QLD Appeal Interim Order - Judge Refused Parenting Arguments

[Pete]

Hi All

After verbally requesting and being refused a review of an Interim order, I made an application in case to change the current interim order (made 12/6/2013) that is in place, however the judge refused to accept my arguments that a previous family report (the 2nd ordered by the court) recommended that parenting be Shared Equally and had been ignored by the court.

The Judge failed in err to consider the matters in the Family Court Act to consider the matters in the Family Court Act 1975 (Cth), sections 60B, 60CC and 61DA and only made casual mention of consideration of the factors contained in section 60CC of the act (it should be noted that the 1st report was discarded by the Judge and he ordered another full report) when requesting the 1st report.

Can I appeal the initial interim order based on the fact that the judge has refused my application in case request?

I'm getting a bit tongue tied with the family law and Family Law Act jargon but I'm getting a better understanding of what I can and cannot do.

Thanks in advance

 

[AllForHer]

Hi, Pete,

Unfortunately, it is not possible to appeal an interim order, but you can submit another application in a case seeking new interim orders, if you wish. Be warned, however, that further applications in a case may again be dismissed.

It is not unusual for judges to make interim orders that reflect the status quo before court proceedings commenced, so thereby, it is also not unusual for them not to consider in great detail the elements of s 60CC. Interim orders, fundamentally, are supposed to be used for emergency situations. If there is no emergency, they have little inclination to alter the status quo.

If I can get some clarity on your matter, I can probably provide some more guidance. You've suggested that you do not have shared parental responsibility under the interim orders - this is a highly unusual order for a court to make and requires rebuttal by evidence demonstrating that shared parental responsibility would not be in the child's best interests. How did this eventuate? Are there prior orders in place, such as consent orders?

As a matter of interest, it may help you to focus on getting the final parenting orders you want, rather than the interim orders you want. In hearing for final parenting orders, past allocations of parental responsibility are dismissed, and the family report will be of more use to you there than for an application in a case.

 

[Pete]

Hi, Pete,

Unfortunately, it is not possible to appeal an interim order, but you can submit another application in a case seeking new interim orders, if you wish. Be warned, however, that further applications in a case may again be dismissed.

It is not unusual for judges to make interim orders that reflect the status quo before court proceedings commenced, so thereby, it is also not unusual for them not to consider in great detail the elements of s 60CC. Interim orders, fundamentally, are supposed to be used for emergency situations. If there is no emergency, they have little inclination to alter the status quo.

If I can get some clarity on your matter, I can probably provide some more guidance. You've suggested that you do not have shared parental responsibility under the interim orders - this is a highly unusual order for a court to make and requires rebuttal by evidence demonstrating that shared parental responsibility would not be in the child's best interests. How did this eventuate? Are there prior orders in place, such as consent orders?

As a matter of interest, it may help you to focus on getting the final parenting orders you want, rather than the interim orders you want. In hearing for final parenting orders, past allocations of parental responsibility are dismissed, and the family report will be of more use to you there than for an application in a case.

I'm sorry but you are Incorrect on the very first sentence! I cite Goode & Goode 2006 FamCA 1346 in which the father successfully challenged a number of points of the judges interpretation of the Family Law Act 1975 sections 64B, 60B, 60Ca, 60CC 61DA and 65DAA Although he did not succeed on every part it was enough for the 3 Judge panel to uphold the application and order the orders be re-heard.

I don't mean to be rude here but are you sure you are a Family Lawyer?

http://www.google.com.au/url?sa=t&r...qgYY6-JlmXUAft0jg&sig2=TnIQhoxZSoCZjPlFJ4YuyA

Shared parenting is split 28% 72% in the mothers favour att. however the judge refuses point blank to provide his reasoning for this decision nor acknowledge the previous Family Report which identified that the childrens best interest would be served if parenting were to be split 50/50.

I have ordered a copy of the transcript of the court proceedings when teh first Interim order was made, I hope to find enough holes in this to warrant my appeal.

Your assistance is much appreciated.

 

[AllForHer]

My apologies. You can apply for an appeal to interim orders with leave of the court.

As a matter of interest, I'm not a family lawyer, merely a very early-days law student taking advantage of this site to consider the matters I might encounter in future practice. I applaud your optimism for believing you might find free legal advice from a family lawyer on this forum, but thank you, nonetheless, for giving me this opportunity to learn where I had otherwise erred in regards to appeals.

Good luck with your application for leave of the court to appeal the interim orders.

 

[Pete]

... Also

1) The status quo was that we were classed as separated, living together under the same roof up until the interim orders were made. therefore I had always been with the children.
2) the Interim order only allows for 15 hours per week time with the children, the rest is either at school or asleep.
3) I have filed an updated affidavit which contains my final preferred orders for parenting.
3) The ICL has now made orders which provide for a 3rd Family Report, to be conducted by an ICL child psychologist, this I am very concerned about this and would like to have this conducted independently of the ICL, not really sure how to go about requesting this though?
4) This Will go to trial and I will be engaging the best legal counsel that I can afford for the trial.

Thanks for taking an interest

 

[AllForHer]

How did you go with this, Pete?

 

[Pete]

Update:

3) Family report has been delivered and was totally opposite in its portrayal of me in the father role compared to the 2nd report which WAS by a Truly Independent family phsycologist. This So called Independent phsycologist is both Employed by the ICL And works from their offices.

How the heck can a Judge call That independent?!

Back for another mention tomorrow, but seriously, what a total waste of time on this money machine, the ICL has already drawn up new interim orders based on this new family report, which the Judge is Highly likely to just rubber stamp.

If you think you are working for a system that is fair and just, think again! the system is so broken its not funny, and the Family Law act specifically identifies that it cannot be challenged....

Section 121 has non-disclosure and privicy provisions which effectively stop Anyone from telling their story to the media and having it published........ That's why you don't hear the media condoning the family courts archaic and corrupted policies.

 

[NeverEverGiveUp]

Tou-shae!

My sentiments exactly. Surely something can be done to expose this blatant corruption. Corruption that is at our children's expense, our kids' hearts and souls shattered. My children are shadows of the happy, innocent, outgoing and content children that they once were prior to the dirty family law process.

I feel it is important to keep fighting for all children's right to an innocent childhood. Can we at least start a community group to gather people whom have had same/similar experiences and with enough people surely we will brainstorm a better solution to offer and save future children from being the cash porn pieces that all the court affiliated pen pushers "experts" use to earn themselves huge money for just as little as a few hours work to suggest the best for a child's best living situation?

What the! It's beyond corruption, it's worse than what happened in previous governments such as "our stolen generation". It's not enough that our government has sold off all of our infrastructure assets but now our children are a commodity in their completely immoral and overpriced world of money making.

Let's start a petition? A group to expose these nasties? Annonomys if need be...?

Anyone game enough who's had a corrupt and truly bias court matter please speak up and reply to this post, please.

 

[MartyK]

You might also consider joining one of the existing organizations that are already heavily involved in Family Law reform and policy change? Law reform is a very slow process. The 2006 Amendments didn’t just happen overnight and were the result of years of dedication, time and sacrifice by various stakeholders.

A petition is a good start but more will be needed to effect substantial change. If you are willing to put in the hard yards, as you appear, generating further public interest by either starting your own organization or by volunteering your time to assist an existing one would be a good idea.