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Shared Parenting laws bite the dust

New decision on the Internet

An interesting new decision has appeared on the Austlii site.

http://www.austlii.edu.au/

The decision is referred to as Parrington & Cade (No. 2) [2009] FamCAFC 230 (22 December 2009).

It would appear that the new shared parenting laws have effectively bitten the dust.

The Full Court of Bryant CJ, Warnick, Boland JJ has overturned a trial judge's decision (Burr J). The original decision was that the child would stay in Tasmania so that the father could have contact with his daughter.

Now there is to be very limited contact in New South Waleswith an expensive trip between the two (2) states.  I do not know the father. However I would imagine that that would make the cost of contact with his daughter very prohibitive and therefore probably impossible to achieve.

(Note: Parrington and Cade are not the participant's real names)

The following dates are of interest:

- 31 October 2008 Burr J makes contact orders. Effectively the mother (originally from NSW) must stay in Tas.
 
- Against court orders, the mother then leaves Tasmania with the child and goes to live in New South Wales

- 9 December 2008 Benjamin J dismisses mother's application for a stay of Burr J's orders.

- 28 April 2009. Benjamin J orders that the mother complies with Burr J's orders.
        
- 5 May 2009. The Full Court of Bryant CJ, Warnick, Boland JJ stepped in. The Full Court ordered that the matter be dealt with by the Full Court, itself.

- Then on 11 May 2009. Benjamin J orders that the matter regarding ongoing contempt proceedings be adjourned.
                                         
These two (2) judgements of Bryant CJ, Warnick, and Boland JJ should also take into account Chief Justice Bryant's reported "behind closed doors" discussions with former Judge Richard Chisholm. Richard Chisholm has just presented his report on shared parenting to the Attorney-general.

Parrington v Cade (no.2) stated (at the end of the decision of Bryant CJ, Warnick, and Boland JJ on 23 December 2009) that:

other appeals

As to the three other appeals that are before us, on 28 April 2009, Benjamin J adjourned the hearing of a contempt application brought by the father, directed that the mother appear personally on the new date and that a warrant issue for her arrest. The operation of that warrant was suspended until the time for appearance on the new date. Costs were reserved. The mother's grounds of appeal do not challenge the reservation of costs of itself.

On 9 December 2008, Benjamin J dismissed the mother's application for a stay of the orders of Burr J made 31 October 2008 and reserved costs. Clearly, in view of our order in the primary appeal, the question of a stay is no longer of practical interest. The mother's grounds of appeal do not challenge the reservation of costs of itself.

On 11 May 2009, Benjamin J again adjourned the hearing of the father's application that the mother is dealt with for contempt, noting that all parties were required to attend at the Hobart Registry in person on the next date and ordered that a warrant issue for the mother's arrest to be brought before the Family Court on that date.

In view of our decision in the primary appeal, we do not see that the mother stands aggrieved by any of these orders. No orders for costs have been made against her and the passage of time has overtaken the warrants issued for her arrest. We think these appeals should be formally dismissed.


The earlier Parrington and Cade decision on 15 May 2009 can be found at http://www.austlii.edu.au/ under:

Parrington (aka Bande) & Cade (Extension of time) [2009] FamCAFC 78 (15 May 2009) (Last Updated: 18 November 2009)

Regards, John
John.

I don't really see it as a threat to shared parenting as there is the unacceptable risk aspect which I understand is a reason that shared parenting is not considered.

Perhaps one could look at the positive aspect and that is that it shows that the argument that the anti-shared parenting lobbyists are trying to force into everyone's mind is not a valid argument, as that the current legislation, as this decision and also the original decision being appealed shows, does offer protection against shared parenting being taken into consideration when there is such a risk.
Perhaps the decision signals a de-emphasis of facilitating a relationship from with the other parent as this seems to have been a very significant factor in the trial judge's decision not to allow the relocation.  Importantly however the Full Court found the trial judge's finding that the children were at unacceptable risk of sexual abuse to override this consideration. The reasons note the police found his semen on the child's bed sheets.

