Donate Child Support Calculator
Skip navigation

Best Interest of the Child - What's happening?

The 'Best Interests of the Mother' trump the 'Best Interests of the Children' and the Father isn't even considered.

Barry Williams is quoted in the "News" as having written the following (below the line).

Who was the Federal Magistrate and the three FCA judges associated with this judgement?

Are the judgements online?  If so what are the reference URLs?

This sounds like the B&B case from several years back where the mother was permitted to relocate from Cairns to Bendigo with the two children because it was supposedly in the best interests of the children that the mother be happy … thus the ruling essentially becoming about the 'best interests of the mother' than of the children … which I suppose it a truer reflection of what actually occurs in the FMC and FCA.


Hi, my name is Barry Williams my goal is to see both mums and dads treated equally in all areas of family law and especially to be able, where possible, to have a shared equal time arrangement with their children when their marriage or relationship breakdown occurs. New laws state that the courts are obliged to grant equal shared care where possible, or in cases where it is not possible to grant equal shared time, then they must give substantial access time.

We have been receiving some very positive outcomes with these new laws.

The Government and the Opposition went along with this new culture change as it is good for the children and both parents, but sadly some Federal Magistrates and Family Court Judges have not been prepared to accept these culture changes and are living in the old time warp of, 'We will rule how we wish, we are Judge and Jury all in one.'

I am ashamed of the latest appeal ruling that came out involving three family Court Judges relating to a relocation ruling, where they upheld an order made by a Federal Magistrate in Canberra to allow a mother to leave Canberra with her new partner to live in Atherton QLD, even though the father had been in a 50% shared-care relationship with his son for the last 5 years.

Their only real reason it seems, by reading the transcript, was that it would make the mother unhappy if the child wasn't allowed to go with her, meaning that it didn't matter that the child would be unhappy by having to leave his Dad.

I will be writing to the Chief Justice of the Family Court about our disgust over this matter. I will also be bringing it to the attention of Attorney General Phillip Ruddock, The Opposition, and other Senators and Members of the Parliament.

These Judges and Magistrates should no longer be able to hide under the separation of powers, and even if it has to mean a change to the constitution, we all have to lobby to remove the separation of powers. We are all bound by laws made by the Australian Parliament, but Judges of the Family Court and the Federal Magistrates are not, yet they are only senior public servants.

I said in the Lone Fathers Association Australia's latest newsletter that I was going to name any rebel Magistrates, Judges, and court counsellors. Well now I am more determined to do so, even if it means I can be charged and sent to prison. It will be worth it because sooner or later the whole country has to take note of what is happening. It could be one of their children next. We all know equal shared care can't happen in many cases, but where it can and where it is wanted, it should be granted. They make me sick when I hear them say it's done in the best interest of the child. The best interest of the child is 'A Rebuttable Presumption of Equal Shared Care'.

LFAA won't give up until this is achieved. Will you back us?
Yes all good questions.

I will call Barry in the morning and see which case it is. We can then publish the Judgement in "Judgements of Interest" unless our collegues in the SRL-Resources group are aware of the case…

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
 
This was the case I was referring to recently. Not all three appeal judges agreed. Faulks dissented - which is pretty interesting given that Bryant was one of the other appeal judges.

Taylor & Barker [2007] FamCA 1246 (19 October 2007)

Fualks (para 122) pointed to place in the transcript where Brewster essentially inferred impact on the mother if she didn't re-locate.

I pointed this out days ago. The issue to learn is that magistrates will sometimes think that females feelings are more important than males.

Males need to speak a similar language to females to describe their pain and anguish and damage to those around (extended family and friends) them so the court can be educated to the real impact of their decisions. Its obviously not enough that men actually commit suicide or end up seriously affected - this is not enough for the court to understand.

Faulk's needs to be congratulated for the insight he showed in identifying the issue. Why didn't Bryant & Finn see it?

 Maybe I am not explaining myself well enough
I believe that this was just one of the Appeals that 1ADC and I were discussing a week ago. He was none too happy with it and is probably completing one of his masterly dissections as he often does

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

Taylor & Barker [2007] FamCA 1246 – 19/10/2007

Thanks Jon
FAMILY LAW - APPEAL FROM DECISION OF FEDERAL MAGISTRATE - RELOCATION - Where Federal Magistrate made orders allowing the mother to relocate the child from Canberra to North Queensland so that the mother could live with the father of her second child whom she wished to marry.

