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Summerby & Cadogen [2011] FamCAFC 205 20/10/2011

FAMILY LAW APPEAL CHILDREN With whom a child lives, spends time and communicates where the orders of the Federal Magistrate terminated all contact between the child and the father where it was asserted that the Federal Magistrate erred in stating his

CATCHWORDS:

FAMILY LAW  APPEAL  CHILDREN  With whom a child lives, spends time and communicates  where the orders of the Federal Magistrate terminated all contact between the child and the father  where it was asserted that the Federal Magistrate erred in stating his conclusion before evaluating the evidence and considering the relevant statutory provisions  where it was asserted that the Federal Magistrate failed to consider Family Law Act 1975 (Cth) s 60CC factors  where it was asserted that the Federal Magistrate did not have sufficient regard to the benefit to the child of having a meaningful relationship with both parents; erred in finding the relationship between the child and the father was superficial; and failed to consider the long term effects of such orders or of the other options for the child to maintain a relationship with the father  where it was asserted that the Federal Magistrate failed to provide adequate reasons for his decision  where it was apparent from the Federal Magistrates reasons for judgment that he was aware of his obligations to consider all these matters and did so in detail  no merit found in any of these grounds of appeal.

FAMILY LAW  APPEAL  CHILDREN
 Family Consultants  where it was asserted that the Federal Magistrate failed to give appropriate weight to the recommendations of the Family Consultant  the Full Court found the Federal Magistrate was not obliged to accept the Family Consultants recommendations and gave clear reasons for not doing so  no appealable error found.

FAMILY LAW  APPEAL  PROCEDURE  Contravention of Court order  where it was asserted that the Federal Magistrate erred in failing to hear contravention applications prior to the conclusion of the parenting proceedings  where it was conceded by Counsel for the father that at no stage during the proceedings did those representing the father ask the Federal Magistrate to hear the contravention applications prior to the determination of the substantive proceedings  no appealable error found.

FAMILY LAW  APPEAL  CONTRAVENTION
 where it was asserted that the Federal Magistrate failed to impose appropriate sanctions against the mother  where no specific submissions were made by those representing the father as to what would have been an appropriate penalty  where the Federal Magistrate considered the penalty options available and gave reasons as to why none of them were appropriate  no appealable error found.    


NOTE: The period for seeking special leave to appeal to the High Court has not expired.

Family Law Act 1975 (Cth) s 60B, s 60CC
Family Law Rules 2004 (Cth) r 21.05
Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343
Fox v Percy (2003) 214 CLR 118
Hall and Hall (1979) FLC 90-713
House v The King (1936) 55 CLR 499
Starr & Duggan [2009] FamCAFC 115
Taylor and Barker (2007) FLC 93-345
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPELLANT: Mr Summerby
RESPONDENT: Ms Cadogen
INDEPENDENT CHILDRENS LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 3171 of 2007
APPEAL NUMBERS: NA 37 of 2010
NA 38 of 2010

PLACE DELIVERED: Sydney
PLACE HEARD: Brisbane

JUDGMENT OF: Thackray, Strickland & Young JJ
HEARING DATE: 30 May 2011
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 12 February 2010 & 15 February 2010
LOWER COURT MNC: [2010] FMCAfam 109

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms McMillan SC
SOLICITOR FOR THE APPELLANT: DK Law
DATE DELIVERED: 20 October 2011
[2011] FamCAFC 205 Coversheet and Orders Page 3
COUNSEL FOR THE RESPONDENT: Mr Page SC & Mr Cameron
SOLICITOR FOR THE RESPONDENT: Smithson Solicitors

COUNSEL FOR THE INDEPENDENT CHILDRENS LAWYER:
Mr Selfridge
SOLICITOR FOR THE INDEPENDENT
CHILDRENS LAWYER: Legal Aid Queensland

ORDERS
(1) The appeals against the orders made by Federal Magistrate Wilson on 12 February 2010 and 15 February 2010 be dismissed.
(2) There be no order for costs.
IT IS NOTED that publication of this judgment under the pseudonym Summerby & Cadogen is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Introduction
1. This is an appeal by Mr Summerby (the father) against orders made by Federal Magistrate Wilson on 12 February 2010, the effect of which was that the father would have no further contact with his five year old daughter. The appeal is opposed by the respondent in the appeal, Ms Cadogen (the mother), but supported by the Independent Childrens Lawyer.

Background

2. The following background facts are drawn from the Federal Magistrates reasons and from uncontroversial material in the Appeal Books.

3. The parties met in Taiwan in July 2002 and commenced cohabitation shortly thereafter. They were married in October 2002.

4. There was one child of the marriage, A (the child), born in early 2004. The mother has three children from a previous marriage, all of whom live in Taiwan with their father. The father has one adult child of a previous marriage.

5. The parties took up residence in Australia in late 2005, following the fathers release from rehabilitation in Taiwan after his arrest on drug charges.

6. On 8 February 2007, the father denied the mother entry to their home. The mother and the child then took up residence in the home of a male friend, with whom the mother commenced a relationship.

7. On 14 March 2007, the father filed an application in the Federal Magistrates Court, seeking orders for equal shared parental responsibility, and for contact with the child on three days a week and half of school holidays.

8. On 17 May 2007, orders were made for the father to spend time with the child on the first three weekends of each month. There appears to have been compliance with that order. (Appeal Book 367).

9. On 17 September 2007, Federal Magistrate Wilson conducted the first day of what was eventually to become a 14 day trial, spread over more than two years.

