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Post #53014 by kathg on December 14th 2015, 11:24 AM (in topic “Questions about video evidence and interim orders”)

Questions about video evidence and interim orders:

Interim hearings are usually held to make decisions in the short term about urgent matters that cannot wait until a final hearing.

They are usually scheduled to have a maximum time limit of 2 hours, and as such the court does not have sufficient time for full exploration of the evidence. The court cannot make findings of fact at an interim hearing, and therefore any decisions made will usually be based on the agreed facts only.

The disputed facts will need to be determined at a final hearing.

Evidence is presented in the form of affidavits only, therefore you should have presented your response to  address each claim from the other side in your affidavit. Submissions from both sides may also be made.

The court will consider the care arrangements as they existed prior to the separation, the current circumstances of both parties and the child, as well as the respective proposals for the future.

The main consideration for the court is the 'best interests of the child' principle, (s 60CC), in addition to whether the presumption of equal shared parental responsibility applies.

As The Wolf has said, forget videos etc, rather concentrate on putting forward a sensible workable proposal that is in the best interest of the child.

The court may order a Family Report be conducted, to assess the child's relationship with both parents, with a the report to be considered at the final hearing.

Secretary SPCA said
I have made a minor addition to say that …Evidence is presented in the form of affidavits only… Because these sorts of hearings are almost in the main dealt with on the papers.There may be some questions from the Judicial Officer directly to you if you are Self Represented but if the other side has representation they will run the matter.IF the other side is represented they will be unlikely to speak at all. It does happen sometimes that a Judge will speak directly to a represented party but rare….

The take home message from these threads is that YOU MUST address everything in proper affidavit form and there are hundreds of posts on here that tell you how to prepare those. Forget all about video in this hearing unless there is some major problem. You will have to seek leave to show video anyway and both sides will have to have copies before it gets up. You might want to get some photographs attached to the affidavit but they need to be say 4 to an A4 page, in colour and visually readable and not a third or fourth photocopy. You will need to make any photos available to the other side on DVD media if requested to get access to the data set held with the photo if they are from digital copy.

I would focus on the affidavit at this stage and not worry about video or photos unless it is critical. The final hearing is where you can get into this material
 

Last edit: by Secretary SPCA

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Post #52212 by kathg on February 28th 2015, 6:12 PM (in topic “SSAT AND RESOURCES”)

SSAT AND RESOURCES:

Search the following case on Austlii :-

Jordan & Verne (SSAT Appeal) [2012] FMCAfam 21

This case sets a precedent that a spouses income cannot be used by CSA/SSAT as a financial resource.

As far as I am aware, this precedent has not been overturned, to date.

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Post #51538 by kathg on November 10th 2014, 12:21 AM (in topic “Relocating and "the meaningful relationship"”)

Relocating and "the meaningful relationship":

Perhaps the answer for this is for the poster to consider whether 2 days per fortnight would be 'minimal impact' if they were the parent in this position, with this level of care.

I personally would be quite peeved to have somebody tell me that it is not a big thing for me to no longer see my child after school, or at least on a regular basis. I am very interested in this part of my children/step children's lives, and like to keep up to date with what they have going on in their lives. To me that is what being a parent is all about. Regular contact that encompasses all areas of the child's life is critical to a good relationship between him/her and a parent.

Maybe 2 days a fortnight is not a big thing for you, so how about you move and leave the child to live with your ex-husband. Then you can take the small amount of time you are offering your child with his father, after all, it is only a 'minimal impact'.

Just a thought….

Last edit: by kathg

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Post #51321 by kathg on September 3rd 2014, 9:52 AM (in topic “Please help guru"s”)

Please help guru"s:

I am araid that MikeT is right on the mark as usual. A payees capacity to earn is negated if they have a responsibility to care for other dependents.

But, on the subject of hypocrisy, the current CS scheme does not allow a paying father to claim the mother, (new partner), of a relevant dependent child as a dependent whilst she stays home to care for the new child. So it is important that payers contemplating having children are aware that whilst their CS income amount will decrease after the birth of a child to a new partner, there will be no adjustment for the loss of income into the home due to the new partner's lack of income.

The hypocrisy here is that, in a situation where the paying father has an income that negates the new partners entitlement to any parenting payment, as the CS amount paid will not be deducted when assessed by Centrelink, and obviously a new baby will need to be cared for, the second family can quite often find themselves in severe hardship with the loss of income from that new partner. Whilst the CS scheme is allegedly designed with the aim of ensuring all parents meet their liability to their children, it is backhandedly putting these second families into severe hardship.

