Donate Child Support Calculator
Skip navigation

SRL help, what happens now. Court?

Add Topic
I am going to have to become a SRL dad I suspect.  Can anyone tell me if an independent children's lawyer is paid for by the court? I'm not there yet but think I will be after the mother sledged me during our family report done privately. Stupidly I did not get much legals beforehand and just showed up, thinking if I was honest I'd be pretty well right. I was wrong.

Out of money i got a quick free consult with a lawyer here. They advised me after i told how it went that it is likely the writer will probably recommend a separate lawyer for my 9 year old daughter and probably a psychiatry evaluation.  I guess for all of us?

Who pays for this stuff? Am I now expected to cough up for a kids lawyer, as well as my own and pay for a quacks evaluation of me if an application hasn't been filed yet? or do I wait to see if she files an application for new orders? Even if she does and we use the report that already cost 4000 dollars will the court go by that and rule for a kids lawyer & psych assessments? I assume that's then free as it's court ordered?

Also if we had consent orders from October 2007 can she apply for new orders for sole care and parenting responsibility with only limited contact for me just because she's now married and has had twins if I do not agree? Doesn't seem a significant change of circumstances just because of that? Or would the negative family report override all that?

Also has anyone heard of the hogan rule or principle applied to family law proceedings?    
No you generally pay for the ICL (split between both parties). The psych evaluation probably the same. No I can't see significant change of circumstances if she has simply re-married and had twins unless she is relocating to be with her husband.
Don't know what the hogan rule is. Did you Google it? Yes you may need to pay half of the ICL's fees. However, if the mother case is 'unreasonable' and 'lacks merit', you could argue against the court awarding ICL costs against you.

4MYDAUGHTER
Yep, I have never heard of the 'hogan rule' and family law either, can you shed some light?
Well hopefully when she hears about the costs for a ICL and psych tests she will think again. Making out I'm a domestically violent person with mental health issues might backfire in her face. I'm worried she'll go for sole parental responsibility and sole care with only a bit of time for me. I've had our girl most of the time. It's worrying. What would costs roughly be for ICL and psych testing? Any ideas?
I believe the "Hogan Rule" refererrd to, and I may well be wrong, is in regard to fitness to plead, applied in the HOGAN & LENNARD (No.3) (2nd April 2008), based upon a contempt matter which appears to require strict rules of evidence as per criminal law. Perhaps it also indicates that fitness to plead should also be applicable in Family Law:

Altobelli FM said
For all practical purposes, even though the term 'fitness to plead' does not neatly fit in the context of family law proceedings, it certainly adequate conveys
the notion of whether the respondent has capacity.

Here's the complete Reason for Judgement:

