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Judgements and Case Law

How Many Judgements have you Read - Did this help your case

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What is Case Law and How do JUDGEMENTS fit into your case.

Case Law is simply previous decisions which set precedents in the interpretation of the LAW by the courts. Most but not all are appeals, where a case has been rulled on by a single Judge or Magistrate. The decision is then refered to a higher court or the full court for more in depth interpretation of the LAW.

You don't have to read very far in Family Law to realise there are a number of Judgements which are quoted regularly. I.E. Rice and Asplund. (There needs to be a change in circumstances to justify re-opening the case). Cowling and Cowling (Meaning of the Status Quo), Goode and Goode (Effectively overturned Cowling and Cowling on the question of the Status Quo in the context of the Shared parental Responsibility Ammendments) plus many many others. Until very recently, the Family Court only reported (published) Judgements considered to have value as precedents.

During her evidence to one of the parliamentary enquiries, Chief Justice Bryant is on record as saying that litigants in Family Law matters should not be putting too much reliance on Case Law. Each case should be decided on its merits.

Now, the Family Court of Australia and The Federal Magistrates Court are reporting many more (if not all) judgements. This is very useful from 2 points, Many parents settled in the past "In the Shadow of the Law". Now that many judgements are being reported, we should be able to measure what "in the Shadow of the Law" in our own case.

Deeper reading of a range of Judgements also gives strong clues on how Judges and Magistrates arrive at the decisions they make. It gives us a chance to distil our own case down the important issues. Saving the parties and the court's time. And most important of all, resolving the issues sooner so that everybody, and most particularly the children can move on with their lives.

Even if you do not wish to represent yourself, reading up on a few judgements will give you a much greater ability to measure the advice you receive from your solicitor. Remember, IT IS YOUR LIFE!

For me - Shared Parenting is a Reality - Maybe it can be for you too!
One of the recommendations in the HORISP report "Every Picture tells a story" was a recommendation to review the widespread use of old case law. The Council has prepared a significant report on the use of case law in determining factors in a case. There is wide spread use of old cases to justify the reason for a decision in a matter. Unfortunately many of these older cases do not reflect modern parenting thinking and are often used to try and validate reasons for linited time access orders.  :(

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
 
Hi there,
I am a new member of your web site and I must say that I was relieved to read some of the posts put in here.

In regards to the case law, where can I find a list of those frequently quoted case laws in question?

I am representing myself at a court hearing on Jul 20 07 next and would like to be able to read as much as possible on the case law which resembles the most to mine.

Incidentally, my case is one where I re-applied for custody on the basis that my son is abused by my bipolar ex partner and her two older ADD/ADHD teenage children. She is accusing me of having been violent in the past … when in fact, she was the one who was violent towards her children and myself.

Anyway, any information which I could use to find a case law closest to mine would be much appreciated.

Many Thanks,

Michael

Case Law

The best place to find case law is on the AUSLII site. Link can be found to under "Judgements" on both the Family Court of Australia  and Federal Magistrates Court web sites:

www.familycourt.gov.au and www.fmc.gov.au

Also both courts can be accessed via http://www.familylawcourts.gov.au/

Both sites list recent cases and the FCoA list Appeals as well. Otherwise you can follow the links to AUSLII


For me - Shared Parenting is a Reality - Maybe it can be for you too!
jbmj007

I suggest that you 'join' the SRL-R members area - that way you will have access to more material to help you in the Court and any posts can be more private about your case.

Go to the Community page and follow the links to SRL-R


Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
jbmj007 said
I am representing myself at a court hearing on Jul 20 07 next and would like to be able to read as much as possible on the case law which resembles the most to mine.

Incidentally, my case is one where I re-applied for custody on the basis that my son is abused by my bipolar ex partner and her two older ADD/ADHD teenage children. She is accusing me of having been violent in the past … when in fact, she was the one who was violent towards her children and myself.
How did you go in your hearing which must have concluded now.



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 am going through the final hearing next week ....

Hi there,

I have to sincerely apologise for not responding to your last post. At this precise moment in time, the final court hearing is set for 4 days next week (08/01/08-11/01/08).

The events leading to this final hearing have been that a number of subpoenas have been issued by myself and the other party. An expert's report has been ordered and delivered early Dec 2007. I read it and it recommended shared parenting just because our child expressed it; otherwise, the expert's report suggested that my ex was just a crackpot, mentally unstable woman who apparently spent her living hours obsessing about me and portrayed me in a bad light not only to her teenage children (from a previous relationship) but also to our son.

Whether or not I am prepared will be revealed next week, I'd say. I won a few battles here and there just for being persistent - in a polite way - with the presiding judge. The second biggest battle I won was being granted an extension to lodge my affidavits despite being very late. The biggest battle I think I managed to win so far was that I was granted short leave to issue 9 subpoenas to various parties earlier this week by the judge when the duty registrar I had initially approached to sign my subpoenas applications had turned me away in a very condescending manner.

I have read a number of AustLII judgements previously made by the judge I will have next week but still cannot seem to find one which most closely matches the situation I am in at the moment. I will keep reading anything that I can come across from the FCoA and FM sites if I can.

Aside from that, I have managed to find a few inconsistencies in the other party's affidavits and have managed to get a few cards up my sleeve … which I will serve on the other party on the first day of the hearing.

Anyway, I am learning a lot about the family law through the posts on this site, reading up previous judgements and talking to the Family Court Helpline personnel. I am extremely grateful to the people managing this site for the advice posted here and intend to re-invest my experience of the upcoming hearing back into this site so as to help others.

Cheers,

JB

Good Luck

Good luck - remember to keep your cool and to keep your cards close to your chest.

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas. 

Thank you ... :-)

This means a lot …

:-)

On behalf of my son and I, thank you …

:-)

jbmj007 said
I have to sincerely apologise for not responding to your last post. At this precise moment in time, the final court hearing is set for 4 days next week (08/01/08-11/01/08).
Is this a 12A hearing?

12A Hearing ?

Guest said
Is this a 12A hearing?
What is a 12A hearing?

And where online (URL) can I find out more information about it please?

Division 12A - Principles for conducting child proceedings / Practice Direction No2 of 2006 Division 12A

It refers to Division 12A of the Family Law Act - Principles for conducting child proceedings.

Practice Directions for Court operation have also been issue by Diana Bryant, Chief Justice of the FCA: Practice Direction No2 of 2006 Division 12A

Effectively it allows for more relaxed operation of a court in regard to child related proceedings.  Lawyers may be present but take a back seat role.
It is mentioned in the case of Sealey & Archer posted here, where judge said
3. Because the parties lawyers have a responsibility and obligation to explain to their respective clients that there is and was the opportunity to consent to the case being heard under Division 12A of the amended Act or, prior to 1 July 2006, in Sydney, the ability to consent to participate in the Children's Cases Program, and to have advised their clients that such a process would be quicker and cheaper for their clients, I must assume that one or both of the parties rejected that option.
Sealey & Archer [2007] FamCA 432 (15 May 2007)
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