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Recovery of Contact Order (RCO)

Immediately enforceable Recovery of Contact Order (RCO)

To all,

Re: Immediately enforceable Recovery of Contact Order (RCO)

Safeguards and protection
After much discussion with Matilda (Richard Hillman Foundation, Adelaide) and others regarding concerns when one parent really is a danger to their own children, (a situation I find hard to imagine but am assured is sometimes a problem) I believe RCO's can include the following safeguards:

If the mother, for example, wanted to resist the RCO on the grounds of genuine concerns for the child's safety with the other parent, two options are available to her;

1. She lays charges with the police of child abuse (that could include serious neglect), which would immediately prevent the enforcement of the RCO until it can be adjudicated in court.

2. She breaches the order, in which case she's got some explaining to do when it comes to court, (all RCO's would be subject to a prompt hearing in the Local Magistrates or District Court just like AVOs).

Child welfare / protection agencies, I believe these are very dangerous because they almost always approach the problem by taking sides. Its just the way they operate - unsophisticated as it is. Mainly due to the anti-male culture of the industry, the feminist teachings (all men are rapists/bastards) and the immaturity and lack of life experience of the staff. They also subject children to invasive and suggestive interrogation. I believe the above two safeguards provide children with appropriate protection from 'monster parents'.

It should be borne in mind that the RCO's will provide for up to 50% shared parenting. Fathers or mothers could opt for less than 50% if they wanted. Family Relationship centres would be able to operate effectively because one parent would not be able to exclude the other, off their own bat.

Presumption of Equal Parenting Time
The RCO is the only way a Presumption of Equal Parenting Time can be protected - otherwise one parent can exclude the other, and thereby forcing them to mount a legal challenge to attempt to regain contact with their children.

PR
RCO's are designed to protect children from the dangers associated with losing the protection of having both parents. eg: abuse and neglect, emotional and developmental problems - and sexual abuse (one parenst can't look after their children 24/7).

RCO's are not about men's rights - they are about children's safety and best interests. Opponents of the Presumption of Equal Parenting Time and RCOs start to be seen for what they are - vested interests who are disinterested in protecting children from harm.

Family Violence impacts
Be it real or contrived, Family Violence must not be allowed to have any bearing on equal parenting arrangements when change over can be made at school or through third parties.

Benefits
Contrary to popular belief, the Family Court doesn't exclude fathers from children's lives. Rather it prevents fathers from being reunited with their children after they've been excluded by the other parent - unilaterally. It's an important difference. once the onus of proof is born by the excluder, courts can be expected to be as obstructive as they are now - of efforts to exclude one parent (eg: the father).

The Family Court is very reluctant to make decisions that change the arrangements for children without lots of "expert" involvement - eg: physiological and psychiatric reports, Family Welfare reports etc. When a child's association with both parents is protected by law with RCOs the situation is reversed. The excluder must substantiate their case - not the excluded. Most Judges will be disinclined to upset living arrangements for children on the basis of unproven allegations - more so since recent governments directives to support shared parenting.

Most women won't feel desperate enough (and therefore vulnerable to solicitors and other "professionals" in the initial stages of custody litigation to make outrageously, false allegations. They won't have to fear losing their children to the other parent for a start. Their contact with their children will be protected as much as the father's. Plus their children will not have been exposed to the conflict of custody litigation for long enough to be traumatised.

For cases where mothers do make nasty false allegations "right out of the box", they will need to be much more credible. Polygraph testing would be a good way of dealing with these cases if and when they arise - when a judge is determined to "err on the side of cuation" (ie" presume guilt unless proved otherwise).

It a known fact that most sexual abuse allegations get made as a last resort, after protracted litigation. They seldom get made in the initial instance. RCOs would avoid the problem in most cases.

RCO's would also avoid unfair CSA assessments because both parents can care for their children - equally.

RCO's would not be immediately enforceable if opposed on the grounds that children are under 1 years or that they are being breast fed but they would still be subject to adjudication by a court.

The use of RCO in the Local Court System

Readers should also review this topic thread in Policy forums and do a search on posts from vascopajama with forum search as it is an interesting concept along the lines of an AVO. The Police at the front line could issue these RCO's and they could be heard in the local courts if disputed just like an AVO.