HOGAN & LENNARD (No.3) (2nd April 2008) said
REASONS FOR JUDGMENT
1. The matter before me today is an application for the husband to be dealt with for contempt. The applicant is the wife, the husband is the respondent. The husband is
the respondent in property proceedings that are listed for hearing on 18 August 2008. He is 56 years old. The wife is the applicant in the property proceedings. She
is 54 years old.
2. On 27 February 2008, the matter came before me. Orders were made after submissions, and the evidence included the affidavits filed by both the husband and the
wife. In relation to those proceedings I made an order on 27 February 2008 and it is Order 2 made on that date that is the subject of the contempt application
before me.
3. I note that the time to file a Notice of Appeal in relation to that order has expired now, but had not expired at the time that the contempt application was filed on 19
March 2008.
4. The affidavit of the wife that was filed on 22 February 2008 explains the context of the order I made on 27 February; namely, that it was necessitated by the
husband's earlier breach of orders made by Judicial Registrar Loughnan. So the context of the contempt proceedings arises out of a breach of an order that was
necessitated as a result of a breach of an earlier order.
5. The wife's affidavit that was filed on 19 March 2008 sets out the basis for the current application; namely, that there has been noncompliance
with order 2 made
on 27 February 2008. In addition, the wife produces evidence that there is a threat from the mortgagee to take possession of the premises. The further evidence
before me consists of an affidavit of the wife's solicitor, also filed on 19 March, and it basically confirms the wife's evidence.
6. The contempt application is of course brought under section 112AP of the Family Law Act 1975. The nature of the proceedings are basically criminal in nature.
The standard of proof is beyond a reasonable doubt. The consequences of a finding of contempt against the husband include imprisonment.
7. Rule 21.08 of the Family Law Rules sets out the procedure to be adopted at the hearing. That Rule provides that I must first inform the respondent of the allegation;
secondly, ask the respondent whether the respondent wishes to admit or deny the allegation, and thereafter the Rule goes on to state that I must hear any evidence.
8. At the commencement of the matter before me today, Mr Schroder of counsel, who appears for the respondent husband, indicated to me that he had certain
concerns about the husband's fitness to plead. I followed the procedure set out at Rule 21.08. I informed the respondent husband of the allegation and asked him
whether he wished to admit or deny the allegation. Mr Schroder, on behalf of the respondent husband, then made submissions in support of an adjournment
application that was necessitated on the basis of concerns about the husband's fitness to plead.
9. The concept of fitness to plead is a concept known under the criminal law. It is a concept that nonetheless applies in this particular type of case; namely, contempt
proceedings arising out of a family law matter. Perhaps it is more better described as whether the respondent has the capacity to make an admission or denial of the
allegation. For all practical purposes, even though the term 'fitness to plead' does not neatly fit in the context of family law proceedings, it certainly adequate conveys
the notion of whether the respondent has capacity.
10. The basis of Mr Schroder's application was his concern in relation to the ability of the husband to understand the nature and gravity of the proceedings and the
consequences of them. He expressed concern about the husband's ability to provide instructions and that led him to have prima facie concerns about the husband's
mental capacity.
Of course it was not appropriate for him to give me examples but he described the situation that he was dealing with as one where there were illogical instructions
that are incoherent and fly in the face of common sense.
11. He sought an adjournment in order to place material before the Court as to his client's medical condition. Obviously that medical evidence is not available today.
12. Mr Gates is the solicitor appearing for the applicant wife. He was ready to proceed today and he opposes the application for an adjournment and has serious
concerns about whether there is any genuine issue about fitness to plead. Mr Gates made the appropriate submission that, based on experience in this jurisdiction,
there are many clients who could be described as incoherent, illogical, do not understand and probably do not listen to advice that is given. He frankly admitted,
however, that he could not comment on the husband's mental capacity, an appropriate admission to make.
13. He pointed out that when this matter was before me last week, no concerns were expressed in relation to the husband's capacity. He also reminded me of the
history of the proceedings and of the gravity of the situation that confronted, it should be noted, not just the wife but the husband too, for if the mortgagee exercises
its power of sale, it will be to the ultimate detriment of both the husband and the wife. In short, Mr Gates indicated that it was the wife's position that the bona fides
of the husband should not be accepted.
14. I have not had time available to find any authority in the Family Law cases about fitness to plead in a family law contempt application.
A comprehensive statement of the law relating to fitness to plead is contained in a decision of the New South Wales Court of Criminal Appeal in R v Mailes (2001)
NSWCCA 155. It is a decision of His Honour Spigelman CJ, the Chief Justice at Common Law Wood J and Greg James J. The decision was handed down on 19
October 2001.
15. It sets out some of the fundamental propositions relating to the issue of fitness to plead. For example, at paragraph 164 of the judgment the Court refers to the High
Courts judgment in Eastman v The Queen (2000) 74 ALJR 915 and cites Gaudron J at paragraph 64:
 Traditionally, an accused person has not been put on trial unless fit to plead because of "the humanity of the law of England falling into that
which common humanity, without any written law would suggest, has prescribed that no man shall be called upon to make his defence at a time
when his mind is in that situation as not to appear capable of so doing." That statement may indicate a positive and independent right on the part
of an accused not to be tried unless fit to plead. It is unnecessary to decide whether that is so. It is sufficient to approach the present matter on the
basis that the common law guarantees an accused person a fair trial according to law and that one aspect of that guarantee is that a criminal trial
cannot proceed unless the accused is fit to plead.
MS HOGAN
MR LENNARD
cannot proceed unless the accused is fit to plead.
16. I observe that, in my opinion and based on the Family Court authorities, for all practical purposes these contempt proceedings are the equivalent of a criminal trial.
17. The case goes on to describe the various contexts in which the question of fitness to plead may arise and specifically the question of when fitness to plead is raised
by the representative of the accused at the commencement of the hearing. At paragraph 179 of the decision in Mailes, the Court quotes Kirby J and other Judges in
the decision of
R v Tier (2001) NSWCCA 53. Relevantly at paragraph 72 of that judgment there appears this passage:
 Where an accused's representative raises a question concerning the unfitness of the accused, the trial judge would ordinarily be expected to accept
that the issue has been raised in good faith. Legal representatives, whether barrister or solicitor, are subject to professional obligations. Once
raised by a practitioner, there is, prima facie, an obligation upon the trial judge to halt the trial and to conduct an enquiry before a separate jury.
18. It goes on to say:
 If, however, the basis for concern is not obvious or the validity of that concern is dubious, it is appropriate for the trial judge to seek an
elaboration upon the matters giving rise to the concern. Where that elaboration demonstrates a real and substantial question, good faith will be
presumed. The question of unfitness must then be determined by a separate jury. It is only where there is patently no real and substantial question
that the Court may impute an absence of good faith and decline to conduct an enquiry.
19. In this case, of course, Mr Schroder raised the issue quite properly and as he was duty bound to do. I asked him to, in effect, explain the basis for his concerns and
I am satisfied that he has properly done so in accordance with the responsibility that is on him.
20. Having heard the concerns expressed by Mr Schroder, I consider myself required by law to halt the trial, to use the words used in this passage, and to conduct an
enquiry. Obviously conducting an enquiry in the criminal law sense is a process that will need to be adapted for family law purposes. It is my intention to adjourn this
matter before me to 24 April 2008 at 9 o'clock at the Federal Magistrates Court at Parramatta so that further evidence may be obtained.
21. I am most conscious of the difficult situation that is created by this adjournment. It is a situation that ironically affects the husband as much as it affects the wife. If it
is the case, and I stress if, hypothetically, it is the case that the husband has embarked on a course of action that does, after due enquiry and perhaps with the
benefit of hindsight, turn out to be contemptuous, if it turns out that at a final hearing findings of nondisclosure
are made, it is possible that the pool of assets that is
available to the parties may still remedy any disadvantage that has been caused or will be caused to the wife. I hasten to say that all of that is said in hypothetical
terms; I do not know how the evidence will pan out in this case.
22. For the time being, it is necessary to establish whether the husband has the capacity to participate not just in the contempt proceedings, but in the substantive
proceedings themselves.
My ICL cost $7000 with a child and family psychiatrist (expert report as the ex tried to rise the old mental health peanut) was $6000. The total cost was divided between him and I.
That was on top of my legal fees that included a barrister and final hearing.
Honestly, the costs are devastating.
In WA the Family Court provides these services free of charge. Is it different in the East?
Hi Fairgo, unsure about the costs here in NSW but I know that I had to pay half as did the respondent.
Fairgo said
In WA the Family Court provides these services free of charge. Is it different in the East?

