Criminal lawyer Sunshine Coast
Criminal lawyer Sunshine Coast
Criminal law Sunshine Coast
Criminal law Sunshine Coast
Criminal law Sunshine Coast
Criminal lawyer Sunshine Coast
Master plan of alienation not made out
Master plan of alienation not made out
Bell & Bell
Conclusion as to Issue A
- Regrettably and reluctantly, I concur with Mr B’s observation that no matter which party is to blame, “the damage has been done” to X’s relationship with his father. As it stands at the moment, that relationship appears irretrievable, a situation which will have emotional and psychological consequences for both X and Mr Bell and his family.
- While both parties are to blame for the situation in which X currently finds himself, the father’s palpable hatred and contempt for the mother as seen in both his written and oral evidence, and his focus on holding her to account in some way for what he perceives as breaches of his rights as a father, permeated these proceedings.
- He cannot expect to have a relationship with X that is positive, close and nurturing while he holds and expresses those views about X’s mother.
- It was Ms R’s evidence that she thought that Mr Bell’s motivation in bringing the litigation was “two pronged” in that he genuinely wanted to have a relationship with X, but that in the absence of that relationship, it was important to him that his voice be heard in relation to the reason for X’s resistance to seeing him.
- That is not an unreasonable motivation, but on the basis of all the evidence before the court I find that at least part of his motivation has been to punish Ms Bell and cause her to spend money on these proceedings.
- His lack of insight about that issue is regrettable, as, indeed, is the lack of insight in his responses to any questioning of his motives or behaviour.
- It is to be hoped that Mr Bell will consider attending counselling or therapy himself in order to deal with those feelings towards Ms Bell, and any issues arising from his childhood, as they clearly stand in the way of X’s capacity to even consider a relationship with his father at this time in his life.
- There is a pattern in Mr Bell’s evidence of downplaying his own role in the dispute between him and his former wife in relation to X, and of attributing all of X’s behaviour in not wanting to see him as part of a “master plan” concocted by Ms Bell and X to remove him from X’s life.
- I cannot be satisfied, on the basis of the evidence before me, that Ms Bell has engaged in such a “master plan”, and I note that even Ms L does not support her husband in that view.
- There is no doubt that Mr Bell loves X, but his attempts at resolving the conflict between him and Ms Bell display an inability to empathise with her or X, or indeed anyone else unless they agree with his view of the world. There is a rigidity in his thinking patterns which simply does not allow for other people’s views or any suggestion that his own views may be wrong or at least that they may be less than completely correct.
- Ms Bell presented overall as a reasonable, though frustrated parent. Her evidence was nonetheless non-responsive and evasive at times, and it was very clear that she had no positive feelings at all about Mr Bell.
- The evidence of both her and Mr Bell indicates a reluctance on her part to positively intervene to foster the relationship between Mr Bell and X for many years, and it clear that she sees no benefit to X in pursuing that relationship.
- Ms Bell’s evidence about her experience of Mr Bell both during and after the marriage was cogent and consistent, and I accept her evidence that she feels some wariness, if not fear, about interacting with him.
- She did not show any obvious fear of Mr Bell when being cross-examined by him, but the tenor of her answers did indicate that wariness.
- The evidence of Mr B and Mr N, which I note was not challenged at trial although it was referenced repeatedly, is that there should be no orders for X to spend time with his father.
- Ms R, however, who was a most impressive witness in my view, was more willing to consider X’s views in the context of his maturational development, and it was her view that X requires therapy in order to fully realise his emotional potential.
- While Ms R was very clear that any ordered therapy should include issues X has with his father, it should not be solely directed towards X spending time with him.
- However, Ms R also agreed with counsel for the mother that there was a “calculated risk” in sending X to therapy, that he might rebel against that order, and that his views about his father may become even more entrenched.
- She was also clear that X should not spend time with his father in the current situation in which the parties find themselves, and indeed said that even indirect contact with his father at this time would be detrimental to X.
- On the basis of the expert evidence, I find that it would be enormously beneficial to X to engage in long term psychotherapy in order to help him understand and integrate his feelings towards his father. It is to be hoped that his mother will organise such therapy for X, and that his father will contribute to half of the cost of that therapy in order simply to help his son and to let him know that he loves and supports him.
- However, taking into account all of the above evidence, and keeping closely in mind the issues set out in s.60CC of the Act, I cannot be satisfied that it is in X’s best interests to force him to attend counselling with his father in order to repair their relationship.
- Given the complexities surrounding this litigation, X’s views the and his statements of non-compliance, the extreme animosity between the parents and the potential for future litigation because of that animosity, I find, on balance, that it is positively not in his best interests in all the circumstances to make such an order, and I therefore decline to do so.
Conclusion
- It has occurred to me many times throughout these proceedings that it might be said these parties, with their two very different and particular personalities, have created a “perfect storm” in their relationship.
