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FLAST CASE BRIEF: Cannon & Wescott [2019] FamCA 148 (12 March 2019)

Shocking Case, “the father” is restrained from spending any time or communicating with the children!

"There are times when the constant parade of misery in this Court threatens to take its toll on those charged with dispensing justice for children within the confines of applying the law pursuant to the Family Law Act 1975 (Cth) (“the Act”)."

This judgment came after the father was a no show at the hearing and just after the father abused the ICL and the Court in an Email.

The Court Orders

The mother shall have sole parental responsibility for the children.

Mr Cannon (“the father”) is restrained and an injunction hereby issues restraining him from spending any time or communicating with the children.

The father is restrained and an injunction hereby issues restraining him from initiating any communication with the mother.

In the current case, the applicant, did not bother to turn up to the hearing of his application for a parenting order.

A recent communication from the father to the independent children’s lawyer (“ICL”) was in these terms: (as per original) [ex 7]

I will when I am ready
The dumb c#$t could of fixed it himself, but he wouldn’t have the brains to reading all his mistakes in his family reports.

His history as a "father" has a long criminal record that included pedophilia.

"It was during this time that it appears highly likely that the two female children were sexually abused by their father. Hardly surprising one might have thought."

The judgment is scathing of the "system", it is a short judgement and well worth reading, some quotes from the judge include:

"The Department of Child Safety, Youth and Women should not conclude that this order is intended to be an endorsement of the mother’s capacity to provide a safe and stable environment for the children in the long term"

"There are times when the constant parade of misery in this Court threatens to take its toll on those charged with dispensing justice for children within the confines of applying the law pursuant to the Family Law Act 1975 (Cth) (“the Act”). "

"The children have had a dreadful life to date but they, like so many children seen in this Court and various other courts in Australia, are what I consider can aptly be described as ‘the forgotten ones’.

"I say this because, for some people, it seems easier to turn away than to confront some harsh realities about a society that not only permits but encourages children to be born into households where their parents are incapable of providing safe, stable and loving homes and where the children are frequently subjected to the most horrific abuse."

A truly shocking case for all involved.

This case can be found on FLAST Channels on .  Case : Cannon & Wescott [2019] FamCA 148 (12 March 2019)

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  • Reading section 10 of the judge's comments I am reminded of the adage 'an ounce of prevention is worth a pound of cure'  .......children from functioning two parent families are, I'd suggest, "our country's most important asset" - those children whom make good (break the cycle) from single parent households are the fortunate minority.  Good law, thoughtful law gives due consideration to process, cost, equity, time and creates natural disincentives that would do violence to civil society.  (As an aside I am not convinced that the ALRC's Family Law System 2019 recommendations to the Attorney General give due consideration to 'prevention' but rather favour 'cure'.)


    10. The millions of dollars routinely wasted by governments of all persuasions on endless enquiries and royal commissions into child safety could actually make a real difference if redirected to the lives of these forgotten children. Children are this country’s most important asset yet the courts and front line services such as the variously named Departments of Child Safety and Police, charged with trying to protect them, are simply starved of sufficient funds to make a difference. Foster carers are few and far between and time and time again parents are afforded second chances at the expense of their children

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    Case : Bangi & Belov [2019] FamCA 42 (6 February 2019)

    - Time With

    This case involved one child, 13 years of age, where the matter was remitted by the Full Court for to the Family Court for consideration of a discrete issue.

    The dispute relates to the proportion of time the child will spend with each parent during school terms, the dispute arose because the police have attended the mother’s residence on multiple occasions due to reported and conflict between the mother and her [new] partner.

    The father seeks more time in the father’s household and less time in the mother’s household to reduce the child’s risk of exposure to violence, conflict and alcohol abuse. The father sought orders whereby the child live with the mother on alternate weekends and for one night in each intervening week during school term and otherwise with him.

    Parental Responsibility

    Additionally there was a dispute as to which school the child attends and an order is made specifying which school the child will attend.

    Practice and  
    Where the father seeks to rely on findings made by an earlier Court in the same proceedings, the Courts consideration of case law and s 69ZX of the Family Law Act 1975 (Cth). Where the Court is able, but not required, to adopt unchallenged findings made by the trial judge in earlier proceedings.

