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Patrick H.
Patrick H., Lawyer
Category: Australia Law
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Experience:  Dip Law LPAB - Sydney based lawyer
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I am involved in a family dispute concerning my child from

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I am involved in a family dispute concerning my child from a previous relationship. The dispute involves blocking my contacts with the child (without a court order), psychological abuse such as Parental Alienation, and other unlawful actions. However, as I understand, the Family Courts can only decide/rule on future arrangements for the child, issuing court orders and so forth. But I also want justice for past actions. In other words, I want the court to determine that the other parent has been breaking the law; sentence the parent accordingly, and make it possible for me to seek compensation. It this possible by taking my dispute to a Family Court, or do I also need to take my case to a criminal court - and/or report to the Police? And if so, in which order should I do all this? How to proceed?
Submitted: 12 months ago.
Category: Australia Law
Expert:  Patrick H. replied 12 months ago.
Unfortunately, unless you can prove an actual crime then the courts cannot will not be able or willing to impose any sanctions on the other parent.

If you believe a crime has been committed then please indicate the facts which lead you to that conclusion and I may be able to advise you how to proceed/collect evidence, but absent a clear case against the other parent you would be well advised to simply deal with the custody going forward.

Also be aware that if you cannot prove a serious crime the courts would likely see efforts to have the other parent treated like a criminal as reflecting badly on you, which may adversely affect the courts approach to any claim you may bring in relation to custody or access. This is particularly so because invariably, any criminal punishment of a parent usually also hurts their children, which in a family court context, the courts are loath to do.

If you provide some more detail I will try to assist you.
Customer: replied 12 months ago.

Thank you for your reply. I understand the problem, and that I must be sensitive. I will keep this in mind.

However, I do have some pretty obvious evidence. First, I have learned that a part of the Family Law says (or translates into) something like this: "Both parents must do everything in their power to make time spent with the other parent or relative work well for the child. The parent who the child is living with should (1) take reasonable steps to make the child available, and (2) encourage a child to go and spend time with the other parent. This is normally the case even if the child says they do not want to go."

In my case, the other parent has both discouraged my child from having contact with me, and eventually completely blocked our contacts. I have plenty of evidence for this, as this has been going on for a longer time, steadily growing worse. I also have correspondence clearly stating (among other things) that "you can not talk to your child again unless you first pay me more money". I believe it's against the law to blackmail me in this way, especially without a court order, as the child's right to see its parents and the financial matters are two separate issues.


 


Then there are the somewhat more hazy problems of Parental Alienation, which may be more difficult to prove, although it could be defined as an (unlawful) abuse in some cases. I will request that psychologists are engaged to help determine this. But I am not basing my legal case on this, but rather the above-mentioned actions for which I have clear evidence.

So in order to make me satisfied with your answer, I need to know: If I in fact have clear evidence of the other parent breaking some part of the Family Law, how to proceed? Can I get justice for these past actions in the Family Court AT THE SAME TIME they rule on the child's future? (After all, without these past wrongdoings I wouldn't have a case, everything would be.) Or do I need to proceed in another way, or run parallel court cases? And if so, in which order?


 


Thank you so much, you help means a lot to me, as I do not yet have my own lawyer!

Expert:  replied 12 months ago.
Generally speaking, breaching parental obligations to facilitate contact as you describe them, though undoubtedly morally wrong, are not crimes in the sense that stealing or murder are crimes and the courts do not generally punish such conduct.

Furthermore, if you have not yet got court orders in place, then even such conduct does not even breach the courts orders. For these reasons I do not see how you have realistic prospects of pursuing yourself, or convincing the police to pursue a criminal case against your child's other parent.

However, these are matters which you could raise in family court proceedings in an application for custody or access and the court may well consider them evidence, of the other parent's unfitness as a parent. Furthermore, if you can satisfy the court that you have been obstructed in your access the court may grant you greater access or custody than you might otherwise have obtained. Finally, the court may make explicit orders requiring the other parent to desist from such conduct in future, in which case any further behaviour of this sort may be subject to court sanction. These should provide some just recompense for the injustice done to you.

Because courts realise that sanctions against parents, particularly custodial parents, also adversely affect the children, courts are often very reluctant to make such orders. Ultimately the courts primary concern is not punishing those parents who have done wrong, rather it is directed at providing the best possible outcome for the children of broken relationships. On that basis, criminal sanctions such as heavy fines or imprisonment are generally reserved for parents who repeatedly breach actual orders of the court, or who try to forcibly remove a child from another parent in breach of custody orders.

If you have a letter demanding money then this is might technically constitute blackmail, and you of course could bring this to the attention of the police, but I suspect they will use their discretion not to pursue action on it. Also be aware that if you did try to involve the police you may lose some of the sympathy of the court since it may form the view that you are putting your desire to punish your ex above the needs of your child.

Courts very much favour the parent who appears to be acting both reasonably and so as not to inflame the conflict between the parents. By showing that you are not going to react to the other parent's poor behaviour the court will very likely be sympathetic to you in any future custody/access dispute. I strongly believe that the best use of the material you have is to support your custody access application, rather than pursuing criminal punishment. The very fact the Family Court will likely side with you based on your evidence will be humiliating for the other parent, and will be a permanent record of both parents behaviour for the child when it is older.

Finally, be aware that before you can bring family court proceedings you will normally be required to undertake formal mediation (through Relationships Australia or a similar organisation). Presumably, if you make known to your ex the evidence against her, you will be in a strong bargaining position to convince her to agree to the custody/access arrangements you are seeking. You can find out more about arranging mediations here:

http://www.relationships.org.au/

I appreciate this may not be the answer you were hoping for but it does reflect the legal reality of your situation, and I trust assists your understanding.

If there is further information or follow up questions you require then please ask and I will try to assist you further, otherwise please rate my answer so that I can be paid by the website operator for my time.

Please note I am only paid if you rate me with three or more stars/smileys.

Thank you and good luck.

Patrick
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 4517
Experience: Dip Law LPAB - Sydney based lawyer
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