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Goode and Goode explored in two appeals

In the case of Fennessy and Sanchez(2007) FLC and In Vasser and Taylor-Black(2007)

Monday, 15 October, 2007
 
In the case of Fennessy and Sanchez(2007) FLC, a father appealed against an order refusing his application for the trial judge to disqualify himself from the further hearing of substantive parenting proceedings. The father also appealed against an order rejecting his application for an interim order that a child of the relationship spend time with him. One of the bases of the father's appeal was that the trial judge erred in not having regard to the principles enunciated in Goode and Goode(2006) FLC.

The Full Court recorded that the necessity to refer in reasons for judgment to the provisions of Pt VII of the Family Law Act 1975 varies according to the facts and circumstances of each case and that if, in fact, the trial judge entertained and determined the father's application, they were not satisfied that his failure to address the matters referred to in Goode constituted an appealable error. They were of the further view that it was apparent that the trial judge would have reached the same conclusion had he approached the issue in the manner suggested in Goode.
The Attorney General sometimes quotes the Goode and Goode case as a precedent of importance around 60CC and it is clear that this section which relates to:

-   Willingness for each parent to facilitate and encourage a close relationship with children for other parent 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"

-   2 tiered best interests (60B) provisions move substantial relationship with both parents and violence to a higher level than other provisions giving more importance to these two aspects.

Is not getting the desired result. This appeal Fennessy and Sanchez(2007) FLC was lost by the father and on interim orders contact refused. We are not privy to the detail but we are seeing far to many of these cases where contact is limited or non existant or reduced.

In Vasser and Taylor-Black(2007), orders made by a federal magistrate at first instance had the effect of radically changing the care arrangements for the only child of the parties. At trial, the mother asserted that the child had made disclosures of sexually inappropriate conduct by the father. The father, however, asserted that the child was subject to risk of unacceptable psychological abuse in the care of the mother.

On appeal, the mother asserted that the federal magistrate:

- erred in rejecting her application for an adjournment pending the investigation of the allegations of sexually inappropriate conduct by the father
- erred in making findings that the child was likely to suffer unacceptable risk of psychological abuse in her care
- failed to assess the impact on the child of a sudden change in the child's care arrangements and separation from her mother.

The Full Court opined that the information from the investigation was likely to be of benefit in determining the orders which would be in the best interests of the child and that the federal magistrate did not discuss and weigh the benefits of allowing the investigation. The Full Court was also of the view that the federal magistrate had not considered the relevant matters referred to in s60CC as outlined in the recommended steps contained in Goode and that the failure to do so constituted an appealable error.

In this case the mother appealed and won. It is hard to see consistency when we have not reviewed the case history

Executive Secretary - Shared Parenting Council of Australia
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Since meeting my partner and assisting him in self representing, all of my reading has shown that Goode and Goode is not strong enough to support the intent of shared parenting. Shared parenting needs to be much more strongly legislated.

Currently, it is at the discretion of the magistrate or judge as to how much they allow this precedent to influence their decision. Even though the status quo argument is not mean to apply, the best interests of the child argument is taken to mean that upsetting a young child's living arrangements would not be in their best interests. This does not take into account those parents who abscond with younger child/ren of the relationship after receiving legal advice that the further and longer you run, the better your chances that the other party will have no chance in gaining access.

The reason that people are in court over these matters is that one party is totally unreasonable. The reasonable folk make up the 85% that don't have to go to court to hammer out a parenting arrangement. Unreasonable parties see the child as their property and expect the other parent to walk away. Hence the need for stronger legislation and enforcement of it.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
 Stronger legislation may be one answer - but that just keeps lawyers involved - its the same game just with new ever more complex rules.

Allegations made at family breakdown are given far more weight than they deserve. If there really are criminal matters then they should be dealt with under criminal law - not "Domestic".

In fact domestic, family, SAC law is all designed to remove rights (to a fair trial) , change the rules of evidence and decision making. Its not even articulated as to why this is done but people assume its to get better outcomes i.e. we all seem to be happy to lose rights because we trust decision makers to "do the right and fair thing"

The assumption is that framing laws this way PROTECTS victims - and we all know who the victims are.

Its easy to see why there are different outcomes for different cases - precedants are used to protect the judge from legal recrimination or criticism- not explain good outcomes. The legal fraternity lacks any aspirations other than to - protect themselves, justify their decisions,maintain their alloofness and idea of being "special and intelligent".

The idea that discussions and decisions about real people's lives are based on ever increasing complex and convoluted reasoning found in the sorts of cases found in the High Court, Family court etc would be humorous - except for the devastating outcomes for individuals and families it has produced in the last 35 years. If we had the legal ability to make fun of the legal fraternity ,without being sued, they would never be off the comedy hit list.

There ARE such things as fundamentally flawed systems - how could any reasonable person reading case outcomes over the last 30 years could reach a conclusion they were GOOD,INSPIRATIONAL, ASPIRATIONAL, LINKED WITH CURRENT THINKING, ACCEPTABLE etc. Many of them were also ILLEGAL (and found to be so being overturned on appeal).