- By that I mean it is not perhaps the fault of one or the other that X has found himself in the quite tragic position of having no relationship with his father, but that it is a combination of two strong and incompatible personalities that has led us to this point.
- The evidence before the court is that Mr Bell’s personality vulnerabilities as described by Dr P and Mr N, have combined with Ms Bell’s somewhat over protective parenting style to create a situation where each is quick to find fault with anything the other says or does.
- That has led to a complete lack of trust between these parties, the result of which is a level of animosity between them which is caustic and toxic, and which has landed X squarely in the middle of the dispute.
- X simply deserves better. At the age of 13½ he deserves to be exploring his world as an adolescent, with all the change, confusion and excitement that that brings, rather than being concerned about how his parents feel about each other.
- In some cases that come before this court, it is not possible to make orders which are actually in the “best” interests of the subject child or children. It is only possible to make orders which are in their “least worst” interests. This has been such a case.
- It is to be hoped that the orders I will make will provide some respite for X, although it is also to be hoped that his mother will seek for him, and for his sake, the therapy which Ms R sees as his only hope of a psychologically healthy future.
Sunshine Coast/Maroochydore/Noosa
Family law Sunshine Coast
Family lawyer Sunshine Coast
Evidence of duration of de facto relationship
Evidence of duration of de facto relationship
HUBERT & STROUD[2019] FCCA 2538
The evidence relevant to the duration of the de facto relationship
- On hearing, the Applicant relied on his affidavit sworn or affirmed on 29 March 2018. He sought leave to rely on his further affidavit affirmed 18 April 2019 and his financial statement affirmed 18 April 2019, the orders made by Judge Henderson on 15 August 2018 having required that the parties each file and serve one trial affidavit on which they intended to rely at hearing and any updated financial statement by 8 March 2019. That leave was granted.
- That a de facto relationship between the parties had commenced in sometime between April and June 2009 was agreed between the parties. Relevant to the issue of the date of end of the parties’ de facto relationship, the Applicant asserted that as a matter of evidence:
a) During the relationship the parties experienced frequent difficulties mainly because of “money issues” and that sometimes the Respondent spoke to the Applicant “very badly and disrespectfully … And also in a very rude manner”;
b) There are occasions when the parties experienced difficulties in the relationship the Applicant would give the Respondent “some space by leaving the Town B unit and staying at either my mothers or fathers place in Sydney.” He recalls doing this on four occasions, on three of which he returned back to their common home at Town B and “continued to live generally happily as a de facto couple”;
c) The parties experienced difficulties in their relationship, mainly over money issues, through December 2015 and January 2016 and on the night of 1 February 2016 when they “had a fight (again) about money.” The Applicant had “a very uncomfortable night …. And… Had difficulty sleeping.”;
d) On the morning of 2 February 2016, the Applicant got up at about 6:00AM and noticed that the Respondent was still angry with him. There was a confrontation between the parties about some mess that the Applicant had caused accidentally in the bathroom and the Applicant left their home for work upset. The Applicant made a decision during that day while he was at work that he would go home, pack a backpack, and go and stay at his mother’s home at Suburb C for a while to give the Respondent and himself some space to think about the relationship and whether he wanted to continue to be in a relationship with the Respondent. Returning home to Town B from work at about 7:00PM the Applicant packed up “some clothes and other personal belongings” in a backpack and went to stay at his mother’s home, leaving his remaining belongings at the parties’ home in Town B;
e) On 4 February 2016 the Applicant sent Respondent a long email, a copy which was the annexure “B” to his affidavit of 18 April 2019. Relevantly, the email includes the following evidence:
I was not planning on leaving you, or saying many of those things, but you continue to push me away, while I push you away. We are too strong for each other.”…“I know sometimes u hate me and want me to leave. Happens to me to, that’s why I those messages. I tell u exactly how I feel. So that’s why I want to leave you. I feel like this is all lost. How can u change how think of me? I don’t think u can. You have already decided that I don’t deserve the house, or car, and a it’s not really about the physical things. It’s the fact that you refused to include me purely because of money … I feel so sad to lose u, but maybe that is what we need. I will miss u … But maybe we can fix this. I don’t know. I hope so. Let me know what u think.