Whether Federal Magistrate erred in his application of the Family Law Act 1975 as amended by the Family Law (Shared Parental Responsibility) Act 2006 - Whether Federal Magistrate erred in dealing with the issue of relocation and the mother's reasons for wishing to relocate as a separate issue - Whether Federal Magistrate erred in failing to consider whether the child spending "equal time" or "substantial and significant time" with each parent was "reasonably practicable" - Discussion of the application of ss 60CC and 65DAA of the Family Law Act where one party wishes to change the residence of the child from the place where the other parent lives.

Whether Federal Magistrate failed to consider the likely effect on the child of the separation from his father and paternal grandparents - Whether Federal Magistrate failed to adequately evaluate the nature and strength of the relationship between the child and his father and paternal grandparents - Whether the Federal Magistrate adequately evaluated the likelihood of the mother's new partner relocating himself should the orders prevent relocation of the child - The Court was not persuaded that these grounds of appeal had merit.

Whether the Federal Magistrate gave excessive weight to the mother's reasons for and desire to relocate - Whether Federal Magistrate erred in speculating as to the consequences of the mother not being permitted to relocate in the absence of evidence from her as to that matter - Majority found there was no substance in these grounds.

APPEAL DISMISSED.

FAMILY LAW - COSTS - Each party to pay his or her own costs of and incidental to the appeal.

Download a copy from the FCA website.

Attachment

In the Matter of : B and B: Family Law Reform Act 1995 Appeal No. NA 35 of 1996 No. TV 1833 of 1996

Austlii have a copy of the original B&B case, in which the AG was represented, seeking to get the legislation implemented according to the intent of the Federal Government, but was overriden by Nicholson and his FCA, intent on maintaining the status quo of favouring and advantaging mothers over fathers by playing Robin Hood and robbing from fathers to give to mothers:

B & B (Bottoms & Bottoms) case from 1997 (Austlii website)

Here's some commentary on the case and judgement from 1997:
Men's Rights Agency said
ERROR: A link was posted here (url) but it appears to be a broken link.
B & B Family Court Appeal allows mother to relocate: Brisbane July 1997

The "great expectations" of most fathers who have been denied access to their children because the mother chose to relocate many miles away were dashed by the result of the B & B Appeal hearing.

The landmark decision by the Family Court of Appeal allowed the mother of two children to move 3000 kms away to marry her "long lost sweetheart", formulating their decision on the basis she would be devastated if not allowed to follow her heart and that in turn would affect her parenting abilities. To suggest this decision was based on the principle "in the best interest of the children" is dubious in the extreme.

Both parents received an A1 rating in the 'Family Report' and the children expressed only a slight preference to go with their mother. This latter information was given to the court by the social worker via telephone hook-up. The father's legal team were not given an opportunity to cross examine on this point. Unfortunately, in our opinion, the father had, on advice, withdrawn his application for 'residency' not wishing to give the appearance of 'trying to take the children away from the mother' and the Court was left with little option but to consider the relocation application on its own.

If the residency application had remained in place then the Court could have availed themselves of a little 'lateral' thinking that may have produced a better outcome for the children.

Nobody was suggesting the mother should not follow her heart. She could have gone to her intended spouse, leaving the children in father's loving, capable care, whilst she established her new relationship. When the stability of the new relationship was proven the question of residency could be revisited, if necessary.

Now the children have been removed from a comfortable, secure life, living in their fully owned house that was provided on separation to the mother to an unknown future and step family situation. No longer will they be able to experience the love and guidance given by their father, the extended family and friends on a daily basis.

It is well known step families are difficult to establish - with children competing for their parent's attention; parents trying to adjust to one another after living in a single situation for some time whilst delicately balancing the needs of each of the children from the blended family - in reality, a far cry from the idealistic image and solutions presented by "The Brady Bunch".

Men's groups were right to view the decision suspiciously. The long awaited changes to the Family Law Act gave father's some hope of curtailing the various means that are used to deny access, including relocation. Taken together with a previous judgment where a father was denied access totally, not because he was a bad father, but purely for the reason the mother's hatred of the father was so overwhelming she could not bear to see their children with him indicates the Court is clinging to the 'maternal preference' and the politically correct attitude, engendered over previous years, that women must be protected at all costs.