10. On 6 October 2007, the father took the child to a local hospital, claiming she had been sexually abused by the mothers partner. The Federal Magistrate described this as having a cataclysmic effect on the parents attitude to each other and on their conduct of these proceedings. His Honour ultimately found the child had not been abused, and there is no appeal against that finding.

11. The mother began withholding the child from the father after the visit to the hospital, which in turn led to the father filing a contravention application, which was made returnable on 17 December 2007 (the first contravention application).

12. On 17 December 2007, the parenting proceedings were reopened and interim orders were made. The first contravention application was stood over.

13. The orders made on 17 December 2007 provided for the father to spend time with the child from 21 December to 26 December 2007, from 3 January to 7 January 2008 and from 17 January to 21 January 2008. The mother failed to make the child available on all of those occasions.

14. On 9 January 2008, an officer of the Department of Communities (the Department), provided a report concerning the sexual abuse allegations. She concluded that the father appeared to have coached the child to make the allegations. The Department decided the child was at risk of emotional harm, given the childs ongoing exposure to her fathers destructive parenting practices. The Federal Magistrate accepted the officers evidence about why she thought [the child] was being truthful when she explained how and why her father had instructed her to lie about being touched by [the mothers partner].

15. On 29 January 2008, orders were made for the father to resume spending time with the child on three weekends a month. The orders also provided for telephone contact once a week. Although not apparent on the face of the record, senior counsel for the father advised us that these orders were made by consent.

16. On 6 February 2008, the father filed another contravention application (the second contravention application). This dealt with the mothers failure to make the child available pursuant to the orders of 17 December 2007.

17. The father spent time with the child in accordance with the orders of 29 January 2008, although the Federal Magistrate found this was not without some reluctance on the mothers part. The telephone contact did not occur.

18. On 26 March 2008, the father filed a further contravention application dealing with the mothers failure to make the child available for telephone contact (the third contravention application).

19. On 2 April 2008, the substantive trial resumed for a day. The evidence was not completed and the proceedings were again adjourned until August 2008.

20. On 14 July 2008, the father filed another contravention application (the fourth contravention application). This application was not in the Appeal Books (nor were the second and third contravention applications).

21. The trial resumed on 6 and 7 August 2008, but the matter was again not completed. The fathers fourth contravention application was dismissed on what the Federal Magistrate described as procedural grounds.

22. The trial resumed for another day on 3 September 2008. This time the evidence was completed and judgment was reserved.

23. There were further interlocutory proceedings in December 2008/January 2009, the detail of which need not concern us.

24. Whilst awaiting delivery of judgment, the father continued to harbour the belief that the child had been sexually abused by the mothers partner. In April 2009 he took her to counselling. During the counselling, the child made a disclosure of sexual abuse, which was reported to the Department. This in turn led to the child being interviewed on 22 April 2009. In the course of the interview, in
response to leading questions, the child made a further disclosure of abuse, this time claiming it was her father, not her stepfather, who had abused her.

25. On 5 May 2009, the Department applied to the local Magistrates Court for a child protection order for the child. An order was made, and remained in force from 26 June 2009 until 16 September 2009.

26. On 8 July 2009, the father applied to reopen the proceedings before the Federal Magistrate, and on the following day the mother also sought to reopen. The next day the Department was invited to intervene, but declined to do so.

27. Although the child was under the care of the Department, she had been placed with her mother. The mother had again terminated the fathers time with the child after the disclosure was made about the father having abused her, but the Department decided to allow the father supervised time with the child. The mother objected to this and went into hiding. A warrant for her apprehension
was threatened, and the father then resumed spending time with the child.

28. According to the chronology provided to us by the Independent Children's
Lawyer, the protection proceedings in the Magistrates Court were stayed on

16 September 2009 on the basis that the Federal Magistrates Court was the
more appropriate jurisdiction.

29. On 1 October 2009, orders were made for the father to spend short, supervised periods with the child, twice weekly. Visits took place between 5 October 2009 and 23 October 2009, but there was no contact on 23, 26 and 30 October 2009, as the child said she did not wish to see her father. She said the same again when the mothers partner brought her for the visit on 2 November 2009, but on this occasion she did spend time with the father. That visit went very well.

30. At the visits on 6, 9, 13 and 16 November 2009, the child again said she did not want to see the father, and it appears contact did not occur. The Federal Magistrate referred to statements made by the mother on these occasions, in the presence of the child, indicating that she was not supporting the visits.

31. The trial was completed over seven hearing days in December 2009. On 21 December 2009, the Federal Magistrate made orders, pending delivery of judgment, for the child to spend time with the father under the supervision of Ms M, an experienced family consultant. At that stage, judgment was foreshadowed for the end of January 2010.

32. During the course of the supervised visits, both parents (but more particularly the mother and [her partner]) behaved such that Ms [M] felt compelled to lodge a further Notification with the Department. The visits were then suspended.

33. On 28 January 2010, the Independent Childrens Lawyer successfully applied to reopen the proceedings. Ms M gave evidence and was cross-examined. A representative of the Department appeared, but was unable to advise whether any action would be taken in relation to the notification.

34. By the end of the proceedings, the father was seeking substantial and significant time with the child, essentially for extended weekends. His application for residence, made partway through the proceedings, was not pressed. The Independent Childrens Lawyer proposed only interim orders be
made.

35. On 12 February 2010, the Federal Magistrate delivered judgement and made the orders which are the subject of this appeal. The orders dealt with the parenting issues and the three remaining contravention applications.