It is inherent in the text of the email that there had been an exchange of SMS messages between the parties between the Applicant leaving the Town B home on the evening of 2 February 2016 and creating the email on 4 February 2016.
f) Annexure “C” to the Applicant’s affidavit is evidence of a print of an email dated 27 February 2016 at 8:44PM from the Respondent to the Applicant containing a screenshot of an SMS message she had been trying to send to the Applicant, the text of the message being “I really haven’t had mine space to put what I’m thinking in words … Confused and tired! Need more time …” It was put to the Respondent in cross-examination that the message indicated that the Respondent was, as at 27 February 2016, still “confused about the relationship” to which the Respondent answered “No. The relationship was over.”
g) The Applicant attaches to his affidavit as annexure “D” evidence of 29 pages of print out of SMS messages between himself and the Respondent. He asserts these messages to be from the period between when he moved to his mother’s house (2 February 2016) and at least 2 April 2016 though none of the pages of the SMS messages bears a date, only a notation of the time of day.
h) The Applicant deposed that on 1 April 2016 he decided “that the relationship was unsalvageable and over.” He deposes that by an arrangement made with the Respondent in the course of their SMS messages he borrowed his mother’s car on 2 April 2016, drove to the Town B home, packed up all his belongings, locked the front door and put his front door key in the letterbox. He then drove to a local park for a prearranged meeting with the Respondent and told her that the relationship was over and completely finished. He then drove the Respondent from the meeting place and dropped her at the Town B unit. In cross examination, it was put to the Respondent that during the meeting at the park on 2 April 2019 the Applicant had informed her that he had decided that the relationship was over. The Respondent denied that the Applicant had made that statement to her.
- In compliance with the trial direction orders, the Respondent filed a trial affidavit sworn 8 March 2019 and filed that day. Relevant to the issue of the date of the ending of the parties’ de facto relationship, the Respondent says in evidence that:
a) The last time the party spent time together was the morning of 2 February 2016 and that following an argument the Applicant left that morning “with a suitcase.” The Applicant did not return to the home after that time other than when he attended, in the Respondent’s absence, to pick up his computer table and his personal belongings;
b) On 26 February 2016, the Respondent organised to have the internet connection at the Town B home changed from the Applicant’s name to her name and she took over paying internet account. The Applicant cooperated with her in arranging this;
c) On 3 March 2016, the Respondent organised to have the electricity account for the electricity connection to the Town B home changed from the Applicant’s name to the Respondent’s name;
d) Since 2 February 2016, the Respondent has made all the payments required on the loan accounts secured by way of mortgage over the Town B home and has paid all outgoings relating to the Town B home without contribution from the Applicant.
- Other than the evidence detailed above, the Respondent’s affidavit does not assist in relation to a decision made by either of the parties, whether communicated to the other party or not, that their de facto relationship had come to an end.
- I have carefully read the print out of the evidence of the SMS chain at annexure “D” to the Applicant’s affidavit of 18 April 2019 and considered the content in the light of the question as to whether or not, in the view of either party, the de facto relationship between them ended on 2 February 2016 or 2 April 2016. On an unknown date is a message from the Applicant:
Im saving up money incase we can get back so I can pay u back all those lost weeks and if we cant fix together then yeah I move out with … he needs a flatmate.
- There is a strong inference in the messages evidence that the parties had planned a trip together to Country D and had bought tickets in relation to that trip and that the Respondent was obtaining a refund in relation to the Applicant’s tickets:
I’m getting refund from your tickets
- Immediately followed by a message from the Applicant:
…cool keep it for ur backup
- To which the Respondent replies:
…had to pay $500 fine … But I will get rest back.
- From the Respondent:
I just want the best for you at the moment! As being together or not! If moving out helps U move on! I’m happy to help U! I feel bad keeping everything I do think u deserve some to … There is no flighting anymore … Just want to see u happy!
- And:
…and yeah I’m not sure about us either … It’s too hard as we both know …
- And:
I really think u r the person I want to end up with in life! Sucks we can’t be together… I have a lot more respect for then u think
- And:
but I think u will do so well in life! Keep saving and look after yrself … Contact me anytime okay?
- Later from the Applicant:
yeah I know what you mean busy does help, good on you, I really hope we can work this out sometime when I’m not so sad.. Be safe [name]
- And:
I will try my best to get better and be the man you need and deserve.
- And:
hope ur well, im starting to feel better but would like to have a more stable job away from mum them hopefully move out somewhere else or something.
- And:
I still have strong feelings for you and don’t want to be with anyone else, but I know it’s hard to live together and I still have to improve myself, I will keep trying and hope one day we can go on some dates together or something and see if we can work this out.
- Sometime thereafter from the Respondent:
and one day if you want to go on a date … Just remember you only have to ask”.Family law Sunshine Coast
Family law Sunshine Coast
Family lawyer Sunshine Coast
Public interest – referral of litigant to A-G and ATO
Public interest – referral of litigant to A-G and ATO
| ASHJAIM & GASPAR | [2019] FCCA 2703 |
| Catchwords: FAMILY LAW –Unusual property dispute– Applicant’s business venture which created cash flow failed – Applicant sending monies overseas – Respondent on folly of her own post-separation – Respondent files affidavit admitting to lying to the court –Respondent’s lack of disclosure , transparency and honesty with the court – Referral of papers to Australian Taxation Office and Attorney-General. |
Just and equitable conclusion
- On the 29 August, 2016 there was an interim hearing in this matter. Counsel for the Applicant complained that amongst other matters, the Respondent was not providing full and proper disclosure of all documents under her control or in her possession. In response to this claim, the then Counsel for the Respondent said as follows… “I concede the issue of discovery is not perfect. My client and I spoke and I have set her straight, but what she understands what they have provided in compliance with Your Honour’s orders for discovery would not be sufficient. That I can indicate to Your Honour, my client has a comprehensive understanding now as to her obligations.”
