QLD Query on Precedents and Case Law on Austlii?

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new dad

Well-Known Member
24 December 2017
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Hi all, I am wondering about precedents and case law,

From what I can gather, precedents can only be set by a panel of judges of a higher court (generally on appeal).

When I enter precedents and a few simple search words on Austlii, lots of cases come up unsurprisingly. I was wondering what is the most efficient way to getting the cases that might be most relevant.

Along the same lines, is it best to use precedents that deal with more extreme cases than your own but that are dealing with similar issues or is it best to use precedents that are as close as possible to your own situation?

Also these precedent cases seem quite a bit denser with more legal language than regular family court cases on Austlii, is there certain sections that are more important to read and others that you could potentially skim over while you are researching and trying to find the most relevant ones?

Thanks in advance
 

sammy01

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27 September 2015
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Generally precedent is best avoided in family law. Why? Each case is different, with a few exceptions like Rice and Asplund precedence are of limited benefit if you're seeking a crystal ball as to how your case will pan out....

Austlit will send you bonkers.

Mate my nightmare was the ex moving interstate with the kids... I found cases where in my mind the parent should not be allowed to leave with the kids but the magistrate allowed it. And other cases where the opposite and again my opinion and the magistrate's differed....

The summary at the top of each case and the result make for easy reading, otherwise you'll lose hours of your life and be no more confident of where you stand.
 

new dad

Well-Known Member
24 December 2017
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Thanks sammy for the tips. Would acts and statutes be a better place to start? Where did you start to gain your understanding?
 

Tim W

Lawyer
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28 April 2014
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You won't find what you want on AUSTLII.
Although it's open to the public, AUSTLII is not really much help to (so to speak) "normal people".

Know this - you will not find a solution to your Family Law issue by searching AUSTLII.
This is because, as @sammy01 said above, each case, and each set of surrounding facts,
is different.
Family Law matters often turn on fact and circumstance rather than on technical points of law.

Perhaps if you ask us a question, we can make some helpful commentary.
 

new dad

Well-Known Member
24 December 2017
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Thanks Tim W for your suggestions. I don't have a case at present, but it looks highly likely that I will have to go to court if I want any meaningful relationship with my son (who is 8 months old at present).

The most likely scenario is that I will have to self-represent in court against my ex who will certainly have a lawyer and i am attempting to prepare as best as possible for that eventuality.

The only specific question that I have is what is the most fundamental aspects of family law that I need to develop a deep understanding of that will lay a foundation for further more subtle aspects of family law.

I am capable of research of dense material but lack direction in that pursuit.

Thanks again for your response
 

sammy01

Well-Known Member
27 September 2015
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I will try and save you some time...

"Best interest of the child is paramount" - that is what the legislation says... Good. So make it the best interest for the child to spend time with dad... Do you smoke pot? Stop... Can't cook? Do a course... Spend as much time on that stuff as learning about the law... So do a positive parenting course.

Read
Parenting cases - the best interest of the child - Family Court of Australia

Also there is a book called 'Breaking Up' by a guy called Larkin or Larkins. Get it from your library.
Go watch court cases, it will help... So go sit in court.

Ask questions here... But asking specific questions here is your best bet...

You probably ought to read some of Jen McIntosh - but realise she is often mis-quoted on both sides.
You can get a good result self representing...
 

new dad

Well-Known Member
24 December 2017
35
0
121
I will try and save you some time....
"best interest of the child is paramount" that is what the legislation says.... GOOD.. So make it best interest for the child to spend time with dad... Do you smoke pot? stop... Cant cook? do a course... Spend as much time on that stuff as learning about the law... So do a positive parenting course.

read
Parenting cases - the best interest of the child - Family Court of Australia


also there is a book called 'breaking up' by a guy called Larkin or Larkins get it from your library.
Go watch court cases will help... So go sit in court.

Ask questions here... But asking specific questions here is your best bet...
You probably ought to read some of Jen McIntosh - but realise she is often mis-quoted on both sides.
You can get a good result self representing...


Thanks sammy01, I will definitely check out those books and cases.

I have already completed an anger management course with Relationships Australia (RA) in anticipation that a judge might ask for it anyway due to the DVO and to be pro active (plus it was helpful in dealing with the ex and her games). Also I have completed the Circle of Security parenting course with RA which was also good as this is my first child, so gave me some insight into how children think and their needs and how best to meet them.

Plus I am enrolled in the Tuned into Kids course with RA starting in Feb, which is a new course coming out that covers all the latest ideas on the emotional management of children (type things).

With the drugs, I don't take any drugs and haven't for a decade, however, through my twenties, I did and quite a lot and the ex is aware of this (as she keeps making a point of bring it up) and I can only assume that she would in court as well. I am not sure how I could counter this except to own it honestly to the judge and be willing to jump through any hoops the judge sets out to prove that is a historical issue that I dealt with many years ago successfully.

I am happy to submit to a series of drug tests or whatever to show this but I can't think of a way that I can be proactive about this issue. Do you have any suggestions?
 