So it is acceptable for a CS payee's children to have a parent carer at home, but not a payer's children. The new family must then make the choice of a) not having children, or b) placing their children in child care, no doubt also at some considerable cost.

No wonder the AIFS has found that up to 80% of second marriages fail!

Although, after considerable thought on this matter, I have come to the conclusion that, provided the new partners income is sufficient, perhaps the payer should decide to be the stay at home parent in these situations, as there is provision under the CS scheme for a payer to be able to negate a capacity to earn due to caring responsibilities. If the new partner's income is below the threshold amount, the payer who now stays at home may even be entitled to parenting payment.

Does that make sense MikeT, and would it work? Just theoretically?

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Post #51304 by kathg on August 23rd 2014, 8:40 PM (in topic “Child Support Inquiry Community Statement Session”)

Child Support Inquiry Community Statement Session:

Thanks MikeT. I will include your suggestions in my submission.
Over the next couple of days I will try to post a summary of what I plan to present, dependent on time constraints.
If anybody else wishes to contribute please feel free. I will be checking in here regularly over the next few days.

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Post #51301 by kathg on August 22nd 2014, 12:59 PM (in topic “Child Support Inquiry Community Statement Session”)

Child Support Inquiry Community Statement Session

I have received an invitation to participate in a Community Statement Session for the Inquiry into the Child Support Program. This participation will occur via teleconference on Thursday 28 August.

Speaking time will be 4 minutes, in which I have been asked to provide constructive ideas for improving the child support system, without referring to any personal experiences or details.

If anybody has any workable, realistic suggestions I will be happy to include as much as I can in my 4 minutes.

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Post #50962 by kathg on May 23rd 2014, 3:36 PM (in topic “The Woozle Effect (McIntosh et al's grossly flawed study(sic) goes viral)”)

The Woozle Effect (McIntosh et al's grossly flawed study(sic) goes viral): Shared Care and Overnights: what the research is saying - a presentation by Judge Altobelli 22 May 2014 at Taree.

Last night I was in attendance at Judge Altobelli's presentation, during which he referred to the 'new thought' discussed below. It should be noted that Judge Altobelli pointedly asserted that the below refers to children 0 - 3 years of age to which no special circumstances apply. Below is a summary of what his honour had to say, as detailed in a handout of the slides presented;

AFCC Think tank on shared parenting
  • 32 Family Law experts (legal, mental health, lawyers, mediators, Judges, academics, researchers)
  • Chosen for expertise and divergent perspectives
  • Included Pruett, Mayer, Bala, Deutsch, Drozd, Emery, Gould, Fieldstone, Fabricus, Hunter, Johnston, Kelly, McIntosh, Warshak
Consensus reached regarding shared parenting time
  • Most effective decision making is case-specific
  • Statutory presumptions about shared parenting time are unsupportable - no presumption will fit all
  • Social science research strongly supports shared parenting (i.e frequent, continuing and meaningful contact) when both parents agree to it. Some empirical support for children of school age or older, under broader conditions (e.g. some forms of parental conflict)
  • There is no "one size fits all" shared parenting time.
  • Child development professionals agreed that the current state of research supports no definitive conclusion about the impact of overnights on a long-term parent/child relationships and child wellbeing
  • Shared parenting in the midst of high conflict is generally not in the children's best interests. But some families can still manage conflict with or without external assistance, so as to make shared care work without harming children (the judge referred to 'parallel parenting')
  • While family violence usually precludes shared parenting, there are some cases in which the violence is tied to the separation or the dynamics of the adults relationship when together, and may end when parents live apart. In those cases, shared parenting may be feasible. The context and meaning of the violence must be understood.
Consensus regarding decision making
  • Majority consensus for presumption of joint decision making (Equal Shared Parental Responsibility), but a substantial minority espoused case by case approach
Consensus about priorities and competing tensions
  • A child needs stability and continuity in relationships, but those relationships will continue to evolve over time.
  • A child has current developmental needs but other needs will emerge over time
  • Family relationships need to be maintained but children also need to be protected from conflict and violence, as do parents
  • Family autonomy should be preserved but the Court needs to interfere with this to protect vulnerable family members
  • Courts need to deal with the needs of families efficiently, in a timely manner, but also meet the complex needs of very diverse families
Consensus about Social Science Research
  • Promotion of shared parenting is a public health issue not just a legal concern. Positive effects are beyond question - provided there are no risks
  • At its most influential, research evidence offers legal professionals and clinical decision makers the best available information without providing answers or predictions in any individual case. But when aggregate level research is a applied as a determinative of a specific case outcome, its value becomes compromised in the adversarial process. Research becomes part of the problem rather than the solution when it is used as a hammer instead of a level.
  • Need to differentiate areas without sufficient research to offer consensus in legal situations from those without a sufficient data basis or agreement about its interpretations.
  • Infancy is an important developmental stage when sensitive caregiving is critical to maximise wellbeing and special consideration needs to be given to meeting young children's developmental needs.
  • Children benefit from parents sharing in their upbringing, where appropriate, including infancy.
  • Where there is a dispute over a young child's care, decision makers (including parents) should consider all relevant factors. No single factor trumps the influence and importance of the aggregate.
  • Research cannot fully bridge the gap between science and the needs of the legal system (one is questioning and tentaive, the other is certain and definitive).
Consensus about Presumptions
  • Self-determinations by parents - whenever it is safe for the parents and children. When it isn't safe, individual decisions should be based on unique needs and circumstances.
  • Joint decision making
  • Negotiations and determinations about parenting time involving third parties are inescapably case-specific.
  • Parenting plans that provide for continuing and shared parenting relationships that are safe, secure and developmentally responsive but which avoid templates for a division of time.
  • If the above cannot work, a detailed list of factors should be considered in each case, i.e. the best interests standard (s60CC).
Consensus about the Role of Courts in shared parenting disputes
  • Legal process can either hinder or help parental self-determination. Both ADR and case management tools are strongly preferred.