- An example of her lack of disclosure and frankness was when she was cross-examined during the trial about her BAS statement for the quarter ended 30 March, 2016, when she said that was with the liquidator, but when the documents produced by the liquidator were inspected, they were not present. She said that she did not keep copies of any of these documents. She said she did not know she had to produce documents and she was not asked to produce any particular documents.
- Her reply was she did not know she had to produce those documents, flew in the face of the assurance from her Counsel made to this court on 29 August 2016, over 2 years before the trial.
- In her confessional affidavit filed 22 May, 2019 at paragraph 26 the Respondent says the following,…“I would like to tell The Honourable Court that I am really sorry for not disclosing the right documents for my final court hearing and placing false information into an affidavit.” There is no doubt in my mind that the Respondent has not been complying with the duty to provide a full and frank disclosure of all financial records and documents.
- In my view, the cases of Oriolo (1985) FLC 91653 and Briese (1986) FLC 91-713 apply to this situation. The Respondent intentionally told lies and created such an opaque image of her financial circumstances that it led to the court not being fully and properly informed about the financial history and current circumstances of the Respondent. Further, when one reads the cases of Weir (1993) FLC 92-338, Mezzacappa (1987) FLC 91-853 and Chang v Su (2002) FLC 93-117 they establish that I should have no sympathy for the Respondent or her behaviour, noting however I must follow the criteria in the Family Law Act 1975 particularly section 90SM and section 90SF(3).
- In Chang v Su (2002) FLC 93-117 their Honours Justice Kay and Justice Dawe said the following:
“67. The law to be applied and the approach that may be adopted in cases where, through the lack of a full and frank disclosure, the Court is unable to fully ascertain the extent of a party’s wealth, is well settled (see Stein v Stein [1986] FamCA 27; (1986) FLC 91-779; 11 Fam LR 353; Mezzacappa v Mezzacappa [1987] FamCA 20; (1987) FLC 91-853; 11 Fam LR 957; Black and Kellner (1992) FLC 92-287; 15 Fam LR 343 and Weir v Weir (1993) FLC 92-338; 16 Fam LR 154).
68. In Black and Kellner (supra) the appellant had submitted that, absent findings as to the extent of his wealth, the order made by the trial Judge was plainly unjust. The key finding of the trial Judge was:
“…the failure on the part of the [husband] to disclose his financial position to the court and his attempts to conceal this matter from the court, which has left the court in the position of not knowing what the [husband’s] financial position is, except that he deliberately underestimated it.”
69. Chief Justice Nicholson (with whom Ellis and Cohen JJ agreed), said in dismissing the appeal:
“As senior counsel for the wife pointed out, the first step in proceedings for a property settlement is for the court to ascertain the wealth of the parties and in this regard it is of interest to note the remarks of the Full Court in the case of Giunti and Giunti [1986] FamCA 15; (1986) FLC 91-759, particularly at 75,555 where the court commented:
‘It is obviously desirable as a general principle that the court should first of all identify the pool of assets available and evaluate it. If each party complies with his or her obligation to make a full and substantive disclosure of their financial affairs- see Briese and Briese; (1986) FLC 91-713, affirmed by the Full Court in Oriolo v Oriolo (1985) FLC 91-653, there is no problem, although there may be disputes as to valuation.
However if, as here, one party fails to fulfil that obligation, is it open to that party then to rely on the absence of satisfactory evidence to prevent the making of an order against him or her which otherwise justice and equity would require? It would be simple, if that were the case, to evade the jurisdiction of this court, not by outright refusal which would attract sanctions but by obfuscation and evasion.’
The Full Court in Oriolo and Oriolo, supra, referred with approval to the remarks of Smithers J in Briese and Briese, and it is perhaps worth reiterating a portion of his Honour’s statement at 75,181 where he said, after referring to the decision of the House of Lords in Livesey v Jenkins [1984] UKHL 3; (1985) All ER 106:
‘… I believe that the conclusion of the House of Lords in the case of Livesey v Jenkins… is apposite, namely that in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of discretion. This is quite different from common law litigation between strangers, in which such a general duty does not exist, and obligations would only exist in so far as statute or court rules required.
In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred’.”
- What I can discover from the evidence is that on commencing cohabitation it appears that the Respondent made a greater financial contribution and subsequently a greater contribution as primary carer and home-maker but these were eroded by her subsequent negative contributions. Both the Applicant and Respondent worked hard in their respective businesses. The Applicant initially as a customer service representative and then subsequently in the business in Suburb F. The Respondent brought into the relationship a humble business that operated from her residence. This grew into a significant shop front business known as “Business H.”