The judiciary have been subjected to gender education for many years about the problems faced by women, maybe this has had an adverse affect on their attitudes towards men in general. Undoubtedly, they see some men who aren't particular caring or supportive of their family, but this is no reason to judge all men in the same light. On the other hand, they must also see a number of women who are less than perfect as mothers.

Perhaps the Family Court should be "de-genderised" in an effort to improve their attitude towards fathers as full time parents. Ensuring the Judiciary have a better appreciation in this age of equality, that fathers are just as capable and in some instances infinitely better at caring for their children, would mean they could genuinely apply the abilities of "Solomon", instead of being caught in the delicate balancing act of presenting themselves as protecting the interests of children whereas, in reality they are defending the woman's position and in this instance giving the mother her freedom of movement.

We question what will now happen to the rights of the child to be cared for by both parents, even if the parties are separated. Obviously diminished by the convoluted argument that a mother's parenting skill will be affected if not allowed to pursue a course of action, that would appear to be solely for her benefit and in her own best interest.

Bettina Arndt in her article "It's children first" (SMH 19/7/97) applauds the decision made by the Family Court to allow the mother to move 3000 klms away claiming "the court has taken a step back from an emphasis on the rights of parents to get on with their lives even if that meant moving children away from the other parent." Relying on the Court's rejection of the underlying principle that was established by a previous significant relocation case where it was established "a rule of thumb that custodial parents should generally be permitted to relocate, provided there were good reasons for the move" might on face value give out the right message, but in practicality, the decisions will still be formed on the basis of each Judge's opinion. Whilst the Judge's cling to their maternal preference and disavow the abilities of father's as primary carers we will see little change.
Notice the similarities with the abovementioned Taylor & Barker case, in regard to favouring the mother's sadness and unhappiness over the father and over the children.

This is another explicit case of the 'best interests of the mother' trumping all else.  There are many that are not as blatant as these cases, but a few like this do burst through the judicial curtain to expose the truth and reality.

In each case, the child(ren) could have stayed and lived with the father, in a familiar environment, with their friends, and the mother could have moved and lived her dream.

But what the mother AND THE COURTS have said is that mothering trumps all else and that children belong to mothers and that mothers have to be happy.  Stuff fathers!

Further to the above here are some actual quotes from the judgements:
B&B Judgements said
5.1 "On the issues before the Court, it is my view that each of the parties have an understandable and personally legitimate point of view. The wife has dedicated herself to the care of her children to this time and she has provided the husband with regular and generous contact in the five years since separation. She now wants to be allowed the opportunity to pursue her relationship with (W.). She perceives that there are benefits for herself and the children in that she believes the relationship will enhance her happiness and enable her to get on with her life, and that it will help reduce the strains and unhappiness she continues to experience whilst resident in Cairns.

From the husband's point of view, he loves both of his children dearly and he does not want to be separated from them. He would like to have the opportunity to continue to see his children regularly and he would like to be afforded the opportunity of regularly taking an active role in their care. Further, the husband is, I accept, genuinely of the view that it is in the best interests of the children to remain in Cairns where they have spent their whole lives and he is concerned about the impact on the children of being removed from their school and their friends, their activities and their extended family, especially their paternal grandmother, and, of course, his new partner and (her daughter)."
B&B Judgements said
5.7 "On the other side, I am greatly persuaded by what I regard as an overwhelming feature of this case. The mother is desperately unhappy at the present time. She has been unhappy since separation and I have observed her giving evidence and I have observed her in court. I have had regard to the contents of the Welfare Report. I accept the assessments of the counsellor and include my own observations to the effect that the wife genuinely does feel powerless. She genuinely does feel persecuted. She is distressed and she is angry. I am not satisfied that objectively there is absolute foundations for all of those sentiments or that the husband should be in some way held responsible. The fact of the matter is that the circumstances of the parties have produced those outcomes and the wife has endured an increasing level of unhappiness for a long time. I accept that she genuinely perceives that (W.) and Bendigo represent something of a personal salvation and that, objectively, that is not an unreasonable point of view to hold.

