This is just a quick post but it has a message about how important it is to take care of our children, the most precious asset of all.
I was recently taking a stroll through the Roma Street gardens, a beautiful park just a short walk from the Brisbane CBD. 
I stumbled upon the following brass plaque encased in sandstone and surrounded by lavender in bloom.

From a distance I could see the word “Apology” and naturally assumed it was in recognition of those dear indigenous children stolen from their parents because of a misguided government policy and ignorant social conscience.
But as I came nearer I was quite taken aback as the intended recipient of this apology was revealed.
The apology was to the children, mothers and fathers who suffered loss through another terrible mistake by bureaucrats in the past.

In  1950s, 60s and 70s Australia it was a socially unacceptable thing for a single mother to keep her child after birth. The whole idea of a woman giving birth to a child out of wedlock or even worse without a known father was considered abhorrent by the church (which cut much sway at that time) and society in general. Women who fell pregnant were considered sexually promiscuous, morally loose and definitely not contenders for motherhood. The social stigma an unwed mother faced was enormous and government support non existent. 
So thousands of children were removed from their parents and many of those children grew up with feelings of loss, confusion about their identity, and fear of abandonment.
I know this for a fact,  I was one of those children. 

I need parents with adopted children to understand that separation and divorce is taken very hard by adopted children and the approach you take as you prepare to part ways needs to take that into consideration.
We like to hark on about how the Family Law Act wants all parties concerned to treat as important “the best interests of the child”.
But the thing is, for many adopted children your separation is another act of abandonment and can have a lasting affect on a child already struggling with identity.
Stability, family and love are at the very core of many adoptees’ concerns. When you are devising a post separation parenting plan do everything you can to help your adopted child deal with their emotions, fears and frustrations.
You may chose not to be spouses or partners forever but you need to do everything you can to ensure their worries and feelings are mitigated.
Finally, with my own story, I wanted to give you a happy ending.
I met my birth mum in 2000 and we have been like peas in a pod ever since.
In a way I feel I have finally come…home.

One of the most heart wrenching events a parent can face is the failure of an ex to return a child back to the parent the child lives with. This parent is known as “the primary carer”.
Whether it’s an hour late from an agreed exchange time, a day visit that turns into a weekend or in the worst cases, a child who is taken overseas and never returned, there is nothing more upsetting that not knowing where your child is and whether they are safe. To me, unless there are prevailing circumstances in these matters that deal with abuse, it is nothing more than modern day kidnapping.

The adage that possession is nine tenths of the law can be applied in a round about way to circumvent these upsetting events. If you are the primary carer, you must be very watchful of that possession and responsibility you have been granted by the courts. And by “watchful” I will give you another well known saying… if you give someone an inch they will take a mile.

KEEP PROPER RECORDS
So as the primary carer, you must be rigorous from day one in terms of policing the orders that the court have given regarding shared parenting. If the parent receiving access does not abide by the orders and starts to stretch their access beyond what is allowed you need to immediately communicate with that parent that it is not on. You do this by putting your disproval in writing by email or letter. Try not to send an sms as the other methods are more official and I feel carry more weight if there comes a time when you need to up the ante in a court. Keep any breach by the other parent in a diary or log book that also backs up your correspondence. If they have a lawyer, write to them as well about the breach explaining exactly what happened and that repeat offences are not acceptable.

The reason why you need to do this should be obvious. Court orders about parenting come about from a long and often expensive process and they are written with the child’s best interests in the foreground. If you are the primary carer, you owe nothing to your ex to “cut them some slack” when they take an extra hour or day to return the child. The same can be said to parents who tamper with the other parents access rights.

And when you get into the habit of doing this, the other party will take that mile and leave you with an anything goes situation with the shared parenting. Both of you had an opportunity prior to going to court to work out a less formal and more flexible agreement with parenting, but once you have orders that moment has passed.
Cut no slack!

I say you need to be quick to enforce orders not for possessive reasons but for reasons relating to the children. Children like and need ROUTINE and court orders provide the template for that routine which cannot be changed. Changing a child’s daily routine and timetable is disorientating and can affect their normal social and school schedules.
Beyond their parents, kids have friends to interact with, school work to do, sports and hobbies they enjoy. So while they may not mind spending extra time with one of you… there will be a price to pay somewhere else.

RECOVERY ORDERS

Where the situation has gotten out of hand and a child has not been returned, there are remedies you can seek and have applied by the court to the offending parent. Again, with these things you should not allow too much time to pass if your own attempts to find out where your child is have amounted to nothing.
With recovery orders there are different processes for applying for this order. Primarily, it depends on whether you have a current parenting order or a parenting case pending in the Court.
If there are no parenting orders in place you will need to file an initiating application seeking parenting orders at the same time as applying for a recovery order. You will also need an affidavit providing the evidence to support your application. If you need help with these applications The Legal Eagle can assist at a much lower cost than a “full service” lawyer.

