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A "must read" decision - Sealey & Archer [2007] FamCA 432 – 15/05/2007

The presiding Judge has presented well considered reasons for judgement. This is a must read judgement.

Justice Le Poer Trench does it again - This Judge makes careful and well rounded decisions

Sealey & Archer [2007] FamCA 432 15/05/2007 - View more

The presiding Judge has presented well considered reasons for judgement. This is a must read judgement.

Basically, the 3 children live with Dad, and Mum has the right to exercise what is effectively 50/50 if she choose to fly in from her new home interstate.
The usual arguments were used to support the mothers attempt to relocate the children. Primary Carer, Dad a control freak etc etc.

I strongly recommend everyone read the Judgement - it provides a very useful insight into the court's decision process, including citing Judgements relating the 2006 ammendments and others on the issue of relocation. Truly a long but very usefull read for anybody going to court in a family law matter.
The Judge also took the unusual step of complimenting the Father's Counsel in the Judgements.

Attachment
Sealey & Archer [2007] FamCA 432 - 15/05/2007 - PDF File

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I have not found this to be the case.  In my experience Justice Le Poer Trench showed a degree of bias to me as a SRL and, from what I have heard from people who have had more to do with him, he has a reputation as a bully.

Details sought of Le Poer Trench's claimed bias and bullying

yarralaw said
I have not found this to be the case.

In my experience Justice Le Poer Trench showed a degree of bias to me as a SRL and, from what I have heard from people who have had more to do with him, he has a reputation as a bully.
I find this difficult to believe yarralaw.

This has not been my experience.

Can you please give examples of Le Poer Trench's bias toward you.

And toward the other people you mention.

What is the nature of the relationship of those other people with Le Poer Trench, "who have more to do with him", that led to their view the he is a "bully"?

Thanks, Matrix
Prior to appearing as a SRL before LPT I was told by a member of the legal profession that he had a reputation as a bully and I couldn't agree more.

I was also told that he was a Barrister before he was a Judge and boy he sure practiced his cross examiniation skills on me and seemed to enjoy making me feel stupid and my unease in front of emminent Counsel and others on the other side.

My matter was not a childrens matter - perhaps hes better at those and perhaps should stick to them.

I just feel sorry for other SRLs that are perhaps not so tenacious as I.

Strange that it took 13 months to respond to the initial posting.

Yarralaw with the very greatest of respect you are writing absolute nonsense. LPT is one of the fairer and more inquisitorial judges on the bench, perhaps you mistake the reasons for that. The SRL-R group have supported a great many cases held in front of Le PoerTrench so our experiences are based on multiple cases, not a single one.  He is very helpful to SRLs but sometimes does not suffer fools gladly.

Because LPT gave you a dressing down you are blaming the poor result on him rather than looking at the weakness and presentation of your case.

As regards your rather strange comment about feeling sorry for any SRL in front of him; our group is generally delighted to hear that an SRL is in front of him because of his overall fairness.

SRL-Resources. the Family Law People on this site (look for the Avatars) www.srl-resources.org  Non gender Professional and peer support for SRLs. Closed site, no public forums, no search engines, no lurkers, guests or the other side and their Lawyer and Friends.
No mystery about why its taken 13 months to respond - I've only just joined as a member and couldn't believe the wrap you gave LPT and wanted to share my experience.

In addition to being advised that he was a bully, I was told that if you are female you need to look like Doris Day to succeed in LPT's Court - and this by a Court employee !!!!! Needless to say, I bear absolutely no resemblance to Doris Day.

I did not say that I got a "dressing down" or that I got a "poor result" and yes the result may have been based on the presentation of my case which may not have been perfect, but my opinion of that particular Judge remains the same.  If you disagree, I don't have any problems with that but I find it interesting that you obviously don't want to hear anything contrary to your views or are you afraid of treading on powerful toes ?????