36. The parenting orders provided for the child to live with the mother, and for the mother to have sole parental responsibility. No provision was made for the father to spend time with the child.

37. The first contravention application was dismissed. On the second contravention application, the Federal Magistrate found that the mother had contravened the orders of 17 December 2007 on three occasions, without reasonable excuse. In dealing with the third application, his Honour found that the mother had contravened the telephone contact order on seven occasions, again without reasonable excuse. The mother was ordered to pay the fathers costs of the second and third applications, but no other penalty was imposed.

38. On 15 February 2010, the Federal Magistrate delivered supplementary reasons dealing with the mothers request for the release of the childs passport.

His Honour noted that he had made an order for the mother to have parental responsibility, and on that basis ordered that the passport be released (the passport order).

Read the rest of the judgement and decide for yourself if this was a correct decision

Attachment
Summerby & Cadogen [2011] FamCAFC 205



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'm uncomfortable with the judgement. The primary consideration seems to have been the mother's intransigence, rather than the risk of harm to the child. It seems to me that in doing his best to make "sustainable" arrangements the FM made a judgement that such sustainability is more important than a continuing relationship between the father and child and that there was little evidence to support this view.

Moreover, despite making a strong effort to disavow any perceived approval of the mother's actions, his judgement entrenches her actions as the default. His justification is that the child will suffer emotional abuse if the contact continues, but he seems to have ignored the potential harm to the child of living with a mother who is so emotionally unstable as to want to remove the father from her child's life. does the FM really think that mother won't be filling the child's head with how "bad" her father is? What harm will that do the poor child?

It seems to me that the appeal judgement was sound on the points of law argued, but that the law is flawed if it allows such decisions to be soundly made.
Thank you for your thoughtful post in relation to this matter. I am not sure what the next step is but certainly a further appeal has to be considered... There are a number of fundamental issues 60CC , 60CC (3) c. I will try and speak to Legal Aid Queensland during the week. It was interesting to see the three contraventions were found in favour of the father yet there was no significant action at that time.

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
 
A view from overseas by Robert Franklin, Esq of the astonishingly anti-father bias of Australian family courts.

"The father was given rights of access to his daughter by a family court.  They were very minimal rights, allowing him to see his child only two days out of every two weeks, but Mom decreed that to be too much.  Indeed, she ruled that any contact at all was more than she desired, and so she permitted none.

That of course violated the court's order, so what did the court do?  Did the judge order her to comply?  Did he order custody changed?  Did he order the child brought to court and placed in the care of the father?  Did he force Mom to pay the father's attorney?  Did he fine her?  Jail her?  No, the judge did none of those things, even though they're all in his power.  On the contrary, he rolled over and let her do what she wanted.  Mom wanted to deny her daughter a father and the judge said OK by me.

So now this child will live her whole childhood without a father.  We know that's bad for her.  We know she'll suffer, probably her whole life long due to the lack of a male parent.  We also know that the court had it in its power to achieve another, better result, but chose not to.

Here's what should have happened.  At the first indication that she was ignoring the court's visitation order, the judge should have warned the mother and given the father make-up time, i.e. a single stretch of time with his daughter that made up for all the time the mother had denied him.  If that didn't work, if the mother continued to deny access, the judge should have ratcheted up the sanctions to include not only increased time for the father but forcing Mom to pay his attorney fees incurred in bringing his action to enforce his rights under the court's order.  At that time the judge should have warned her that future similar behaviour would result in a change of custody.  If she still didn't improve, the judge should have changed primary custody to the father with supervised visitation to the mother.

The reason for all of that is the need to keep both parents in the lives of children.  Amazingly, the courts behaviour came, not under the roll-back of the 2006 amendments to the Family Law Act, but under those amendments that clearly show a preference for dual parenting post-divorce.  I suppose I don't need to point out the obvious  that if a judge can so flagrantly flout a child's rights to her father under the 2006 amendments, imagine what courts will do under the new regime.

Let's be clear.  Although the mother claimed the father abused the child, Judge Keith Wilson found that he had not.  The court found that the child had a good and loving relationship with her father and that she plainly enjoys spending time with her father.

      "Mr Wilson agreed that the loss of the girl's relationship with her father would
       be distressful in the short term and may also be emotionally damaging to her
       in the long term.

So, the father has done nothing wrong, he loves his daughter and she loves him.  Moreover, she'll suffer if her relationship with her father is severed.  By contrast, the bad actor in the drama is the mother who makes no secret of the fact that she won't comply with any court order allowing the father access to his daughter.  Those are the facts.  The solution?  Give sole custody to the wrongdoer even though it will hurt the child.

Now, it's true that Judge Wilson concluded that removing the father from the child's life would be less harmful than removing the mother.  He also found that these parents simply can't act together for the benefit of the child.  About that I say three things.

First, he drew the second conclusion without making any effort to find out if it was correct.  My thought is that if he'd transferred custody to Dad and given Mom only supervised visitation (because she looks like a parent who might abduct the child), Mom might have come to understand that the court wasn't going to tolerate her bad behaviour.  She might then have started to toe the line.  But the judge didn't try any other parenting arrangement, preferring to conclude that none other than the one ordered would work.

Second, there's always merit in punishing the wrongdoer and rewarding the one who behaves properly.  Now that I think of it, isn't that what courts are there to do?   But the court did the opposite here.

