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A "must read" decision - Sealey & Archer [2007] FamCA 432 15/05/2007

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FAMILY LAW - CHILDREN Best interests of a child - With whom a child shall live - Relocation interstate

The presiding Judge has presented well considered reasons for judgement.

Basically, the 3 children live with Dad, and Mum has the right to exercise what is effectively 50/50 if she choose to fly in from her new home interstate.

The usual arguments were used to support the mothers attempt to relocate the children. Primary Carer, Dad a control freak etc.
I strongly recommend everyone read the Judgement - it provides a very useful insight into the court's decision process, including citing Judgements relating the 2006 amendments and others on the issue of relocation. Truly a long but very usefull read for anybody going to court in a family law matter.
The Judge also took the unusual step of complimenting the Father's Counsel in the Judgements.
Site Admin OneRingRules said
This judgement is already on the FLWG in Judgements of interest (Post from topic 'A "must read" decision - Sealey & Archer [2007] FamCA 432 - 15/05/2007 ', posted on 15 July, 2007, 10:26 PM by OneRingRules) but it is very interesting to see that Google in fact returns this judgement as authoritative on the Family Law Web Guide site.
Read this essential judgement here

For me - Shared Parenting is a Reality - Maybe it can be for you too!
Why do we not have more Judges like Justice Le Poer Trench.

I suppose the time for such reasoning is beyond that needed.
Should definitely be more Judges like this. I'd like to see more examples of relocation cases with a less than predictable outcome.

I just got handed down my judgement recently in a relocation case where my ex and her new partner unilaterally relocated to South Australia while we had shared equal care in place.

The magistrate allowed her to remain in S.A. and continue shared care for the interim orders (flying my daughter back and forth) and for the final orders that the shared care remain in place until my daughter starts prep-school. Then I will only get to see her mostly on holidays.

I was hopeful that in the light of the new "shared care" changes, I would have a favourable outcome but unfortunately it didn't turn out as planned and I don't think the system has really changed.

I've learned the hard way about how the system really works. If I could wind the clock back and have the knowledge that I do now, I would have NEVER stepped foot in the court room OR the Family Report Writers office.

I think relocation cases should have a specific section in the law to address at least the most basic issues. Because of certain "loopholes" in the Family Act, it has made it possible for my ex to relocate my daughter even with shared care in place.

I'm at a loss in terms of what to do next, any advice would be appreciated, I have 20 days left to appeal… :'(
Dudeski - 27/12/07 said
I'm at a loss in terms of what to do next, any advice would be appreciated, I have 20 days left to appeal
Do you mean your Orders were made about the 10th Dec 07?Have you received a copy of the "reasons for Judgement" yet?

If not this can be good reason for an extension of time to appeal. Appeals are expensive and complex while Writs are a Form 2.

Do you have a copy of the transcript?

An Appeal is easier to work out with the "reasons for Judgement" so you can refer to an error at Law, inappropriate weight give to some evidence and not enough to other evidence or right of the Child.

Were there Court Orders in place before your Ex went to SA?

If so was a Contravention or Contempt of Court Order sought with make-up time sought and/or granted?

Depending on what occurred and was said by the FM and both parties a Writ of Certiorari to quash the relocation Order might be the quickest way to go but needs suitable grounds for it to be made by obligation. They are other than a proper application of the Law i.e. the location of the majority of the immediate family members are in your area not the mother's.

What was the reason for yr Ex moving to SA?This is just a start of the questions needed to be answered before you go for Appeal or Writ.Note the Writ can be sought to be transferred to the Federal Court by an application under section (s.) 39B (1EA) of the Judiciary Act 1903 unless there is a National Security Information issue attached to your matter (case). This section also proves the FM Court (FMC) has the power pursuant to s.15 of the FM Act 1999 to make such Writs if the Court thinks appropriate.

Have you found the internet access to the Acts and Rules?

