Anonymous - Family Court Outcomes #3

2003-2005

Case took two years.

Children: one boy born in 2001

Final orders:

Father has six days and four nights contact per fortnight. This will reduce somewhat when the child starts Grade 1.

Father given 34% access reducing to 30% when school begins

Mother given 66% access increasing to 70% when school begins

Property:

Mother was given 68%

Father was given 32%

Mother had contributed 24% of assets according to the father's calculations.

Solicitor actively undermined negotiated settlement

Father and mother initially went to the Dispute Resolution Centre. By the mother's own account, mother had contributed 45% of the assets (father maintained it was 24%). Mediators put it to her 'So you would be happy with 45% ?' The mother replied 'No, my solicitor says I can get 70%, and I want 70%.'

In the Family Court process there were three mediation sessions. Solicitor for the wife, Eddy Lago (Cairns) undermined chances for reconciliation at two of these three sessions. In the first session, father's position was that mother had contributed 24% of the assets. Solicitor acting on behalf of the mother wanted 70%. In the spirit of reconciliation the father offered 35% (and was prepared to go to 50%. Solicitor Eddy Lago later asked me what my bottom line was and I told him 50%). The solicitor facetiously responded 'ok we want 90%' swiftly and effectively ending any prospect of a negotiated settlement.

The mother ended up winning 68% of the assets at the Final Hearing, however 40% of this it is estimated, was spent on the solicitor's and barrister's fees, implying that she received about 41% of the assets.

'He said it with a smile on his face'

Father went to pick up child on his day of care (informal agreement in the Family Court prior to Interim Orders). Mother says she wants father to come an hour later in future. Father agrees saying he will return child an hour later. Mother says child must return at the same time. Father suggests - ok how about half an hour later. Mother shrieks - 'No I can't trust you and attempts to take child from fathers arms. Father turns his back and begins walking to his vehicle eight metres away. Mother scratches father's forearms and pulls at his shirt. Father places palm on mother's forehead to keep her at a distance. Finally father gives mother a single barefoot kick to the shins so he can get child to the vehicle. Mother shouts that she is going to get a DVO.

Police officer organises a meeting. Mother's story that she was trying to take child from father because father was running away and grass was wet and father might slip over, doesn't add up. Blood from scratches on father's forearm still highly visible. Police officer says no grounds for a DVO.

At second conciliation conference, father presents a report of the incident, and also a letter from former partner of 14 years who stated that in all that time, father had never hit her, nor even pushed her - ie he had never been violent in anyway. Eddy Lago, solicitor for the mother says 'how did you get that out of her ? Did you beat her up as well ?' Father (speechless) turns to the Deputy Registrar Gilbert Victoire to see if he was going to respond to this blatant provocation. Deputy Registrar Gilbert Victoire responds to father 'He said it with a smile on his face.'

Serving documents on the solicitor

Father, as a self-representing litigant, went to the offices of solicitor for the mother Eddy Lago to serve papers and gain a signature in the box entitled 'Solicitor's signature.' Receptionist notified solicitor that father had documents to serve and said to father 'He'll be right down'. Father waits for 30 minutes then ducks outside to put more money in the parking metre. When he returns, he goes upstairs to the office of Eddy Lago and informs the secretary that he just needs a signature and he'll be off. She comes out of the office telling him that he must wait downstairs and solicitor will attend shortly. Father informs secretary that he will continue to stand outside the door until he receives the signature. Solicitor Eddy Lago comes out and shouts at the father to wait downstairs. Father repeats that he only needs a signature and he'll be off, and until he receives the signature he will remain exactly where he was. Solicitor goes back inside the office, then reappears saying that he'd rung the police. Father says he is not concerned about the police but just needs a signature and he'll be off.

Father waits for another 30 minutes outside the office of Eddy Lago, before he reappears. 'Come downstairs with me.' Father and solicitor go downstairs where father expects solicitor to sign the box entitled 'Solicitor's signature.' However, solicitor tells father once again police are just about to arrive and that father had no right to abuse his staff. Father responds that he did not abuse any of his staff members and just requires a signature, noting that the police are taking their time in arriving. Solicitor says he is not required to sign the box, the receptionist at the front desk can do it. Father says that a lot of trouble could have been avoided had he said this in the first place.

