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Outcome of my final hearing

Shared care, significant and substantial care, false allegations.

It's been over a month since my final hearing, so now may be a good time to do a short write up.

Background

As a background, I have one child, a 6.5 year old boy, and I had never married nor been domecile with the mother. However I spent substantial time with the mother at her residence, and I have been significantly and meaningfully involved in every aspect of my child's life in an unbroken manner since the beginning.

After separation and upon initiation of proceedings, I sought 5 days out of 14 and continued with this stance through-out. The reason for this, as I explained to the Court, was the distance issue (I live 40 mins from child's school), and secondly, I was of the belief that the mother would not cope with 50:50, and I felt that this would ultimately harm the child.

Contrasting Approaches

Before I go on, I should mention the contrasting approaches to the proceedings between the mother and myself, which I believe had a very real impact on the final outcome.

My efforts were very much non-personal and non-emotional, at least on the face of it, and I was in full recognition that the mother, despite her personal flaws, was a very devoted and loving mother. The mother for her part focussed exclusively on vilifying me. Her affidavit was hate-instilled, and her allegations were of the most sinister type.

Interestingly, we both had support people/groups. I was lucky enough to have had the support of key people from this site, which I will elaborate on further down. The mother, as I had become aware, was supported by an anti-domestic violence group and a barrister who volunteered her services on a pro-bono basis, at the request of that group.

Just by referring to an "anti-domestic violence group", I expect those who are reading this will feel, even in a sub-conscious way, that where there is smoke there must be fire. I know that this is what I would be thinking was I reading this for the first time. Surely if such a group got involved, something violent or at least somewhat threatening must have happened, right? WRONG!

I don't know whether my situation is the norm or not, but we separated very amicably, there was never any violence nor any threat of violence, and there never will be. There were no police, no AVO's, no scratches, no questionable injuries, no threatening letters or emails or texts, NOTHING! And yet …….

During proceedings, I remember thinking how much the mother had been betrayed by this group that purported to support her, yet was simply exploiting a vulnerable but complicit woman to promote their own self-fulfilling agenda. I still to this day believe that if the mother was properly encouraged to co-operate from the outset, we would not have ended up in Court, and the damaging events that occured in the midst of Court (including to our child) would not be part of our baggage today.

But it is not only this anti-domestic violence group that had encouraged the mother into a ferver of anti-father/anti-shared care hysteria. I was in fact left mortified at the "buy-in" of so many family law support insitutions to this notion that I, as a separated father, must unquestionably be a vilain. This included an FRC- Family Advisor who convinced the mother not to negotiate any shared care with me (because its bad for kids), and amongst others, the independant children's lawyer, who stated that she would never agree to the child having any overnight time with me because "its just not healthy for a 6 y/o child to be away from his mother", and because "it would reduce the mother's child support." I would also add that the mother included anti-shared care articles from Adele Horin (Sydney Morning Herald) in her affidavit, which I am sure the mother saw as validation of her stance, and simply emboldened her to continue to resist any form of shared care arrangement with me.

The Hearing

Well, my hope was not to go to final hearing, but whatever hapenned I thought it best that I get Consent Orders.

Given the question-mark over the longevity of the current shared care laws, I knew that Orders by Consent were my best bet at maintaining an arrangement after any potential changes to the law. Although I am fully aware that 'significant change' would still be likely to be required to undo existing Orders, I was looking at the strongest outcome for the future under any circumstances, and that I thought would be it.

Before we reached the point where our final hearing was imminent, I made an offer to the mother in the hope of avoiding Court, but this was not to be. No movement from her at all.

So we went to Court. When I sat in the witness box at the beginning of the hearing, I remember saying the oath, and the Federal Magistrate looked at me squarely in my eyes in a fixed gaze. I felt strangely comfortable in this environment, and at the FM's gaze. I can't be certain why, but I knew that I had nothing to hide, I was making no bizarre allegations, I was not trying to shut anyone out of the child's life, I simply wanted my boy to have a real relationship with his daddy, as was the case before. I felt that this is what the new laws promoted, and this is really what helped me through this, a belief that the Court now, unlike the other support institutions, was guided by a good set of laws, not a gender based ideology.

Anyway, the immediate direction the hearing took was a surprise to me, to the extent that it was so overwhelming. Not only was it quickly clear that I would get 5 days out of 14, but the Federal Magistrate agitated for me to accept 50:50. This was based on him seeing no credible reason why I should not, given the abundance of evidence of my very involved and close relationship with the child. I suspect my accomodating and supporting attitude towards the mother, as well as a distinct lack of any evidence of abuse whatsoever, also made an impact.

The mother's barrister's line of questioining however, in line with the mother's affidavit, was ill-conceived, spiteful and quite surprising in its lack of legal emphasis. It reflected very poorly on both the barrister herself and the mother.

After repeated warnings to the mother's barrister, the Federal Magistrate finally halted proceedings and said to the mother's barrister words to the effect, "I take it that your ongoing line of questioning is at the instigation of the mother. As such, as a matter of procedural fairness I am warning you that I will now be seriously considering the giving of primary care of the child to the father, despite it not being requested."