FMC Acts applicable
http://www.fmc.gov.au/law/html/acts.html

FMC Forms
http://www.fmc.gov.au/services/html/family.html

This will give you the Commonwealth Acts:
http://www.austlii.edu.au/au/legis/cth/consol_act/

This will give you the Commonwealth Rules and Regulations:
http://www.austlii.edu.au/au/legis/cth/consol_reg/

This link will give you all the above and Commonwealth Case Law:
http://www.austlii.edu.au/databases.html#cth

http://www.austlii.edu.au/au/legis/cth/bill_em/flaprb2006510/memo_0.html

http://www.fmc.gov.au/services/html/family.html

http://www.fmc.gov.au/law/html/acts.html

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED
http://www.austlii.edu.au/au/legis/cth/bill_em/flaprb2006510/memo_0.html

Schedule 1
The amendments in Schedule 1 recognise the need for a cooperative approach to parenting.

The amendments promote the object of ensuring that children have a right to have a meaningful relationship with both their parents and that parents continue to share responsibility for their children after they separate.

The amendments also reinforce the primary importance of the object of ensuring that children live in an environment where they are safe from violence or abuse.

These are the starting points for a Writ or Appeal, that is the definition of a meaningful relationship?

What is a meaningful relationship and how can that be continued from afar, I assume the majority of family members (father and father's family and the mother's family) are close to you not her so they lose to the Child of all other family in benefit of the mother's want rather than the Child's needs. S.142.2 Criminal Code Act give grounds for both Appeal and Writ of Certiorari due to breach of giving benefit to a mother's wants over a child's rights and needs to the detriment of the father's existing relationship with the Child. Additional detriment would be lose to the Child and Grandparents, or reduction of existing, relationship with other family members.

The SRL site would be your best bet but if you are in Melbourne whisper me and I will talk to you off line (ph)
No-Justice said
Do you mean your Orders were made about the 10th Dec 07?Have you received a copy of the "reasons for Judgement" yet?
Orders were made on the 20th Dec and I haven't received a copy of the judgement or transcript.
No-Justice said
Were there Court Orders in place before your Ex went to SA?
There were no orders in place, I gave her standard orders to sign after separation, she refused to sign them.
No-Justice said
Depending on what occurred and was said by the FM and both parties a Writ of Certiorari to quash the relocation Order might be the quickest way to go but needs suitable grounds for it to be made by obligation. They are other than a proper application of the Law i.e. the location of the majority of the immediate family members are in your area not the mother's.
Mother has no family in S.A., I have my mother and father (my daughters grandparents) in the immediate area and many other relatives.
No-Justice said
Have you found the internet access to the Acts and Rules?
Yes I've been looking at other relocation judgements on the fmc website.

I'll have a read of the other links you've posted, thanks for your advice No-Justice.
This is not advice, which can only be given by a solicitor.

This is information for you to research and decide on acceptance or do other research only.  

I am not a solicitor but have 6 years in Family SRL where the Family Court Judges want to put me in jail or the next best thing of deny my children contact with me because of their other than law-full behaviour in my view, others claim the soft c*ck of bias toward a father.

<span%20style=" rel="nofollow">http://www.fmc.gov.au/pubs/html/extempore.html#appeal  site supplies;

You only need a copy of the court's orders to file an appeal. Time limits apply to the commencement of an appeal and you should not assume that a written decision will be available before the time limits have expired. The time for an appeal runs from when the court made its orders, not from when written reasons are produced.

If you want written reasons before an appeal you should make the request to the court for a copy of the reasons as soon as possible. You do not need to make a request for written reasons after you file an appeal. once the court is informed that there is an appeal, the reasons will be produced for the appeal court.

This fact sheet provides information only and is not a substitute for legal advice.

As you can see the Transcript is subject to the FM's amendment so is not a true copy of the events therefore may be able to be challenged as "other than a true copy of the proceedings".

The Law requires a true copy of the proceedings so only a solicitor or Attorney General might be able to answer how a FM might lawfully change a transcript.



Are you in Melbourne as this would be easier? What State are you in?

If you have 28 days from the date of the Order, that would be 17/01/08 my Ex's birthday lol.