Solicitor goes upstairs and father goes to receptionist at the front counter and asks if she can sign the box. Receptionist knows nothing of this and rings upstairs for solicitor Eddy Lago who returns to the foyer. Solicitor, about 6'3" in height then proceeds to stand over father and shout at father telling him to leave the premises. Father says he just needs a signature and he will be gone. Office manager appears to see what the shouting (on the part of the solicitor only) is about. Father explains he needs a signature and asks office manager if he is able to sign. Office manager says he is not. Father gets his name as a witness of delivery of court documents and leaves. Solicitor writes an Affidavit which is included with other Affidavits in the case for child residency and property settlement. Father believes solicitor Eddy Lago was trying to provoke father so that he would take at swing at him, and thus be able to prosecute him, and use new evidence in his case.

Solicitor Eddy Lago arranges a meeting

(four hours discussing $400 worth of bills

Interim Orders

At the third conciliation conference, father asks Deputy Registrar why father can never see his child on a weekend, especially seeing he has a step sister who is at school during week days and goes to visit her mother during school holidays. Mother responds 'because I work, and weekends is the only time I can see him.' Deputy Registrar remembers from previous conciliation conference and says 'But don't you also have Thursdays off?' Mother replies 'Yes but that's when I have to do my shopping !' Irritated with mother's response Deputy Registrar slams his book closed and turns to father saying 'you should seek Interim Orders.'

So father spends many hours preparing an application for Interim Orders. When the matter is finally heard the judge rules 'because the Final Hearing is imminent, we will not change the current pattern of access.' The judge described the Final Hearing as imminent even though no date had been set. The Final Hearing occurred 12 months later.

Final Hearing

Justice Carmody comes across as reasonable and even-handed. He gave the impression that he made allowances for the fact that the respondent was self-representing.

However Justice Carmody stated that the father was inexperienced as a father, even though the father had brought up a 14 year old daughter and currently had sole residency, and had more experience than the mother.

In property settlement he took into consideration scrappy evidence of shopping grocery bills paid by the mother, did not tally the items where a major arithmetical mistake had been made, accepted as evidence a bank form which had been filled in but had not been stamped, nor had the main form even been separated from the butt. He ignored completely that over $5,000 had been received by the mother for Family Benefit and that this amount should be taken into consideration when calculating who had spent what. Because the father had not kept shopping grocery bills from four years prior, it was assumed he hadn't bought any.

Father was able to prove that sexual abuse allegations in the Affidavits by the mother and maternal grandmother were completely fabricated because the mother had not even mentioned these presumably serious issues during her meeting with the Family Court child psychologist who was writing the Family Report. When asked by the father during cross-examination why she didn't raise these serious issues with the child psychologist, the mother responded after a pause that she hadn't had enough time. When asked how long the meeting had gone for she replied that she couldn't remember. When asked again she said she though the meeting had gone for one hour. The father was able to show that the meeting had lasted one hour and 45 minutes.

Even though the father was lucky to be able to prove that serious allegations of sexual abuse were totally false, there was not even a word of caution from the judge or from anyone.

Even though the mother works fulltime and is on call some nights and weekends, and even though the father was available to care for the child any time and all the time, and even though the child had a sibling at the father's home, it was deemed in the child's best interest to be located with the mother. One of the justifications of giving sole residency to the mother has been that the father is working fulltime and the mother is available to look after the child. Here we see the double standard of the Family Court and bias against fathers in action.

During the Final Hearing the self-representing father was not reacting quickly enough - that is immediately resuming his seat the moment the Applicant's barrister, Josephine Willis interjected. After a couple of reminders, Josephine Willis turned to the father, and at a distance of approximately 50cm, shouted 'When I stand you sit ! You got that ?! When I stand you sit !' Speechless, the father did not respond. Rather he later approached the Barrister and calmly explained that as he had never been in court before, much less been self-representing, he will try to remember as best he can, but may forget again. It also occurred to the father that the behaviour of the barrister Josephine Willis was deliberately provocative, and constituted intimidation. Justice Carmody was witness to this extreme outburst but said nothing.

Justice Carmody ordered Respondent to pay Applicant $5,000 towards their legal fees

Justice Carmody ordered the Respondent father to pay $5,000 towards the legal fees of the Applicant. This was despite the fact that:

1. the father had made offers for settlement and the mother had made none.

2. Residency orders were closer to what the father had sought than what the mother had sought.

3. that generally Respondents do not have to pay legal fees of the Applicant.

Eddy Lago, solicitor for the Applicant had argued that the Respondent had drawn things out so the two-day Final Hearing was longer than it needed to have been. The father pointed out that cross-examination of the father by the mother's Barrister was significantly longer than cross-examination of the mother by the father.