- It appears that by 2016, the year the parties separated, both businesses were financially successful. The Respondent in her affidavit filed 10 October, 2017 alleges that the Suburb F business generated cash receipts from 29 January, 2016 to June, 2016 of around $51,000 and Eftpos receipts from 29 January, 2016 to 29 August, 2016 of $128,649. The evidence from the experts is that the turnover for the C Street, Suburb D and Suburb F business branches was around $749,000 in 2016/2017.
- Ironically and sadly, the Respondent post-separation appears to have made every effort to undermine those businesses including;
a) Without notice liquidating the company operating the C Street, Suburb D business;
b) Pretending to sell the C Street, Suburb D business to her then friend Ms P;
c) Clearly wasting significant monies of around $100,000 by leasing premises at J Street, Suburb F, and setting up separate competitive structure with the intent, (I infer from all the evidence), to undermine the husbands operation at E Street, Suburb F; and
d) Without notice selling the realty she brought into the relationship at Suburb M leaving a net balance $60,590 after sale costs and discharge of mortgage. Given her poor credibility, misleading the court and lack of complete discovery I am not satisfied these monies were used as she suggested. In any event, on any view she retained those funds and used them for her benefit either directly or indirectly. I will treat this as an addback, (see Kowaliw (1981) FLC 91-092 above).
- In all the circumstances of this opaque fog that this lady has created, it is my assessment of the best evidence available, that the divisible pool of assets is made up as follows;
a) Net proceeds from the sale of C Street, Suburb D – $60,590;
b) A Street, Suburb B – $785,000;
c) Business H, C Street, Suburb D – $94,000E;
d) Business H Pty Ltd, Suburb F – $94,297; and
e) Monies that the Applicant sent to his parents overseas – $90,000E.
which totals $1,123,887 less the mortgage over the parties’ home of $529,000, which then leaves $594,887 net.
- I have excluded the other liabilities personal to them that they will continue to be solely responsible for, given this approach in the Applicant’s and the Respondent’s Outlines of Case, and the evidence at the trial.
- When considering all the facts peculiar to this most unusual case, I have formed the view that the contributions both positive and negative in all forms by both parties are ultimately very similar during cohabitation and post-separation. Initially I was considering that perhaps the Respondent made greater contributions than the Applicant, particularly as homemaker or parent and with the assets she brought into the relationship, but on further reflection I believe she offset those contributions by her negative post-separation waste of funds on trying to establish a business to compete with the Applicant at J Street, Suburb F. She also made it more difficult to assess the section 90SM(4) factors with her lying to the court and not providing full disclosure, which caused me to doubt the reliability of her evidence.
- When I then turn to section 90SF(3), I find these factors are also of similar weight or importance save for the serious responsibility of the primary carer, (in this case the Respondent), to provide care and accommodation for the two children of the relationship. Therefore, in all the circumstances there should be an adjustment in the primary carer’s favour of 10% providing a 55/45 division. In my assessment, the payment of $280,000 sought by the Applicant did not satisfy sub-sections 90SM(3) and (4) of the Act.
- Given the net pool of $594,887 the Applicant’s share of 45% is $267,700. He will retain the E Street, Suburb F business valued at $94,297 and be responsible for the $90,000 addback, he is to be paid a further $83,400 in rounded figures. The Respondent will retain $256,000 equity in the Suburb B home and business of $94,000(c) with the $60,590 Suburb M addback, totalling $410,590 less the $83,400 payment, leaving a net of $327,190 in rounded figures.
- Finally, I cannot ignore page 5 of the indicative valuation report by the Respondent’s agent Mr EE where he referred to …“possible taxation and accounting compliance breaches. These breaches suggest that there are undisclosed income amounts and over claimed expense amounts…The observed possible compliance breaches are as follows:
· BAS’s not reconciling with financial information provided (mainly Financial Statements)
· Alleged undisclosed sales/cash income (as noted by Forensic Report of Mr U dated 22 September 2017)
· Possible avoidance of GST & Income Tax Obligations by using Trustee company of Trust for invoicing and banking of business income, along with possible “double dipping” expenses (claiming expenses in both entities when only one is conducting business activity)
· Owners Drawings/Loan account has not been examined but shows there is activity which could suggest further cash being drawn from out of the business…”
Therefore, given it is in the public interest to investigate this and a possible breach or breaches of the laws of Australia, I am requesting that a copy of my judgment be forwarded to the relevant officials at the Attorney-General’s Office and the Australian Taxation Office for further investigation and an officer of those bodies may have access to the parties material filed in this court for that purpose, if so required.
Maroochydore/Nambour/Noosa/Caloundra
Family law Sunshine Coast
Family lawyer Sunshine Coast
Review family law – is it needed?