The Father did not have parental responsibility and his parenting time was supervised from 2hrs/fortnight. The parents separated in 2005. The Mother was born and living in NSW in an established relationship with another child from that relationship for over 2 years before trial. They would also have to relocate to Tas.   

Even so it would seem the CJ overriding due process to deny the Father's rights determined by trial is a threat. The trial judge had rejected the Mother's application to relocate to NSW.  The Mother simply ignored this order and relocated. She then asked for a stay after the fact and out of time. The CJ intervened to legitimise this flagrant contempt and disregard for the other parent's relationship with a status quo that effectively usurps any subsequent hearing.

IMHO Burr J was probably wrong to effectively force the mother to live in TAS for 2hrs/fortnight of supervised contact with a likely child sex abuser. It might be a case of the end justifies the means but I humbly suggest that there must be due process if the Family Court is to maintain constitutional creditability. (I note the appeal court exercised its discretion without the trial transcript).

Why otherwise should the rest of us bother to bear the emotional and financial burden of trial and appeal and contravention when the child's interests can be pre-empted by abduction/relocation or in the alternate is the process so prolonged and the bench so inept that contempt is justifiable? Either way the decision forebodes change.

New Shared Parenting Laws have NOT bitten the dust

John Flanagan said
An interesting new decision has appeared on the Austlii site.

http://www.austlii.edu.au/

The decision is referred to as Parrington & Cade (No. 2) [2009] FamCAFC 230 (22 December 2009).

It would appear that the new shared parenting laws have effectively bitten the dust.
The new shared parenting laws have not bitten the dust.

This is an unusual case involving relocation, allegations of sexual abuse and a new Family.

The original Court decisions were based on the law and BIC and there appears to be an element of following the legislation to the letter by allowing someone to have supervised contact that posed "an unacceptable risk". Recovery and contempt orders followed the legal process. The Full Court appears to have used common sense and then wrote their outcome to be within the framework of the law.

We should also remember that certain support services are not available in Tasmania.

In summary the Mother was totally against any contact for a number of reasons. She relocated, re partnered and had a child with her new partner who also has access to his young Son. After two years she was being ordered back to Tasmania so the Father could have 2 hours a fortnight supervised contact even though he posed a risk to his own children. On balance the decision caused the least amount of problems to the most people.

On the published material, what other choices could the Full Court have made?

SRL-Resources. the Family Law People on this site (look for the Avatars) www.srl-resources.org  Non gender Professional and peer support for SRLs. Closed site, no public forums, no search engines, no lurkers, guests or the other side and their Lawyer and Friends.

Shared Parenting - is it dead?

Thank you for the reply.

I know a fair bit more about this particular case than what I have stated in my posting. However for reasons of section 121, I cannot provide any more specific information.

(Section 121 provides for up to 12 months goal for anyone disclosing details of a particular case).

I believe that the key issue is that (despite various unfounded allegations of sexual abuse) the father was still originally allowed supervised contact by the Family Court in Tasmania. The amended orders by the Full Court still provide for that supervised contact. However because the father lives in northern Tasmania and the mother lives about in country New South Wales - about four (4) hours travel from Sydney - this will be now almost be impossible to achieve.

The single judge - Justice Benjamin was about to throw the mother into goal. This was until the Full Court of Chief Justice Bryant et alia intervened.

Sexual abuse and family violence are quite serious matters.

If the allegations had been proven, the father should not have even been allowed any contact at all.

It is a well-known fact that the natural father is very rarely the perpetrator - it is more likely to be a boyfriend, family friend, etc. The family violence / sexual abuse allegations are simply very often just made up. This is to achieve some other ulterior motive. However this is another issue.

The key issue is that the Family Court is heading down the path away from shared parenting to one parent families. This is coming from the top - from the Full Court of the Family Court (in this case). It is also coming from the High Court - in the recent Mount Isa decision.