Third, the notion that the child will have a good life and a proper upbringing in the sole care of a mother who behaves as this one has is suspect at best and likely outright wrong.  This woman is a child abuser plain and simple.  She is that because she refuses to allow her daughter any contact with her loving father, which will redound to her detriment her whole life.  And let no one be deceived; if the mother does this with the father, shell do it with anyone and everyone else.  Shes apparently pathologically possessive of the girl, and will continue to claim exclusive possession of her toward anyone, particularly males, the child seeks to get close to in the future.  Heaven help the girls first boyfriend!

In short, the court has set this child up for a very unhappy, dysfunctional childhood that will in all likelihood continue long into her adult years.

Now, what I'm saying isn't rocket science.  Any impartial observer could see the same thing.  But it is part of my point that this judge, in keeping with Australian family jurists generally, is anything but impartial.  His whole reasoning, all of his behaviour in the case indicate a radical preference for maternal care of children.  How else to explain his selection of a plainly unqualified, plainly abusive mother to be the sole caregiver to a little girl?

In fact, Wilson's decision is all of a piece with Australian jurisprudence generally.  We've learned from Australian historian John Hirst that the family law courts of that country long ago explicitly abjured the enforcement of visitation rights.  We also know that 90% of non-custodial parents there are fathers.  Therefore, the refusal to enforce visitation rights is overwhelmingly a refusal to enforce fathers rights.  It is also a refusal to enforce the rights of children to their fathers.  To be clear, there is nothing gender-neutral about the behaviour of family courts in Australia.  And that radical misandry is nowhere more obvious in the case discussed here.

As if in backhanded acknowledgement of what I've just said, Judge Wilson was at pains to deny the obvious.

"[He wrote] he did not want people to think that the decision demonstrates either an acceptance of the mothers position, or a surrender to her unreasonable refusal to permit a relationship between the child and her father.

He might not want people to think that, but that's precisely what it is - an acceptance of the mother's position and a surrender to her unreasonable refusal to permit a relationship between the child and her father.  If not that, what?

Proving itself to be every bit as cowardly and abject as the trial court, the appellate court chimed in thus:

On the final page of its judgment, the full court also made a point of saying our decision should not be interpreted as condoning the mother's conduct.

 No?  Then who walked out of court with a smile on her face?  Who pumped her fist with a victorious Yes!?

The august jurists can write their 30-page opinions vainly trying to justify their anti-father, anti-child decisions, and they might succeed in fooling themselves, but they can't fool me.  This is as radically anti-father and anti-child as it gets.

But I'm not the only one who will see this case for exactly what it is.  Mothers from Perth to Sydney will read the article and take careful note.  The lesson is clear; if you're a mother, the worst possible behaviour is acceptable, even preferable.  If you want sole custody of your child, this is the way to get it. The matter is now one of judicial precedent.  Simply refuse the father all contact with his child and eventually the courts will accede to your wishes, however unreasonable, however violative of the courts orders, however destructive of your childs psyche.

And of course, it's all done in the best interests of the child.

Now don't forget; all of the foregoing is the good news.  That was done under the father friendly 2006 amendments.  I know you didn't think it possible, but in Australia, it's about to get worse."

Source:

This is another in a series of judgements that ignore 60CC(3)(c ) to reward parental alienation. People should boycott the Court of FM Wilson and Justice Austin.

Time for Justice Strickland to retire. Her trite testimony to the Family Violence Senate committee that most people try to tell the truth in Family Court is a self-confession of her own incompetence.
in a few years time watch the crime rate rise, emotionally stable fathers will get on with it the best they can but for fathers who their children is all they have and have been  thru the ringer might push them over the edge
Robert Franklin, Esq. responds to the letter from the AG Robert McClelland Letter to the Editor (The Australian, 11/25/11).  It's the third letter.

        "YOUR assertion that shared care is dead is wrong. The federal government
        strongly supports shared care and a childs right to a meaningful relationship
        with both their parents."


That's about the most tepid support for shared parenting I've ever seen.  Let's see.  We have an existing law that apparently permits a mother unfettered power to deny her daughter access to her father.  That law has now been amended to make it far easier for a mother to dispossess a father of his rights.  It does so by defining abuse so broadly that virtually anything can qualify and then fails to punish false allegations.  The new law is absolutely guaranteed to separate more and more fathers from their children, and in truth, that's its purpose.

He may be able to fool himself, but he can't fool me.  Words like strongly supports just don't cut the butter.  Actions are what matter, and the actions of the current government and family court judges leave no doubt about the future of fathers and children in the land down under.


In my post about "Shared Care is Dead" the Australian family court that awarded sole custody to a mother who openly and frankly refused to allow their child to have any contact with her father, I omitted one thing.  The case is outrageous enough that I'd like to include that now.

As you'll no doubt recall, the judge originally awarded the father the usual modest access to his daughter  two days out of every two weeks.  But the mother didn't like that so she simply refused to allow him the access the court had ordered.  She wasn't devious about her intentions; she said she wasn't going to allow access and she didn't.

To that the court apparently felt there was nothing it could do, despite the fact that courts are vested with the power to hold those who disobey their orders in contempt.  As I said in my last post, there are plenty of actions the court could have taken to try to bring the mother to heel, and, failing that, it could have simply switched custody to the father.  But Judge Keith Wilson preferred to not even attempt to remedy the situation.  He simply threw up his hands and gave the child to the wrongdoer.  Into the bargain, he ordered the father to have no contact with the child for the next 13 years, i.e. until she turns 18.  And the appellate court backed him up.