Regards
Yarralaw

Yarralaw again with the very greatest of respect you perhaps need to read the site a little. This is a post from SRL-Resources, it is not a single voice disagreement but the collective voice of the SRL-R group.

Thank you for sharing your single experience but a single case and hearsay do not make for anything but a single biased opinion. Our opinions are based on a great many cases where we have assisted in front of LPT.

or are you afraid of treading on powerful toes ??? a silly remark like that rather indicates why you might have had problems in the Court room.

SRL-Resources. the Family Law People on this site (look for the Avatars) www.srl-resources.org  Non gender Professional and peer support for SRLs. Closed site, no public forums, no search engines, no lurkers, guests or the other side and their Lawyer and Friends.
By return, with the greatest of respect - if the opinion expressed is that of the "collective voice of the SLR Group" and either the Group has been so successful or LPT is so good - why - after reading the site a little - are there so many unhappy people that have been to Court (presumably in the Court of LPT as well as others)? Does the SLR Group only wants to read posts that are supportive of its view of LPT?  The answer to that is obvious !!!!

You are entitled to your views of why I may have had problems in the court room but really, aren't you supposed to be helping SRLs not ridiculing them for their opinions - and I stress - that it is my opinion only and my only reason for posting was the belief that I may be able to assist some other sole.

I wish you every success before LPT in the future and hope the SLRs that you assist are happy with their outcomes and don't think too much about their results.

Best wishes for the future.

Moderator Note
Yarralaw You have triggered the security log on (Trojan/Spybot) software by changing IP addresses the same day. The software has flagged that you were originally posting from a Family Law firm in Sydney, any comment about this?

yarralaw said
By return, with the greatest of respect - if the opinion expressed is that of the "collective voice of the SLR Group" and either the Group has been so successful or LPT is so good - why - after reading the site a little - are there so many unhappy people that have been to Court (presumably in the Court of LPT as well as others)?
Because few people come to this site because they are probelm free. Of course we cannot support everybody. Ask yourself a question; if people do not get the outcome they sought  does that mean the Courts are always wrong?

yarralaw said
Does the SLR Group only wants to read posts that are supportive of its view of LPT?  The answer to that is obvious !!!!
We want to read accurate unbiased results of what occurred, not single instance rants that are unsupported by factual material.

yarralaw said
You are entitled to your views of why I may have had problems in the court room but really, aren't you supposed to be helping SRLs not ridiculing them for their opinions - and I stress - that it is my opinion only and
If your opinion damages the chances of successful outcomes for other SRLs in front of a particular judicial officer by providing misleading information  then you can expect criticism.

yarralaw said
my only reason for posting was the belief that I may be able to assist some other sole.
With the very greatest of respect your belief would not assist some other soul but may rather hinder them with incorrect information. Practical revolves around many cases not a single case.
There are several hidden forums on this site including a specialized legal one which tracks the personalities in the Courts, opinions and results of various cases. In 3 years this is the first complaint (in any of the forums) of LPT.

yarralaw said
I wish you every success before LPT in the future and hope the SLRs that you assist are happy with their outcomes and don't think too much about their results.
That is a strange sentence, a happy outcome is a good result.







SRL-Resources. the Family Law People on this site (look for the Avatars) www.srl-resources.org  Non gender Professional and peer support for SRLs. Closed site, no public forums, no search engines, no lurkers, guests or the other side and their Lawyer and Friends.
Your view is appreciated. You are correct that there are many posters not happy with the outcomes. There are also many that are. The site has many view points and that is a good thing to try and get a feel for what is happening. One of the interesting things I have found with many of the Federal Magistrates is that they are quite "hard" on the legal profession and quite rightly so in many cases. I have seen some ridiculous hearings where the solicitor is not prepared, has not filed correct documents, does not understand basic sections of the Act, cannot argue a point to a section of the act such as the Rebutable Presumption of Shared Parental Responsibility, does not listen to the Magistrates question and responds to the question on some other tangent not asked for, Has no idea what's going on, continues to push a point when told not to or admonished for such a tack and on it goes.