Review family law – We don’t need another family law review — we need to act on what we already know
So far today police in Australia would have dealt with on average 284 domestic violence matters.
Question: How many inquiries and reports does it take to change Australia’s family law system?
Answer: As many as possible, as long as you procrastinate and do not implement any recommendations.
The announcement this week of yet another inquiry into our family law system is the third such report in the past three years.
It is undeniably a waste of time, money and resources and reflects the Coalition-led federal government’s desperate attempt to curry favour with those who hold the balance of power in a tight Senate.
Children have rights, not parents
It is necessary to address the ill-informed claims about family violence made by those supporting an inquiry.
As the House of Representatives report noted, more than half of parenting cases that proceed to family law courts involve family violence. Some studies suggest this could be as high as 85 per cent. The data clearly shows that false allegations are made in a small minority of cases and mostly comprise perpetrators denying family violence. Those who claim otherwise are distorting the data and are often aggrieved by personal experiences and seek to drive their own agendas.
Children have rights. Parents do not have rights.
Parents have duties, responsibilities and obligations. Children have the right to be protected from physical, sexual and emotional harm and from exposure to family violence. The primary carers of those children are mostly mothers. This is often the result of private agreements between the parents and not because of any judicial determination. The caregivers too have the right to be protected.
These fundamental principles have been enshrined in the Family Law Act 1975 for years.
Read the reviews we already have
Many of the terms of reference for this latest inquiry have already been covered in previous reports. This includes alternative dispute resolution to reduce ‘acrimony, cost and delays’; children’s matters; property division; integrated court responses; closing the gap between State and federal child protection and family violence jurisdictions; support service for courts and simplifying legislation.
In December 2017, the House of Representatives Standing Committee on Social Policy and Legal Affairs published “A better family law system to support and protect those affected by family violence”.
It comprises 374 pages and 33 recommendations. Few if any of those recommendations have been implemented.
In April this year, the Australian Law Reform Commission tabled its long-awaited Family Law for the Future — An Inquiry into the Family Law System: Final Report comprising 574 pages and 60 recommendations. This was hailed by the former Attorney General George Brandis in 2017 as the most comprehensive review ever of the family law system. The Final Report was the product of a detailed Issues Paper, a comprehensive Discussion Paper, numerous consultations and over 426 submissions.
Most of those submissions were not from lawyers “having their say” as Prime Minister Morrison claimed but from community groups, support services, organisations representing diverse groups, academics and individuals.
The federal government has not even responded to those recommendations.
Confused and misguided
Some of the issues raised by the terms of reference are already in the legislation. For example, grandparents are already specifically mentioned in provisions in the Family Law Act 1975 pursuant to provisions introduced back in 2000.
In addition, many of the terms of reference are confused and misguided.
For example, apprehended violence orders are state protection orders and only available in NSW. These are not part of our federal family law system.
Indeed, we have a fragmented family violence system where we have eight different legislative schemes and each and every one has different provisions.
The Council of Attorneys-General has not looked at national family violence laws since 1999.
Resources would be better spent on introducing a unified national legislative framework and providing realistic funding for support services rather than duplicating the work of earlier inquiries.
We also need to see more judicial appointments, simplifying court processes, empowering family violence victims/survivors and community education rather than pandering to a vocal few who have vested interests and disproportionate levels of power.
The report for this latest inquiry is due in October 2020, but we already have the information we need to improve the system.
Dr Renata Alexander is a Victorian barrister and a senior lecturer in the faculty of law at Monash University.
Family law Sunshine Coast
Family lawyer Sunshine Coast
Family Court report writer charged with child sex offences
Family Court report writer charged with sexually abusing three children
An accused paedophile has been used as an expert by the Family Court in custody disputes that involve allegations of child sexual abuse.
Family Court Key points:
- The Family Court psychologist remains on bail and the matter has been adjourned to October
- It is alleged the offending occurred many decades ago
- One parent said during a meeting with the psychologist he made her feel extremely uncomfortable
The Family Court psychologist, who has since been charged with sexually abusing three children, was appointed by the Family Court to make custody recommendations in cases where one parent had accused the other of sexual abuse.
One of Australia’s foremost family law experts said it could open the way for custody rulings involving the expert to be overturned.
One mother, who was sent to the psychologist in 2013 after alleging her three-year-old daughter was abused by her father, told the ABC the psychologist had made her feel extremely uncomfortable.
Greta* said he implied she may not be satisfying her husband sexually and even if he had abused their daughter it did not mean he couldn’t have a relationship with the child.
“He was kind of overly physical with me. He kept touching my arm and my leg. It made me feel creeped out. He said weird things. He kept telling me that he knew about real paedophiles and that they would show up on [psychometric] tests,” she said.
“He was absolutely adamant that he would be able to tell a real paedophile. And I just was like ‘well what do you mean by a real paedophile?’.
“My first impression was ‘this isn’t going to go well’.”