Regards

John

Shared Parenting is NOT DEAD

John Flanagan said
Thank you for the reply.
I know a fair bit more about this particular case than what I have stated in my posting. However for reasons of section 121, I cannot provide any more specific information.
(Section 121 provides for up to 12 months goal for anyone disclosing details of a particular case).
Understood, however you can forward it to us to fill in the 'gaps'.
John Flanagan said
I believe that the key issue is that (despite various unfounded allegations of sexual abuse)the father was still originally allowed supervised contact by the Family Court in Tasmania. The amended orders by the Full Court still provide for that supervised contact. However because the father lives in northern Tasmania and the mother lives about in country New South Wales - about four (4) hours travel from Sydney - this will be now almost be impossible to achieve.
The key issue is 'supervised contact' which means he would not be left alone with the children.
John Flanagan said
The single judge - Justice Benjamin was about to throw the mother into goal. This was until the Full Court of Chief Justice Bryant et alia intervened.
The CJ has occasionally interfered in cases, it is par for the course. Remember the grandparents in Tasmania when Carmody in QLD awarded lives with status to the Mother who boyfriend had a record number of convictions for the possession of pornography. That decision was reversed and Benjamin was involved with that reversal.
John Flanagan said
The key issue is that the Family Court is heading down the path away from shared parenting to one parent families. This is coming from the top - from the Full Court of the Family Court (in this case). It is also coming from the High Court - in the recent Mount Isa decision.
Disagree, you are taking a few select cases in isolation and then extrapolating the results as your argument. This is as fallacious as the McIntosh small sample report being applied to all parents.

As an organisation we have always been at the pointy end of the stick in the Courts and we have not seen any rollback. It is the doctrine of unacceptable risk that is under the greatest scrutiny.



SRL-Resources. the Family Law People on this site (look for the Avatars) www.srl-resources.org  Non gender Professional and peer support for SRLs. Closed site, no public forums, no search engines, no lurkers, guests or the other side and their Lawyer and Friends.
I have done a lot of research into how many people get away with abusing children and a large percentage don't get found out at all. Then, of those that do a big percentage don't get found guilty. It is very hard in the current system for someone to actually go to jail for what they have done.

Firstly there is the cost and time involved for taking someone through the courts, and I have been told by some insiders unless the police know almost 100% that they will get a positive outcome of guilty ( this is despite them knowing themselves the person has done what they were accused of] they will leave the case open but drop it for now.

Secondly there is the issue of the age of kids. In this specific case it sounds like there was very clear evidence the father had done what the kid told the courts, through the recordings the judge witnessed. I know some people in the past have lied about these things and I can not imagine what that does to someone who is innocent but then that shouldn't stop us from disbelieving all cases.

It is very easy for the experts to show whether a young kid is telling the truth or not, children have to go through a lot of details and explain what went on , eg time of day, places, rooms, who else was there etc. Between that and their body language there is often no doubt the things the kid is telling the psychologists are fact. Then i ask why should so many people get away with it.

In many cases there can be a lot of hostility between the two parties when these types of allegations come up, and not just between the two individuals but also the extended family's. I believe there were also allegations of violence in this specific case and Tasmania is a very isolated place. So then I ponder, what if this was me or you? I would assume you would contravene the courts to keep your kids away from a pedophile.

So instead of you being praised for standing up and protecting the kids. you get attacked from all sides.[ the family of the accused, the friends of the accused, the court system and different groups that have a bias opinion of what went on] being told to stay in a state close to all these people who are attacking you where you may not have any support at all or very limited support.

Then there is the matter of the mother starting a new family. So from what you have written John, I'm assuming you would prefer to break a family up where her partner has a kid living close to him as well as a new baby together. [possibly family members living close by as well.] for 2 hours of supervised contact a fortnight so a pedophile can see the kids.

This case appears to not be about the death of shared parenting or equal rights laws John, but the lack of safety and protection laws for children at risk of harm!
J, I appreciate and respect that you have an opinion regarding this case and you are most certainly entitled to express it. However I feel I need to clarify some statements you have made.
J said
Ihave done a lot of research into how many people get away with abusing children andalarge percentage don't get found out at all. Then, of those that doa big percentage don't get found guilty. It is very hardin the current system for someone to actually go to jail for what they have done.