Now, I pointed out most of what was wrong with that, but I omitted one important thing.  Both the trial and the appellate courts engaged in a bit of literary sleight of hand.  While admitting what the mother had done, they managed to make it appear that the father was equally at fault.  They noted that the mother had kept the child from the father in violation of the court's order, but then turned around and said that the reason for cutting the father out of the child's life completely was because the two were unable to co-parent effectively.

Well, I suppose that's true.  After all, how's the dad supposed to co-parent with a mother who refuses?  The concept of co-parenting necessarily involves two parents; Dad can't do it alone.  And so, the court tagged him with equal responsibility for the pair's inability to co-parent, even though it was solely Mom's doing.

The judge also criticized the father for being angry with the mother.  Who wouldn't be?  After all, he clutches a court order saying he has the right to access  not much access, but access nonetheless.  Faced with a mother who openly flouts the authority of the court and the father's rights, and a court that sits passively by while she does so, it's hard to imagine a father smilin through.  But apparently that's exactly what the court demanded.

So again, the mother's bad behaviour becomes the father's fault.  She's the bad actor, but he's the one punished  he and the child, that is.  Whatever wrong he's done was brought about solely by her outrageous behaviour, but somehow that becomes his fault.  In fact it becomes solely his fault because he will now never see his daughter before her 18th birthday, if then.

It's another aspect of the astonishing anti-father bias of family courts that the worst possible actions by a mother become the fault of the father.

Not for nothing did the article I linked to pronounce shared parenting in Australia is dead.  After all, if a mother can get away with what this one did, what fathers will ever get access to their children?  The answer is, the ones whose ex-wives decide to permit it. [- in which case they wouldn't be in court]  Never have fathers rights to children and children's rights to fathers been placed so squarely and frankly in the hands of mothers. When even a mother's open violation of the court's order, to say nothing of the law that prefers joint custody, aren't enough to get a father any help at all, there's not much left of fathers rights.

And as I said before, this won't be lost on mothers.  They're not stupid, they read the newspapers, and if they don't their lawyers do.  Any mother who wants a child all to herself now knows exactly what to do.  Simply deny all access and eventually the court will accede to your wishes  no cost, no punishment, no loss of custody.  Easy as that.

The case was so outrageous and the article so accurate in pronouncing shared care in Australia to be dead, it drew the ire of the country's attorney general, Robert McClelland.  Here's his letter to the editor (The Australian, 11/25/11).  It's the third letter.

        "YOUR assertion that shared care is dead is wrong. The federal government
        strongly supports shared care and a childs right to a meaningful relationship
        with both their parents."

We're all glad to know that of course.  But in his entire letter, McClelland makes no reference whatever to the case that spurred The Australian to write the epitaph of shared care.  He utters not a word in defence of Wilson's bizarre and indefensible decision.  That's understandable of course; I couldn't think of much to say in that regard either.

But of course that's precisely why The Australian said shared care is dead; if behaviour like the mother's in that case is not only acceptable, but rewarded, exactly how does McClelland contend that dads should assert their rights to love and care for their children?  Tellingly, he doesn't even try.

Weirdly, what he does do is attempt to recruit the just-passed amendment to the Family Law Act to support his claim that the government is enthusiastic about shared parenting.

     That's why the legislation, which has now passed the parliament, retains the
     shared-parenting provisions introduced in 2006 with one important change  
     the reforms will only support shared-care parenting arrangements
     for children where these arrangements are safe
.

That's about the most tepid support for shared parenting I've ever seen.  Let's see.  We have an existing law that apparently permits a mother unfettered power to deny her daughter access to her father.  That law has now been amended to make it far easier for a mother to dispossess a father of his rights.  It does so by defining abuse so broadly that virtually anything can qualify and then fails to punish false allegations.  The new law is absolutely guaranteed to separate more and more fathers from their children, and in truth, thats its purpose.  Look at who supported the change, and you'll see what I mean.

Somehow all that adds up, in McClellands telling, to a government that strongly supports shared care and a child's right to a meaningful relationship with both their (sic) parents.

As I said last time, he may be able to fool himself, but he can't fool me.  Words like strongly supports just don't cut the butter.  Actions are what matter, and the actions of the current government and family court judges leave no doubt about the future of fathers and children in the land down under.

National Parents Organization, Shared Parenting, Child Support and Alimony Reform


And if that's not clear enough, the Family Violence Bill - Gillard's "Hate Men" laws - are the WMD of divorce, the Holocaust of Fathers, and the end of shared parenting. It is not just stupid law it is dangerous law. The majority of children will be put at increased risk of child abuse and neglect.

Men might suffer first but women will also be victimised, bribed to breed, deprived of their choice to stay at home to be mothers and forced back into the workforce with 3 month old kids dumped into communist-style daycare for 12 hours a day - $2BN to attract new child care workers.

This is the childless Gillard & gay Brown plan, namely, a 1970's radical feminist ideological dream of a fully androgynous working, gay family inclusive, Maxist society wholly inappropriate if not dangerous in this 21st century.

Editor: please amend thread title to ""Shared care dead - Summerby & Cadogen [2011]"
watch the crime rate rise. i know i wont be having anymore kids and i only have one young lad and we (me and the ex) are still in court
srldad101 said
Editor: please amend thread title to ""Shared care dead - Summerby & Cadogen [2011]"

We have provided a news item on the HOME page that will also stay in the news page list titled Shared care dead as mother stands firm on no access and abridged text — > A QUEENSLAND father in the 2010 matter of Summerby & Cadogen [2011] FamCAFC 205 handed down on 20/10/2011 has been banned from having any contact with his five-year-old daughter until she reaches 18 after the Family Court of appeal accepted that the child's mother would "destroy" the relationship rather than agree to shared care. This case has set a dark precedent and is of significant concern to the Shared Parenting Council of Australia..