    Issue : Although in her written submissions the mother objected to all of the affidavits in the father’s case, the only objection she pressed at the commencement of the hearing was in respect of the affidavit of Mr JJ. The father’s counsel said that the deponent would not be available for cross-examination. In the normal course, an affidavit would be excluded where the deponent is not made available for cross-examination, without a justifying circumstance.

    Reasoning: However, as with other aspects of the proceedings, the affidavit in question was part of the evidence before Hannam J in the earlier hearing. The evidence of Mr JJ was not challenged in those earlier proceedings. That is because the mother failed to attend the parts of the hearing which occurred after that affidavit was sworn and filed. However, there was no appeal by the mother in relation to the orders of Hannam J and although she attended a procedural hearing (about expedition) she failed to attend at the hearing of the father’s appeal. As a result there was no challenge on appeal to the findings of Hannam J in respect of Mr JJ’s evidence.

    HELD : 

    Where orders are made that the child lives with the father and spends substantial and significant time with the mother.

    Additionally in regards to schooling : I have ordered that he mainly live with his father. Largely for that reason I ordered that the child attend the public School (as opposed to private school mother wanted) nearest the father, commencing in the 2019 school year.

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    Kader & Winchester [2019] FCCA 244 (5 February 2019)

    The father seeks orders that both parents have equal shared parental responsibility for the child as well as orders for shared time. There has been no contact between father and child for 2 years and 8 months.

    The mother and father have made serious allegations against each other. The mother applied for a domestic violence order, the father subsequently was charged with a breach of those orders, for he attended the mother’s residence to collect his belongings.

    The mother opposes any interim order, which considered the father having any contact with his daughter, and submits any contact between the father and child whether supervised or not would put the child at risk.

    The mother claims the father had verbally and physically abused her and the child. The father denies the allegations, however does concede that he failed to buckle the child in the car seat once, resulting in the child falling out of her seat, he also admitted to having punched holes in the walls of the home on two occasions and acknowledged this was unacceptable behaviour.

    The father has attended all required sessions with a family therapist, as well as having attended all other court ordered programs, despite having no assurance he will see the child again and knowing the mother is adamant he will never spend time with their daughter.


    • Interim parenting orders.
    • Father has had no contact with child over a period of two years and eight months.
    • Father seeks orders that both parents have equal shared parental responsibility for the child as well as orders for shared time.
    • The mother opposes any interim order for contact supervised or not.
    • The father has admitted to an instance of family violence.
    • The father has complied with all previous court ordered programs, therapists and courses.


    Does a self-confessed instance of family violence in the past from the father deprive his daughter from having contact with him?


    Pending a final determination of the orders, the mother has sole parental responsibility for the child; the child is to reside with the mother.

    It was ordered for the Mother to attend a Psychologist to deal with concerns developing from the child spending time with the Father, additionally, both parents are ordered to complete the Post-Separation Parenting Orders Program. Furthermore, the father was granted supervised visitations initially at a contact centre, after no less than 10 visits at the centre with the child, both parents must attend the family report writer for the arrangement of an updated Family Report.

     The courts position in this instance pending the final orders, were that contact should be returned between the father and the child in the best interests of the child. The judge concluded that a previous history of a parent behaving unreasonably does not always mean the child will be devoid of a meaningful relationship with the parent later on, this of course relies on the parent to behave reasonably in such a way to demonstrate the best interest of the child will be satisfied.

    There has been some time between contact with the father and the child (2 years and eight months) therefore, supervised visitations at the contact centre will provide the opportunity to determine if the father is capable of behaving reasonably with the child, it was established the probability of the father causing harm to the child at the contact centre is minute.


    Family Law Act 1975 (Cth), ss.11F60CG60CC60CA

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    Rocacelli & Seles [2019] FamCA 105 (28 February 2019)

    FLAST CASE SUMMARY: A father seeks to change existing interim parenting orders before trial,the orders were previously made permitting the father to only communicate with the child by Skype for 30 minutes each fortnight, which is to be supervised at a Contact Centre.The mother and ICL oppose the proposal. The father in essence is now seeking a move for unsupervised telephone calls for one hour a week and to commence 3 face-to-face visitations at the contact centre, which would then graduate to unsupervised visitations if successful.

    There is history of family violence with several police applied protection orders (one is in force) there have been breaches of the orders on occasion, the father has been charged and convicted at least twice.A psychiatrist assessed the father and claims he displays significant traits of Anti-Social Personality Disorder.

    The child who is approaching 11 years of age has expressed her wish not to spend face-to-face time with the father.


