Donate Child Support Calculator
Skip navigation

Letter to Chief Justice Diana Bryant

Should there be a more centralised and coordinated effort in drafting important letters to key legislators and Family Court executive?

Guests cannot vote in polls

You must select between 1 and 2 options

Samuels and Errington, reopen cases, significant change of circumstances, Chief Justice Diana Bryant

Hi all, It is my latest letter to Chief Justice Diane Bryant.  I am sure it will irritate some people on this forum site, and be declared naive, or damaging to the cause etc.  I do, however, welcome constructive criticism - positive or negative.  Unless people can tell me how better to spend my energy, I will continue firing cannonballs.


Cheers, Geoff

07 June 2007
Chief Justice Diane BryantFamily Court of Australia

c/o Meg Foreman
Client Feedback Coordinator & Administrative Law Consultant

clientfeedback@familycourt.gov.au

(Dear Meg, please forward this message directly to Chief Justice Diana Bryant.  As I am sure you realise, this is not about a particular case, but concerns policy and practice of the Family Court of Australia as a whole).

Dear Chief Justice Diane Bryant,
I would like to commend the Family Court of Australia for taking the unusual step of reopening the case of Samuels and Errington whereby the child will be returned from the mother in Perth to the care of the grandparents in Hobart, even though there has been no appeal process.

I would hope that in the event that the mother chose to relocate to Hobart without her partner Mr B., that she should have the option of 50/50 residency.

I interpret the reopening of this case as a recognition of inappropriate decisions made by the Family Court of Australia, where there has been a bias toward granting full or majority residence to the mother.

I suggest that the Family Court of Australia has been making inappropriate decisions in a significant number of cases, and still continues to do so, alienating one parent, usually the father, to the detriment and against the best interests of the child, for the last three decades. I suggest therefore, that this previous (and current) bias in favour of the mother be redressed by giving an opportunity for cases to be reconsidered in the context of the new legislation.  To disallow this would, in my view, be immoral.

To think that a judge can determine orders that then become immutable until a child reaches 18yrs unless there are "significant changes of circumstances" is truly outrageous. 

It is my understanding that Justice Faulk has indicated that there needs to be an opportunity to revisit cases even with "Final Orders" in place, even though the current (ill-defined) and extreme "significant change of circumstances" may not apply. Cases could be reconsidered by a parent presenting a one of two page set of reasons to a Family Court judge, and where that judge feels there are no complicating circumstances, the parent could then have the matter heard in a Family Relationship Centre (and pay the full cost of the mediation, unless they can demonstrate financial hardship).  And where the other parent cannot agree to equal residency (or to what the applicant parent is asking up to 50%), or come to some agreement, then the matter will go before the judge (12A Hearing ?  Judge speaks directly to the parents etc ?) who must then consider the child spending equal time with each parent as described in Section 65DAA.

At the Family Relationship Centre (FRC), the parent with majority residency should be informed that since the judge has allowed the matter to be heard, there is a good chance they will award equal parenting time (or whatever has been asked), and that if both parents cannot agree in the FRC, the parent with majority residency may be liable for court costs.

Thankyou for your time in considering this matter. I would appreciate an acknowledgement that you have actually received this e-mail.

Sincerely,Geoff Holland

(Layout edited only)



Last edit: by OneRingRules


Coordinator, Equal Parenting Movement

Co-director, Fathers4Equality

Diana Bryant

Nothing wrong with that.
You seem to have more faith in the current "reformed" system than me.
The problem is that children are not protected from one parent removing the other unilaterally.
Simon
 
I agree entirely Simon.  No child shoould be removed from a parent unless there is proof of physical, psychological or sexual abuse.  And such abuse should be considered a criminal offence and be handled in a criminal court, not the Family Court System.

Cheers, Geoff


Coordinator, Equal Parenting Movement

Co-director, Fathers4Equality

Lots of activity but I think Geoff a task the size we face where the whole community - men, women and systems are all so deeply and fundamentally flawed is going to take even more than what the Family court could do.

