Appear is a notebook sized document that is handwritten by the arresting police officer. It commands the appearance of the person whose name appears on the document before a relevant Magistrates Court at a particular date and time.

The Notice to Appear is often the only document that an accused will have to indicate the charge which is to be brought against that person. The issue of a Notice to Appear inevitably leads to a Court appearance.

What then does the accused do about the Notice to Appear? Once issued with that document, an accused person is bound to appear before the Court mentioned in the Notice.

Often at this first Court appearance the accused person will not have seen or been issued with a formal Complaint issued by police and certainly will not have access to any of the document evidence that may have been compiled by the arresting Police officer.

Because of this set of circumstances it is almost certainly open to the accused person to request an adjournment from the Court for a period of time to allow the accused to obtain legal advice.

Should it be the case that you are issued with a Notice to Appear and are required to present before a Court, then it is advisable to seek early legal advice upon the charges being brought against you and some advice from an experienced solicitor about conducting this first appearance.

An accused person on their first appearance will be given an opportunity to obtain legal advice and possibly to conduct some case conferencing with the prosecutions branch and that will require a short to medium term adjournment of the proceedings.

You should take your Notice to Appear with you to the Court and be early enough to be able to present yourself to the Prosecutor in the Court in which you are to appear. You should obtain information from the Court Officer (particularly if appearing in Brisbane) of the number that has been allocated to your particular file so that you can mention that number to the prosecutor (the Arrest Court in Roma street Brisbane often has more than 100 files to deal with on any morning).

Upon presentation to the Prosecutor they will pull your file from the pile and place it on the bar table in an order which would roughly represent the order in which the appearances will be done.

It is usual in Queensland Courts for represented parties (those appearing with their Solicitor) to be mentioned in the Court prior to unrepresented parties and so having your solicitor with you at the appearance will help conclude the proceedings much more quickly.

In the event that you are required to appear on your own then firstly, you should address the Court as “Your Honour” and respectfully request an adjournment for a period of two (2) weeks to obtain legal advice or to potentially liaise with the prosecution in relation to the matter.

Provided it is your first appearance in response to the Notice to Appear you will almost certainly be granted the adjournment and bail in respect of the charges that you face.

Should it be the case however that you have had some difficulty with prior bail or appearances in other matters, then the issue of your bail might well be opposed by the Prosecution. In these circumstances, you will require some assistance at that first appearance to obtain any available bail in respect of the charges mentioned in your Notice to Appear.

We strongly recommend that you contact us should you require any assistance with a Notice to Appear.

Freedom Law – 1300 365 108

Maroochydore / Caloundra / Noosa / Gympie

Inappropriate parenting orders sought by each party

Inappropriate parenting orders sought by each party

Judge Altobelli recently dealt with a case where the Applicant (who did not presently have care of the child) sought orders that were too advanced for a 2 year old breast-feed child, where also the Respondent (who did presently have care ofr the child) sought orders that were not advanced enough:

Rattray & Santino [2018] FCCA 2904 (4 October 2018)

  1. Section 60CC(3)(d), which deals with the likely effect of changes on the child, is an important consideration in this case. The Applicant Mother’s proposal is, with respect to her and those who have advised her, ill-considered, and manifested a significant lack of insight on her part. The Applicant Mother proposes moving from a situation of never having had an overnight to 4 nights each fortnight, including a 3 night block. It means for [X], who has never spent an overnight away from the Respondent Mother, suddenly being away for 3 nights in a row. It ignores the breastfeeding. It is, with great respect, an absurd proposal. The Applicant Mother should have abandoned this idea long before it got to the Interim Hearing. It was a proposal totally insensitive to [X]’s needs for stability and continuity with the person who is, for the time being, her primary carer.
  2. But the Respondent Mother’s proposal is equally problematic, and denying the possibility of a change for at least 18 months. The uncontested facts have already been noted. But just because [X] has never spent a night away from the Respondent Mother, that does not mean she never will, and it does not mean she will not cope with that change. Just because [X] is breastfed, it does not mean she will always be breastfed, and it does not mean she will not cope with weaning in the fullness of time. Just because [X] has a routine in her Respondent Mother’s home, it does not mean that she cannot have a similar routine in the Applicant Mother’s home.
  3. Just like [X]’s routine will develop as she grows older, so too her routine will tolerate changes if circumstances mandate. The real challenge is how such changes might be facilitated.
  4. The Respondent Mother gives evidence of the unsettling that [X] experiences following extended visits. This evidence cannot be challenged at an Interim Hearing, but it is interesting to note the very appropriate fashion in which Ms Fordham, the Respondent Mother’s solicitor, framed her written submission about this:
    Thus, there is some evidence that the child may have a negative reaction to spending significant periods of time, including overnight time, away from the Respondent.

Some evidence”, “may have a negative reaction”. Whilst the Respondent Mother, understandably perhaps, associates these behaviours to [X]’s time with the Applicant Mother, the fact is, we do not know. We do not know, for example, if there are other explanations for this behaviour. Is [X], like so many other children, so attuned to her mother’s feelings that she detects the mother’s apprehension about time with the other mother? The conflict between these parents is palpable.