This particular forum is dealing with case files of interest so we try and keep the headings at least fairly neutral so that the search engines (our own) and others can pick up the exact topic. The heading might be a bit bland but we have included the other wording you seek in the main news item which links back here anyway. I hope that will suffice. In fact another case of a similar elk has crossed our table this week and we are assisting in a Canberra case which is also dealing with such hostility from a parent. In that case we are hoping for the Federal Magistrate to stand strong and send a message to the wayward parent.






Executive Secretary - Shared Parenting Council of Australia
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Mother gets apology from court for removal of children by: Caroline Overington

Caroline Overington ran a story yesterday about an apology issued to a woman because a FM had made a decision to remove her children from her.

Cookies must be enabled. | The Australian

The story said:

"In a letter of a type rarely seen in Australia, Chief Federal Magistrate John H. Pascoe said he was "very deeply concerned" at the distress the mother suffered after her children were taken from her.He said the treatment the mother received in court was "quite inconsistent with the aims of the court in dealing with family matters" and added: "I have a great deal of sympathy for you."

The woman, who cannot be named, was accused in court of "poisoning" the children against their father by involving them in the custody dispute. The children were twin boys aged 14 and their 12-year-old sister.

The magistrate in the case, Joseph Harman, told the woman he believed she was doing irreparable psychological harm to the children by not encouraging them to see their father.

In a hearing at the Parramatta branch of the Federal Magistrates Court, Mr Harman said the children would have no relationship with their father if they were allowed to stay with their mother. He based his ruling on the findings of a court psychologist."

and

"When Mr Harman told the Sydney mother he had decided to send the children to live full-time with their father, her lawyer immediately objected, saying the "extraordinary" move "would remove the children from the mother, instantly, with no communication whatsoever".

Mr Harman replied: "That's a bit like what happened in June-July last year, when the children were removed from any time with their father, and haven't communicated with him since.""

Unfortunately, the CFM seems to be of the view that only fathers deserve to be removed from the children's lives on the flimsiest of pretexts. I doubt that Mr Summerby will receive such an apology from anyone, or any assistance to cope with the grief caused by what is effectively the death of his daughter to him.


Shame, Mr Pascoe, shame.
So father has a history with drugs, locked mother and child out of house, falsely claimed child was being abused by wife's new partner AND child herself states her father was sexually abusing her, yet some how this scenario gets construed by the media and others that the mother did the wrong thing?  
The mother tried to unilaterally withhold the child and the order was a response to that. As the story said:""When Mr Harman told the Sydney mother he had decided to send the children to live full-time with their father, her lawyer immediately objected, saying the "extraordinary" move "would remove the children from the mother, instantly, with no communication whatsoever".

Mr Harman replied: "That's a bit like what happened in June-July last year, when the children were removed from any time with their father, and haven't communicated with him since.""

In the Summerby case, the mother appears to be psychologically disturbed yet she was given sole care of the child, who is now effectively dead to the father for no reason other than the mother's sick refusal to cooperate.

Do you think Mr Pascoe is "very deeply concerned" at the distress caused to the father in that case? He hasn't said anything…

Perhaps once the Emily's List crew are removed from office he might feel a bit more free to offer such condolences to fathers. Senior judicial roles are political appointments after all and as a former chairman of Centrelink, CFM Pascoe is a past master at playing politics.
april said
So father has a history with drugs, locked mother and child out of house, falsely claimed child was being abused by wife's new partner AND child herself states her father was sexually abusing her, yet some how this scenario gets construed by the media and others that the mother did the wrong thing?
  April this what I understood to be the case after reading the full judgement too. Its despicable how the media has twisted things around to whip up a bit of mother hating contraversy in the face of the new laws just to sell newspapers. They should be held accountable for their contribution in this ridiculous gender dvide. The new laws are there to better protect children, not about the rights of either parent.
And as for the other case I understand Magistrate Harman has been suspended from duty for a series of inappropriate judgements and behaviours.


His behaviour in court with this case is nothing less than shameful. Lets hope that there are further publicly acknowedged letters of apology for the hundreds of other cases where the shared parenting laws were misconstrued as the rights of the father, over the protection of the children.


You guys really should stop all this gender driven drivel and start looking at things from the perspective of the children.  Its about the children not men and not women. There is no conspiracy! The more you go on making absurd claims, twisting the truth, using sexist language and false claims of persecution just highlights how the reforms of 2006 were manipulated and why they needed to be amended. You people are not doing yourselves or the poor kids stuck in the middle of these situations any favors at all.
No conspiracy theories need to be invoked Samba, just simple self-interest at work in a highly experienced bureaucrat who is only too aware of where the power lies in the Family Law/Child Support industrial complex. It's a piece of gender political posturing and the suspension of Harman FM for indoc…retraining is all too obviously more of the same.

If only people like you could get over your transparent misandry the world would be a much better place. Most fathers are loving, supportive men who want the best for their children, just as most mothers do. It's nothing but a gender-political pretence to suggest otherwise and it's doing massive harm to our children.