I accept that she would be much happier in Bendigo. I also accept the evidence of (the Court counsellor) that the wife would be devastated by a refusal to be allowed to leave at this time and that she would suffer trauma and a long period of grieving. In my view it is entirely predictable that a refusal to allow the wife to move to Bendigo would increase the strains between the parties and increase the scope for antagonism which the wife might continue to find difficult to contain. It is entirely predictable that the wife would be resentful of the husband's role in denying her the opportunity to pursue her relationship with (W.)."
Here's an example of a judge's 'thinking' (if it can be called that), working inexorably toward giving the mother what she wants:
B&B Judgements said
5.8 In that passage his Honour was largely concentrating on the effect upon the wife of the refusal of her application.

5.9 His Honour then related that to the essential issue, namely the best interests of the children, in the following passage:- (Appeal Books vol.1 p.34)

"I have a concern that the wife in some senses is at the end of her tether and that she could deteriorate significantly if she were not able to move to Bendigo. I am concerned that the fine balance that the parties have been able to maintain in the five difficult years since separation which has ensured that the children have progressed so well to this time, might be compromised or destroyed and that the children, who up to this time, have been aware of the animosity, might, in the future, be drawn into it and this might produce an adverse effect upon their relationship with one or both parents.

I regard this potential as a most concerning one because of the current presentation of these children and one would be loathe to unnecessarily expose the children to risks of a deterioration in their development.

In essence, I seriously question the mother's capacity to cope with a decision which would deny her the opportunity to travel to Bendigo. I am of the view that it would have a significant adverse effect upon the quality of her parenting and that that would be a tragedy for these children. It would not be fair to these children to deny them what their mother has to offer."

5.10 He then connected the threads which ran through these passages. He said that he accepted that "the happiness of one parent can never be the sole determinant in these cases" but:- (Appeal Books vol.1 p.35)

"At the same time I accept that the happiness of parents, as was suggested by (the counsellor), is fundamental to the happiness of their children, and in my view, in this case, the result which is most likely to produce the level of happiness which will most benefit these children is an order allowing the wife to move to Bendigo."

5.11 His Honour underlined the importance of this approach with its ultimate emphasis upon the best interests of the children in the following and concluding paragraph:- (Appeal Books vol.1 p.35)

"In my view, meeting the interests of the children in a way which coincides with the interests of the wife, are such, on the facts of this case, as to not compromise the principles and objects of the Act for the reasons I have outlined and, in particular, having regard to the quality of the relationship between the girls and their father and the mother's capacity to ensure that that relationship is not compromised and that there is regular contact of the type proposed by the wife."
B&B Judgements said
6.1 Mr Hamwood (acting for the Father) submitted that the Reform Act and in particular s.60B represented a "sea change" in the "culture" of family law in Australia because it imports into and prescribes for the first time specific rights of children who are the subject of Part VII. He submitted that the Parliament had in effect set out a "mini charter" in relation to rights of children and that it had done so to give partial effect to Australia's obligations as a signatory to UNCROC and also to give effect to an intention to make a major and significant change in the culture of family law. He submitted that children moved from being the object of the right of, for example contact, to being the subject of that right and that this was a change which had not been anticipated by previous decisions of the Family Court. In this context and generally he referred, by way of extrinsic material, to the second reading speech of 8 November, 1994 to the Family Law Reform Bill 1994, and to the Explanatory Memorandum and Supplementary Explanatory Memorandum to that Bill. He submitted that that change, together with the changes in nomenclature, indicated that Parliament had determined to move the focus of family law from it being a balancing process between the rights of parents to an emphasis upon the "primary and irreducible rights" of the child in s.60B. He submitted that the intention of the legislature was to make those rights of children predominant unless it can be shown that the current situation was contrary to their best interests. He submitted that was the correct approach even though that may be "grossly inconvenient" to a particular parent or both parents. He made it clear that these submissions applied to both a resident and a contact parent so that the contact parent could be inhibited by court order from relocating.

6.2 He submitted that the principle of the best interests of the child (s.65E) was in effect a "defeasance provision" to the rights in s.60B. He conceded that the rights of children in s.60B were not absolute but that they would only be defeated (for example by a change of location) if it was shown that the continuance of their existing rights would be contrary to their best interests.

