QLD Precedent Family Law Queensland

[Davidfc007]

Hello,
In short, the uncontested facts are the child has been withheld from seeing or speaking with her father and his extended family for extended periods of time (16 months) since separating in 2013, when the child was four years old. The withholding ‘events’ started at two nights and progress to four months and the longest was 6 months, a parental plan or court order in place. The mother has never denied withholding the child and has never tried to change the plan or orders.

Can someone please give me examples of precedent in the family court in Queensland, I can use in a written submission at my next court hearing.

When the child is withheld, she has no contact with the father and his family, including six months.

Please help 😀

 

[GlassHalfFull]

The family court is federal, not state, just to start with, so no advice about the family court will be state specific... Also, some of your sentences don't make sense - are you saying there was NO parenting plan or court order? Or that there was? If there was, which one was it, a parenting plan or court order? There can't (AFAIK) be both in place. A court order overrides a parenting plan.

Another thing... a precedent about what exactly? I don't claim to be a lawyer or a legal expert but my understanding is that it's going to be about the facts as they relate to YOUR case, not what has happened previously in a different case, because each case is complex and judged on its individual merits. A judge/registrar is going to make decisions about how to proceed your case based on the facts as they are presented in affidavits (and to a limited extent on what is discussed in court on the day). You need to be a bit more specific about what you want to achieve, but it seems like your understanding of how the family court operates is not quite right.

 

[sammy01]

Glasshalffull is right O'l mate... Not having a go at you - promise... But it is just a bit unclear - is there a parenting plan? OR court orders? If your not sure get back to us with the best description you can give and I'm sure we can work it out.

The advice changes depending.... While you're there what is the scheduled visits? Each alternate weekend? Half holidays? Are there any allegations made by her against you? Look you don't have to answer, but it is just easier to give good opinion / advice when we have a clear picture of the situation.

The other important thing David is in family law precedents don't matter so much. Each case is on its merits. So all you need to do is establish that the ex is stopping you seeing the child and that there is no justification for it.

And - you can send yourself bonkers reading over old cases for precedents. Kinda worth doing to help you get your head around what is likely to happen. Also, you can learn a bit of strategy from others. More often from their mistakes. Here is a search I did to try and help you.

AustLII: 336 documents found for (refusing to facilitate access to father)

So in this case we see both parents behaving like pork chops

Malave & Ratcliffe [2015] FCCA 201 (5 February 2015)

I've pasted a few bits below to save you reading it all (4.5.6 are exact wording from the case - not my words)

1. This is a very sad case. Since separation, all of the children have lived with their father and become estranged from their mother. To an extraordinary extent, the parents have allowed their wish to hurt each other to overwhelm their wish to foster the wellbeing of their children. The parents have engaged in attack and counter-attack without regard to the impact on their children.
2. It is well established that children in high conflict separations, such as this one, are at grave risk of suffering long-term psychological damage. [X] is at particular risk, as she is very young and still developing psychologically. Even before separation, [X] suffered from anxiety. Her continuing high levels of anxiety have been recently confirmed by the independent family consultant, Ms J.
3. None of the children presently have a relationship with their mother. As will be seen, the mother’s behaviour towards the children or some of them has been in some ways neglectful and abusive. However, her behaviour was at the lower end of the spectrum and was no where near the level of those cases where the court orders that there be no contact between a parent and child or that communication between a parent and child be only by way of letters, cards and gifts. The children in this case would all benefit from having a relationship with their mother and spending time with her.

Lesson here- Just because the ex is a pork chop doesn't mean you should be one too...

Here is a case where the mum was found to be a pork chop - She did accuse dad of being a pedophile for the sole purpose of stopping him seeing his kid. Dad was a human, not a pork chop. Mum refused access
Dad wound up with sole parental responsibility and mum had weekend access. Lesson here - even in the face of the most extreme accusations - stay calm.

Palmeter & Kagan [2019] FCCA 2298 (18 December 2019)

Sorry old mate - I got a bit carried away reading this and didn't not any particular paragraphs of interest. WOW what some folk will do to stop a parent seeing their kid...

So I changed my search to " refusing to facilitate access contravention " in the austlII database. That means there are court orders in place - but one parent isn't complying.

https://www.austlii.edu.au/cgi-bin/...y=refusing+to+facilitate+access+contravention

I had a read of a few of them. I think you'll find this one interesting as it has similarities to the situation you described.

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2017/212.html?context=1;query=refusing%20to%20facilitate%20access%20contravention;mask_path=au/cases/cth/FCCA

This one is also worth a read.

Farrow & Byrnes [2013] FCCA 2245 (7 November 2013)

If nothing else read para 127
I'd also like to apologize to the cuts of meat mentioned earlier... This one is a doozy- She takes the cake... She refused access because of an alleged / but unproven bite. She then went on to try to get an avo against dad because of the 'bite' even though a dr suggested if there was a bite it was a child not an adult. Clearly, it couldn't be the dad that bit the kid.. BUT an avo would serve the purpose of stopping the dad from seeing the child.. she also tried to insist that she had the right to request another judge hear the case... she is just a nutter.

