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Appeal hiccups

So what do members think of this as a scenario? SRL participates in fairly minimal but perceived to be slightly predetermined and had an anti dad feeling about it. Lengthy delay awaiting judgment that would be offensive to any loving parent to be expected to accept & simply carry on. Appeal lodged & after procedural hearing a half day set aside to hear it.Due to a Registry oversight of sorts he is supplied with transcripts of his cross examination of the mother, or should say what he was allowed. Also the few token questions put to her from ICL. SRL was confused reading reasons of final hearing that judge states twice he had chosen not to cross examine maternal grandfather and in that regard SRL's allegations are ignored and Mat.GF's denials are accepted.
As SRL unable to purchase any transcripts he decided not to dwell on it.
That changed when reading the mystery transcripts whereby with 15 mins. remaining of day 2 of 2 day hearing & judge telling him to again wrap it up as nearing end of day, judge remarks about there being 2 witnesses remaining & directly asks SRL " Do you wish to put questions to the mat.GF …..Mr(SRL)?
(SRL)= Oh yes,yes I do Your Honour.
15 mins. later after few more questions she says "right that's end of today , we will all be back here in 1.5 weeks time & you each will have 30 mins. for closing addresses."
Witness(mother)withdrawn & end of extract.

SRL's appeal had grounds of inadequate reasons tied into this error of fact as well as 5-6 more howlers that judge had documentary evidence showing these howlers wrong also.Added statements suggesting ' operational delay " appeared to muddy judges recollection etc. etc. & as clearly shown in transcript what is later recorded in reasons is wrong, the entire judgment is unsafe as nowhere is statements assuring party of unimpeded recollection of proceedings etc. etc.

SRL in the process of ap[peal judge ripping him a new one to further intimidate & stress SRL he was told " no i'm not regarding 7+ months wait for judgment & basically good luck getting upheld as you don't have the entire proceedings transcripts! WTF !!??
He has now reserved appeal judgment & as a direct sledge at SRL (complete with smug smirk to ICL Barrister) told him " & you better expect you wont be getting my judgment anytime within the 3 months.
In my submissions I mentioned that the courts own publications state most reserved judgments are usually delivered within 3 months,hence mine being 7+ was unusual.
The other howlers/errors of facts relate to one of them a time I attended mothers parents home which got twisted for facts of which judge believed the rubbish but as she wrote it up in reasons she adds "SRL knew full well mother and child were living there & should come as no surprise child was there when he arrived and was understandably upset".
Disregarding the fact child was school age, it was a school-day Wednesday at 11.30am but as the mothers own testimony/evidence along with SRL's show , the mother and child had not been living at her parents place for 9-10 months !!!

That wont appear on any transcript that I can fathom as its in affidavit evidence so - (a) Are they errors of facts and (b) Are you expected to purchase entire proceedings transcripts if you hope to have appeal upheld ??
I am so f*^king over this ship!
Thank-you.
Judge then
fotsy.

Grounds of appeal need to demonstrate an error in the application of the law.. How do your alleged "errors of fact" do this?







Any opinions expressed herein are strictly for informational purposes and are never to be taken as legal advice.
fotsy.

For some reason, even unknown to me, I have decided to come back here and offer you a more detailed answer.
In terms of your alleged “errors of fact”.  Obviously what you need to do is to think about how these alleged “errors of fact” can be argued (by you), with evidence (e.g. excerpts from the transcripts) so that you can persuade the Court that the errors have somehow prejudiced the decision/led to the law not being applied correctly.  Basically what you are trying to prove is the Judge/decision maker “got it wrong”!

While a lot more could be said about appeals, l will endeavour to respond to your post with some of my own basic observations/opinions.

No cross examination of grandfather.
It is not enough to merely allege the judge was in error because you didn’t get the opportunity to cross examine a witness.  What you need to show with relevant facts/evidence, is not only did the judge disallow this cross examination, but the evidence from the cross examination was critical to your case and the outcome of it.

7+ month wait for the decision to be handed down.
This is not an error of fact but rather just a fact.  What is your argument here?  Is it that the Judges recollection of events were compromised due to the delay?  That this impairment was so extreme that it led to significant error but only for some of the facts? Is it your contention that the Judge would have drawn different conclusions had the judgement been handed down in 3 months as opposed to 7+?

Yes, having to wait for 7+ months for a reserved decision could be annoying/stressful/frustrating and yes, delays could lead to lessened clarity of the facts and possibly a greater chance of error, but how does this prove that the delay led to error in your case? Not all 7+ month delays will result in appealable error, just as not all judgements handed down within 3 months will be free from appealable error.  A delay is not an error in itself and evidence that the delay resulted in error is needed.

It would be interesting to know if oral judgement preceded written.