6.3 He submitted that the entire focus of Part VII had been deliberately changed by Parliament and that s.60B now constitutes a set of defined, normative criteria. Consequently, the Court must start from an examination of those rights, and where the application involved a change there was an evidential onus upon that party to persuade the Court that those rights should be changed and in that task it was necessary to demonstrate that the continuance of the children's existing rights would be contrary to their best interests. He submitted that in this context a parent is a "hostage to fortune", the rights of children were superior to and, where necessary, extinguished any right which a parent, as a private individual, may enjoy.

6.4 He submitted that the "checklist" contained in s.68F(2) is subsidiary to this exercise, that it was a guide to the Court in ascertaining whether or not the rights set out in s.60B were being met.

6.5 He submitted that previous relocation cases were no longer of assistance partly for those reasons and also because they were determined within the context of the applicant being a custodian with the additional powers which flowed from that, which powers did not apply where the parties held orders for residence and contact and where the legislature intended that parental responsibilities be more evenly shared.

6.6 Mr Hamwood submitted that the term "regular contact" in s.60B should be understood as involving the enjoyment of contact by the non-resident parent in a meaningful and frequent way, and that "regular" was not to be understood as confined to regularity but included concepts of frequency and that articles 7 and 9 of UNCROC provide support for this view.

6.7 He submitted that the fundamental error of the trial Judge was to conclude that the essential inquiry remained the same as it had been under the previous legislation and authorities. He submitted that instead of the three tiered test in Holmes' case which his Honour had referred to, the proper test was firstly to ascertain how the children's rights were currently being met, secondly, whether the application would reduce, diminish or curtail those rights, and thirdly whether it was shown that the full enjoyment of the existing rights would be contrary to the child's best interests.

6.8 He submitted that the Reform Act was "child centred" and the right of either parent to relocate or to form new relationships existed only to the extent that that person can persuade the Court that the exercise of the children's existing rights would not be adversely affected. He submitted that s.60B was to be given greater status and importance than the objects provisions in ss.43 and 66B because it was designed to comply with the Commonwealth's obligations under UNCROC.

6.9 He submitted that the legislation had determined that the matters in s.60B be used to overcome the indeterminacy which is inherent in the best interests principle. The provisions of s.68F(2) are descriptive (with the possible exception of par. (g)) rather than normative.

6.10 He submitted that article 9 of UNCROC and s.60B(2) give rise to a presumption that, unless otherwise demonstrated, the normative position corresponds with the best interests of the children involved. He adopted the submissions for the Commission as to the applicability of articles 3, 7 and 9 of UNCROC. Otherwise he submitted that its submissions were "essentially peripheral to the matters before the Court. It was not in contest that either party is free to move anywhere within Australia. It was not suggested that the Court at any stage sought to restrain the wife from herself moving to Bendigo".

6.11 He contended that the evidence in this case established no more than the wife's inability to put her children's needs ahead of her own and continue to carry out the duties and responsibilities which s.60B required, that her case was that as she would be unhappy if she were unable to go to Bendigo the Court should make the order she sought. He submitted that this was the sort of consideration which s.60B was designed to make irrelevant. He submitted that the effect of the legislation was that the rights of children under s.60B overrode any wishes or rights of either parent the exercise of which was contrary to those rights.

6.12 Mr Hamwood submitted that there was insufficient evidence to justify his Honour's finding about the adverse impact upon the wife if she were not entitled to move and the consequent impact upon the children, and that he had failed to evaluate the uncertainties involved in the children moving to a relatively unknown environment. He submitted that the economic arguments presented for the wife on this appeal had not been raised at trial and, in any event, they had no application in this case.
The FCA chose to reject the intent of the legislation so as to favour and advantage the mother over the father to the detriment of the children.
B&B Judgements said
7.35 In this context the genuine wishes of an unchallenged custodian is an important consideration. That is so partly because the unhappiness of the custodian is likely to impinge upon the happiness and welfare of members of that person's household, and partly for reasons that are expressed in a number of cases including the well known passage in the judgment of Sachs LJ in P v. P (1970) 3 All ER 659 at p.662: …"
And here the FCA is explicitly rejecting and thumbing it's nose at the Government's legislation and imposing its own (Nicholson's) agenda of favouring mothers at the expense of fathers and children:
B&B Judgements said
9.67 Ordinary common experience indicates that long-term unhappiness by a residence parent is likely to impinge in a negative way upon the happiness and therefore the best interests of children who are part of that household. Similarly, where the parent is able to live a more fulfilling life this may reflect in a positive way on the children. However, the ultimate determinant is the best interests of the children; the wishes and desires of the parent per se give way to that.