The FM's very strongly worded comment about sole care was enough to finally encourage the mother to agree to Consent Orders.

Looking back

Looking back on this journey now, I can see that it was probably my restraint more than anything else that won me the confidence of the Federal Magistrate. I was accused of the most serious crime a father can be accused of, and at times I felt at risk of over-reacting, either by retorting with allegations too, or in somehow giving up or otherwise harming myself.

But these laws, the laws so zeoulously condemned by many in the media, helped me focus on what I had in common with the mother of my child, not the differences. It helped me focus on our child, not our feelings. It helped me focus on being constructive, not of character assasination. It helped me put aside those allegations, serious as they were, and move on for the child's benefit.

Were it not for the shared care laws, I have no doubt that despite my history of being meaningfully involved in every aspect of my child's life, that my little boy would today be deprived of having a father. These laws created an environment where co-operation was possible, I simply took advantage of it.

I finish this of by saying that I have no ill-feelings towards the mother. In fact, a few nights ago we both spent more than 4 hours in the casualty section of hospital, waiting for our son to be seen for an ear-ache. We were both there, we both held our child as he fell asleep, and we both chatted together like old friends. This outcome is good for our son, it is good for me, and despite the remarkable resistance displayed by the mother, it is good for her too.

On a final note and as possible assistance to others, I was an SRL up until the final weeks prior to my final hearing. At this point I entered into a minimal brief arrangement with a lawyer and barrister. This was because no barrister would agree to direct brief. This may be a very cost-effective model for other SRLs to follow, should the expertise of a barrister be needed come final hearing.

In closing, I would like to thank a number of very special people from this site, who selflessly gave for the ultimate benefit of my child.

Verdad, you always kept my focus on my child, not my feelings. Your mantra was clear, and you left a real impression on my proceedings. Thanks for your wisom and your help with the written word. Agog, you were there from the start. I have called you many times in a panic asking you questions on points of law. Thank you for your consistently steady hand in these matters. Mr Secretary, you will probably never get the recognition you really deserve, but I appreciate the efforts you made for me, all beyond the call of duty I may add. Monaro, your case alone has been powerful inspiration for me, especially after my Interim Hearing. Thanks for giving when I called for help. Many thanks as well to Monteverdi, OneDadC, 4MyDaughter, MikeT, Artemis and to the many others who I have relied upon.
Congratulations to you and your child.  It certainly seems justice has been served and deservedly.  It would have been an entertaining court case to watch unfold.
Isys,

Thanks for your summation - it is inspirational reading for any SRL who may be going through similiar circumstances.  

Enjoy your time with your son.
Well done Isys it's good to hear how you proceeded in the face of adversity, I hope a few of the flock from DID's forum read it.

Regards D4E
Indeed a happy ending,
What shines here is your ability to continue your relationship with the other Parent , no ill feelings.

Congratulations to both of you!
Well done!

Thanks you for the anonymous summary of the key events. I had the privilege of watching the "no nonsense" Federal Magistrate in this case and noted a number of quite ridiculous arguments were dealt with in quick time. What did astound me was the poor standard of the legal aid representation provided to the mother in the first interim hearing. Particularly so in respect to the understanding of key sections of the Act that were either not understood or able to be argued when asked by the FM. It is clear to me that coupled with the current legislation, a properly presented and well prepared Self Represented Litigant can produce high standard documents, comply with the process, make significant ground, and end up with appropriate and adequate contact arrangements. The use of partial legal services was an excellent option.

I would say that much credit should also go to the very clear direction and appropriate inquisition from the knowledgeable Federal Magistrate, who tested a wide range of allegations in the face of repeated attempts to bring up the same thing again and again in slight variations. The FM had much patience, and clearly after an appropriate time could see that this child had a wonderful father. The current changes to the Family Law Act worked through the Family Law Amendment (Shared Parental Responsibility) Act 2006. worked faultlessly in every regard and a better outcome in this case could not have been wished for. If members are struggling with intransient resolutions through the FRC's I would certainly suggest moving on to the Federal Magistrates court. I am not sure how you send an individual appreciation to those Federal Magistrates who do a fairly good job but I would certainly be prepared to send a note in this case.

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 know it's been five years since this thread was first posted, but for what it's worth, this has been an immense help in keeping my partner and I focused on what's important in our own daunting journey through the courts to give his daughter a proper relationship with her daddy, just like she used to have. Thanks.
This is very good thank you :)
Thank you for posting this. Your situation sounds VERY close to my own. The system is very sad and so one sided. We are trying and trying to get in front of a magistrate and being side tracked and rail roaded every step of the way.
We have the negative CRP, the exact same unfounded allegations, the children have just been appointed ILC - which I thought might see straight through all the dust, but after reading your situation - maybe not.
Thanks for posting - you have given  my wife and I a boost to continue on.
Cheers
SandJ
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