Firstly there is the cost and time involved for taking someone through the courts, andI have been told by some insiders unless the police know almost 100% that they will get a positive outcome of guilty ( this is despite them knowing themselves the person has done what they were accused of] they will leave the case open but drop it for now.
These cases are subject criminal law and the rules of evidence that govern them are far more stringent than family law. The Director of Public Prosecution makes a decision if there is sufficient admissable evidence to establish a prima facie case then if there is sufficient admissable evidence to find the defendant gulity beyond a reasonable doubt. This bar is set very high and based on a founding principle of justice "better to aquit 100 guilty men than convict 1 innocent one". Of the information/evidence (and there is a difference)that Police have received or what they themselves know, less than 10percent of itactually makes it before a jury. This is with all criminal cases.So yes the Police alwaysknow but if they can't present the evidence it can't be heard. That is why defendants get off.
J said
Secondlythere is the issue of the age of kids. In this specific case it sounds like there was very clear evidence the father had done what the kid told the courts, through the recordings the judge witnessed.
To make this statement I assume you must have read the judgement and transcript of the criminal trial.
J said
I know some people in the past have lied about these things andI can not imagine what that does to someone who is innocent but then that shouldn't stop us from disbelieving all cases.
It is not about disbelieving, it is about hearing the complaint and finding supporting evidence. If the evidence is there it must be further investigated and appropriately dealt with.It should never be the case that allegations are made and therefore it should so. As you have intimated there are many cases where these allegations have been proven to be false.
J said
It is very easy for the experts to show whether a young kid is telling the truth or not,
Having been directly involved with many of these cases I simply can not see how you can make thisstatement. It is completely inconsistent withthe views of these experts you speak of.

As Istated you are very entitled to have and express your views on this emotive issue but, as has been stated to JF, you can not assert youropinions and assumptions as fact.

Dealing with children in any aspects of the law is very very difficult and complex. There is a lot more to this case than just the criminal law, family law ora child protection issue.It can not be used to firmly prove any one issue. It is one of many cases which show thatthe law will never provide a perfect resolution.

One thing this case does proveishow polarising a family law judgement can be. It is seldom, if ever, the case when two parties walk out of a family court after a trial that either are happy with the result.Something to keep in mind when you are at the pre trial negotiating table.

"When there is no enemy within, the enemies outside can not hurt you"

Executive of SRL-Resources
j said
Ihave done a lot of research into how many people get away with abusing children andalarge percentage don't get found out at all. Then, of those that doa big percentage don't get found guilty. It is very hardin the current system for someone to actually go to jail for what they have done.
We have had numerous cases where JIRT (Joint investigation response team) have got it completely wrong. There are cases we are following where material facts have been deleted from court evidence given by JIRT officers and also where the whole story has not been told, which has resulted in good fathers not seeing their children for upwards of a year. How much research have you done into those cases where the JIRT unit officers are officious and over zealous in an effort to get a proven case where there are simply smoke and allegations in a particular nasty separation. This is not an easy matter to walk the fine line between reality and fiction. Whatever the outcome someone is going to be disappointed. I have seen too many cases where JIRT are completely prejudiced and present tainted evidence for my liking.
j said
It is very easy for the experts to show whether a young kid is telling the truth or not, children have to go through a lot of details and explain what went on , eg time of day, places, rooms, who else was there etc. Between that and their body language there is often no doubt the things the kid is telling the psychologists are fact. Then i ask why should so many people get away with it.
What do you say to a case where the 3 year old child makes some sort of disclosure on one occasion after an hour and a half of being asked the same question then when asked if true says for the next number of hours its not true and the JIRT officers make no commentary about the fact the child said she made it up. The whole thing is dependent on the type of officer you have doing the interrogation. There is no consistency, no checks and absolutely no appeal in a local court as the judicial officer has no choice but to err on the side of the JIRT officers recommendations, fanciful as the evidence often is in these cases. It is a tough call to make a decision when there is a good parent going to be being grossly and materially affected for the long term by some junior officer making some fanciful allegation edged on by a resident parent with their legal team in full support. As I have said before, separation brings out the absolute worst in a parent hell bent on revenge for the ills of the relationship. I have come across in the years some really evil and despicable parents out there who at one stage must have had some attraction for each other…

Executive Secretary - Shared Parenting Council of Australia
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