Even more reason to for the Resource Tax! Share the love around!  O_o


4MYDAUGHTER
Thanks for the feedback.  Hogan Rule is different to what I thought.  LouJane that's a lot of money.  Why does a private family law report writer recommend an ICL? Is it due to the possibility of physical or psychological abuse, or suspected risk of harm from one or both parents? I'd imagine the psych evaluations are the same? Or is it all an posterior overing exercise given parents each make accusations of memtal health issues against each other and they cant figure it out?

 I'm wondering about this 'reasonableness' thing? I don't understand it can someone explain? I heard a similar thing from my solicitor where the 10 year old boy being interviewed in a FLR disclosed that the father smacked the new partners much younger girls quite hard and he'd seen this happening (not sure how often) and that appeared to validate the mothers previous unreported claims of phsyical abuse & intimidating behavior towards the boy when younger. I'm not sure what happened but I got the vibe that the boys disclosure constituted the risk of ongoing as he remained a witness to family violence with the partners kids.  The father apparently just wrote the smacking, intimidating Behaviour that i'm told made the boy very fearful of him and subsequently not wanting to spend much time with him as being acceptable discipline as it did not end up in notifications being made and smacking is not illegal.  I don't get it.

I'm totally disillusioned at the whole process. I'm now wondering if the report will be recommending my daughter has a psych evaluation.  WTF would her mother want to put her through this and also have to pay her own further legal costs, then half of ICL, and her costs for the psych evaluation, and maybe 1/2 for our daughter if it's recommended, when apparently she doesn't have enough to reverse custody as I'm not a mentally deranged person who's alienating her. I think the only positive is I haven't been accused of s/abuse.