 Maybe I am not explaining myself well enough
vascopajama said
The problem is that children are not protected from one parent removing the other unilaterally.
Simon
The issue is that after separation one parent is usually either cast out, removed under AVO legislation,carried out by front line police or leaves teh household to get out of the worsening and deteriorating situation at home. As soon as this happens you have the parent remaining with the children having an upper hand and unilaterally restricting contact.

We have a heap of new sections in the Family Law Act that are not yet giving the desired result. Penalties are not being applied regularly enough for false allegations and orders are taking to long to come out for parents who are not getting equal or substantially equal contact as provided for in the new legislation.

What is vital now is for us to document in the private forums the details of these where we are not getting rapid results and shared parenting equal or substaintial time outcomes as allowed for in the law… Only then with credible evidence can we get the Attorney General to further direct the courts to make orders. I am attending to a number of matters before the Federal Magistrates Court currently and will report once I have a better understanding of the background. It is vital that we record the case file numbers so these can be properly investigated.

I cannot stress the importance of maintaining proper details and time lines on these cases. Without it we can not get up additional legislation.



Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Geoff Holland said
No child should be removed from a parent unless there is proof of physical, psychological or sexual abuse.  And such abuse should be considered a criminal offence and be handled in a criminal court, not the Family Court System.
There is no argument here. The issue however is the practicality of keeping up that contact regime where one parent is no longer able to come and go as they please. We need to craft some legislative change that can bring some substance the the fundemental principal (Imediately after separation of the parents) that every child has the right to know and be cared for equally or substaintially equally by both parents. In my view this is the fundemenatl issue that ahs to be sorted out to ensure that parties, after separation, cannot withold contact. There needs to be a schedule of penalties etc applied.

Take a look again at Paragraph 60CC(3)(b)
57.   New paragraph 60CC(3)(b) replaces existing paragraph 68F(2)(b) with a modification.  Existing paragraph 68F(2)(b) provides that where the court is determining the best interests of the child, it must consider the nature of the relationship with each of the child's parents and with other persons.  This provision has been modified to include an explicit reference to grandparents or other relatives of the child.  This change further ensures that the court recognises the importance of the relationships that the child has with their wider family, in particular grandparents.

58.   A new consideration in determining what is in the best interests of a child has been added in paragraph 60CC(3)©.  The additional consideration is the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  This criterion will need to be considered by the court along with the other criteria set out in subsection 60CC(2) and (3) when making a parenting order.  New subsection 60CC(4) also provides that when considering this factor, the court must consider the extent to which each of the parents has fulfilled or failed to fulfil their parental obligations.

Paragraph 60CC(3)(d)
59.   Paragraph 60CC(3)(d) replaces existing paragraph 68F(2)c with a modification.  Subparagraph 68F(2)c(ii) has been modified to make an explicit reference to grandparents or other relatives.  The existing provision provides that, in determining what is in the best interests of a child, the court should consider the likely effect of any change of the child's circumstances particularly in relation to separation from his or her parents and other persons with whom the child has a relationship.  New subparagraph 60CC(3)(d)(ii) makes an explicit reference to grandparents or other relatives.  This change ensures that the court recognises the importance of the relationships that the child has with wider family in particular grandparents.

These sections tell us the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent is absolutely key. Here is the piece that needs to be thrust down the throats of these delinquent parents and penalties implimented for failure to carry out.

All too often many non resident parents (now spends time with parents) were forced into outrageous regimes of limited contact or no contact at all in many cases. Forced into a one night a fortnight contact regime if they were lucky… Forced to pay Child Support for a relationship they never had or knew much about and discarded as the once loving and caring other parent all because the other parent could… Well to bad I say. It's a new world now and either participate under the new rules or change the lives with parent.