Vascopajama has also spoken in Parliament House at the Lone Fathers Association conference

Perhaps we will see AVO day and then RCO day in the local courts. A very interesting concept that needs more exploration and debate.  :thumbs:

Last edit: by OneRingRules


Site Director

RCOs / DV

Dear Wayne.

Good talking to you tis morning. I do appreciate you playing the devil's advocate, as I'm looking for reasons why the RCO mechanism can't solve most of the problems at their root cause.

The main objection seems to be that judges are just going to oppose shared parenting because of Domestic Violence. However if its made clear in legislation that DV allegations must not be allowed to compromise a child's opportunity to continue enjoying a close relationship with both their parents by way of equal time shared parenting (or less as agreed), when change-over arrangements can be made through 3rd parties, then DV alligations won't get used (because they won't work).

Geological issues - when a parent is too far away they generally won't be applying for RCOs. If they did it would come before the courts immediately and presumably if the distances were an issue it would be addressed at the hearing.

What's most important is that the Judge makes the order to exclude a paresnt - not the other parent. In which case they need evidence. AS it is now they  are called on to decide if an excluded parent should be included again ie the other way around - they look for evidence to support the application for restored contact and will deny it unless the case is strong.

With regard to your concerns about the new DV laws in Victoria - I think most people are resigned to the fact that women can throw men out of their families anyway - hence the lack of protest.

Regards,
Simon Hunt
PARENTS AGAINST INSTITUTIONALISED CHILD ABUSE
Mornington
Phone: +61 (0)3 5973 6933 Mobile: 0414 415 693
Email Simon Hunt
http://mumsdadsandkidsagainstsolecust.blogspot.com/
http://thefamilycourtphenomenon.blogspot.com/
www.dashlite.com.au

Equal time parenting after separation - the solution that removes the problem.
We had this very issue with my partner's ex.

On very spurious grounds (which would identify us if I went into them), she decided to return to the town she lives in with the child, cancelling 3 days of access with no notice, in the wee small hours.

If we had an RCO, we could have been in court the next day and got local police on her journey back to where she now lives.

Instead:

We had to raise a contravention, or this would go unnoticed by the courts;

Wait a couple of months for some make up time to be ordered/offerred;

and now, we have to prove that contravention, in court, to court standards of evidence (ie beyond reasonable doubt), or risk costs…..

Very, very unfair.

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. 
Yes, You'll always be advised to avoid contravention applications. Judges don't like them for some reason.

Plus chances are you'd get abuse allegations thrown in - so you'd have to get Family Welfare reports, a phycological assessment (with all the bias and danger that entails) or maybe even a Anger Management course thrown in to slow you down a bit more.

An RCO would turn the onus of proof around 180 degrees - the excluder not the excluded would have to mount the case.

Simon




vascopajama said
Yes, You'll always be advised to avoid contravention applications. Judges don't like them for some reason.

Plus chances are you'd get abuse allegations thrown in - so you'd have to get Family Welfare reports, a psychological assessment (with all the bias and danger that entails) or maybe even a Anger Management course thrown in to slow you down a bit more.

An RCO would turn the onus of proof around 180 degrees - the excluder not the excluded would have to mount the case.

Simon
What on Earth are you going on about?

95% of contraventions are run in the FMC by Federal Magistrates and not Judges.

Can you give a single example of a straight 'contravention' application that has required a Family Report? A psychological assessment? Or an Anger Management Course for the applicant?

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
I tried to make one once- it was thrown out. Then my barrister explained that you get a welfare report and negotiate from there.

She wasn't telling the truth? The Judge shouldn't of thrown my contravention application out?

Are you saying Contravention apps can be effective and immediate in your experience?

FMC / FC / Judges / registrars … what the difference? Its all secret … its all behind closed doors.

If they form the view that your X is distressed, what hope have you got?

Why not stop the exclusion from happening in the first place then there's nothing to litigate about !!

Simon



Why was the application thrown out?

The Court HAS to give a reason - an application is just not thrown out - period. You don't just get a welfare report.

