Tag Archives: Court

Asperger’s Syndrome and Emotional Harm

A man with Asperger’s Syndrome appealed the court’s decision for his time with his children to be supervised indefinitely. The mother in the matter claimed that the children were at risk of emotional harm by the father.

The court has also heard two differing views from two psychologists – one court appointed and the other the man’s own personal psychologist – about the risk of emotional harm towards the children.

At the aappeal it was found that the court had not made any error in giving the man supervised time, however an error was found in the actual making of the orders. The court did not justify their resons for giving the man indefinite supervised time, nor did they provide any opportunity for the man to apply to change the orders in the future.

The matter is expected to return to court and the current orders to be set aside to amend the errors found.

This gives the man a chance to have the orders changed in the future if he can assure the court and the mother of his children that he poses no risk to the children.


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Court Got It Wrong

Imagine taking your child to visit her father for the first time. She’s only little, just a baby, so you’ve agreed for him to take her for a few hours with supervision. You come back to pick your baby up and then something happens and you find yourself arguing and fighting with the father.

That was the situation a young mother recently found herself in. She and the father had been separated for between 12-16 months and that one visit described above was the only visit that the father had ever had with the child. The two went to court and orders were made for the parents to each have unsupervised time; even though the court stated they had some reservations about the parenting ability of the father. The orders also suggested the parents be kept as far away from each other as possible at pickups.

The Mother appealed this order. The matter returned to court under a new Federal Magistrate. The new Magistrate felt that previously the court hadn’t given enough attention to the evidence about the first visit between father and daughter and the argument/fight that had broken out. The court now believed that a more beneficial way of introducing time with the father would be to have supervised time at a contact centre. This would allow the father time with his child; protecting him from any wrongful or exaggerated allegations about his parenting abilities, it would give the mother peace of mind that there is adequate supervision and protection for her daughter. It would also give the father a chance to prove he could parent and show his genuine desire to be a parent.

These orders could be changed in the future once everything had settled down between the parents and when they were both happy for change to occur.

These orders are a great way for the father to see his daughter, especially when he doesn’t have any experience with the child and especially while the mother has great concern over the care of their daughter while he is the supervising adult. This gives them both a way to learn to trust themselves and the other parent where hopefully a better relationship can build and he father’s access to the child could greatly increase.

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Staying at Dad’s – is there a “too soon”?

When a young child is the focal point of a legal parenting matter, things can become a little bit more difficult than when dealing with, say, a 13 year old, especially when it comes to over night stays.

This is exactly the situation a father of a 23 month old found himself in. The parents had already agreed that the child should live with the mother, but the mother could not agree to overnight time saying that it wasn’t because she thought the father couldn’t care for the child properly, it was just that the child was very young and the father had never spent an entire night alone with the baby before.

The Court had already been told that breastfeeding wasn’t an issue as the baby was settled before bed with a bottle. The Court had also determined that both parents were closely involved with the care of the child and that the child had been placed in day care regularly since she was 8 months old – therefore no major distress from being apart from the mother for a period of time could be foreseen.

The Family Consultant suggested that the parents try one overnight stay each week for two weeks, followed by a counseling session (Child Dispute Conference) to see how the stay had gone and how each parent felt during the stay before any long term decision was made. The Court agreed with this trial and said that each Monday the child would have an overnight stay with the father, as well as having time throughout the week.

From what has been said throughout this matter, the Court seems to be well aware that a child should have an open and close relationship with each parent and that oftentimes this relationship is built when the child is young. This overnight stay- if continued- will be a great way of ensuring that the father and the child can form a close bond.

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“But I don’t wanna go!”

But I Don't Wanna Go

In 2011 a matter went before the Court when the father accused the mother of disobeying the court orders. The mother claimed she had a “real” and valid reason for not following the court orders in taking the children, aged 11 and 13, to see their father.

The reason why the Mother wasn’t taking the children to see the father was because the children “didn’t want to go”. The Court said it was important that the parents don’t see each other as enemies who are to be sabotaged at every turn. The Court said the parent’s role was to be an active one – encouraging the children to go see each parent positively.

“My child doesn’t want to/won’t go” is not a valid excuse to not follow court orders.

It seems the Court is saying that the parents have to remember that they, and not the children, are the parents. Also keeping in mind that children do not always know what is best for them, and each parent should take the Court orders seriously and follow them regardless of the tantrums thrown.

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29 year marriage, $32-$39 Million assets, 60/40 split

July 2012 saw a court proceeding worth $32-39 million, accumulated over a 29 year marriage, be fought over in the Family Court of Australia. This particular marriage had produced three children and the mother had been homemaker in their $10 million house.

The father and mother had a successful business of which they had equal shares. The parties had agreed that the mother’s contributions were more homeward focused while the father’s contributions were directed towards the business. Both parties, however, claimed significant contributions in both family and the business side of the relationship. The father claimed a 70/30 split in his favour as he believed his contributions to both the family life and as breadwinner were more valuable to their relationship. The wife disagreed and claimed equal contributions from both parties.

The court stated that the role of homemaker and primary caregiver is often overlooked and undervalued as that parent allows the other parent space and mental clarity to pursue career and income. However, the court noticed that for the past four years of their marriage the parties all of the children had reached adulthood.
The court decided that the contribution towards business was exceedingly greater by the father and awarded him a 60/40 split.

This matter is under appeal.

Smith & Fields [2012] FamCA 510

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Mother relocates child from Adelaide to Queensland to be with Internet Lover

April 2012 saw a seven year old boy be moved from Adelaide to Queensland so that his mother could make a new life with an internet lover she had met online the year before. The boy’s father was in Adelaide, unaware of the fact that the Queensland holiday he had agreed to actually mean his son was moving states. The Father found out after the boy had been enrolled in a Queensland school.

The Mother claimed that as she was the primary caregiver then the boy ought to be allowed to move with her. She also stated that the boy had no wish to move back to Adelaide with his father and that the boy was calling the Mother’s fiancé “dad”.  The Father rightfully and strongly disapproved of the child’s relocation and applied to the court for an order that would bring his son back.

Federal Magistrate Brown granted the Father’s wish and created an order that sought the Mother’s return to Adelaide with their son within fourteen days of the orders being made. The Federal Magistrate stated that relocation shouldn’t occur in situations where there are recent developments that can modify the relationship between son and parent especially when that development is because of the actions of one parent.

The orders created to return the son to his Father confirm the court’s approach to parenting orders: parents should have some security that their children cannot be relocated without the court’s say so, or without an explicit agreement between Mother and Father.

Talia [2012] FMCfam567

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Court Allows Mother and Child to Relocate from Melbourne to NSW

One very uncommon ruling that is made in parenting matters is the one that allows a child to be relocated once their parents have separated. This is generally because it disrupts the child’s life more than the separation has already, and limits the interactions between parent and child. But in August this year that is exactly what happened.

Originally from NSW the mother now lived in Melbourne with her family – consisting of her husband and a 2 year old child. The mother had expressed her desire to return to NSW and with the support of the court appointed Family Consultant (councilor) it was determined that the mother, if forced to stay in Melbourne, would face emotional and psychological stress and this would limit her capacity to act as primary caregiver to her child.

The Federal Magistrate determined that NSW would offer her a support network that she believed was genuine (her family), realistic employment opportunities and ensure that her mothering abilities would not suffer due to psychological and emotional strain.

The orders were made and she could return, with her child, to NSW while the father stayed in Melbourne.

Danner & Kelso [2012] FMCAfam824

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