    • There are competing proposals.
    • The child is approaching 11 years of age.
    • 28 January 2018, Family Report Writer asserts for a more cautious approach, suggests limiting time with the father and child to supervised Skype time that is to occur at a Contact Centre.
    • 17 May 2018, a Psychiatrist asserts the father displays significant traits of Anti-Social Personality Disorder, and recommends the father to only have Skype sessions with his daughter and that she continue to live with the mother.
    • July 2018, orders were made permitting the father to communicate with the child by Skype for 30 minutes each fortnight, which is to be supervised by the Contact Centre.
    • 9 October 2018, the father seeks changes to the existing interim parenting orders before the trial to commence unsupervised phone calls for one hour pre week and for face-to-face time to begin at the contact centre 3 times before graduating to unsupervised time if successful.
    • 25 October 2018, Contact Centre report states the Skype calls would be suspended if the father continued to breach the Service Agreement by raising unsuitable issues with the child.
    • The mother and ICL propose that existing arrangements continue until trial.
    • Domestic violence orders have been applied from time to time between both parties, one is currently in force, the father has breached orders on occasion, and has been charged and convicted of doing so at least twice.
    • The father was occasionally incarcerated as a result of sentencing for criminal convictions during the relationship.
    • Child has expressed views of not wanting to do face-to-face visitations with the father.


    • Does the father pose any risk of harm to the child in an unsupervised setting?
    • Is there a benefit to the child having a relationship with the father?
    • What are the Child’s views?


    The father’s Application in a Case is dismissed the present orders are maintained.

    In determining this matter, the judge considered the relevant statutory pathways and cases, combined with the opinions and recommendations from the psychiatrist and Report Writer (their opinions remains untested). Both professionals assert there is a concern for the fathers behaviour, and suggest no face-to-face time, only supervised Skype communication time between father and child. The Contact Centre reports do not ease the concern of the father’s alleged risk to the child. There has been instances the father raised unsuitable issues with the child, and seems to be fixated with himself, rather than being entirely concentrating on the child.

     The judge was satisfied there were adequate evidence presented to cause concern about the father’s ability to emotionally control himself, this may put the child’s safety at risk due to his actions.

    Furthermore, the father asserts the child has been swayed by the mother to form the view she has of him. It was established there were significant scepticism to this claim due to the earlier notes that were provided by the contact centre that demonstrated the childs view may be sincerely held by her, this is in alignment with her past behaviour and earlier remarks relating to the type of comfort she experiences with her father.

    It was determined that being at an interim stage in the proceedings, it’s problematic to correctly measure the level of risk which the father may pose to the child. However, based on the evidence provided a cautious approach at this point is in the best interest of the child by maintaining the current order, for there is benefit to the child to have a meaningful relationship with the father provided that she is kept safe. The child’s views were acknowledged and given weight due to her maturity and age, however it was not determinative.

    There is a pending trial in April, where the issues which highlight the concerns about the father and risk can be determined at trial. 

    Relevant legislation pathway and cases that were drawn upon in determining this matter:

    • Part VII of the Family Law Act contains the statutory provisions dealing with children.  Section 60B specifies the objects of Part VII, and the principles underlying those objects.
    • Section 60CA in deciding whether to make a parenting order, the court must regard the best interests of the child as the paramount consideration.
    • s 60CC. The matters which a court must have regard to in determining the best interests of a child are set out. Consideration does not mean discussion: Banks & Banks[2015] FamCAFC 36 at  [49].
    • s 61DA Deciding whether the presumption for equal shared parental responsibility applies or not in the best interests of the child due to reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption.
    • Goode & Goode (2006) FLC 93-286 at 80,903 the Full Court set out the way in which an interim parenting application should be determined.
    • Salah & Salah [2016] FamCAFC 100 the Full Court at [36]-[40] said this in relation to the task of a judge conducting an interim hearing where disputed facts are unable to be resolved:[36] It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to "the usual pathway as highlighted in Goode & Goode(2006) FLC 93-286".
    • The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel [2010] FamCAFC 101;  (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.
    • Harridge & Harridge [2010] FamCA 445 outlines a list of inquiries in relation to risk assessment.