The SRL-R group has had no problems with Contraventions, whatsoever. As regards immediate that depends on the Registry. This morning in Parramatta we got a Recovery Order through straightaway.
Simon said
FMC / FC / Judges / registrars … what's the difference?
It makes a great deal of difference if you do not understand the function of the different Courts and then start proposing another legislative tier. Example your proposal involves a Local Court which is State. So presumably these would be State Laws (therefore different in each State because it seems impossible for any State to agree with another) or do you propose an Amendment to the Family Law Act (Federal) so that all States would have the same procedures? and under the 'delving' powers the State Courts could administer the Federal Laws?

I can assure you from a very great deal of experience the last thing anyone needs is State Courts interpreting the Family Law Act - they make enough errors as it is. The only saving grace with many local Magistrates is that they have enough sense to transfer the matter to a Family Law registry.
Simon said
It's all secret … it's all behind closed doors
This is your 'Secret Courts' thing again.

A question - when have you ever been refused access to a Family or Federal Magistrates Court hearing? I have never met anyone that has.

Go to the Family and FMC web sites - there is even a statement that the Courts are open to the public.

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

Dont Like Contravention Oders

My FMC magistrate did not like contravention orders - while not throwing them out he made it very clear by his language and prepared speech that he didn't want to hear it.

In my case the mother kicked the children out - because I became sick (like she did) and could not earn any money. As soon as CSA stopped she kicked them out and handed full custody to me. I wanted her have 50/50 again but she obviously felt that all the free government money she was getting wasn't enough (like other single parents).

I applied for contravention (no specific orders) because she was in clear contravention of 50/50 - damaging the children. At the same time she was abusing my family and friends, writing letters about how awful I was and publicly vilifying me.

Magistrate did not want to hear it - hence no consequences for females in clear breach. I end up with full custody - shes still the victim she will always be. Magistrate did not have to punish her - he can concentrate resources on others now. Children lose because mother can do whatever she likes - does not have to work again - can receive disability pension forever.

Contravention does not cover this sort of thing anyway. We have seen who society is happiest punishing.

 Maybe I am not explaining myself well enough
Our contravention has been held over till finals.

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. 
I am not sure how you applied for a contravention without a breach of specific orders or are you saying that you wanted her to have 50/50?

I am not certain where you get the impression 'no consequences for Mothers in clear breach'.

A large percentage of 'contraventions' are technical or badly worded and doomed to failure before the hearing actually starts. Many argue about the intent of the orders or other trivia - the Courts work on a clear breach. Let us remember that a 'contravention' is a quasi criminal matter and subject to increased penalties for repeat offenders.

I have never 'lost' a contravention case that I have supported, perhaps the Courts in NSW are tougher?


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

RCO - Recovery of Contact orders a new concept !

Artemis said
…she decided to return to the town she lives in with the child, cancelling 3 days of access with no notice, in the wee small hours.

If we had an RCO, we could have been in court the next day and got local police on her journey back to where she now lives.

Instead: We had to raise a contravention, or this would go unnoticed by the courts;

Wait a couple of months for some make up time to be ordered/offerred;

and now, we have to prove that contravention, in court, to court standards of evidence (ie beyond reasonable doubt), or risk costs…..

Very, very unfair!
Contraventions are VERY different to this new concept RCO that vascopajama is talking about. It should be relatively easy, I would have thought, to prove your contact was revoked without notice by the mother. Send a personal post to agog. He is an perveyour of justice and a practitioner never having lost a contravention yet. Watch out for the section about "reasonable excuse" they all usually use it. You may win teh contravention but loose the case on part 2.

In relation to the RCO (Recovery of Contact Orders) I make the following points:

RCOs: Restoration of Contact Order

Issues

If the intention of this is for a local Court to issue an order, then there are several real logistic problems…

How much contact? And where is the contact to take place? Is there any violence if so an AVO will have been filed probably.

By default urgent orders such as AVO's are deemed enforceable (by the Police) until the other party defends them.

How can a local Court be asked to ensure contact without knowing the age of children or any special circumstances, they are therefore likely to wait on the others parties response

I would suggest an RCO would have to have some evidence that one or other of teh parties was not abusing children etc. The Police would not make that call would they. - Local Court should not be involved in administering any parts of the Family Law Act. They say they see far too many problems created by Local Courts.