- The distance and permanency of the proposed change. An aspect which needs to be considered in any of these cases is the degree of change involved. For example, whether the proposed relocation is to an overseas country and, if so, the circumstances in that country, whether it is to another State and, if so, questions of the distance and convenience of travel, and whether the relocation is intended to be temporary or permanent.

- Other important considerations which will vary from case to case include:- Dislocation from other aspects of the children's former environment such as schools, friends, extended family. The wishes of the children. The ages of the children. The feasibility and costs of travel. Alternate forms of contact.

9.68 The Attorney-General submitted that because of the new Part VII, essentially s.60B, it is now unsafe to rely upon the previous decisions of this Court in relocation cases. We do not think that this is generally so. We have analysed the major cases in Australia on this issue in Section 7. As we pointed out in that analysis, some of the cases placed too great an emphasis upon the asserted right of a parent to relocate and to the extent that cases have approached the matter from that perspective, they do not represent the law either before or since the Reform Act. Otherwise, many of those cases provide a detailed and useful analysis of the issues and have consistently provided guidance to judges in determining individual cases. We consider that that remains so provided that they are read within the context of the discussion in part ( c ) of this Section.

Attachment
I watch these cases with interest as my partner's case involves a unilateral relocation.

I find myself reading the legislation that the judges are measuring against, and then reading their interpretation and how it all get's weighed up.

Then I get to the sections where the magistrate contradicts all the principles and makes the judgement that the mother can move away as far as she likes, because it will make her happy.  The Dad and child will be fine with periodic access….

This is great in theory, but it makes it very hard for residential parents to undertake a campaign of cutting the non-residential parent out of the child's life.

Phone calls or web cams are inconvenient, too hard for the child. Flights can be delayed to drive up costs and so on and so on and you're back in court….

You can't replace the joy (for both parent and child)of regular, frequent routine with long distance contact.

When you have a child, you give up many things. Your life changes. One of the things you give up when you separate, is the ease of moving long distances from ex partners.

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. 
What was the result of the submissions made to the Attorney General through the Family Law Council in 04/2006 on Relocation issues. Here is the SPCA Submission..

Attachment
SPCA submission to the Family law Council - Relocation


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
 
Moving is a complex thing. Recently a friend of mine suffered ex trying to move down the coast with the new partner and taking the kids (they had 50/50). She argued wonderful lifestyle - horses, beaches, nice school,etc. She amended orders at last minute to say OR orders to stay as they were. many thousands of dollars later and decision from magistrate - stay as they are - she could commute (as she was doing anyway).

No costs - I presume she was advised to amend orders to avoid costs??

Kids were teenagers settled in city , school friends, etc - why did she think that THEY would benefit from move? They can always visit the horses and farm on holidays.

If lawyers told these people to stop being selfish, self centered and causing damage then that would be a start - instead both had to get lawyers, barristers to argue a nonsense case. Woman was indulged to believe that it was all about her - she could get whatever she wanted and there were no consequences - when will there be consequences for these sorts of people?

Some women are so used to being seen as a victim and indulged AND there being no consequence they don't hesitate to mount expensive damaging cases. In this case she spent several months playing mind games with the kids and TELLING them they were moving to the wonderful fantasy land she had imagined in her mind.

 Maybe I am not explaining myself well enough
Thanks for the SPCA submission. It has some valid points that may assist us.

Jon, I agree. Some of the things my lawyer suggested to me when I left my husband where pretty shabby. I know first hand the rubbish you can be told and how easy it is to groom yourself into the "victim" role.

On another note, I discussed moving to Melbourne for better job opportunities with my ex, when our kids were older. He was very upset, even though I was offering to fly the children back regularly. I listened to his point of view and had to agree; it just wasn't practical.

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. 
Posts from this topic have been moved by members.  8 posts have been transferred to topicview

Last edit: by OneRingRules


Site Director

Crystal Ball Gazing now considered evidence!

