Family court Judge Robert Benjamin ordered a woman to pay a $30,000 cost order for her aggressive response to her ex-husband’s offer to settle their dispute.  The judge took into account the fact the woman had made an ‘exaggerate and fabricated’ claim that she should be given a greater slice of the property pool because of family violence.

The usual position in family litigation is that each party bears their own costs, but judges have discretion to make cost orders. In this case, Justice Benjamin awarded legal fee’s of $30,000 be paid towards the Husband’s $100,000 legal bill.

“I am very conscious of the wife’s difficult financial circumstances, but I am also concerned that litigation like this ought not be conducted in an aggressive way and that the parties have an obligation to enter into meaningful negotiations and not allow their distress, anger or bitterness of a relationship breakdown be driven through the court proceedings. Justice Benjamin said.

This case highlights that the Family court does not look favourably when one party is not open to negotiations, and how aggressive behaviour in family law matters rarely helps a parties case.

As reported in The Australia, 8 November 2018.

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Here we will share a story of when the best interest of the child are best served by one parent being excluded from the child’s life.

A recent family court matter provided for final orders of no time being spent with one parent, here is the case summary.

At separation, Mum obtained an intervention order against Dad which included the child as a protected person. Over the years Mum had been subjected to physical and emotional domestic violence, even, at times, in the presence of the child. During the first year after separation, there were supervised visits between Dad and the chid.

Dad had a history of drug and alcohol abuse, and mental health issues. Dad wanted to increase his time with his child, and Mum was agreeable for him to do so, recognising the importance of her child having a relationship with his father, as long as he would submit to drug screen, complete an anger management course and undertake a psychological assessment.

Dad did not agree to the above conditions and mediation failed. Dad then initiated proceedings in the Family court. At the first return date in Court, amongst other things, Dad consented to a psychological assessment, to complete drug screens and hair follicle testing. No orders were made for him to see his child at that date. When the Court asked for parties to come back for an update and further directions, it did not go well. Dad had not completed his psychological testing, or submitted to any drug testing. When Dad was meant to attend to have a hair follicle testing, he shaved his head. Dad did also not show up for court.

The Judge then made final orders that

1. The Mother have sole parental responsibility for the Child
2. The Child live with the Mother

No Orders were made for the child to spend time with the Father.

This case illustrates how a Court must endeavour to balance the two primary considerations when determining what is in a child’s best interest, these are;

1. The benefit to the child of having a meaningful relationship with both of the child’s parents; and
2. The need to protect the child from physical or psychological harm.

Courts are very cautious about excluding a parent from a child’s life, however this case illustrates, where there is a history of persistent violence, a break of time in the child seeing a parent, and when a party refuses to comply with Court orders, it will be appropriate for a Court to make such an order.

It was ultimately up to the Father as to whether he would have a place in his child’s life, and he chose to disregard the tasks the Court had ask him to complete, and his pathway back to spending time with his child.

Peter Fisher Lawyers regularly deals with difficult cases such as these. We are here to help if you have any inquiries about navigating the law and the Family court process. We specialise in helping you through any separation, divorce, children or property matter issues you may have. For more information, call our Family Law team on 08 8296 2690.

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On one level the answer to this question is yes but in terms of Family Law there are other things to consider.

Making arrangements for your children following a seperation can be difficult and emotional.  It is helpful in your negotiations to be guided by what the law shows us applies when dealing with children’s matters.

As outlined in the Family Law Act, what is in the best interests of the children is what ultimately matters.  Children have a right to spend time with and have a meaningful relationship with each of their parents, where it is appropriate and safe to do so.  You may not want to see your former spouse but it is important for you as parents to focus on the children’s best interests in your negotiations.

Do your best to avoid argument and consider what the children need in order to have a stable routine and a meaningful relationship with their mother and father.

Here at Peter Fisher Lawyers we can meet with you to discuss how to best resolve your separation, divorce, children or property matters, including negotiation with your former spouse. Call our office on 8296 2690 to make an obligation free appointment with one of our highly experienced Family Lawyers.

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