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This is a matter of weight and judicial discretion. What other evidence did the Judge draw their conclusions from? You will need compelling evidence (note that I again referred to the word evidence) to show that the decision was in error because of this.

Mum and child were at grandparents when you went there.
I would question why it was that you were even at the maternal grandparent’s house in the first place especially when by your own accounts the mother was not living there and it was a school day so the child was meant to be at school, but anyway…

Pointing out a couple of mistakes in the reasons for judgement (and I’d be willing to wager all judgements have at least one mistake in them) when a decision is made on all of the facts does not automatically place the Judge’s decision in error.The mistakes raised need to be relevant.

Transcripts.
If the evidence you require to prove your grounds is in the transcripts, which I would imagine they are, then yes, of course you will need them.  This is an appeal and the Court is not just going to accept what you say on face value.


fotsy, even seasoned barristers don’t always get their clients over the line.  Just look at how many appeals are dismissed!  If you are going to have any chance of winning this appeal then you are going to need to do some very serious homework!!


Some Definitions:

Error of Fact: A mistake made by a decision maker about the existence of particular information having relevance to a legal issue.  Generally a simple error of fact is not a ground for judicial review

Error of Law:  Misinterpretation or misapplication of a principal of the law or the application of an inappropriate principle of law to an issue of fact.

Procedural fairness:  Common law principles implied in relation to statutory and prerogative powers to ensure the probity of the decision-making procedure of courts and administrators.  The term is used interchangeably with Natural Justice.  The 3 rules of procedural fairness are:

    Hearing rule:  The principle that a decision maker must afford a person whose interests will be adversely affected by a decision an opportunity to present his or her case.  Breach of the principle by the decision maker is denial of procedural fairness.

    Bias rule: The principle that a decision maker must not have an interest in the matter to be decided, or bring to the matter a prejudiced mind.

    No evidence rule:  The principle that an administrator’s decision must be based on logically probative evidence.

(Source: Concise Australian Legal Dictionary 3rd Ed, Butterworths)
 

Any opinions expressed herein are strictly for informational purposes and are never to be taken as legal advice.
Firstly, I hugely appreciate you taking the considerable time SWAMBO to reply with such a thorough reply( even if you couldn't resist having a wee dig at its start ):oLook I know I've earned the wrath of some here whom couldn't understand where I was coming from or why I was firing up over points that seemed pointless to others.
I don't know what I'm doing & I never have during this 3+ year torturous journey through this debacle. That is when one views the ordeal as if I was a legally trained litigant or even a pathological liar, perpetrator of violent abuses to an ex partner & child whom presented otherwise and was comprehensively found out and exposed as being all of the above throughout proceedings.
I have fought for my child's & my rights to love each other & progress our relationship together. I certainly haven't contested the matter in any way shape or form trying to mislead court, damage my child psychologically,intimidate the mother,show contempt for legal system,break rules,commit offences,bully,lie,manipulate or gain an unfair advantage for myself utilizing any of the above.
I will simply never understand the system that barks so many contradictions and hypocrocies . I know im scared as hell due to realization the case's open status on multi prongs will be ruled as finalized & end of the line & a lid will be sealed on the real & valid issues that have come about as a result from  farcical attempt to pass the disgusting example of picking the mum as a worthy & sympathy inducing litigant on initial first glance & conducting, manipulating,denying facts, logic ,human decency & ignoring the human being's DNA & predetermined physiological cell structure,genealogy & evolutionary programming.
I simply am not wired up to be able to accept something that is so utterly wrong,harmful,cruel that shall be ordered from a court of law that refused to implement its infinite powers in any shape or form at all to the multitude of criminal offences , court rules,regulations,time honoured expectations and civilised common courtesy to societal members.
If it wasn't already harmful enough to ones sanity on entering court unable to fathom why/how an ex partner & co-parent of such a blessing harboured such hate & determination to destroy ones future that they are completely blinded to the instant, lasting harm and abuse their misdirected sense of righteousness & false love is causing that child.
To force ones own delusional beliefs on ones own child is simple child abuse.