A percentage of local Courts will of course immediately refer this to a Family Law registry either Family Court or Federal Magistrates court who are specialised to deal with getting to teh bottom of issues and are backed with a raft of appropriate legislation..

Name:

The Name RCO Restoration of Contact Order could be confusing. It is a play on AVO and DVO I think. There is much confusion in every State about the rules around each now. Remember this is STATE law you are talking about not Federal.

If there are existing orders then the FMC can deal with a contravention and enforcement order (one of the few things that actually happens quickly).

It is clear that what is being sought is a to create a Default Equal Parenting Time in the form of an RCO. A form of status quo before it gets to a Family Court but I think there are serious problems with it.. Apart from above it is a State Act that governes these AVO , DVO and maybe RCO .. What effort did we apply in trying to shut down Victoria and NSW recent draconian changes to AVO legislation. I think those changes went right by the groups. (see news archives)



How big is the problem?

We should remember we only hear from the people with problems so this does not mean that 25% of the population is afflicted with this problem. No modifications would be make to any legislation/regulations unless the 'size' of the problem can be ascertained. The majority (I would guess 95%) of the applications we deal with are not people withholding any contact but arguments over the amount of contact.

The SRL-Resources have stated that they are non political but they do have strong opinions on Local Courts administering the Family Law Act. Until they are well versed and understand it

Another tier of problem creation is not a good proposal

However all said the a presumption of equal or substantially equal time after separation as the norm would go a long way to avoiding the roughly 5% of difficult people who do not give contact until interim orders are made.

There should be some mechanism to ensure that recently separated parents DO have some contact with children. I do not profess to have a solution because denying contact is a charged emotive issue and we are dealing with people that are not aware of the damage they are doing to their children or have genuine or ill founded concerns. This entrenched conflict is also an issue for concern that although ruled out of the Act as a reson to exclude Equal or substaintial parenting time and working up s65DAA it is still being discussed in courts as a reason to exclude by SOME of the Judiciary

One of the esteemed and elder statesman Moderators (The great Agog) did make a make a tongue in cheek proposal (on a posting) that applications to the CSA should contain details of contact i.e. Dad is getting x amount and that a zero contact regime must be explained and the material made available to a Family Court. BEFORE Child support cases are allowed.

Would this be a better way to go. It might be a lot easier to get than an RCO?

The argument that CSA and contact is a separate issue has always been a 'furphy' because too many parents allow a percentage of contact that ensures maximum CSA claims and this goes back to the old 80/20 regime. If we could get that alone then we would be well on the way to getting those early entrenched conflict cases dealt with.



Research:

If anything this is an issue that needs some work

Research Issues

What contact occurred after separation

What contact occurred after FRC

What contact occurred after Court

How may separated patents do not go to FRCS How many parents make separate informal arrangements How many separated parents make formal arrangements (parenting plans, consent orders)

Of parents that go to FRCS what were the outcomes Of parents that go to FRCS (and obtain certificates) How many enter the Court system and which court How many later enter into informal agreements, parenting plans, or lodge consent orders (certificates would not be used if consent orders were lodged)

Is there any State variation in these statistics?

I think the next step is the FaCSIA work on "Best interest principals" sub committee and then the "Presumption of Shared or substantially shared parenting time as the default after separation and or taking up teh idea that before CSA payments are made appropriate contact is given.. Talking to a Labor candidate here this Saturday Family Law isn't even on her agenda and she thought there was shared parenting as the norm now…  Surveys are showing it is not at all on the radar for younger voters (John Flannagan).

- which apart from an objection could be an AVO application. So already we have an issue where it is not going to be in the time frame you are suggesting which is along the lines of the AVO time frames. These AVO's are immediate. They are put in place by Police. They are effective from the moment they are issued usually with little supporting evidence.

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 think we should wait until Simon gets back with his suggested 'mechanism' for this and whether it is a 'States' or 'Federal' proposal

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
To Agog - Yes my Contravention request was deliberately vague - wanted it to be a consultative process as a self represented litigant. Hence he had to give some sort of statement about my application and from that I was able to get the lay of the land.