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    Seidel & Dixson [2019] FamCA 25 (25 January 2019)


    • The parents separated in June 2012 after a seven-year relationship.
    • Children X age 12 and Y aged 10.
    • FACS removed Child X from both parents when he was 2 months old following the father holding the baby out the window by his clothes. Child X was placed in the care of the maternal grandparents for 8 months.
    • FACS returned Child X to the mother when the father was in custody.
    • March 2015, the father initiated proceedings in the FCC requesting orders for the children to reside with the mother, and for both parties to have equal share parental responsibility and to also spend alternative weekends, time during school holidays, and on special occasions with the children.
    • The mother sought sole parental responsibility and orders and for the children to spend no time with the father. The mother adjusted her application to include allowing her to change the children’s surnames and to travel internationally without the need for the fathers consent to obtain passports.
    • The father initially had a lawyer, however the lawyer terminated acting for him in June 2015.The father has an extensive criminal history against the Mother (family violence), other intimate partners and the police (resisting arrest, assault). There are various other offences and convictions for contravening AVO’S. He was charged in mid-2006 with assault occasioning actual bodily harm, threatening to destroy or damage another person’s property and two counts of breaching an ADVO and was convicted and sentenced to a sixteen-month term of imprisonment, which was suspended.
    • The father was dealt with in accordance with the Mental Health Act 2007(NSW) and then next through other mental health provisions in relation to these offences.
    • The father is also convicted of having sexual intercourse with 2 minors, they both became pregnant to him- one was 13 years old. The father was sentenced to a term of imprisonment for 18 months with a non-parole period of nine months. He was later convicted in 2013 on two occasions for failing to comply with reporting obligations arising from the offences relating to sexual offending against a minor.
    • In January 2015, (subpoenaed police records) state there were apprehensions held by the police and FACS regarding sexual abuse claims by the father’s partner at the time- her daughter has special needs.
    • The father then failed to appear to several of the court events from October 2015 to August 2017.
    • September 2015, the mother, children and father all attended on a family consultant for interviews for the Child Responsive Program.
    • The Family Consultant determined, “The serious level of violence between [the parties] in the past would indicate that a positive co-parenting relationship in the future is unlikely. It could be dangerous for all involved, for there to be contact between [the father] and [the mother].”
    • The father failed to attend the Family report appointment.
    • February 2018, in the Family Report released in, the family consultant recommended the mother have sole parental responsibility for the children, the children live with the mother and spend no time with the father.
    • The father did not to appear at the case management hearing on 20 March 2018 and the ICL informed the court that he was in custody, bail having been refused on criminal charges.
    • At the undefended hearing on 21 September 2018, the mother and Independent Children’s Lawyer (“ICL”) tendered a Joint Minute of Orders.


    Whether the children will benefit in having meaningful relationship with their father? Is it in the children’s best interest?


    The court agrees with the family consultants proposal and orders were made for the children to live with the mother, for her to have sole parental responsibility, for the children to have no contact with the father or paternal family, additionally, orders were made restraining the father from contacting or approaching the mother, and the mother is also able to change the children’s surnames and obtain passports to leave the country without the fathers consent.

    In determining the joint proposed minute of order of the mother and the ICL, the court looked to the primary considerations (under s 60CC(2)):

    • The benefit to the child of having a meaningful relationship with both of the child’s parents; and
    • The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

    The Judge acknowledges they are required to give greater weight for the need to protect the children from harm, rather than a meaningful relationship between both parents.

    The court established based on evidence provided, the father has committed serious acts of violence against the mother, other intimate partners and police.

    Moreover, the court also notes these final orders are ‘extreme in nature’, however it is deemed the children will not benefit from a meaningful relationship with the father, and that the orders are essential in protecting the children from physical and psychological damage they would experience with their father.

    At [67] the Judge states:

    .... In my view there is an unacceptable risk that the father will continue to behave in a violent manner including perpetrating family violence and sexual abuse to which the children are likely to be exposed if they were to spend time in his care.

    The father failed to continue to engage in proceedings, the court accepted this as the father consenting that he does not wish to continue a relationship with the children in the future.