I'm still hoping she might wish she had never decided a private FLR was a good idea. My daughter has told me bits and it seems she expressed preference to stay with me. But how do you protect yourself when you're accused of being crazy yet I'm a functional, hard working bloke who's provided great care.        
Hi Guest, you are right in our case my ex made allegations of MH issues so we had to get an expert family report created. The ICL was ordered by the magistrate.
I can understand your frustration as I too was accused of being crazy (see my recent post), it was not the case and after spending $6000 on the report (ordered by the magistrate not the other party) they couldn't find any issues either.
I do hope this works out for you.
I would like to respond to your previous post but I'm having trouble deciphering what you're on about. You thoughts are rather scattered.

What an "FLR"? Do you mean 'Family Law Report'? There is "The Family Law Report' which is an ABC Radio show. Do youi mean 'Family Report' - which is prepared by a 'Family Consultant' who works at the 'Family Court'. When you say "psych evaluation' - do you mean that its been suggested that an 'Expert Witness' prepare an 'Expert Witness Report'?

I ask this because these are all entirely different things, with entirely potentially different costs implications, processes, etc.

What it does tell me is that you haven't done you homework and rather than do some basic research yourself, you're fishing around here for information.

I'm sure people here want to assist you but I'm not sure how they can when you're being somewhat vague and misusing terminology.

Might be an idea to create a profile rather than appear as just "guest".

Last edit: by 4mydaughter


4MYDAUGHTER
Just wanted to add mine, mine was a bit cheaper than others:
psych assessment - $2000 (hard to come up with on other costs but worth it to prove I am sane)
ICL was covered by legal aid (yet I wasn't on legal aid, quite strange in my opinion)
family report $1,480
Actually I have a question about the Family Report generated by the Family Consultant of the court. Do you pay for these? Reason I ask is that I did not have one of these last time, rather the FM ordered the 'expert' report.
4mydaughter said
What it does tell me is that you haven't done you homework and rather than do some basic research yourself, you're fishing around here for information.
You need your mouth washed out with soap 4MD for expecting him to do something properly apart from asking bizarre questions about the Hogan rule?

American company called Google to invent search engine for the poster?

Poster to use 'search' on this site?

Using words like 'cough up for a kids lawyer' and 'a quacks evaluation' and little research is real lead balloon stuff in the FMC.
1. Why are you so interested in me having a profile 4mydaughter? That's odd.
2. Of course I'm "fishing around here". That's the point of this forum "for new users, getting started etc".
3. Doing research myself, um well buddy that's what I'm trying to do.
4. FLR is family law report - PARDON me if I got it wrong mate and if indeed I did it's because I'm new to this.
5. Why would I be deliberately vague. If I knew why would I ask? You have faulty logic 4mydaughtet!
6. In fact vie spent hours on this site and austlii but also enacted to hear real experiences as costs etc often aren't mentiioned.
7.as if I'd say "cough up for a kids lawyer" or "quacks report" in court Conan.
8. So don't state ten obvious and imply you're a learned colleague. Give a bloke a break I'm angry, scared and panicky. Trying to keep it all together.

Judging by what ive read on here today they're are too many big egos with little that backs it in terms of accurate info or intelligence. Your own case does not make you the expert. I was seeking opinions, not expert advice, which I see I wouldn't get from here anyway.
Experience is helpful but mindless paranoia, random comments trying to make yourself appear knowledgable only seek to reveal how little you know or care about helping anyone - did you get that conan and 4mydaughter?

Hogans Rule bizarre? Well none of you knew about it except miket and in fact I'm impressed he found something on it as I've tried everything on google, you dipsticks. It's not relevant anyway but at least miket took the time to pass it on and didn't judge. Good on ya mate.

Loujane thanks a lot. Good info. And the family report wasn't court ordered. As I said I'm not in the litigious stage yet, perhaps just a whisker away had it done trying to avoid court but as I've seen some women, and men to I guess just use it to further alienate you.

So 4mydaighter you bet your back side I'm hunting for info, just like you and plenty of others have done or are doing now when they have to fight to prove their fit to parent and see their kids and don't gave a spare 100k lying around.  Really mate, there's a word blokes use for people with your attitude.  It begins with W and ends in ker.  Try helping someone, get ya hand off it, and STOP posting just to see your own name.

if anyone has anything else they think is helpful I'd certainly appreciate it. Oh yeah. If you got one magistrate in the FMC do you het the same one again or is it pot luck?