An yes she was in contravention of 50/50 - kicking them out and also bad mouthing me - its a pretty low act for a person and one I thought the court might have a view on. They could have tried to force her to have 50/50 - she had after all written to the court saying that she was 'unilaterally' withdrawing from Faulks 50/50 orders which had been in place for many years. So either the court valued Faulks orders, the children , my family - or not.

As I said he was not interested - my view is she could have been fined and at least given SOME consequence. She had after all defrauded thousands of dollars in so called CSA after she took a package from her full-time highly paid job.(I consequently lost my house- for the second time)

Without even SOME consequence these sort of people get away with everything - she had after all been pandered to by the lawyers, court counsellors, judges and Magistrates for more than a decade - and admission that they all might have got it wrong maybe also was also a bit difficult.

 Maybe I am not explaining myself well enough

Contraventions

Jon Pearson said
To Agog - Yes my Contravention request was deliberately vague - wanted it to be a consultative process as a self represented litigant. Hence he had to give some sort of statement about my application and from that I was able to get the lay of the land.
Well Jon I guess you have now learnt from experience that since a contravention can carry a penalty it has to be specific. No such thing as a consultative process when discussing the application. If as you say your application was deliberately vague - some FMs would have thrown it straight out or told you to re lodge it
Jon Pearson said
And yes she was in contravention of 50/50 - kicking them out and also bad mouthing me - its a pretty low act for a person and one I thought the court might have a view on. They could have tried to force her to have 50/50 - she had after all written to the court saying that she was 'unilaterally' withdrawing from Faulks 50/50 orders which had been in place for many years. So either the court valued Faulks orders, the children , my family - or not.
Actually she was not 'contravening' the orders. The purpose of contravention is to breach somebody 'that is obstructing the operation on an order normally by not facilitating contact with the other parent'

The Courts cannot and will not force someone to have contact with a child. There was even a recent judgement posted on this site that clarified the issue of lives with and spends time with in relation to contravention. It also renewed the Courts dictum that contact is a 'privilege' and the Court cannot force contact

As regards the Court orders made by Faulks she was quite within her liberty to ignore them, she was not contravening them, she was not taking advantages of the 'privileges' provided by those orders

Our advice would have been - you go into Court with a clearly defined 'breach'. In the second instance it would have been "you are wasting your time" and here is the case law to read

Perhaps you can understand my comments about why so many contravention are defeated?
Jon Pearson said
As I said he was not interested - my view is she could have been fined and at least given SOME consequence. She had after all defrauded thousands of dollars in so called CSA after she took a package from her full-time highly paid job.(I consequently lost my house- for the second time)
Fined for what? acting stupidly? If the case has been a CSA case then the issue of penalties for CSA fraud would have been dealt with. Since the CSA was a side issue the Court lacked the power to make a determination on that issue. At the very most they could have ordered the material forwarded to the CSA

Jon Pearson said
Without even SOME consequence these sort of people get away with everything - she had after all been pandered to by the lawyers, court counsellors, judges and Magistrates for more than a decade - and admission that they all might have got it wrong maybe also was also a bit difficult.
What consequences should she have faced?

She was actually in 'contempt' of Court but you brought in a contravention application rather than trying to get the Court to deal with a contempt issue.

Without knowing all the details - you could have got a quicker reaction by making an application to the Court to have the existing orders suspended and replaced with temporary ones giving you 100%. Faced with the 'loss' of mis used privileges you will be surprised at how quickly the other side takes advantage of them.

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

RCOs / DV

Well firstly, in reply to Agog let me explain that I had just gone through an excruciating 6 months of ";;negotiating";; - My solicitor insisted that this was the only way I was going to see my daughter again. After my wife's solicitor finally refused to allow 'Contact' I sacked the solicitor and made my own Contravention order. I had a barrister however he walked out - didn't like me interjecting about what I thought was the most important issue - the suffering of my daughter (I was astonished at the lack of concern being shown for my daughter - unfortunately). I can't remember the exact reason the contravention was thrown out but it was.. My ex's lawyers dropped an affidavit on me in court describing how my daughter had spent an hour curled up in the fetal position in the shower recess chanting I hate you Mummy"; This rendered me speechless and emotional. The Judges then suggested I had emotional problems. ; Finally in a recess a woman barrister befriended me, telling me the only way I would see my daughter again was by ";playing the game"; (a lesbian as it turned out).