The Appeal,

Through months of researching to the point of mental exhaustion & physical ill health I presented it as logically & methodically as I could fully aware that most of it was rehashing the very information, points & evidence that was before the lower court judge.
What I got was nothing short of disgraceful,closed rank,intimidating bullying from a new judge who took great delight at screaming & yelling at me for best part of 3 hours reminding me how stupid I was compared to him.
Suggesting several times that I was lying was daunting . The inhouse jokes complete with double entendres & smirks at opposing counsel was near vomit inducing.
Best interests of a child are paramount ? Give me a break. Literally lost count of the perjured affidavits sworn & filed that includes the very lawyer of the mum deposing her own affidavit to a misleading state of affairs that I subsequently busted them for when I became aware they had possession of paperwork that proved what they claimed in affidavit was 100% a lie & they were aware of that but filed knowingly false & misleading affidavit any-hows.
So what ? This formed the basis of including a certain condition in final orders that had direct input into my losing newly found employment.
This nearly had direst of consequences to my committed approach to rectifying the financial mess that I was lumped with at separation that included very nearly losing the stable residence that is the child's former family home as well as nest egg( in my eyes at least).
Financially unable to comply with this ill-gotten condition sees what tiny amount of time with child suspended.
Now granted , I have made noise about this very issue as again I cant find reason on how it is in my child's best interests for the judge to be aware that not only has witness(mum) relied & continued using knowingly false & misleading affidavits which are a breach of god knows how many rules,regulations,practice & policies but that an officer of its own court has gone 1 step above that & personally filed a separate, equally false legal document…..because……..we're in a court of law not having a debate down the fish & chip shop.
As such rather than demonising me for alerting of facts that the very actions are so polar opposite to the fundamentals of administration of justice, they're icing up !
How about the judge "running proceedings as they see fit" & " conducting proceedings in a less formal atmosphere" & using that intelligence that I fully agree you have over me in spades due to your further tertiary education & simply have the offending charletan front you & ask " did you file this affidavit when this other document was in your possession? "
" You did ? Well it appears all that fretful noise the father was making was justified & court should delve deeper into the claims of the mother & test the fathers repeated theories that court already holds all the evidence it needs to determine the mum contradicts and changes her evidence to suit."
I got a random SMS from my child few weeks ago stating she misses me terribly & cries most weekends due to it. Now she wasn't like that when we split up & is a direct result from the court because of actions from the mother drawing this ordeal out for so long.
So in layman's terms this looks like ending with child obviously doing no wrong & losing a daddy.
Daddy doing all asked of him throughout case, owning bad behaviours,apologizing & simply wanting fair involvement with the child yet being ruled as basically irrelevant & punished by losing child & parental responsibilities despite no abuse to child at any stage of life.
Mum is causing child emotional,real, observable harm by co-opting her delusional beliefs on a child so reliant on that parent even more so perversely due to banishing of other parent. No punishment in fact is rewarded by full live with/parental responsibility & granted wish to never have to front ex or GP's ever again & bear consequences of her own conscience.
Lawyer guilty of several offences & breaches of rules,obligations etc., makes a financial killing leeching 3+ years taxpayers dollars via legal services commission, chalks up another win on the reputation bedpost & cares not for any harm his actions have & will have on child or either parent.
If anyone can honestly tell me my child's best interests are being served in what boils down to infinite power of god like "discretion" fed by over inflated egos & grossly out of line demanded false worship of a leader of a section of society whom should know way better & has disgraced the very field they claim to champion for -LAW.
" When a decent man puts all his living faith in a system that will fail him so utterly, have faith an utterly decent man will create his own  living system "
Tried there way & they simply had to tell truth & play fair same as me to get fair judicial ruling.
Fotsyfots the only consoling support I can give to you is that you are not alone, the system is a complete disgrace and that there are a number of us involved in attempting to make serious changes and reforms to this archaic and failing system. Your daughter will seek you out. I have no visibility of your outcome and orders but stay in contact at whatever opportunity you can including school and related functions. My reply is in haste and is hardly worthy in view of the significant posts you have made. There will come a time when you can make further application for additional changes.

Executive Secretary - Shared Parenting Council of Australia
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I appreciate your consoling words. Ive got 1 more hearing next month & I'm committed to attending that & give it 1 final almighty crack. If that's all to no avail…..well time to start seeking out the medics I guess as to learn how exactly one is to live 10kms from their child whom this archaic broken sham of a system have for no right reasons decided their relationship and god given rights are defunct.

That I find to be the hardest as in constantly thinking things from my daughters perspective and it's literally killing me.

Keep up the behind the scenes work that you members do .
Is it just me or do others see the connection regarding the blind bureaucracy that sees to a select few decision makers lacking the guts to implement the drastic changes that the majority agree need changing to simply meander along causing untold damage to otherwise good productive members of society and of course generations of this countries future leaders ?

We as a country, obviously learned nothing from the disgrace that was the " Stolen Generation " of 1910-1970.

Obviously the "apology " of February 13 2008 was simply another PR stunt for votes.

History indeed does repeat !!
fotsyfots said
Ive got 1 more hearing next month & I'm committed to attending that & give it 1 final almighty crack.

Are you adequately prepared fotsy? Are all of your documents in order? Have you given thought to the arguments you intend to run and how you will run these in the most effective way to enhance your case?

If you have any further questions we'd be happy to try to answer them.  Good luck

Any opinions expressed herein are strictly for informational purposes and are never to be taken as legal advice.
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