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    Zaccardi & Zaccardi [2019] FamCA 39 (1 February 2019)



    • August 2017, father removed himself from the home, the mother and child (3 years old) continued to reside there.
    • 18 August 2017, the father pursued urgent parenting orders in the FCC permitting the child to spend time with him.
    • The mother in her response, raised allegations of family violence from the father; she did not oppose the child spending time with the father.
    • 28 August 2017, orders made by consent: supervised contact by a professional agency for father and child.
    • 26 September 2017, the matter was revisited -supervision sustained.
    • 5 October 2017, orders were made for the preparation of an expert’s report by a clinical psychologist.
    • January 2018, an AVO was made by consent for 12 months for the protection of the mother. The father was convicted, after a defended hearing, of assault on the mother, occasioning actual bodily harm, arising out of the incident in May 2017.
    • 15 February 2018, additional orders were made by consent, permitting the clinical psychologist copies of the AVO and allowing the parties to inform the psychologist the father had been convicted of assault occasioning actual bodily harm on the mother, he was placed on a bond for 12 months.
    • 26 February 2018, the clinical psychologists report was released.
    • The psychologist had apprehensions about the consistency of the mother’s allegations of family violence, states the significance for the child to have a developing relationship with his father.
    • 28 May 2018, interim hearing -orders made on 5 June 2018.
    • The interim orders stipulated the child to have unsupervised time with the father.
    • In July 2018, the matter was listed for final hearing in February 2019.
    • Towards the end of 2018, the father had now been charged with possession of ammunition and stalking/intimidation with intent to cause fear of physical or mental harm. The father was permitted bail with thrice weekly reporting conditions. It is mandatory for the father to comply with a curfew. It was a condition of bail that he comply with the AVO.
    • October 2018, the matter was transferred to the Family Court where it was listed for mention in February 2019.
    • In 2019, the Local Court altered a provision of the AVO granted in 2018.The father was now not allowed to locate the mother or approach the mother and child or go near their house. The “Advice of Court result” stipulates the Local Court suspended the contact orders made by the FCC on 5 June 2018.The police also applied for an AVO for the protection of the maternal grandmother.
    • 25 January 2019, each parent filed urgent interim applications.
    • The mother has ceased all contact between father and child and seeks a no contact order as a result of alleged threats of harm to her, the child, and the maternal grandmother.
    • The father sought to re-establish visitations the mother had stopped and contends the family violence allegations are intentionally false.


    • Do the allegations pose a high risk to the mother and child to cease all contact?


    Orders made for no contact. The orders for contact will be suspended. 

    In the interim, the court must resolve what preparations are in the child’s best interests based on an evaluation of the claims pursuant to Section 60CC(2) , Family Law Act 1975 (Cth).

    The court was unable to determine as of yet the weight of all the allegations without the necessary documentation of evidence and examination-nevertheless, the police have established sufficient grounds to charge the father- he has previously been convicted of assault occasioning the mother physical harm also weapons and ammunition were discovered. If the rest of the allegations are found to be true against the father, the result will be the father and child’s relationship will cease, in the alternative if the mother is found to be dishonest with her claims the outcome may be she looses custody of the child.

    Additionally, the court did not accept the father’s counsel’s submission for supervised contact by the paternal grandparents to alleviate any safety concerns.

    It was determined the risk to the mother, and indirectly to the child, is so serious that no supervision, even professional supervision, can be granted.












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    'The system is failing our children': Courts, police criticised over baby's death

    8 February 2019

    Bravehearts founder Hetty Johnston has criticised the family court for letting a "known domestic violence offender" be alone with his baby boy after they were found dead in a car on the Sunshine Coast.

    Council workers found the bodies of the 46-year-old father and six-month-old son near a Sunshine Coast camping ground at Coochin Creek on Wednesday.

    The child's mother reported them missing on Sunday after the father and baby boy did not meet her as specified in custody arrangements despite police stating the report occurred on Monday.

    Katie Buckingham opened a GoFundMe campaign a day after the bodies were found to help her cousin pay for her baby boy's funeral and mortgage.

    On Friday, QPS Ethical Standards Command assistant commissioner Sharon Cowden confirmed the father was stopped by police for a random breath test and was issued a speeding ticket.

    She said there was no sign of child in the car at the time but would not say whether the car was searched.

    Ms Cowden said she could not comment on the speeding ticket or where the man was pulled over and other circumstances because it was under investigation.

    An Amber Alert was also not used.

    Ms Cowden said QPS would look at the systems and processes in the decision making in this case to understand what has happened so we can reflect on this as a whole.

    However, Ms Johnston has criticised the courts and its systems in place for failing Australian children and blaming Queensland Police because they 'stuffed up'.

    "It's tragic that we've got another baby being murdered by a parent," she said.

    "This is going on across the country on an all too regular basis because the family law system, which includes the family court and police in each state and territory and child protection, is failing our children."