I don't doubt that if it was done properly it should have succeeded. This doesn't take away form the fact that the courts are very belligerent to fathers who go for contravention orders…and very uncooperative.

The point of all this is that the child should be protected from all this in the first place - period! Regardless of whether or not there were orders in place.
No one should have to mount a legal case to convince a court that a child should be allowed to see both their parents. The court should only be called on to hear applications as to why a parent should be excluded. In other words excluding a parent should be a decision that only a court can make - not the other parent.

If both parents are protected from having contact denied by the other - there's nothing to worry about - no litigation - no conflict, no traumatised children. Both parents and the children are protected from mutually exclusive custody decisions.

I have no doubt someone with Agog's experience would have been able to convince a court that it should enforce its own orders - However, an RCO mechanism would prevent contravention orders form being needed in the first place.

You see what an RCO does is reverse the onus of proof to the parent that is doing the excluding - whilst protecting the child from harm in the first place.

I was litigating mostly by myself for 8 years in the FMC and the FC. They are secret courts because no one is allowed to publicise their judgements or their reasons and findings. Getting people to sit in the stalls doesn't prove anything.

As for Wayne's remarks, I can't see what the problems is. It doesn't have to be complicated. You protect the child form having one of its parents removed by the other (and their lawyers) - period. If the excluder wants to take the matter to court, well fine - the law protects the child in the meantime.

Allegations of violence would almost always be (or should be) irrelevant unless they are alleging violence against the child, which would be very bizarre.
3rd party change over arrangements ensure there is no contact between the parents if one or both don't want it.

I was a bit shocked at the suggestion that absence of violence should be proved before Contact take place - NO WAY. No parent should have to mount a legal case to prove they are not violent or loose contact with their own children.

The issue of whether RCOs should be State or Federal is only an issue insofar as its best to keep these matters out of the Family Court in the initial instance, so the issues are not blurred. ie: either the child is protected or its is not. If not THEN it can be referred to the FC or FMC, on the grounds that the excluded has a valid case. I understand that the AG can require the States to adopt legislation. Otherwise I see no reason why the function couldn't be carried out by the FMC. Personally I would like to see it handled by the State courts - as an adjunct to the AVO process - because they are less likely to play God with peoples lives - to weigh into all the BS. AND also because it assist with changing the culture ..in line with the intentions of the new FC legislation. ; Courts will protect the status quo in the child's best interest - not the parent that made a preemptive custody grab - as they do now.

As for the name - whats wrong with RCO. Everything needs a name. The 'O' on the end is the only similarity with AVO ; and what wrong with that? Children have just as much right to be protected as adults I would have thought.

The mechanism of an RCO would satisfy those who claimed abuse was at issue. Charges would have to be made with the police before the immediate enforceability of an RCO could be prevented. Police charges could be laid for assault and or serious negligence.

The RCO applicant would state the contact they required - up to 50% (week on week off) or less as specified on the RCO. Change over arrangement be by arrangement.

Yours faithfully
Vascopajama
vascopajama said
I don't doubt that if it was done properly it should have succeeded. This doesn't take away form the fact that the courts are very belligerent to fathers who go for contravention orders…and very uncooperative.
You claim they are belligerent - where do you get that assumption? when you have personal experience of a few or a first hand knowledge of both sides of a few lost cases then come back
vascopajama said
The point of all this is that the child should be protected from all this in the first place - period! Regardless of whether or not there were orders in place.
No one should have to mount a legal case to convince a court that a child should be allowed to see both their parents. The court should only be called on to hear applications as to why a parent should be excluded. In other words excluding a parent should be a decision that only a court can make - not the other parent.
Exactly why there is a 'presumption' of Equal Responsibility - which does not have to be argued for - it has to be argued against.