  1. Whilst the Applicant Mother’s proposal is simply out of the question, as being too much change too quickly, the Respondent Mother’s case does not explain why there should be absolutely no change at all.
  2. Section 60CC(3)(e) deals with issues of practical difficulty and expense. The submissions made by each parent are duly noted. In many respects, these mothers have managed the issues of distance reasonably well. Change seems inevitable, as the Applicant Mother’s base, if I can call it that, in Sydney may well need to change. But there is nothing insurmountable here.
  3. The Court is required to consider section 60CC(3)(f), issues of parental capacity; and then, (3)(i), issues of parental attitudes. As is not unusual in the Court’s experience, in cases of moderate to high conflict, there is potentially much that can be said about both parents, having regard to these considerations.
  4. It is best to be minimalist for the time being. Their diametrically opposite proposals about [X]’s time with the Applicant might suggest a lack of child focus, and might suggest a focus on their own needs instead. These are new parents. There may be insecurities and uncertainties at play, interacting with mutual suspicion about each other’s motives. None of this is helpful. The focus must be on [X]’s needs, and not on that of her mothers. The policy of the Family Law Act in this regard is quite clear.
  5. The Court must consider substantial and significant time. It is satisfied that this is reasonably practicable. But the Applicant Mother’s proposal is plainly not in the best interests of [X]. Indeed, the Court has reservations as to whether it is even possible to obtain substantial and significant time, as defined, with [X] given her age and developmental stage. Having regard to that, what should the orders be that are in [X]’s best interests?
  6. The Final Hearing is in August next year; a Report will be available before then. When all the evidence before the Court and the submissions made are considered, the Court believes that it is in [X]’s best interests to introduce limited overnight time with the Applicant Mother, but over a period of time. The focus turns to the details of the appropriate order.
  7. So the order will look like this;
  8. Firstly, I am going to make an order for equal shared parental responsibility. My reasons for that have been given.
  9. I am going to order that [X] lives with the Respondent Mother. That appears not to be in contention. There will then be two stages. Each stage will be subject to any other agreement that the parents reach.
  10. Stage 1 will be from now through to the end of March 2019. [X] is to spend time with the Applicant Mother:
    1. each Tuesday, from 9:00am to 4:00pm;
    2. each Friday, from 9:00am to 4:00pm; and
    1. each alternate Saturday, from 9:00am to 6:00pm.
  11. Stage 2 will commence from 1 April 2019, pending further order. And, again, I emphasise that this is unless the parents otherwise agree. [X] will spend time with the applicant mother:
    1. each Tuesday, from 9:00am to 4:00pm; and
    2. each alternate Friday, from 9:00am to 4:00pm; and then
    1. each other alternate Friday, from 9:00am to Saturday 4:00pm.
  12. The Court notes the evidence from the Applicant Mother about her flexible work arrangements, meaning that this proposal would be something that she can accommodate. The Court observes that these Orders regularise [X]’s time with the Applicant Mother, but in a manner that is not too inconsistent with the existing regime. Overnight time is introduced each alternate weekend, in 6 months’ time.
  13. This gives the Respondent Mother plenty of time to wean [X] off the breast, if that is what she desires, or to make alternate arrangements. In this regard, I note the Respondent Mother’s own evidence, which refers to the cessation of breastfeeding when [X] turns 2.
  14. There will be no condition, as the Respondent Mother prescribed, as to where the Applicant Mother is to spend time with [X]. She is to use her common-sense and to act in a child-focused manner, remembering at all times, as the Respondent Mother should likewise remember, that the forensic scrutiny of litigation is a burden that they will carry until the Final Hearing or settlement.
  15. There will be no requirement, as the Respondent Mother sought to prescribe, that the Applicant Mother feed and bathe [X]. There is no need to tell the Applicant Mother to do that which should be plainly obvious to her.
  16. The orders proposed by the Respondent Mother in her case outline, at (5), (6), (7), and (9), are appropriate and child-focused, and will be made.
  17. The Court is concerned about the level of conflict between these parents, and will, of its own motion, make Orders that:
    1. The parents:
      1. do not discuss these proceedings with or in the presence of [X], or allow anybody else to do so; and
      2. will not denigrate each other in the presence of [X], or allow anybody else to do so.

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Copious amounts of “evidence” does not assist the Court

Copious amounts of “evidence” does not assist the Court

The Court recently commented that copious quantities of evidence does not equate to quality of proof of issues. It is very important to focus on what the issue is, what proof is required and to then test relevance, admissibility and weight to be given to such evidence.

Sargent & Selwyn (No.3) [2018] FCCA 2836 (4 October 2018)

Comments on the evidence

      1. The copious amounts of material filed by the parties does not assist the Court in determining the issues in dispute. It is most unfortunate that both parties focused much of their material making complaints about the other party and on historical issues and issues that have no bearing on the current issues in dispute before the court.
      2. I made it clear at the commencement of the trial that the focus needs to be on the evidence that will assist the Court to determine what is in [X]’s best interests. Whilst some issues are important to the parties, not every issue needs to be explored.
      3. I have carefully considered the evidence and submissions. Due to the volume of material before the court, I do not propose to address every piece of evidence and each submission made, however in reaching my decision I have considered all of the evidence and submissions.
      4. In Vismay & Shaw [2014] FamCAFC 124 the Full Court of the Family Court stated at [45]:
        It is well accepted that a judge is not required to advert to every piece of evidence or every submission made in the course of the reasons per Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259; U v U [2002] HCA 36(2002) 211 CLR 238 at [80], per Gummow and Callinan JJ . The purpose of giving reasons for decision is to enable the parties to understand how the orders and decision were arrived at.
      5. In the appeal decision of Bell & Nahos [2016] FamCAFC 244 Strickland J addressed a complaint from an appellant that the trial judge had not referred to each piece of evidence and argument and said at [28]-[29]:
        “Plainly that is the case, but it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
        a) In Whisprun Pty Ltd v Dixon [2003] HCA 48(2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:

 

…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.

 

b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd[1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:

 

It is not the duty of the judge to decide every matter which is raised in argument.

 

Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…

 

I can see no error here in Her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to reach her decision.”

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