    "I feel as though the court systems and the family courts have almost thrown their hands up and just given up.

    "There's no real assessment of danger as it might apply to the child."

    Ms Johnston, who was calling for a better risk assessment, said the death of the six-month-old boy was a "symphony of dysfunction and death".

    "We've got a family court issuing an order that this person should have unsupervised access despite the fact that he's a known domestic violence perpetrator, that just doesn't pass any common sense," she said.

    "The family court is issuing these notices like confetti and these police are having to deal with that when it gets to this level when those parents don't bring those kids back.

    "The courts are failing to assess at the beginning and failing to protect the child."

    "Where is the child safety on this? They've got a responsibility but we're not hearing from them, they're doing a hot potato and then we've got police who have totally stuffed this up."

    "The one that pays the price is this child especially and the mother."

    Ms Johnston said there needed to be a royal commission.

    "I don't know how many kids have to die on a mantle of self-protectionism by the systems, these systems are protecting themselves and not the children," she said.

    "We tried to learn from Tiahleigh Palmer, we were going to learn from that but there was no amber alert in this case now and there wasn't one then either because it was a foster care thing."

    "If you put out an amber alert on all of them that thing would be going off every five minutes, it's that common so this is why we need a proper assessment in the first instance."

    "This father was given access to this baby.

    "None of this would have happened if that didn't happen."

    Queensland Police Service was conducting an ongoing internal investigation into the circumstances leading up to the death of the child and man.

    The investigation would examine all aspects of the police response and would report to the coroner.

    The QPS Ethical Standards Command investigation will be separate to an ongoing criminal investigation into the deaths, led by regional and specialist police.

    The Crime and Corruption Commission will oversight the ESC investigation.

    If you need support, contact Lifeline on 13 11 14 or Beyondblue on 1300 224 636.

    By Jocelyn Garcia


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    Charges laid after baby injured during domestic violence incident


    A couple has been charged after their eight-month-old son was injured while they were physically fighting at their NSW home earlier this week.

    Officers were called to the Murrumbidgee home on Wednesday night after reports of an alleged domestic violence incident.

    Officers spoke to a 32-year-old man and a 24-year-old woman, as well a number of witnesses before taking the man in to custody.

    Paramedics who also attended stuck around to check over those involved, including an eight-month-old boy, who they say was lethargic and non-responsive.

    He was rushed to Griffith Base Hospital for further treatment and is expected to make a full recovery.

    Detectives from the Child Abuse and Sex Crimes Squad attended the hospital and commenced an investigation.

    As a result of inquiries, the 32-year-old man was charged with affray, assault occasioning actual bodily harm, and take action that results in physical injury.

    He will return to court next week.

    Now a 24-year-old woman has been charged with affray, assault occasioning actual bodily harm, and take action that results in physical injury.

    The woman was refused bail to appear at Griffith Local Court today.

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    Father and child found dead on the Sunshine Coast in suspected murder-suicide

    BREAKING NEWS 50 mins ago 6/2/19

    Queensland police are investigating whether a father killed his child and then himself after their bodies were found in a car on the Sunshine Coast this morning.

    It is believed council workers found the car at Coochin Creek and alerted police around 8:00am.

    Detectives from the Child Protection unit are treating the matter as a murder-suicide.

    "At this stage, detectives are treating the death of the child as suspicious and the man's death as non-suspicious," police said in a statement.

    A crime scene has been established around the red Commodore on Roys Road where it was found.

    The man is believed to be from Redcliffe.

    Police said the bodies are yet to be formally identified.

    More to come.

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    As the deadline for opting out of the My Health Record looms ever closer, lawyers need to be informed about privacy and safety concerns associated with the new system to advise their family law clients accordingly.

    Snap Shot

    • Unless a parent has opted out of the My Health Record for their child before 31 January 2019 or cancelled their My Health Record, all children and young people will have an electronic health care record created for them.
    • Currently any person with parental responsibility (except in limited circumstances) for that child can become an authorised representative and access that child’s record, which may reveal the location of the child and details of their treating health care providers and confidential health information.
    • This is a significant concern for those at risk of if their location was revealed.
    • Those clients should be advised to cancel the child’s My Health Record if they have not opted out by 31 January 2019.