The only reasons cases go to Court is that one of the parties is belligerent, so the Court is obliged to hear the evidence. However the Court does not 'know' whether this is belligerence or is it justified until they hear the story. I think that you must accept that there are both Mothers and Fathers 'out there' who are a danger to their children
vascopajama said
If both parents are protected from having contact denied by the other - there's nothing to worry about - no litigation - no conflict, no traumatised children. Both parents and the children are protected from mutually exclusive custody decisions.

I have no doubt someone with Agog's experience would have been able to convince a court that it should enforce its own orders - However, an RCO mechanism would prevent contravention orders form being needed in the first place.
Not at all.
vascopajama said
You see what an RCO does is reverse the onus of proof to the parent that is doing the excluding - whilst protecting the child from harm in the first place.
What you are suggesting, is reverse the process of Common Law in the Western World - prove that you are not doing wrong?
vascopajama said
I was litigating mostly by myself for 8 years in the FMC and the FC. They are secret courts because no one is allowed to publicise their judgements or their reasons and findings. Getting people to sit in the stalls doesn't prove anything.
THEY ARE NOT SECRET COURTS.

They frequently publish their own judgements. Our people go in and comment all the time on running cases. If you were a journalist you could go in and report what was happening subject to not identifying the parties. Where our people have been present and we have the judgement we even comment on how much or how little the judgement related to the evidence in the case. How is this secret?
vascopajama said
As for Wayne's remarks, I can't see what the problems is. It doesn't have to be complicated. You protect the child form having one of its parents removed by the other (and their lawyers) - period. If the excluder wants to take the matter to court, well fine - the law protects the child in the meantime.
The problem is that you have not though through the proposition, what you have done is to create a Utopian model without looking at the potential pitfalls
vascopajama said
Allegations of violence would almost always be (or should be) irrelevant unless they are alleging violence against the child, which would be very bizarre.
Allegations of violence are not irrelevant if a child witnesses them, the Courts treat this pretty seriously.
vascopajama said
3rd party change over arrangements ensure there is no contact between the parents if one or both don't want it.
Anytime there is conflict or potential conflict between the parties then there are school picks ups and the ubiquitous McDonalds to ensure the parties have little contact.
vascopajama said
I was a bit shocked at the suggestion that absence of violence should be proved before Contact take place - NO WAY. No parent should have to mount a legal case to prove they are not violent or loose contact with their own children.

The issue of whether RCOs should be State or Federal is only an issue insofar as its best to keep these matters out of the Family Court in the initial instance, so the issues are not blurred. ie: either the child is protected or its is not. If not THEN it can be referred to the FC or FMC, on the grounds that the excluded has a valid case. I understand that the AG can require the States to adopt legislation. Otherwise I see no reason why the function couldn't be carried out by the FMC. Personally I would like to see it handled by the State courts - as an adjunct to the AVO process - because they are less likely to play God with peoples lives - to weigh into all the BS. AND also because it assist with changing the culture ..in line with the intentions of the new FC legislation. ; Courts will protect the status quo in the child's best interest - not the parent that made a preemptive custody grab - as they do now.
This where you really have to think the issue through. Is is State (with a multitude of different State Laws) or Federal ((I have published elsewhere on this board the absurdities of various differing State legislation)) there is not even common States legislation protecting children. You had better write to Phil Ruddock and tell him he can require the States to adopt legislation I am sure he will be surprised to learn that.

I repeat, from long experience; that you do not need State Courts getting involved with any part of the Family Law Act, they are expert at making things worse.

Local Courts play God all the time often handling out AVOs like lollies at a children's party.
vascopajama said
The mechanism of an RCO would satisfy those who claimed abuse was at issue. Charges would have to be made with the police before the immediate enforceability of an RCO could be prevented. Police charges could be laid for assault and or serious negligence.

The RCO applicant would state the contact they required - up to 50% (week on week off) or less as specified on the RCO. Change over arrangement be by arrangement.
A default 50/50? can you see that getting by any legislature. "I want 50/50 and I am not violent - so I should get it".

With the greatest of respect much of your thinking tends to be clouded around your own well published (and therefore not secret Court ) case.

I do believe that many of the existing mechanisms have far too many failure modes and need to be totally revised. But proposals have to be practical and in line with those that will have to administer them.