Added 29/12/07

FM Practice Direction: No.2 of 2007;   <span%20style=" rel="nofollow">http://www.fmc.gov.au/practice/html/022007.html 

Family Dispute Resolution - applications for orders under Part VII Family Law Act 1975

Introduction

From 1 July 2007, applicants wishing to apply for an order under Part VII of the Family Law Act 1975 will be required to provide a certificate from a registered family dispute resolution practitioner, unless there is an exception to this requirement under section 60I(5) or (9). From a date yet to be proclaimed (expected to be 1 July 2008), the exception under section 60I(5) will cease to apply.  This requirement will apply to all applicants for an order under Part VII, including those seeking changes to an existing order.

This Practice Direction sets out the procedural requirements for applicants who seek to file an application for an order under Part VII of the Family Law Act 1975 in the Federal Magistrates Court of Australia.

Was "a certificate from a registered family dispute resolution practitioner," supplied to the FM Court as required by FM Practice Direction: No.2 of 2007?

If not, this could be a place to start an Appeal or Writ of Certiorari (check FM Rule 44.14)

Without knowing the details of your matter it is hard to suggest solid grounds for either Appeal or Writ.

Appeal would take about 3 to 6 months, a Writ is an normal application therefore is heard in the normal listing time unless, as I would in your case, seek an abridged listing due to the unreasonable stresses placed on a child of requiring constant air travel to exercise their right created by Law to have a meaningful relationship with all their family members, (most appear to be with you not SA).

Did you present argument in support of section 60I.(3) of the Family Law Act, that is:

60I.(3) Additional considerations are:

(b)  the nature of the relationship of the child with:

       (i)  each of the child's parents; and

       (ii)  other persons (including any grandparent or other relative of the child); (my thinking is this would include establishing prior patterns of contact between the child and the Grandparents, Aunties, Uncles and Cousins  including childminding or day-care like contact, family gatherings eg Xmas and birthdays. How many family members are now estranged from your child by distance that you did have contact with before the move to SA?)

  the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; (my thinking is relocation demonstrates a lack of willingness to facilitate and encourage a close continuing relationship between you and the child by placing distance between the two of you.)


(d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (my thinking is relocation is to cause the child to dread contact with you because it requires the child to endure major travel times probable more than 4 hrs being from the child's home to your home, not just the flight time.)


      (i)  either of his or her parents; or (The additional cost of the personal cost travel may be within the means of the parents today but who can guarantee the physical and financial ability of the parents and child in the future the changes will cause? Who has the crystal ball, I don't do you or the FM? Case Law is FM and Judges thinking of yesterdays Laws, the Law has evolved therefore the case Law of yesterday is not relevant. It is the Law of the Acts of Parliament that must be relied on and Case Law of yesterday caused to stand mute or expired.)


      (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; (as I said at (d))


(e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis; (as I said at (d)(i))


(f)  the capacity of: (as I said at (d)(i))


      (i)  each of the child's parents; and


      (ii)  any other person (including any grandparent or other relative of the child);  to provide for the needs of the child, including emotional and intellectual needs;


(g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;.


My thinking is this would include establishing prior patterns of contact between the child and the Grandparents including childminding or day-care like contact, family dinners and get togethers now made distressing by the need to travel great distances.


Travel over 45 minutes has been claimed by child psychologists as unreasonable and distressing to the point of causing the child to dread the contact with the other parent. My thinking is relocation is, with odd exception, Parental Alienation of the most heinous type.


To me the Case Law you are reading is out of date to put it in another way. It must be impressed on the Courts the Law has changed so existing Case Law is irrelevant and it is the desire and direction of Parliament by the New Laws that is relevant.


I hope there was no violence on your part to undermine these directions of thought. Were the Orders you sought your Ex sign, agreed to by her in front of any person like a registered family dispute resolution practitioner, if so those Orders might be enforceable pursuant to the Law of "Promissory Estoppel".