The father in his Orders Sought asked that pick-ups and drop-offs of the child be reciprocated - ie each parent do their own pick-ups such that drop-offs are eliminated. Justice Carmody didn't see this as a reasonable request and ordered that the father do all pick-ups and drop-offs.

The father asked that the mother use the child's surname as described on his birth certificate (the father's surname) rather than changing it to her own to avoiod confusion as to which letter the child is listed under at school, with Medicare etc etc. Justice Carmody suggested that this was one issue that in the new spirit of cooperation, the father and mother could resolve amongst themselves. One year later this issue has not been resolved.

An easy obvious general policy solution would be for boys to take the surname of their father and girls to take the surname of their mother.

Justice Carmody gave 68% of assets to the mother even though she had contributed on 24% (according to the father). He said 'This is a global assessment and I am not required to, and will not provide a breakdown for this figure.' Not even a justification for this decision was given.

'I expect by then you two will be able to sort things out yourselves.'

The Family Report was based on meetings of the Family Court child psychologist, Marilyn Venus, and the mother, and then the father. The child's 14yr old step-sister was also required for an interview, though the child's maternal grandmother, with whom the child resides while the mother is working.

The Child Psychologist also sat in a small room observing and taking notes while the father and child 'interacted'. Similarly this took place with the mother. That this is such an unnatural situation in which to be objectively observing child parent behaviour, and that so much hangs in the balance with this half hour 'observation' is disregarded. One can easily walk along a plank located one metres above the ground, but suspend the same plank between two buildings 100m of the ground and the result is quite different.

Nevertheless, the interviews and observations went smoothly. In the Family Report, the Child Psychologist recommended a three stage increase in contact with the father. Marilyn Venus said to the father following the release of the report 'I didn't go all the way to equal residency because I felt I'd intervened enough, and I thought that by the time he goes to school, I expect by then you two will be able to sort things out yourselves.' What a big assumption considering the mother was willing to fabricate sexual abuse allegations amongst other blatant untruths in her Affidavits.

The father asked the Child Psychologist why the Family Court granted equal residency in so few cases. She said 'you have no idea of some of the fathers we have come through here.' 'Are many of them so terrible ?' the father asked. 'Oh no, most of them are very good fathers' she responded. 'So why is equal residency granted in less than 5% of cases ?' the father continued. The Family Court Child Psychologist, Marilyn Venus, did not respond. She looked at her notes, shuffled her papers and changed the subject.

The judgment of Justice Carmody

In his Contact Orders, Justice Carmody followed the recommendations of the Family Court Child Psychologist. He was only going to make orders until the beginning of 2007 which would have meant father and mother would be posturing for the next two years preparing for the next round in the court. The judge had given some excerpts from the Family Law Act during to read during the lunch break. One part of the Act is a recommendation - when making orders, consider orders which minimise the need to return to court. The father pointed this out to the judge. Justice Carmody seemed irritated. However, in his Final Orders he put in a fourth contact stage beginning in 2007 and continuing indefinitely.

The father pointed out to the judge that while stages one to three were progressively increasing, stage four would be regressive and that there was no apparent logic in this. The judge responded that when a child starts school, both parents have less time. The father responded that even taking this into account, the child would have less percentage contact with the father. The judge replied irritably 'well I'm not going to change it now.'

We were handed a copy of the Orders for perusal. Eddy Lago, solicitor for the mother approached the father after a bout five minutes saying, 'Well we're finished. Are you finished ? We should go back in.' He was obviously pressuring me to agree. However, I took my time reading over the Orders.

I noticed that the judge had deviated from the recommendations of the Child Psychologist by Ordering pick up at 7.30pm rather than 7.30am. The judge, again irritable, remarked that that was just a 'typo.' 'Typo' it might have been, but had I not pointed it out at that moment it most likely have remained irrevocable.

Do you mean to say the Family Court process actually creates conflict?

The father argued that it would be better to have Final Orders that could give finality to the Family Court process rather than orders which require returning to the Court in two years time, because the adversarial Family Court process amplifies conflict, and we need to resolve conflict. Justice Carmody was unable to fathom this argument. 'Do you mean to say that if two people come to the Family Court and there is no conflict between them then the court will create conflict ?' he asked. I responded 'if two people come to the Family Court is usually means that there is already conflict between them, but the way the Family Court operates means that solicitors will search for ammunition, and that there will be more accusations and counter-accusations as a result.