 
Guest said
…If you got one magistrate in the FMC do you het (bet) the same one again or is it pot luck?
The Federal Magistrates Court try to retain the same Magistrate where possible but it can depend on how far through the system you are. They try to keep the one Federal Magistrate who has history with the matter. This is not always the case however.


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
 
Guest - the court is interested in three things:

1) The ability of the parents to provide emotional support for their children.

2) The practicality of the care both parents can provide for their children.

3) Consideration of significant other person/s in the child's life.

Given the mother has remarried and had twins, I think the court would see that as a significant change and that she has plenty of capacity to support the emotional needs of the family. Also the twins will now be seen as significant others as well as the step father.

The attitude you display on here is not going to give you any credit in court.

What will most likely happen is that you will lose the case and the Judge will use the family report to
show that you are not the fittest parent to have majority care. The court will still want you to pay child support so will still have a shared parental responsibility order.

Sorry for the bad news - perhaps you should mediate instead of going to court.
Guest said
1. Why are you so interested in me having a profile 4mydaughter? That's odd.
2. Of course I'm "fishing around here". That's the point of this forum "for new users, getting started etc".
3. Doing research myself, um well buddy that's what I'm trying to do.
4. FLR is family law report - PARDON me if I got it wrong mate and if indeed I did it's because I'm new to this.
5. Why would I be deliberately vague. If I knew why would I ask? You have faulty logic 4mydaughtet!
6. In fact vie spent hours on this site and austlii but also enacted to hear real experiences as costs etc often aren't mentiioned.
7.as if I'd say "cough up for a kids lawyer" or "quacks report" in court Conan.
8. So don't state ten obvious and imply you're a learned colleague. Give a bloke a break I'm angry, scared and panicky. Trying to keep it all together.

Judging by what ive read on here today they're are too many big egos with little that backs it in terms of accurate info or intelligence. Your own case does not make you the expert. I was seeking opinions, not expert advice, which I see I wouldn't get from here anyway.
Experience is helpful but mindless paranoia, random comments trying to make yourself appear knowledgable only seek to reveal how little you know or care about helping anyone - did you get that conan and 4mydaughter?

Hogans Rule bizarre? Well none of you knew about it except miket and in fact I'm impressed he found something on it as I've tried everything on google, you dipsticks. It's not relevant anyway but at least miket took the time to pass it on and didn't judge. Good on ya mate.

Loujane thanks a lot. Good info. And the family report wasn't court ordered. As I said I'm not in the litigious stage yet, perhaps just a whisker away had it done trying to avoid court but as I've seen some women, and men to I guess just use it to further alienate you.

So 4mydaighter you bet your back side I'm hunting for info, just like you and plenty of others have done or are doing now when they have to fight to prove their fit to parent and see their kids and don't gave a spare 100k lying around.  Really mate, there's a word blokes use for people with your attitude.  It begins with W and ends in ker.  Try helping someone, get ya hand off it, and STOP posting just to see your own name.

if anyone has anything else they think is helpful I'd certainly appreciate it. Oh yeah. If you got one magistrate in the FMC do you het the same one again or is it pot luck?

1. I'm not really interested in you creating a profile. Bit its hard to tell one 'Guest' from another 'Guest' and therefore difficult for members to follow particular matters. Or do you expect myself and others to comb though the site searching posts by 'Guest' to see if we can locate information to help us understand your questions so we can provide you with answers?
2. If you registered you'd be asked some questions about family law and might learn what you do or don't know.
3.
4.
5. "I'm wondering about this 'reasonableness' thing". Vagueness doesn't help posters here respond with useful information.
6.
7.
8. "Give a bloke a break I'm angry, scared and panicky. Trying to keep it all together." Well pull yourself together. We've all been there.
9. If you want expert advice… go get a lawyer! Otherwise be grateful to the people here who are donating their time and energy to assist you in this forum.

I just read the previous posts in this thread, in particular mine, and I can't see anything written in these posts that might justify calling people 'w***kers', etc.



Last edit: by 4mydaughter


4MYDAUGHTER
1 guest and 0 members have just viewed this.

Recent Tweets