Enough from me for now except to say - mate this stuff is enough to drive anyone bonkers. Past cases are interesting. But you're better off putting your energies into looking after yourself - This stuff is stressful and stress kills AND focusing on establishing that you're a great dad.. That is all that matters

 

[Davidfc007]

Thank you for responding, there was a parental plan to begin with when the withholding first started, this was replaced with a court order which I applied for and was made by consent.

I’m not using the precedent to run my whole case, just looking for a case that was held in the Brisbane court that had a child withheld from a parent for a significant length of time. I’m looking for comments from a judge that states the withholding is bad and the court made an order to remove shared parental responsibility and ordered one parent sole parental responsibility.

 

[sammy01]

ok I wouldn't worry about the particuar court.

Of course witholding is bad (without reasonable excuse)

So what sort of access is provided in the consent orders?

So If you use this one as a good case study
Palmeter & Kagan [2019] FCCA 2298 (18 December 2019)
The legislation gets referenced more than other cases. Because the legislation matters most. When other cases get referenced it is for the purpose of establishing how the judges have interpreted the legislatoin.

Look at the legislation - which states shared parental responsibility is a presumption. Unless it is rebutted - it is also a presumption that it is in the best interest of the child to have a meaningful relationship with both parents. AND that meaningful means substantial and significant time where practical... And substantial and meaningful means school days and non school days and half holidays.

If you're looking for a case where one parent had shared parental responsibility taken away because they were " the Mother is unable to support Child’s relationship with the Father but the reverse is true. " And as a result the dad became the primary carer - then this is your case
Palmeter & Kagan [2019] FCCA 2298 (18 December 2019)
Palmeter & Kagan [2019] FCCA 2298 (18 December 2019)
I've provided the link a few times - It is glitching a bit so just doing it to be sure we don't lose the case into cyberspace
Granted - it is in NSW but family law is federal so the same applies in NSW to QLD and NT or anywhere else

Has mum given any sort of excuse / explanation for her actions?

 

[GlassHalfFull]

There's no importance/relevance to the fact that the withholding took place in Brisbane though, or that the family court that heard the case was based in Brisbane. To what limited extent any precedents has ANY relevance in your case, it's about federal case law which is valid anywhere in Australia, not QLD law. Except perhaps that child protection and childrens' courts are state-based and the way each state operates can vary. But still, there's going to be far more variation between the decisions and personalities of individual judges within QLD than there is between in case law between states.

Ultimately, as Sammy said, any withholding without good reason is going to be frowned upon. You certainly don't have to find case law to support that. What IS going to be relevant are the facts in your case. What your ex puts in her affidavit, what you put in yours. What alleged risks there are to you having the children. Whether the court believes her. What reasons she gives for previous withholding and whether they are justifiable. What you did about it after she started withholding. They're ALL very important in helping the judge understand your case. No other case will have exactly the same background that yours does.

 

[GlassHalfFull]

One other thing to note... I don't think the judge is going to award you sole parental responsibility very easily. It only happens in very extreme circumstances (like the mother being so irrational/delusional that she truly believes the father is a paedophile despite all the evidence suggesting otherwise, to the point where the judge believes she will refuse to support the children's relationship with him).

I've read cases where it has happened, but actually, it's mostly been in situations where the father has NOT been asking for sole responsibility. The father has often been simply seeking reasonable shared time with the children, but the judge has made their own decision that the only way the father can reasonably be involved in the children's lives is to place them in his care because the mother is incapable of allowing it. To actively seek sole parental responsibility and to take the children out of the mother's care may actually work against you because you may end up looking like you're not acting in the children's best interests and not seeking an arrangement that allows both parents to be involved. Better to let the judge come to their own conclusions about what is best for the children after reviewing all the evidence before him/her.

In most cases similar to yours (from what little we know of your situation), if the mother simply agrees (either by consent order, or after a dressing down by the judge) to stop withholding, the judge will probably consider that a 'win' and leave it at that. I know that doesn't seem fair (you've lost all that time with the children, not to mention you've had to go to court to resolve what should have been resolved between you and your ex), and it's not... But my guess is that's how it will play out.

 

[sammy01]

yup - totally agree (almost)
It is possible even probable that if you have not had access to the kid for a while the courts will order make up time. So pick up Thursday arvo, not Friday (for example) to make up for time lost. But again, without particulars it is all hypothetical
cheers

 

[Davidfc007]

Thank you again for your replies.

I was looking for something from Brisbane court so the judge I appear before, hopefully Justice Baumann, would have known the judge. Maybe that’s not important.

I had 5 nights per fortnight when the order was consented in 2017. The child was withheld from April to September 2018.

The ICL, who I have been ordered to not name publicly, was removed from the matter upon my application in a case because the ICL lied firing a hearing. There is now a new ICL that has been appointed.

At a hearing before Judge Egan that mother made several allegations against me, drug addiction, mental health and abuse and threats to the child’s dance schools teacher. There is now evidence before the court that disproves all allegations, including drugs test over 6 month period, assessment and cleared by court appointed physiologist.

A recent report by Judge Spellekin stated she supported my application for sole custody, I’m just waiting on going to trial and trying to find the most appropriate case to support my application.

 

[Davidfc007]

And I’m not asking the court for the child to have significantly less with the mother, from 9 to 7 days, so it’s week about. My application is for sole decision making on major things for a period of time, until the mother proves she won’t withhold again.