You would need evidence of the verbal agreement, which would be the Resolution Practitioner's written records and testimony. Maybe another ground for a Writ to quash the relocation by claiming the ability to exercise your right of interaction pursuant to the verbal agreement was made unreasonable by the relocation. "Promissory Estoppel" hinges around legal unity, reasonable and unreasonable promise and ability to exercise a right granted by a promise. "Promissory Estoppel" is primarily civil contract law but has been stated by the High Court as applicable to all verbal agreements where there is evidence to support the agreement was made.


Hope these thoughts help your direction of action and impress on you the urgency to quash the Relocation Order in an abridged hearing, otherwise a status quo could be established.


When the Executives of this site come on they might be able to help you better than I.


Have a Happy New Year

Last edit: by No-Justice

Basis of Appeal - Error in Law by Judge

No-Justice said
This is not advice, which can only be given by a solicitor.

You only need a copy of the court's orders to file an appeal. Time limits apply to the commencement of an appeal and you should not assume that a written decision will be available before the time limits have expired. The time for an appeal runs from when the court made its orders, not from when written reasons are produced.
The appeal is not against orders but rather that the judge "got it wrong" on a point of law.

Are you saying the appellant must pay his $1,000 before actually getting to assess if he has grounds for appeal?

Judges like Barry J tried this one on but he got found out and the Full Court did not agree with him.
No-Justice said
When the Executives of this site come on they might be able to help you better than I.

Have a Happy New Year
Thanks again no-justice, the first thing I will be doing this Monday is applying for an extension since I haven't received the detailed judgment yet.

I know what you're saying about all the points the FM has to weigh up but at the end of the day I see this as a poker game, whoever has the best hand wins and the "primary care giver" always holds a wildcard.

My ex is living in a "family" unit with her new partner and a new baby girl. I think a "half-sister" trumps grandparents and relatives. She has a full house and all I got is a pair of jacks :(

I just need to buy more time in terms of shared care until my next hand of cards gets better.

The courts are like a casino, naive males think they have a chance of winning…
Dudeski said
Thanks … the first thing I will be doing this Monday is applying for an extension since I haven't received the detailed judgment yet.
So you are saying that 28 days does not start when you get Reasons for Decision.

Who has said you need an "extension"?

In my view, courts tend to delay for a month, just to see if you will get sucked in.

The trick is to badger the associate to the judge until you GET the Reasons!

Relocation

I want to relocate but it's not to alienate my ex from seeing our child. It's because the landlord is a tight-A… and won't fix the place up.

It seems the further inland I go the cheaper and more spacious it will be for our child, but I know my ex won't see it like that and try and make it as hard as possible for me.
There are some web sites that have shared housing accommodation for single parents. This might be a better option.

Regular contact with a Dad is really important for children.

If you move away, you will definitely have to consider conceding overnights - possibly earlier than you would prefer.

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 a Lawyer so don't think or imply I am.

Guest said, ""got it wrong" on a point of law", this is a ground for appeal.

Guest said "Are you saying the appellant must pay his $1,000 before actually getting to assess if he has grounds for appeal?"

It is up to you to decide if you have grounds for appeal.

The first and normal way to seek to challenge the thinking of a Judge or the like is Appeal but when the grounds are of certain types then Writs can be sought which are normal applications in the Court and not so costly.

A Judge of the Appeals Court could exercise their Appellant Supervisory power to grant a Writ of Certiorari which quashes the offending Order and is what is sought if there is a clear injustice, unfairness or clear improper application of the Law. These are some grounds that can cause the Writ to be granted by obligation.

On the first hearing of the application for the Writ or on an abridged procedural application, the application will need to be sought to be transferred to an Appeals Judge. A case for a listing before an Appeals Judge could be made on making the application for the Writ, you could need to establish grounds to prove undue harm is being caused if the application is not listed before an Appeals Judge for its first listing.

The Common Law requirement of a Judge with Supervisory powers over the Judge that made the Orders made due to "got it wrong" on a point of law" might be enough.

If the Judge had a discretion, not obligation, to apply the Law the way he/she did. Granting of the Writ of Certiorari is discretionary and Appeal would be more approved of than seeking a Writ to correct the offending Orders.

"got it wrong" on a point of law" sounds more like an appeal application not grounds for a Writ of Certiorari.