It’s important to remember that the Court is not a child recovery agency. If the Court makes an order authorising or directing another person to find, recover and deliver the child, you must give a copy of the order to that person. In most instances, this will be the Australian Federal Police (AFP).
The “recovery” can come in many forms.
For example, the Court may make an order which allows or requires a person to return the child to you at a designated time and place but when it’s clearly more serious the court can make an order to authorise or direct police officers, to take appropriate action to find, recover and return a child.
Additionally, a recovery order can in some cases provide directions about the day-to-day care of a child until the child is returned or delivered.
These orders can also prohibit the person from again removing or taking possession of the child. In such cases, the order can even authorise the arrest (without warrant) of the person who again removes or takes possession of the child.

CHILD STILL NOT FOUND?

In some situations, you may ask the Court to issue other orders to help locate the child; for example:
♦ A Location Order – if a parent breaches a parenting order and cannot be found, a court may make a location order. A location order requires a person or government agency to provide the court with information about a child’s location.

For example, Commonwealth information orders are a type of location order. This allows access to all sorts of records to find a child from taxation, medicare to school enrolments.

♦ A Publication Order – allows the media to publish details and photographs of the missing child and the person they are believed to be with. However, each case is different and the terms of the publication order can vary.
This orders is usually a last resort.

And don’t forget that when the child is returned to you, you must notify registry staff at the Court as soon as practicable.

OVERSEAS ABDUCTION

Parents wanting to move overseas have a responsibility to consult with the other parent and seek consent to move. If the parent is agreeable, arrangements can be made for the child to see that parent as agreed between them. If the other parent does not agree then the relocation cannot occur and a court order must be obtained from the court to allow the move.
Relocation cases, whether in Australia or for overseas, are difficult because the court recognises the importance of allowing both parents to have an active role in the raising of the child but acknowledges that parents should have the freedom to move around and get on with their lives either to form new families or take up new job opportunities.
In determining a relocation application, a Judge will consider various matters, including the current relationship the child has with each parent.
Presuming the child has a loving, close relationship with both parents, to alter those arrangements and allow the child to move away will significantly affect the ability of the parent with whom the child does not live to maintain the relationship.
And that ain’t fair for either the the parent affected or the child.
We have had a number of cases recently where parents have left the country and not returned with the children. It is a nightmare for the parent who is abandoned and a difficult process to get recovery as you are dealing with third party countries.
These parents have often been hoodwinked into allowing travel and signing travel agreements and handing over passports to the offending parent. Again, possession becomes nine tenths of the law. My solution ALWAYS travel as a family unit and don’t sign dodgy travel agreements with the other parent.
If suspicious about one parents future travel plans with the child, put the child on a watch list (see below).
If one parent has flown the coup and you are concerned about your child’s welfare and safety, report the matter to your local police immediately.
Contact the Australian Federal Police for advice on placing your child’s name on the Family Law Watchlist. Your child may not have yet left Australia and it may be possible to prevent them being removed from Australia.
Seek legal advice. You will need a court order to place your child on the Family Law Watchlist. Obtaining recovery orders for your child may also be of assistance.

If your child has been taken to a country that is a member of the Hague Convention on the Civil Aspects of International Child Abduction, the Australian Central Authority may be able to assist you. For a list of member countries, visit the Hague Convention on the Civil Aspects of International Child Abduction page.
If your child has been taken to a country that is not a member of the Hague Convention, you may be able to get assistance from the Consular Branch of the Department of Foreign Affairs and Trade. The service operates 24 hours a day and can be contacted on 1300 555 135.
Here’s some addition information about international parental abduction:
https://www.ag.gov.au/FamiliesAndMarriage/Families/InternationalFamilyLaw/Pages/InternationalParentalChildAbduction.aspx

No-one should have to go through the loss of a child by devious means and that requires you to play your part by being diligent with how the child’s time is spent with the other parent.
If your getting a raw deal from the primary carer which is different to your orders you need to put this in writing to the other parent.
If you have no deal you need to make an application to the court.
And if your child has been “kidnapped” you need to notify police immediately and also seek the help of the court.
Don’t forget we are here to help you if you need assistance with your applications and documents.
Visit our APPOINTMENTS page for further info.

The courts have always given much weight to family consultant reports and expert opinions.
Family consultants meet with parents and their children not long after they are appointed by the court. They are appointed when mums and dads are unhappy with the current parenting arrangements for whatever reason and have made an application to the court seeking certain orders about parenting.

Super quick assessments

A parent normally has one meeting with that consultant by themselves and in most cases another meeting where the child is present. These one or two relatively short meetings, if they don’t go well, can lead to reports where one parent is portrayed in a lesser light than the other.
Reports that highlight one parent as being a deficient parent (for whatever reason), can eventuate into court orders where that parent may be given all sorts of conditions from limited access, to supervised parenting, to no parenting at all.
A family consultant report, acted on by the court, can have devastating consequences for the parent left behind.