Never mind, you can make a donation to Emily's List with some of your child's money and "empower" yourself.
There has been a large number of awful decisions made by Joseph Harman and a large number of official complaints made about him. The AG needs to reverse his decision of making him a FM and get rid him !!

He has shown to be unfair, racist, biased to anyone who does not see things "his" way and he needs to be stopped completely !! I know of a few people who have been before him and I've seen him shout at people, rip people apart for not giving him answers that "he" wanted, be completely racially discriminatory and be obviously connected with barristers during hearings and sharing "chummy" discussions throughout.

It is dreadful and to the poor families and to the poor children who have been caught up in his breakdown. The Chief FM and the AG need to have other FMs look at ALL of his decisions, read Reasons and full transcripts to see what transpired in those hearings and then think long and hard about the children now caught in terrible situations created by a man who was in no fit state to be making BIG life decisions for himself let alone children and their families !
And yet the secretary of the Shared Parenting Association has lauded him as someone to be a note worthy and admired person in the cause on this site!  And when the Chief Federal Magistrate has to send one of the victims of this loonies judgement a public apology for openly traumatising children in his own court room in his biased quest to prove the long discredited parental alienation, with no real evidence!!!!!


Makes you kinda wonder doesnt it?  It makes you kinda wonder what and who this Shared Parental Association is when they could endorse this man who has been struck off for many inappropriate judgements and who put children through such an ordeal as that!
http://www.theaustralian.com.au/national-affairs/mother-gets-apology-from-court-for-removal-of-children/story-fn59niix-1226208566991
Samba said
april said
So father has a history with drugs, locked mother and child out of house, falsely claimed child was being abused by wife's new partner AND child herself states her father was sexually abusing her, yet some how this scenario gets construed by the media and others that the mother did the wrong thing?
  April this what I understood to be the case after reading the full judgement too.
April could you locate and post the judgement up as a PDF file thanks to judgements of interest and I will link this post across to it so that we all have the facts of this matter as the press seem to have a very different view.

Executive Secretary - Shared Parenting Council of Australia
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Samba said
Could you please check the URL as it does not function and I would like to read more about this matter.


Executive Secretary - Shared Parenting Council of Australia
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April said
So father has a history with drugs, locked mother and child out of house, falsely claimed child was being abused by wife's new partner AND child herself states her father was sexually abusing her, yet some how this scenario gets construed by the media and others that the mother did the wrong thing?  
This topic is about Summerby & Cadogen [2011] FamCAFC 205 20/10/2011 is that the case you are talking about?


Executive Secretary - Shared Parenting Council of Australia
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Secretary, this link works

http://www.theaustralian.com.au/national-affairs/mother-gets-apology-from-court-for-removal-of-children/story-fn59niix-1226208566991 (You need to be a subscriber)

Mother gets apology from court for removal of children

    by: Caroline Overington
    From: The Australian
    November 29, 2011 12:00AM

   
A SYDNEY mother has received a written apology from the chief of the Federal Magistrates Court after her three children were removed from her care for refusing to visit their father.

In a letter of a type rarely seen in Australia, Chief Federal Magistrate John H. Pascoe said he was "very deeply concerned" at the distress the mother suffered after her children were taken from her.

He said the treatment the mother received in court was "quite inconsistent with the aims of the court in dealing with family matters" and added: "I have a great deal of sympathy for you."

The woman, who cannot be named, was accused in court of "poisoning" the children against their father by involving them in the custody dispute. The children were twin boys aged 14 and their 12-year-old sister.

The magistrate in the case, Joseph Harman, told the woman he believed she was doing irreparable psychological harm to the children by not encouraging them to see their father.

In a hearing at the Parramatta branch of the Federal Magistrates Court, Mr Harman said the children would have no relationship with their father if they were allowed to stay with their mother. He based his ruling on the findings of a court psychologist.

Under the laws on shared parenting brought in by the Howard government in 2006, couples were encouraged to "co-parent" their children after divorce.

The Senate passed amendments to those laws last week. Men's rights groups have complained the Labor government is winding back shared care, but women's groups say the amendments are necessary to protect children from harm.

When Mr Harman told the Sydney mother he had decided to send the children to live full-time with their father, her lawyer immediately objected, saying the "extraordinary" move "would remove the children from the mother, instantly, with no communication whatsoever".

Mr Harman replied: "That's a bit like what happened in June-July last year, when the children were removed from any time with their father, and haven't communicated with him since."

Counsel for the mother told the court the children had become hysterical when told of the order, and were refusing to leave the court with their father.

The magistrate said this was typical of children who had been taught to fear their father.

The mother left the court "distressed and about to vomit" and an ambulance was called. Two NSW police officers attended the court after the children began damaging court property in the foyer.

The mother's lawyer then told the court that if the children were forced to go with their father they would run away.

"That's why I've invited the Department (of Community Services) to intervene," Mr Harman said. "If they don't comply, they will be in a refuge. They won't be going home with mum."

Two senior child welfare officers from the NSW Department of Community Services were called to the court. Mr Harman told them: "We have two children, sorry, three children, two of whom are twin boys who have just turned 14, so young, strong and full of testosterone, and a 12-year-old girl.

"They are now expressing very strong entrenched views that they are not going anywhere with their father. I have just made an order that they are to go home with him.

"I have also made an order, subject to the power of arrest if anyone breaches it, that neither mum nor any member of her family are to go and talk to them.

"If these children refuse to go anywhere with their father, I would like you to exercise your emergency powers and take them into care.

"Those are the three options: they go home with dad or they go home with the director. They are not leaving this building with mum."