Agog said
I believe that this was just one of the Appeals that 1ADC and I were discussing a week ago. He was none too happy with it and is probably completing one of his masterly dissections as he often does
Thanks for the vote of confidence Agog - It has taken a while to get over the indigestion this appeal judgement has caused.

I have to agree with DCJ Faulks - the so called expert has gazed into her very cloudy crystal ball and seen that the mother would be unhappy if not allowed to relocate. Buuger the child's feelings, primary attachment theory says unhappy mother means unhappy child. Mummy needs to have her new relationship to be happy. I noted the Family Consultants comment at paragraph 110 "whatever happens the court will decide".

Also at 110 is the child's protectivness of mum. This is somewhat concerning as I recall a number of parenting courses I have participated in and other research I have reviewed. A parent responsibility is to nutrue the child to independant adulthood. Using the child or allowing them to become a protector and by extention, surrogate partner is detrimental to the child. It casts premature adult responsibility on the child and blurs the distinction between who is the parent and who is the child.

At 31 the magistrate states an opinion that the child already has an established relationship with the father. In my experience most boys of this age are in even greater need of their fathers influence.

At 33 the magistrate infers primary attachment to the mother from what is said in the Family Consultants report - A crystal ball again.

At 46 the family consultant replies to a question with the word "unhappy", the magistrate then paraphrases the family consultant with the term "Very Unhappy". The magistrate should know better!

At 72 the family consultant is reported as saying the child needs his mother - The whole point of the 2006 ammendments to the Family Law Act were that children needs BOTH parents fully involved in their lives. The is also plenty of evidence that any father figure will do is not a viable alternative to the real thing.

And back at 110 - I quote

Yes, and of course that would impact on the whole situation and she now has two children. And bringing up two children on her own and all the rest of it?

So the first instance decision and the majority dismisal are based on conjecture from the family report writer and a failure by the magistrate to consider incovenient truths.

Conjecture - The primary attachment is to the mother (That theory again)

- The mother will be VERY unhappy

- The child is cable of understanding the meaning of moving away from a significantly involved parent, long term school, friends and family relationships and will adapt in any case.

- Mother joy at sharing parenting with her new partner

Ignored - Paternal family relationships - very inconvenient.

- Breakdown rate of second marriages

- All the risk is carried by the child and father - what happens if the relationship breaks down or mum  fails to meet the school holiday visits.

- Father joy in being a fully involved parent.

Not mentioned significantly but I suspect a huge influence - The new baby GIRL!

So basicly, if you want to beat the new laws, get your self pregnant to someone out of state, state your propsal to set up house with them where they live and you have a slam dunk.

This is consistent with some of the other poor decisions coming out of the of the Family CourtS.

I happen to know that in another relocation case where the mother's new relationship reigned supreme, and a supposedly temporay international relocation was allowed that the mother is being difficult. To date, she is simply just not responding in a reasonable time to requests for information from the father re exercising contoct with his daughter. And Dr Tom thought so much of that Judgement.:o

HOLD THE TRAIN -  where does bringing up two children on her own come from - the father has an application for equal time (conveniently discarded courtesy of the Family Consultant's report) and in any case has been living with the father for 6 out of 14 days. Hardly sole care.

For me - Shared Parenting is a Reality - Maybe it can be for you too!
Posts from this topic have been moved by members. 26 posts have been transferred to topicview.

Last edit: by OneRingRules


Site Director
The family report writer explained to me that the report was "a snapshot" sometimes confronting and sometimes not a true reflection of the reality. They (the report writer) can only go on what they are presented with at the time of writing.

How can this become primary evidence in a case. Especially when you have an existing routine for the child where they are perfectly happy spending time with their father. Why should this be disrupted by a willful desire to move interstate?

The next step for the parent with majority residency is to throw up hands and cry poor. Then it's either fork out for all travel, or don't see your child. The court mentality of the 50's doesn't get that women can earn and have a responsibility to provide for their own once they separate from their partner.

Of course it can all be contravened and appealed, but meanwhile that intimacy is lost forever. And who has the emotional staying power, let alone finances for all this?

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. 
This case was referred to FaCSIA as an emerging issue in the last Nov meeting in Canberra

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
 
1 guest and 0 members have just viewed this.

Recent Tweets