I mean how ridiculous is it when a Fed Magistrate asks" Now what is the arrangement for handover here of the 1 year old child".. Lawyer "At the Police station yh" Fed Magistrate "And what police station is that, is it in Sydney or some other part of Australia". No its in Sydney yh , Fed Magistrate I am trying to get to the bottom of where you want handover Mr x now please tell me in plain English where is this 2 hour contact is to happen and what police station? Lawyer.. Mmmm I am not sure yh I will need to get back to you… And you can imagine the reply.

Is it any wonder the patience wears thin from some of the Federal Magistrates. The so called profession should step up to the mark in a number of these cases. I have seen legal aid solicitors who have been out of the "area" for some years attend and have not even read the new (since 2006) act. Most have not even read the explanatory meorandum that was especially designed to go with the Act. If you are before LPT be prepared whoever you are.

By the way did you have a picture of what Doris Day should look like. You could have a field day with that imagery.

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
 
To Percolo Alio  - I have no doubt the job of a Magistrate or Judge is a very difficult one and they can't possible always get it right and it must be very difficult and time consuming dealing with SLRs.  My point is, and my only reason for posting is, as you so correctly say Percolo Alio - "if you are before LPT (and a SRL) - be prepared whoever you are".  If I can help one SRL avoid what I went through - GOOD !!!!

- Doris Day indeed.  The only thing I could think of was that perhaps I needed to break into song - what was it again - Kay ser a ser a (sic) - how particularly apt !!!!

To SLR Resources - I ask myself why there is a HIDDEN specialized legal forum tracking the personalities in the Courts etc?

Why not hide the article about how LPT in that hudden forum as well?

Too right a happy outcome is a good result but to get a happy outcome, surely SRLs should be armed with as much info as possible - the good the bad and the ugly before they get to the court room.  



yarralaw said
To Percolo Alio………
???? which one? that's a title bestowed on some posters

yarralaw said
- Doris Day indeed.  The only thing I could think of was that perhaps I needed to break into song - what was it again - Kay ser a ser a (sic) - how particularly apt !!!!
She is now 87 years old, So the judge respects old people, so what?

yarralaw said
To SLR Resources - I ask myself why there is a HIDDEN specialized legal forum tracking the personalities in the Courts etc?
To stop lurkers reading material they would not understand or would misuse?  and prevent this
"Moderator Note
Yarralaw You have triggered the security log on (Trojan/Spybot) software by changing IP addresses the same day. The software has flagged that you were originally posting from a Family Law firm in Sydney, any comment about this?"


No comment from you on this?

To Yarralaw

  I think you have been treated with a great deal of respect on this forum from the moderators - I would not be so curteous as I feel you have had your say and now you are just nitpicking.

This topic  invites comments about a particular case and a judges reasoning in that case.  This is a forum  that concerns itself with  recent developments in judicial thinking, including case law, judements of interest, court rules and policy and development.

 Not only are you off topic but  your posts contain your personal observations and  personal opinions about a particular experience you have had.   You have described  a one-off event. Everyone  present at that time will have a  different perception as to how things were at that time, your impression is just that your impression and not necessarily the impression of others.  This is commonly seen in the court room.  One persons favourable result is another persons disaster.  Your comments are not given more credibility by your argument that you know of another who feels the same way as you. When you cite another person and their opinion, and they are not present to validate that comment you are relying on hearsay and this gives no credibility to your statement.

Posts in this forum should not be made on the basis of one persons personal observations and opinions about a particular experience.   There is a forum called "Letting off Steam" which is a forum that  allows you to discuss your grievances.  Readers  of that forum are forewarned that  it is a post by a person giving a personal opinion about a personal experience.