He added: "If you need the assistance of police or security, downstairs will help with that."

However, neither police nor the social workers were willing to physically force the children, who were described as "verging on hysterical", into a refuge or into their father's care.

One of the police officers told Mr Harman the children were in "a highly aggressive, agitated and hysterical state" and one social worker tried to explain it would be impossible to force the children to go with the father, since it may "see them break away, or run away, and be vulnerable on the streets".

Mr Harman conceded defeat, saying: "These children have now been present in this court since 11.30am, and accordingly have been here for the best part of eight hours and have maintained a steadfast refusal to leave (the court) with the father."

He said the children's mother had helped whip "them into a frenzy" about being sent to a refuge, and so he agreed to let the children leave with a maternal aunt. Their mother was banned from any contact with them for a month, including by mobile telephone and email. She was also banned from going within 500m of their school.

The mother has told The Australian the order removing the children was overturned after a month, with no explanation.

"They came back to me, and they are still with me, and I never heard another word from the court until I suddenly got that apology (on November 9)," the mother said. "He did so much damage to my children, I believe he should be sacked."

Mr Harman was asked to stand down from the court last month while he received counselling for a series of judgments that had to be overturned on appeal.

In one case, he revealed he had a sexual relationship with the lawyer who was acting for the wife, and then refused to disqualify himself from the hearing.

Mr Pascoe said he had been made aware of "some complaints" against Mr Harman, who had "agreed to be restricted to non-sitting duties".

Mr Harman has since resumed hearing cases at Parramatta "on a limited basis" and is subject to continuing review of his performance.

He did not respond to a request for an interview.

Mr Harman was appointed by federal Attorney-General Robert McClelland in July last year. In a statement, Mr McClelland said he was "aware of concerns raised in relation to Federal Magistrate Harman in the performance of his judicial duties".

Under the Federal Magistrates Act, magistrates "must not be removed from office, except by the Governor-General, on an address from both Houses of Parliament . . . praying for his or her removal on the grounds of proved misbehaviour or incapacity".

I'm not sure where April may have read the transcript, I've not been able to find it. On the subject of FM Harman, the problem seems to be that he has a strong sense that the authority of the Court is important, when of course he should understand that it's only fathers who are subject to that authority. Mothers deserve the court's sympathy and understanding, quite unlike fathers, who only understand one thing.

At least, I think that's the gist of it. I'm sure we'll get clarification in the CFM's next apology to a maternal "victim" of the court…

FM Harman is a distinguished lawyer with a long and worthy record. The CFM's intervention is extraordinary and unprecedented. It requires a great deal more explanation from the CFM. Is it the CFM's view that a child who refuses to recognise the authority of the court should be exempted from complying with it? What about a mother who does so? A father? A lawyer? A social worker? What was the CFM's legal basis for writing that "apology"? Was there an appeal heard?

Frankly, the whole thing stinks and there is far too little proper information available.

Last edit: by Secretary SPCA

Beware Staying_Safe and Samba are deep into tinfoil hat territory.

Staying_Safe said
He [Harman] has shown to be unfair, racist, biased to anyone who does not see things "his" way and he needs to be stopped completely !! I know of a few people who have been before him and I've seen him shout at people, rip people apart for not giving him answers that "he" wanted, be completely racially discriminatory and be obviously connected with barristers during hearings and sharing "chummy" discussions throughout.

Let's see - opinion, hearsay, conjecture unsubstantiated by any factual evidence…Hmmm, the siren call of the radical feminist "family violence" harpies - utterly nauseating, clutch that tummy tightly, kiddies!

Staying_Safe said
It is dreadful and to the poor families and to the poor children who have been caught up in his breakdown. The Chief FM and the AG need to have other FMs look at ALL of his decisions, read Reasons and full transcripts to see what transpired in those hearings and then think long and hard about the children now caught in terrible situations created by a man who was in no fit state to be making BIG life decisions for himself let alone children and their families !

The stink of ideological corruption is overpowering.

Samba said
And yet the secretary of the Shared Parenting Association has lauded him as someone to be a note worthy and admired person in the cause on this site!  And when the Chief Federal Magistrate has to send one of the victims of this loonies judgement a public apology for openly traumatising children in his own court room in his biased quest to prove the long discredited parental alienation, with no real evidence!!!!!

No Samba, you're a total troll; I see this on so many sites; this persistent idiocy; complete and patronising ignoring and misrepresentation of the facts; mindless repeated declarations of the viewpoint.

It's like the plastic turkey, communism and tariff protection. No matter how many ties a stake is driven through its heart, it will keep coming back

FM Harman based his ruling on the expert findings of a court psychologist. Substantiated by the children's behaviour in the Courthouse.

Stop being dishonest, a moron or both in your case.

Oh, and Samba please post your full name, address, driver's licence and TFN so that we can take your posts seriously.

Samba said
who this Shared Parental Association is when they could endorse this man who has been struck off for many inappropriate judgements and who put children through such an ordeal as that!

Struck off - my steaming foetid ass … inappropriate judgement - you fat headed propagandist child Monster… HE put the children through ordeal - You can't even get your strawman to stand upright.

I mean are you a complete idiot? Did you not read the judgement and the independent commentary; link to it; read it, understand it, stop making a fool of yourself:

Now show evidence that Harman FM incorrectly interpreted the law

If you can I promise to leave FLWG and never come back here again.

If you can't then that applies to you …and in addition you and SS do "fight club" next Saturday night  helpless victims, I think not.
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