Give Wayne a few weeks to rest after the Rice and Asplund submission to the AG and CJ and I am sure he could be persuaded to do some work on this.

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

So you you're telling me everything is fine! That the courts are open and accountable. That they immediately restore Contact the moment its been denied. Well what are you doing here?

The only reason cases go to court is because children are not protected from one parent unlawfully removing the other. Otherwise the only reason they would go to court is because one parent wanted to exclude the other and couldn't do it without court approval.

That parent would need to provide evidence why the other parent was no good. They couldn't just do it, forcing the excluded parent to provide evidence that he should be included.

Agog take it out, turn it 'round, put it back in and start again. It's simple. You're just going at it the wrong way around. The FC should be there to consider an application that a parent is no good for their children.

NOT to consider a parent's application to be included after he has been excluded wrongfully.

Oops

 Its an interesting debate. In my case I didn't spend money on a lawyer or barrister but I thought the court might be interested given we were in the middle of CSA, interim and final orders (3 or 4) cases. The point is - if one person ignores orders at will, and tells the court they don't care for them - what point is there making orders? Hmm? Whats the legal reaction to that?? There is no consequence.O_o In My case as soon as the Magistrate dismissed the contravention he threatened ME with contempt. maybe he was giving me a sign?;)

Which is true really - in my experience I have nothing but contempt for the system  - let alone a magistrate who didn't know my name for three visits, ignored evidence, etc - he did all but dribble when she walked into the room.

There is no evidence (save a few notable exceptions) that the system is NOT a total mess and that people in it are willing participants in the matter.:P

Oops:o - just realized now everyone thinks I'm a looney :ninja:- because :
  1. How on earth could this happen - you must have done something
  2. You must deserve to be treated they way you were
  3. You sound a bit emotional - just relax - can't understand why you are concerned (don't get angry(angry looney man))
  4. You can't really have had that experience - it just doesn't work that way - YOU must have done something wrong

Does any of this sound familiar?;)
The plain point is the system is totally ruined , not working, time consuming, legalistic, costly, open to interpretation BY individuals who are flawed (no matter how "qualified" they are) and the general result is to cause pain and anguish to people. Anyone who has EXPERIENCED it for 12 years as a "Client" knows this. Its very easy to be superior or dismissive if you have not had the experience. Its my expereince that those people who have not experienced it HAVE NO IDEA. Those who have experienced it are completely shell shocked.

Having got over that bit - the only way to improve things is to agitate for change and improvements and this needs to be based on sensible, rational arguments - not emotion or "righting" wrongs. I really cant understand why anyone would wish more involvement of "Flawed" people and systems making judgements about their lives? It must be because they cannot imagine what its like?

The answers are not to patch up a flawed system - its just making it more verbose, complicated, expensive, etc.
A total rethink is required - more complete strategies to follow.

Last edit: by Jon Pearson


 Maybe I am not explaining myself well enough
Jon

Frequently the Courts do give 'signs' about what they would like, some of them are very subtle and others not so.

The SRL-R internal correspondence is littered with them and some have crossed the boundary into legal advice. The real trick of course is to interpret 'a valid indication or sign' something a McKenzie Friend should be good at

The whole issue of Family Law is that the moment it enters the Courtroom one of the parties is going to be dissatisfied. What should be understood is that not all the people are long term dissatisfied or convinced they got a raw deal. There are some very loud voices about system inequities and we have examined some of these cases and in some these people (mostly men) made some incredible screw ups and now blame it on the system

The system is far from perfect and does make some awful decisions -BUT this site and others are mostly only hearing from people that believe that they had a raw deal.

I have a lot of dealings with people that have not been through the system and obviously many that have. Of the latter I try to put aside the legal ramifications and approach it from a 'reasonable person' approach of 'kids first' and 'parents second'.

To a certain extent the CJ has been trying to modify the system. She inherited something that Nicolson had made into a monster. Change does not happen overnight. Next year even property goes to 12A Hearings. If you read her material it telegraphs her intentions very clearly about the role of the legal profession, precedents and the perpetual delays caused by the back logs.

You might note she has been very 'quiet' of late - I think we are all going to get a surprise by the end of the Year.




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