Do Not attack the Judge unless it can be proven he/she intentionally did what they did to cause an injustice. They read the Law the way they want to and it is up to you to prove beyond doubt they got it wrong.

Guest said My ex is living in a "family" unit with her new partner and a new baby girl. I think a "half-sister" trumps grandparents and relatives. She has a full house and all I got is a pair of jacks.

No the Court is not like a game of poker or should not be.

The Law makes special mention of Grandparents and relatives so I don't believe you have been trumped. The half-sister is too young for a meaningful relationship in the same way as that of older children and Grandparents. Grandparents are coming to the end of their time and can contribute to the child in question, the new child interacts when the mother does so again I say the Grandparents consideration should be granter than the new child who con not talk or play yet.

The more benefits you can think of and denial of those benefits the better your position I would think.

Clarity and Definition: Writing with the Reader in Mind

No-Justice.

Please aim for accuracy, clarity and detail/definition when offering information.

Write with the reader in mind. Ask yourself: "Will he know what I'm talking about? And understand it as I've written it?"

Also, please do not assume people know what you are talking about re terms, etc.
No-Justice said
Guest said, ""got it wrong" on a point of law", this is a ground for appeal.
Why say that and not give the full quote?  You left out the bit about the judge.  Doing it the way have could leave a person, unfamiliar with courts and the law, with the impression that if they got things wrong on a point of law that that was a ground for an appeal.  Which couldn't be further from the truth.
Guest actually said
The appeal is not against orders but rather that the judge "got it wrong" on a point of law.
Additionally, I'm not sure about the following assertion:
No-Justice said
It is up to you to decide if you have grounds for appeal.
Ultimately, I understand that it is for another judge(s) to decide if you have grounds for an appeal.  And if he gets it wrong a person may well be up for significant costs (for taking up the court's time).  Yes, a person must decide if they want to appeal, but he should be very certain of the basis and probably have sought legal opinion about the validity of the basis for the appeal and the likelihood and chance of success.

You appear to like using legal terms.  Terms that I would suggest most people are unfamiliar with and would need some explanation of:
No-Justice said
…Appellant Supervisory power to grant a Writ of Certiorari…
So what is an "Appellant Supervisory power"?  And what is a "Writ of Certiorari"?

I don't believe in over thirteen years that I heard these terms used.

Please write with your audience in mind.  Thank you.
Sorry I couldn't resist looking this up, so found this.

Words related to writ of certiorari

Related / Similar Words: certiorari

# Definition: a common law writ issued by a superior court to one of inferior jurisdiction demanding the record of a particular case.
To No Justice and anyone reading his posts:

No Justice tries to illustrate his knowledge by the use of writs and other unusual procedures that even very experienced Barristers would shy away from using. In essence he uses the layman's privilege of reading through any laws to find ones that he 'believes' relates to his case.

His actions have been spectacularly UNSUCCESSFUL in both the Family and High Court. In the High Court Kirby used the legal equivalent of describing him as a 'fool'.

Taking advice from No Justice is similar to taking legal advice from the other side's solicitor: some might be useful and the rest will ensure a bad outcome and the possibility of the dubious status of 'vexatious litigant'.

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

Legal Definitions

The straight legal definition's are:

Certiorari is available as an incidental remedy to the remedies of mandamus, prohibition or injunction in the High Court of Australia due to the effect of s75(v) of the Australian Constitution.

A writ of mandamus or simply mandamus, which means "we command" in Latin, is the name of one of the prerogative writs in the common law, and is issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly.[1]

Mandamus is a judicial remedy which is in the form of an order from a superior court to any government, subordinate court, corporation or public authority to do or forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of public duty and in certain cases of a statutory duty.[2] It cannot be issued to compel an authority to do something against statutory provision.

The site glossaries are actually being beta'd on the site at this moment and Certiorari and Mandamus are not present because their use is extremely uncommon in Family Law issues. Mandamus is occasionally used in specialised property law but its discussion and use is kept in the 'locked' SRL-R property area to avoid confusion in child related matters.

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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