Importantly, in cases where family violence or child abuse are not issues, the benefit to the child of having a meaningful relationship with both parents, now becomes the most significant factor that the court must take into account when determining "best interests" and this leads to the making of orders through the "Rebutable Presumption (61DA (New) of shared parental responsibility".

It then follows on to section 65DAA (New) ordering that the court MUST consider the child spending equal or substantially equal time etc.

I also draw your attention to 60b Meaningful involvement, all new sections.

-   Willingness for each parent to facilitate and encourage a close relationship with children ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives. Where a 2 tiered best interests (60B) provision appears to move substantial relationship with both parents and violence to a higher level of importance than other provisions giving more importance to these two aspects.

AND again I reiterate in 60CC

60CC Attitude of Parents
-   It is reinforced that a willingness for each parent to facilitate and encourage a close relationship with children for the other parent is now a major item in determining factors.
-   The Court must consider the attitude of the parents where they have taken or failed to take, the opportunity to spend time with the child etc and facilitate the other parent doing these things.
-   Primary sections defined "the benefit to the child of having a meaningful relationship with both parents"

Parents MUST do these things.

Never again will we face a situation in our society during and after separation where parents could discard the other like flotsam and cease all parent child relationship just because they had the children.


I am inclined to think about the following actions:

Beefing up sections 60B part 1

Add penalties for failing 60CC erquirements

Add additional requirements and the words "MUST make" instead of "should consider making" orders in 65DAA under equal and substantially equal time.

Looking at Simon Hunts views around some sort of thing like the AVO legsilation where Police can make these contact orders to goive a parent contact as they can with AVO orders to effectively take that contact away. 
Any other thoughts as to specific legislation changes are welcome.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Wayne,
 
The idea is to keep it all very simple, protecting the child BEFORE the exclusion can become entrenched. Before it goes to the Family Court.

Your detailed comment seems to be directed at what laws can be used to recover contact - to claw it back after it has been unilaterally removed by the other parent.
 
The RCO must be immediate to protect children from loosing one of their parents in the heat of the moment.
 
I believe everything else would take care of itself. We're not forcing people to have equal parensting. Its only available to parents that want it. They have to apply for the RCO and stipulate how many days a fortnight they want up to 7 days maximum.

 The RCO would be heard in a Mago or District court - if the Mago had serious concerns he/she could do a number of things eg: direct the case to the Family Court, order mediation, even order less than the desired contact if he felt Dad was really kidding himself about be able to shoulder the say 50% he wanted (although this would be undesirable in all but the occasional case). Otherwise Dad gets to keep his 50% or less by agreement (which was provided to him immediately upon his application). In cases where Mum resists the RCO order by laying charges of abuse (including serious neglect) with the police, the judge would have the same discretions.
 
Bear in mind if Mum made malicious false allegations in support of the charges she laid with the police - she would be in trouble with the police - not the Family Court.
 
Also remember that in most cases Dad had been living in teh home with the children so recently that the claims of him being unsuitable or incapable would lack credibility.

NB: I use Mum and Dad for convenience sake. It could be the other way around.
 
All this business of false allegation and punishment would be avoided all together if the child was protected from having one of their parents excluded
from the beginning.

And how politically attractive is that? No Mums beeing punished. No fear mongering about child abuse. No fear of mutually exclusive custody decisions - and HAPPY CHILREN!

…AND LAST BUT NOT LEAST …Happy Mums !!! :)

Who knows the media might even decide to bury the sensationalist hatchet and be nice to us too.

Regards,
Simon Hunt
PARENTS AGAINST INSTITUTIONALISED CHILD ABUSE
Mornington
Phone: +61 (0)3 5973 6933
Mobile: 0414 415 693
vascopajama@dodo.com.au
Mums, Dads and Kids against Sole Custody
TheFamilyCourtPhenomenon
www.dashlite.com.au
 
Equal time parenting after separation - the solution that removes the problem.
   
1 guest and 0 members have just viewed this.

Recent Tweets