The psychologist’s family report was never provided to the court.
However, in another case the psychologist’s report recommended the child “continue to live with [the father]” after the mother raised allegations of sexual abuse, saying he “found no significant evidence” the abuse had occurred.
At the time of the family report interviews the psychologist had not been charged with any offences. It is alleged the offending occurred many decades ago.
University of Queensland professor Patrick Parkinson, said a child sex abuse conviction could “absolutely” give a parent grounds to seek to quash custody rulings linked to the psychologist.
“In a situation where the judicial decision was based on, or was influenced by, a report which, in the light of subsequent events, one might cast doubt upon the reliability of it, I would have thought that would be grounds to reopen it,” he said.
“The fact that a [an expert] has been convicted would in my view amount to, in itself, sufficient changed circumstances for the court to look at the case again — in the light of the current circumstances of the child.”
Even the charges, coupled with other changes in circumstances could form grounds to challenge a custody ruling, he said.
The psychologist remains on bail and the matter has been adjourned to October.
The psychologist cannot be identified for legal reasons.
When asked what measures it had taken to ensure any expert charged with criminal offences was not used by the court, a spokeswoman said the court could not comment.
Family law Sunshine Coast
Family lawyer Sunshine Coast
Family mediation and dispute resolution
Family mediation and dispute resolution
Mediation is a way of resolving disputes between people in conflict, usually facilitated by a neutral person. Separated families are encouraged to use family mediation to help resolve their disputes about children, instead of using the family law courts.
What is family mediation?
People refer to ‘mediation’ in many different ways. It can be as informal as having a friend or family member helping to talk through the issues in dispute. It can also be a formal process involving a professional mediator.
Disputes can involve just two people in conflict, or include extended family members. Where there are issues related to child protection, mediation may involve full family group conferencing.
When disputes can’t be resolved by mediation, the matter may need to go to a court for a judge to make decisions. Going to court is a long, stressful and expensive process. The aim of mediation is to avoid the situation reaching this point.
The family law system encourages separated families to come to their own arrangements in caring for their children without going to court. This can be done in several different ways:
- discussion between the parents
- using a friend or family member to help
- informal general mediation
- using a special family mediation process covered under the Family Law Act 1975 called Family Dispute Resolution (FDR).
After a relationship breakdown, discussions about dividing property and future care for children can become very emotional. This is when people may need to use a more formal mediation process with an accredited Family Dispute Resolution practitioner.
Family Dispute Resolution
Family Dispute Resolution (FDR) is a special type of mediation for helping separating families to come to their own agreements. During FDR families will discuss the issues in dispute and consider different options, while being encouraged to focus on the needs of their children. FDR uses a neutral and accredited Family Dispute Resolution practitioner.
The main objective of FDR is to assist participants to make a parenting plan setting out the agreed future parenting arrangements.
It is a practical and low cost way for separating families to sort out future parenting arrangements with professional help. For more information see the Family Dispute Resolution Factsheet.
It is compulsory under Australian family law for separated parents to attempt Family Dispute Resolution before applying to a family law court for parenting orders.
There are exemptions to this requirement, including:
- when you are formalising an agreement through ‘consent orders’
- where family violence or child abuse is a factor
- when you are responding to an application to court
- urgent issues
- a person is unable to participate effectively (for example, due to incapacity or geographical location), or
- a person has contravened and shown a serious disregard for a court order made in the last 12 months.
Family Dispute Resolution practitioners
When a family disagrees about arrangements for children after separation, an FDR practitioner is a good person to ask for help.
An FDR practitioner is an independent person trained in mediation and negotiation and specialising in family disputes. They are neutral and don’t take sides with any of the people involved in the mediation. They will facilitate the process by encouraging people to talk about the particular issues in dispute.
They are trained in working in a family law environment and in responding to domestic and family violence. They are also trained in creating a supportive environment, particularly for the safety of vulnerable people. They should provide a safe environment to allow people to openly discuss and clarify issues as well as allow them to feel safe to disagree.
An FDR practitioner is accredited under the standards set out in the Family Law (Family Dispute Resolution Practitioners) Regulations 2008.
Family Dispute Resolution services
FDR services are available at government-funded services including:
- Family Relationship Centres
- Legal Aid Commissions
- Other community-based family law services
There are also accredited FDR practitioners who provide their services as a private business.
If you are in a regional or remote area, you can access telephone or internet based FDR through the Family Relationship Advice Line or a private FDR practitioner.
How to find a Family Dispute Resolution practitioner or service
To find a government-funded service, call the Family Relationship Advice Line on 1800 050 321 or use the Find Local Help search to look for a Family Relationship Centre, Family Dispute Resolution service or Regional Family Dispute Resolution service near you.
To find a private Family Dispute Resolution practitioner, search the Family Dispute Resolution Register. Information about private provider’s costs can also be provided through the Register.