The one thing that keeps repeating itself in my mind is the his honours comments that whilst the above is now a known, it is up to the parties in a matter to present the evidence to the court before the court can make judgements based on the above.

Perhaps this is why Judge Altobelli has seen fit to give these presentations?

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Post #50756 by kathg on March 20th 2014, 6:59 PM (in topic “Separation of half-siblings”)

Separation of half-siblings :

  I think that a sibling could be classed as a person 'significant' in the care and well-being of a child, particularly if there has been a regular pattern of contact prior o the marriage/relationship breakdown.

As you are young, and this would be a child related matter, it may be possible for you to obtain a grant of legal aid. I would try contacting Legal Aid, or the equivalent, in your state. Another option is to try local private lawyers who do legal aid work, or your local community legal centre, a link is below. You will be able to locate your nearest centre from this.

http://www.naclc.org.au/

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Post #50379 by kathg on December 2nd 2013, 5:57 PM (in topic “Contravention of Consent Orders”)

Contravention of Consent Orders:

We met with the Principal of the new High School early this year and presented him with a copy of the Birth Certificate, court orders etc.

The name was immediately rectified on the enrolment.

We did attempt to get back into mediation but the provider informed us that they were unable to assist due to the AVO.

My husband wrote what I could only call a 'final warning before action' letter, that put all of the issues forward in dot points. This was mailed to the ex-wife. The ex-wife then replied in the communication book with a lot of derogatory comments. My husband then wrote to the wife again and explained that the purpose of the communication book was 'for non inflammatory necessary and non-urgent communication regarding the child's needs and any child related arrangements only'. He also stated that he would be agreeable to the mothers maiden name being placed before the child's registered surname, should the child, now 13 yo, feel that it was necessary in order to make his life easier, or for any other reason.

Following this the communication book disappeared from the child's possession and has not been seen since. The child has scribbled out his mothers maiden name from the school books and his lunch items etc.

We have been included in all communication from the school, have newsletters and notes emailed to us weekly, are called in for appointments when needed, and are invited to school events. I can honestly say that the school have been most helpful and understanding of the situation.

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Post #50276 by kathg on October 28th 2013, 3:12 PM (in topic “Ex wants to get kid a passport and take them to Bali”)

Ex wants to get kid a passport and take them to Bali:

An option that you may consider is to refuse to sign the application, in other words, contravene the orders, and be prepared to explain these concerns to the court should the other party decide to file contravention proceedings against you. If a parent contravenes court orders the court may decide to take no action against a contravention if it is found that it was reasonable to do so. This course of action puts the ball back in the other parents court, so to speak, and they will be responsible for the costs of taking action. You do not need to be represented, but you will need to be able to clearly express your concerns regarding the proposed travel plans, both  orally and in writing. I would suggest reading through the SRL information on this site.

In what I have read, and experienced, the court treat travel to non-hague convention countries warily, and may decide to impose a bond upon the other parent, in the event of allowing the travel. I am sure the court would also consider any risk to the child regarding the matter of a Commonwealth Government travel alert for a particular destination.

However, with all that said, should the court find that your reasons for a contravention not be reasonable, then they may make a decision with which you are not in agreement, and costs may also be awarded against you.

Last edit: by kathg

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