AllForHer

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23 July 2014
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The Austlii article most relevant to your case is the Family Law Act 1975 (Cth) - FAMILY LAW ACT 1975. Case law can be very helpful reading for self-represented litigants who wish to understand how the Court considers and applies the various components of the FLA, but as Tim W said, family law matters turn on points of fact, rather than technical points of law (which is what precedents serve to resolve), so you shouldn't read them for direction in your own matter. Just focus on the Family Law Act, specifically Part VII, which is children's matters.

Some important notes:

Section 60B outlines the objects of Part VII, namely in terms of whose rights it seeks to uphold and what those rights are. This is very important to understand - under s 60B, neither you nor your ex actually have any rights in relation to your son. Only your son has rights, which is to know, spend time and communicate with both parents on a regular basis and regardless of the nature of relationship between said parents, insofar as the child's best interests can be met.

Section 60CA holds that the child's best interests are paramount, and on from that, s 60CC outlines what the Court takes into consideration when determining what's best for the child. You should learn to get to know s 60CC very well, and learn how to speak about the child's best interests. 'I want to spend time with my son' is not reflective of the child's best interests; 'It's in my son's best interests to spend more time with me in order to ensure he enjoys the benefit of a meaningful relationship with his father' is better.

Australian family law leans heavily in favour of shared parenting - shared parental responsibility is a presumption under the FLA, which means you and the mother share equally in decision-making for long-term matters affecting the child (schooling, religious following, medical treatment, etc.) as a default. Shared parental responsibility can only be removed by order of the Court, which is not an easy feat for a contending party to achieve.

Under s 65DAA, if shared parental responsibility is left without change by the Court, then it must first consider if equal time between the parents is best for the child, and failing that, the Court must consider whether parenting orders for substantial and significant time is the next best thing. Substantial and significant time is a combination of weekdays, weekends, holiday time and special occasions (Easter, Christmas, etc.).

Given the child's young age, your chances of getting 50/50 right now are next to none, even if you did live in the same town. Psychology tends to support attachment theory, which implies that for the first three or so years of a child's life, they have a primary attachment figure and separation from that primary attachment figure can cause distress or emotional harm. Primary attachment figure is not synonymous with 'most important parent', mind. It's simply a term used in psychology to indicate the person a child has become dependent on to fulfill their various needs.

As the child grows older, however, they make room for more attachment figures and therefore feel secure enough to be away from the primary attachment figure for longer periods of time. This isn't law, of course, it's just psychology, but going into Court demanding 50/50 for an infant would suggest a lack of insight about the child's best interests and a propensity to undermine the child's emotional and physical need to be close to the person they have become most dependent on. It's a mistake you don't want to make, and sometimes the psychology can help bring clarity to situations like this one.

So, what should you expect in terms of time the child spends with you?

If you move to the same town, you should seek perhaps two or three day time periods each week, for up to eight hours each. If you decide to remain a student (which, personally, I think you should - even though there is obviously benefit to being able to provide financial support to a child through full-time work, the Court tends to look slightly better on parents who can provide their children with more of their time), then perhaps you could look at what days the child is, or will eventually be attending at day care and seek orders that the child spend that time with you, instead.

It might also be prudent to seek orders that increase the child's time with you on an incremental basis - start overnights when the child turns one or two, then increase the number of overnights each year, for example, until the child starts school and you reach a 50/50 arrangement.

One thing you need to remember though is that whatever you seek, you need to show it's in the child's best interests on the evidence. As an example, if your lifestyle can't support 50/50, then it's best not to seek it.

You should also consider enrolling in a parenting course. At this stage, your capacity as a dad hasn't been tested, but if you show the Court that you are doing what you can to improve your skills, the Court will look more highly on your argument.
 

new dad

Well-Known Member
24 December 2017
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Thanks AllForHer for your help. I will definitely take the time to read and get to know the acts that you have suggested.

I have already completed an anger management course, and parenting course, and am enrolled in another parenting course for February. I have had a certificate from the mediator to go to court since June but haven't acted on it as I haven't wanted to disturb mum and baby as much as possible and have been hoping for a change in attitudes but that seems to be getting worse.

Would you suggest waiting to go to court till the baby is older or going to court sooner and not asking for much but requesting incremental increases in access?

I am concerned that if I don't act, the court will view that inaction as disinterest.

Also I am concerned that if I go to court that my ex will not handle it very well psychologically and that will impact on her parenting.

it seems that she is doing a good job as a mum except with how she sees my role in our son's life.
 

AllForHer

Well-Known Member
23 July 2014
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Look, how mum handles is it is not your concern. Your son's right to have a relationship with both of you is.

My personal view is that it's better to get parenting orders in place as soon as possible, simply because without orders, mum (and you) can do whatever you want, which leaves mum in a guilt-free position to withhold the child indefinitely.

Other folk here will tell you to wait until the child is older because it means you may get more time than you would while the child is young. It's up to you when you file, and you should consider mum's attitude toward you as a parent in whether you file now or five years from now - is she likely to start co-parenting with you any time soon? If not, then it might be best not to wait.

On top of that, court proceedings will often motivate parents to reach agreement and start playing ball. She will also get legal advice, which means she's likely to learn that the Court is probably going to grant some time between you and the child, so who knows? That might make mum think twice about leaving it to the judge to decide.