Timeframes
A common question people ask is “How long will the mediation process take?” There is no simple answer to this question. It can take a few hours, or can be over a few days. It depends on the number and complexity of issues being discussed.
Some families have complex issues to deal with that can make mediation difficult and take a long time. When each family member makes their child’s interests the priority, workable parenting agreements can be reached sooner.
Costs
If a dispute can be resolved through mediation, it will be significantly less expensive than having to go to court.
The cost of FDR depends on the provider and may be free for eligible people. Private providers set their own fees which can vary. Community-based family law services have a standard fee policy based on income levels and capacity to pay.
Family Relationship Centres provide one hour of FDR free to every family. Centres charge clients earning $50,000 or more gross annual income $30 per hour for the second and third hours. Clients who earn less than $50,000 gross annually and those who receive Commonwealth health and social security benefits receive the second and third hours free. If further sessions are required, Family Relationship Centres may also charge fees in accordance with the Centre’s fees policy.
You should let your FDR service provider know if you are on a low income or experiencing financial difficulties.
Location
An FDR service provider should be able to provide a suitable venue or options that suit your circumstances.
An FDR session doesn’t have to be face-to-face or in the same room as the other person. It can even be done by telephone or video call. This can be for many reasons, including safety concerns or because the participants live a long way from each other.
Confidentiality
Everything you say in front of an FDR practitioner is confidential. There are some exceptions, such as to prevent a threat to someone’s life or health or the commission of a crime.
What is said during FDR cannot be used as evidence in court. An FDR practitioner must report child abuse or anything that indicates a child is at risk of abuse, and this may be used as evidence in some circumstances.
Counselling and Family Dispute Resolution
Unlike counselling, FDR does not focus on the emotional side of relationships. It concentrates on resolving specific disputes.
Participants may find it helpful to see a counsellor before going to FDR. This can help to develop a strategy to stay focused on achieving a positive outcome during the mediation session.
When FDR is not working, the FDR practitioner may suggest other options, such as family counselling.
Children and Family Dispute Resolution
Sometimes, a mediator will include children in the mediation if they are of an age or maturity that is suitable to the proceedings.
Other models of mediation can be ‘child-inclusive’, with a child consultant that talks with the children and provides the child’s views back to the parents during the mediation.
Starting Family Dispute Resolution
Once someone engages an FDR practitioner, the practitioner will usually invite the other person to a mediation session. The practitioner will advise the other person that if they don’t attend the mediation, the practitioner may need to issue a certificate so that the first person can make an application to a family law court.
The FDR practitioner will assess if FDR is suitable for the family situation. This includes considering issues such as family violence, safety, equality of bargaining power, risks to children, the emotional and psychological health of participants and any other issues that they think may make FDR unsuitable.
The FDR practitioner should also explain their role and the process of mediation so each party understands clearly what is expected and the potential outcome of the mediation.
What happens in Family Dispute Resolution?
The FDR practitioner will help to identify the issues that need to be resolved and encourage each party to listen to the other’s point of view.
The FDR practitioner will try to keep each person on track and focussed on the children. Ideas and options will be shared with the aim of coming up with workable solutions that are in the best interests of the children.
Sometimes it’s not suitable to have each person in the same room so the practitioner may arrange to go back and forth from different rooms. This is called ‘shuttle mediation’. Sometimes it is necessary for the mediator to talk individually with each party to help move issues along or to discuss options for negotiation.
The participants will be helped to develop a parenting plan to set out arrangements for the children. An FDR practitioner will also check that everyone understands what is being said and agreed upon.
After Family Dispute Resolution
Once an agreement is reached it can be recorded as a parenting plan. This must be in writing, dated and signed by both parents. It can include mechanisms to change arrangements and resolve disagreements. Parenting plans can be renegotiated over time if necessary.
You can read more about parenting agreements on this website.
Sometimes agreement may not be reached at the time of the mediation. Sometimes an agreement can be made in an informal process after the FDR session.
When Family Dispute Resolution is unsuccessful & certificates
If the mediation is not successful for whatever reason, an accredited Family Dispute Resolution practitioner can issue a certificate to allow an application to be made to a family law court. The certificate is called a ‘Section 60I certificate’ and can only be issued by an accredited Family Dispute Resolution practitioner.
A Section 60I certificate can also be issued if FDR is not appropriate for the particular situation. This could mean there are concerns about family violence, the safety of the parties and risks to children, the ability for each party to be able to negotiate, or other issues the practitioner feels are relevant.
The Section 60I certificate will say one of the following things:
- the other party did not attend
- you and the other party attended and made a genuine effort to resolve the dispute
- you and the other party attended but one or both of you did not make a genuine effort to resolve the dispute
- the FDR practitioner decided your case was not appropriate for FDR, or
- the FDR practitioner decided it was not appropriate to continue part way through the FDR process.
Note: ‘Party’ means the other person or persons involved in the parenting dispute.