 When you post in this forum consideration must be given to the impact your post will have on readers with little legal experience.  Your posts provide no assistance to them. Its time to end your postings on this topic.
cooper26_2009 said
  I think you have been treated with a great deal of respect on this forum from the moderators - I would not be so curteous as I feel you have had your say and now you are just nitpicking.

This topic  invites comments about a particular case and a judges reasoning in that case.  This is a forum  that concerns itself with  recent developments in judicial thinking, including case law, judements of interest, court rules and policy and development.

 Not only are you off topic but  your posts contain your personal observations and  personal opinions about a particular experience you have had.   You have described  a one-off event. Everyone  present at that time will have a  different perception as to how things were at that time, your impression is just that your impression and not necessarily the impression of others.  This is commonly seen in the court room.  One persons favourable result is another persons disaster.  Your comments are not given more credibility by your argument that you know of another who feels the same way as you. When you cite another person and their opinion, and they are not present to validate that comment you are relying on hearsay and this gives no credibility to your statement.

Posts in this forum should not be made on the basis of one persons personal observations and opinions about a particular experience.   There is a forum called "Letting off Steam" which is a forum that  allows you to discuss your grievances.  Readers  of that forum are forewarned that  it is a post by a person giving a personal opinion about a personal experience.

 When you post in this forum consideration must be given to the impact your post will have on readers with little legal experience.  Your posts provide no assistance to them. Its time to end your postings on this topic.
 

WELL SAID

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. 

Now back to the topic at hand Sealy and Archer

I have read this case,  Sealy and Archer and it is right on track with the current judicial thinking that is coming out of the courts in 2008 and 2009  in regards to relocation matters and the shared parenting regime.  This case gives a good summary of the dilemna that judges face when weighing up the proposal of both parties.  Any proposal involves a relocation will have the automatic consequence of diminishing the amount of time the child spends with the non - primary care giver or the non-resident parent and will come very close to not meeting the threshold of  equal time nor substantial and significant time.

 Meaningful time - Altobelli FM from Sydney has provided some furthur insight to the judiciary as to what consistutes meaningful time.  Meaningful time means more than just weekends… It means mid- week and must include all aspects of the childs life ie schooling, sport, nightimes etc.  When a parent seeks to relocate then this effects the balance and limits options for these type of interactions for the non-resident parent.

 Sealy and Archer  is very similar to the case of Sampson and Hartnett ( no 10),  and Silas & Barry which also come out of  Sydney.  Both ordered the children back to the area where they originally lived, even if this meant into the fathers care.  The law  will change over time  and parents should know this when making decisions about where to live after separation.   Judicial officers will take into consideration the latest in social science data.  Recent studies suggest that children need to see both parents several times per week to have a meaningful relationship with them.

  Sealy and Archer -  the assumption that relocation would be permitted -The mother was unwise in Sealy and Archer to make decisions  ahead of the relocation application before the courts.  In  purchasing a  property interstate  and telling the children that they would be moving down to Melbourne meant that she had not fully   given  consideration to the fact that the court may make an order that differs from what she wants.   It appears that the mother may have she assumed that  the court would accept her request to relocate the children would be successful.  When the court ordered the children to remain in Sydney she  was then placed in the  dilemna of having a  second husband in Melbourne (who is unable to move to Sydney)  and  her young children in Sydney - (under court order).

 Uncertainty in Relocation maters -  Where one party unilaterally relocates they are relying  on the assumption that the court will not send them back to the area where the other parent remains and where the children have been living.  Courts are making orders to return the children to an area where they were living more and more frequently ( Sampson & Hartnett, Silas and Barry).  This case of Sealy and Archer gives an excellent understanding of the complexities of relocation matters and gives litigants very thorough guidelines  of when a court will and will not permit the children to  relocate.  I hope in the future that parents consider these guidelines to ensure that they are not placed in the inenviable situation the mother is in in this case.  It may be wise to  ensure that there is a high probability or perhaps even a certainly that the courts will permit the children to  relocate before a parent purchases property and worst of all uproot the children.
Thank you Cooper26_2009. Indeed a very fine commentary that clearly shows how the judiciary are changing their thinking and that relocation in particular, is simply no longer certain (but not impossible). What we seem to be reading in many judgements is that since the introduction of the 2006 Act there is a shift in the consideration particularly around "Best Interest" provisions and I can see a definite emphasis on keeping children in the environ where they have built up friendships with pear groups / school groups.  