No-one approaching the legal system should be under any misapprehension about how the system works and what to expect.

 Maybe I am not explaining myself well enough
Presume you are going for a 'Final'

An allegation is 'an allegation'. The bench will decide on its validity

Also the amount of contact is an issue, you will Rawley have regular contact without an 'equal responsibility' order.

Probably more a tactical exercise by the other party




Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
LifeInSight you might be better producing an updated case chronolgy and include the documents you refer to.

You have access to the SRL-R members area

You can email the documents to SRL-Resources as they can be kept in a secure site area (got to front page of this site, press the red 'i' and then read FAQs) about the security level

It would greatly help our people instead of asking generic question and receiving replies - details do help


Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
LifeInsight said
I read that just on the basis of a unsubstantiated family violence allegation, the presumption of shared parental responsibility is taken out of the picture.
It is a presumption so they have to argue that you are violent or a sexual abuser. The fact there may be entrenched conflict does not meet the criteria to exclude the Presumption of Shared Parental Resposnibility either in interim orders or final. Once over that you can look at s65DAA albeit not as water tight as we would want.

You definitely need to read up on s60CC


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
 
I have interim orders for shared parental responsibility of my 4-year-old daughter. Since this order the mother has obtained an Intervention order (consent without admission) for an alleged deflated tire. I gave it to appease her and protect the child from the unnecessary litigation. I found out later that the prosecuting police officer is a personal friend of the mother's former husband - the husband helped abduct the child into a DV refuge in another city. This SOCAU policewoman is now prosecuting a criminal charge of tampering with a motor vehicle for the same deflated tire. Maximum penalty $250.

The police have already been around to my home for an alleged breech of the intervention order. The paternal grandmother sent a text to the mother asking for visitation with the child.

The mother is seeking sole custody with supervised contact against 2 equal time family reports. She is trying to defeat the shared parenting recommendations with intractible conflict. I am worried that the intervention order might preclude the presumption and my time will be reduced. Can the Intervention order be revoked? What can be done about this mad dog policewoman conspiring with the former husband to pervert the family court proceedings?
srldad101 said
I have interim orders for shared parental responsibility of my 4-year-old daughter. Since this order the mother has obtained an Intervention order (consent without admission) for an alleged deflated tire. I gave it to appease her and protect the child from the unnecessary litigation. I found out later that the prosecuting police officer is a personal friend of the mother's former husband - the husband helped abduct the child into a DV refuge in another city. This SOCAU policewoman is now prosecuting a criminal charge of tampering with a motor vehicle for the same deflated tire. Maximum penalty $250.

The police have already been around to my home for an alleged breech of the intervention order. The paternal grandmother sent a text to the mother asking for visitation with the child.

The mother is seeking sole custody with supervised contact against 2 equal time family reports. She is trying to defeat the shared parenting recommendations with intractible conflict. I am worried that the intervention order might preclude the presumption and my time will be reduced. Can the Intervention order be revoked? What can be done about this mad dog policewoman conspiring with the former husband to pervert the family court proceedings?
Call the police Integrity Commission and explain the situation.

4MYDAUGHTER
its interesting that intractable conflict has been not something that directly excludes shared parental responsibility, does making false allegations of abuse exclude have shared parental responsibility.

Rarghhhhhhhhhh!!!!!!!!!!!!

Han Solo routine "We're all fine here, thanks. How are you?" *weapons fire* "It was a boring conversation anyway!"
monster said
its interesting that intractable conflict has been not something that directly excludes shared parental responsibility, does making false allegations of abuse exclude have shared parental responsibility.
Well you need to be very careful making this statement because although the SPCA had "entrenched conflict" removed from the Act it has been observed and we are told that many judges suggest that if there is entrenched conflict that shared parenting is not an option. We reject that notion and have much evidence to back it up HOWEVER what is affecting things in recent months is the McIntosh report. A flawed study that seems to be embraced by proponents of a one parenting shop that excludes shared parenting.

In respect to false allegations. Firstly false allegations are less prevalent than they were before the new Act because for the first time there are mandatory provisions around false allegations so a person making them does take a large risk if found to be false. False allegations covers a football field of allegations. What type? If the allegation is that the other party left the toilet seat up (And I have seen that in affidavits) and that allegation is proven true then I doubt it would preclude shared parenting. A judicial officer would probably be quite unhappy such commentary is included in affidavits. However other more serious allegations proved true would most certainly impact shared parenting possibilities. False allegations are now required to be dealt with in a tight time frame and reported to the court.

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
 
Contact with the mother in Vasser suggests that there is an appeal pending in respect of the 2006 judgement. This matter will be ongoing. There are orders in the 2008 judgement which restrict the capacity of the mother to file further applications.

As  self-representing litigant the mother failed to run her case properly. Giving too much precedence to the case is not advised in my mind. The was not one of the courts best performances.

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
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