Unaccountable consultants

A recent investigative report on the ABC website entitled “Unaccountable” noted many parents’ concerns about the increasing role the “family consultant” plays in court proceedings. The problem with many reports written by these court appointed experts is that they are being seen as highly biased to one party. As the ABC report noted, “In the family law system psychologists, psychiatrists and social workers can give evidence and impact cases, but a review has found no-one is keeping them in check”.

From a psychologist conducting interviews in wine bars, pubs and other places without privacy to a particular Sydney psychiatrist known as a ‘serial failure’ when it came to his role with the court, to children being intimidated and threatened at interview by psychologists to social workers writing subjective reports favouring one parent because they didn’t like the other. Is it any wonder many parents are concerned about these “Gods of the court” that seem accountable to nobody. 

A long-awaited report into the Family Court by the Australian Law Reform Commission (ALRC) urged the Federal Government to tackle concerns about the quality of these court appointed experts by introducing mandatory accreditation and lifting the veil of secrecy around them.

Dodgy report writing training

Presently, it doesn’t seem to take much to become a report writing expert. The Association of Family and Conciliation Courts (AFCC) which describes itself as “an interdisciplinary association of professionals dedicated to improving the lives of children and families through the resolution of family contact” is one of the lead players in training professionals in the area of report writing.

Now you would imagine that the training any psychologist, psychiatrist or social worker would need to write these do or die reports would be quite substantial. Alas, that is hardly the case.
Available online are the four modules you need to do to qualify as a Family Report Writer.
Pay the money, download the 4 modules and do them without any oversight or examination in the comfort of your own home and bingo you’re an instant family law expert who can assess parents and children!

So who can be a family consultant and what guidelines must they follow to when writing a report?
Family consultants tend to be psychologists or social workers who specialise in child and family issues after separation and divorce. However, as mentioned above, it seems you either learn your court report writing skills as you go or get them via an online course, with little direction. That doesn’t seem like very thorough training considering the ramification a negative assessment can have on one parent.

And when these reports are done with bias and/or inaccuracies and complaints are made by parents, the relevant investigative authorities are ducking and covering to protect their members. The ABC investigation notes that the Health Care Complaints Commission  after receiving a dozen complaints about one psychiatrist report writer, eventually stated after their investigation that “we took this matter seriously… but…the commission does not have the power to investigate a complaint about the conduct of an expert witness. This includes even if a complaint were to be referred to the commission. The ALRC report in March of 2019 found that psychiatrists and psychologists in private practice who provide family reports played a “crucial” role in legal cases.

It also found there was no way of holding them to account if they failed to meet the professional guidelines set by the court.

So even though there is a complaints process in place by the courts, it may indeed come to nothing or more to the point be looked at only after your family law matter has been finalised. Not really a big help when the horse has already jumped the cart.

What can the court do about below par family consultants?

The Court’s Child Dispute Services is responsible for overseeing the work of family consultants. If you are concerned about the conduct of a family consultant, or the report or memorandum they have provided to the Court, the appropriate forum for raising this is within the proceedings by cross examining the family consultant. That can be a real difficulty for self representers because there are certain ways you need to do this and it does take much skill.

If you wish to cross-examine the family consultant who prepared your report, you (or your lawyer if you have one) must write to the family consultant at least 14 days before the hearing in order to ensure they are available.

If you are seeking to have the family consultant assigned to your case replaced with a new family consultant, this can only be done by applying to the Court within the current court proceedings. You would make an application in a case with a procedural order that the family consultant be replaced. Again, your affidavit would need to have compelling evidence to explain why this needs to be done. Again, an onerous task for the self representer! If you need help with these applications we would be happy at The Legal Eagle to assist at our usual low cost.

Complaining

Complaints about family consultants, or the assessment they have conducted, cannot be investigated nor brought to the attention of the family consultant while your matter is currently before the Court. This is because the family consultant is an expert witness and doing so could be considered to be interfering with a witness in a matter.
You can also bring to Court’s attention issues relating to the conduct of an independent children’s lawyer but only if their conduct has adversely affected your current case. The Court cannot deal with such complaints after final determination of your matter.

It’s always worthwhile writing to an ICL to give them an understanding of your problem with them before going down a complaint pathway.

By the way, in relation to complaints about Independent Children’s Lawyers, you may wish to also notify the relevant State or Territory legal aid body responsible for appointment of the Independent Children’s Lawyer in your matter. Alternatively, there is also the Legal Services Commissioner.

One of the things that I find saddening about this is that no parent, already under stress from enduring a family law matter, should have to be also lumbered with biased or incompetent report writers and “experts”. This has been going on for far too long and simply adds more frustration to the parties involved. If you suspect you have a poor ICL, family consultant or expert act quickly and make your concerns very clear to the court. If that individual needs to be cross examined get a lawyer or barrister involved for that process rather than take on that task yourself.

Oh and If you want my blunt view on Independent Children’s Lawyers who don’t really represent children at all click HERE.

If you need some assistance with your matter we offer low cost help with all your documents and applications-

help@TheLegalEagle.com.au
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