Importantly however, 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 a significant significant factor that the court must take into account when determining best interests. I have said before that the new 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. We are clearly seeing some impacts arising from this in judgements.

Your commentary is soundly based and I thank you for the examples to support the commentary. At the end of the day it does not matter who you are before as a well prepared SRL can hold their head high regardless of any pressure applied on the day. I hope we see more from you in future posts.

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
 

Hang on...

cooper26_2009 said
Any proposal involves a relocation will have the automatic consequence of diminishing the amount of time the child spends with the non - primary care giver or the non-resident parent and will come very close to not meeting the threshold of equal timenorsubstantial and significant time.

Actually, "automatic consequence" is NOT true, although it is the norm. In my case, relocation will bring with it an expectation of an increase in the time my children spend with their father.

cooper26_2009 said
Meaningful time………. Meaningful time means more than just weekends… It means mid- week and must include all aspects of the childs life ie schooling, sport, nightimes etc. When a parent seeks to relocate then this effects the balance and limits options for these type of interactions for the non-resident parent.

Okay, fair enough - but what about situations where this has not been the status quo? What if one parent has not been involved in schooling, sport, and the like? How can relocation diminish the meaningful relationship where the relationship is good despite the lack of these interactions?

cooper26_2009 said
Recent studies suggest that children need to see both parents several times per week to have a meaningful relationship with them.

Not in my experience. Kids are adaptable, and will make the best of what they can get. For my kids that means being with their father for only one night a fortnight and talking on the phone through the week. This was not their choice, or mine, and they would be shocked if anyone suggested they do not have a meaningful relationship with their father.

cooper26_2009 said
Sealy and Archer - theassumption that relocationwould be permitted-The mother was unwise in Sealy and Archer to make decisions ahead of the relocation application before the courts.

cooper26_2009 said
 Uncertainty in Relocation maters - Where one party unilaterally relocates they are relying  on the assumption that the court will not send them back to the area where the other parent remains and where the children have been living.  Courts are making orders to return the children to an area where they were living more and more frequently ( Sampson & Hartnett, Silas and Barry).  This case of Sealy and Archer gives an excellent understanding of the complexities of relocation matters and gives litigants very thorough guidelines  of when a court will and will not permit the children to  relocate.  I hope in the future that parents consider these guidelines to ensure that they are not placed in the inenviable situation the mother is in in this case.  It may be wise to  ensure that there is a high probability or perhaps even a certainly that the courts will permit the children to  relocate before a parent purchases property and worst of all uproot the children.

I agree - if you wish to relocate, do it the right way. Talk to the other parent, try to come to an agreement btween you. if you cannot, access mediation services. Unilateral relocation is not the way to go.

There are some decisions that need to be made, such as the location, and why this would be better for your family. I also think that children need to be involved in the process, such as "This is where we would like to live. Mum and Dad need to talk about it and work out the times you will spend with each of us."



"Decide that you want it more than you are afraid of it."
Bill Cosby
 :thumbs:

Relocation of Children - RE - EDITED VERSION FOR CLAIRTY

Dear Tulip,


RE- EDITED VERSION FOR CLARITY


Thank you for your well considered reply to my posting.

Re My Comment : "Any proposal will have the automatic consequenceof diminishing the amount of time the child spends with the non primary care giver"

Youmake a very good point in saying that "there are cases where relocation may indeed create an expectation of increased time with the other parent". In reading casesbefore the courts I do not get to see cases where a parent will move closer to another parent to facilitate time with the non- resident parent. It is admirablewhen this happens.All relocation disputes that have come before the court so far are parents seeking to relocate away from theother parent, hence the consequence of diminshing time.It is the ideal that parents cooperate to make joint decision on where the children will live. Unfortunately this is not always the case. It is these cases thatcome before the courtsfor a determination. My analysis is restricted to all relocation cases since 2006 that have gone through the courts.I am aware of 100 or so cases in this time. I have no way of knowing about cases where the parents have sorted out their differences. I have no way of knowing about cases where parents move closer as thisis unlikely to cause a dispute for the courts to decide on.

ReYourComment:" what if one parent is not involved in schooling… How can relocation diminish a meaningful relationship where the relationship is good despite the lackof these interactions ? ".

Iwhen I refer to the word "Meaningful Relationship" I refer to the courtreasoningon what they perceive "meaningful" to be. It is not a one size fits all definition, and each situation will be different.My comments that "meaningfultimemeans more than just weekends " comes from a decision handed down recently by Altobelli FM in M & K and his definition is over 1000 words long !!

In deciding what is meaningful in the case in front of them the courts will seek some assistance from social workers, family report writers, recent studies, etc. see paragraphs 268 to276 of Sealy and Archer. The recent cases ofP and P has given thecourts some guidelines.The judge in Sealy and Archer with reference to the judgement of Brown Federal Magistrate in P and P states…

" Meaningful is a multifaceted concept… It is both qualitive and quantitive in nature. The concept is not a "one size fits all concept. what is meaningul to a baby todler school aged child and teenager may indeed will be differnt in each case the concept needs to not only take into accout the capacity developmentally.. of a child to receive the benefits of meaningful relationship… but the capacity of a parent to actually provide the same as well. Accordingly the concept also takes into account the history and quality of the rrelationship between the parent and child an the quality of parenting….".

In thecontext of Sealy and Archer,two children was heavily involved with sport with the father andwhen the mother proposed the move,she asserted thatthe move to melbournewas in the childs best interest. The courts said that the failureof the motherto investigate therugbyunion and soccer facilities in Melbourne meant that she had not adequately assessed theimpact the move would have on the meaningful time the father spent with the childrendoing sporting activities on the weekend. The family report writer had identified the posiitive benefits that sporting activities with thefather had for the childrenand that this activity was pivotal to the bond that existed.In determining where the children should live the courts commented that the relationship with the father was likely to deteriorate if the children could not participate in this activity with the children.The court found thatthe motherhad not givenenoughconsideration to the impact her move would have on the childrens activities with the father.[113 to 125 of the judgement].

Recent Social Science Studies that assist in determining what is meaningful.

The 80:20 contact proposalwas until recentlycommonly awarded by the courts.

Studies are showing that in most cases this is not sufficient. One studythat isoften quoted in family law journal articles and is used as a reference in judicial decision making is by Kelly and Lamb. They claim thattheir results indicate that"the greater the range of the context of interactions between the parents and the children the better. They suggest that different context facilitate childrens social emotional an cognitive development and afford greater opportunities for parent to build emotional bonds with their children. They encourage flexible, unstructured and varied time". The courts are giving consideration of this concept and are now awarding more midweek time and time that involves schooling and weekend activities. I have attached some articles for you consideration.

It is pleasing to hear that your children have such a good relationship with their father and that you have facilitated this.This is very encouraging and I am sure other readers will benefit from your experience. Sometimes however the courts are called upon to determine these issues where no compromise or arrangement could be made. It is from these cases I base my comments.

Best wishes

Moderator Note
Can you re attach these documents as .docs. Not everyone has Word 2007 or the reader to open .docx files


Attachment
Parkinson Article on Relocation


Attachment
Smyth and Chisholm Article on Parenting Options.
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