    The My Health Record (MHR) system is the Commonwealth government's digital health record system that contains an individual's health information, including treatments they have received, healthcare providers they have visited and medicines they have consumed that commenced operation in July 2012. Originally the system was designed on an opt-in basis, but in May 2017 the Commonwealth government announced that the MHR system would transition to an opt-out system largely due to the slow uptake of the system by the Australian public. This means that every Australian now has an MHR automatically created for them unless they chose to opt-out by the deadline of 31 January 2019. This includes children and young people.

    The MHR of a child or young person can be accessed by the authorised representative of the child or young person. An authorised representative currently includes any individual with parental responsibility for that child except in limited circumstances following recent amendments to the My Health Records Act 2012. When creating an MHR, the Australian Digital Health Agency (ADHA) uses Medicare records to determine who has parental responsibility. If neither parent opts out, an MHR will be established for the child and both parents, if recorded at Medicare, will be deemed to have parental responsibility and will have access to it as an authorised representative.

    There were concerns raised about perpetrators of family violence being potentially able to become an authorised representative of a child's MHR. Amendments were passed to the act on 26 November 2018 providing that a person cannot become an authorised representative of a child's MHR if under a court order or a law of the Commonwealth or a state or territory, the person must be supervised while spending time with the healthcare recipient; or the life, health or safety of the healthcare recipient or another person would be put at risk if the person were the authorised representative of the healthcare recipient. It is not yet clear what evidence in practice will satisfy the ADHA of that risk and it is up to those who consider that their safety or the safety of their child may be at risk to notify the ADHA and Medicare (Department of Human Services) and provide copies of any relevant orders with a request that the perpetrator be prevented from accessing the child's records.

    The Family Law Act 1975 provides that each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the court. While some parents do have court orders providing for sole parental responsibility for a child, these are usually only made after a final hearing and can take up to three years or more to obtain at a significant cost. There are many families where there are significant risk issues where children may be having no contact with a parent (by court order or otherwise) or only supervised contact with a parent in a controlled contact centre environment where both parents still have parental responsibility. There are also many families where one parent may be the subject of an apprehended domestic violence order (ADVO) that prohibits that parent from coming within, for example, 100 metres of a child's school or place of residence, or approach or contact the other parent or child. Frequently both parents may still retain parental responsibility under the Family Law Act 1975 if neither parent makes an application for parenting orders.

    In these circumstances detailed above, the parent who is prohibited from contacting the other parent or child under state-based ADVO or interim or final parenting orders made pursuant to the Family Law Act 1975, would still be permitted to obtain access to the child's MHR (if the other parent has not opted out the child by 15 November 2018 or otherwise cancelled the child's record) unless a copy of the orders is provided to the ADHA.

    Online access to a child’s MHR will provide information potentially about the location of the child and family and/or their treatment providers and the nature and dates of treatment. Family law practitioners should be aware of this when advising clients of risks when their clients or subject children may be at risk of family violence if the other parent was to gain access to their health record information or location revealed through the MHR system.

    If either parent cancels the child's MHR account, this information will be deleted from the system if the My Health Records Amendment (Strengthening Privacy) Bill 2018, which was introduced to Parliament on 22 August 2018, is passed. This bill also contains provisions that a warrant, subpoena or court order will be required before the data can be provided by the ADHA to another agency.

    On 23 August 2018, the Australian Senate referred the My Health Records Amendment (Strengthening Privacy) Bill 2018 to the Senate community affairs legislation committee for inquiry and report. This inquiry was conducted concurrently with the Senate community affairs references committee inquiry into the MHR system.

    Submissions to the inquiries highlighted the safety and privacy concerns held by many, especially in relation to parents and young people who may be at risk of family violence if their location was to be revealed to the other parent, potential for tracking of domestic violence victims and the potential for confidential health information to be revealed in circumstances where there have been relationships of coercive and controlling family violence.

    The Law Council recommended in their submission that the term ‘parental responsibility’ in the My Health Record Act 2012 (Cth) be replaced with an alternative term such as ‘parental rights’, and notes that the use of the term ‘parental responsibility’ in the MHR Act is “likely to cause considerable confusion” due to the different definitions used in the MHR Act compared with the Family Law Act. The Australian Law Reform Commission in the discussion paper Review of the Family Law System, released 2 October 2018, recommends replacing the term 'parental responsibility' with the term 'decision making responsibility' and the term is therefore already the subject of possible future review.

    The Law Council recommends Section 5 of the MHR Act be amended so that and that the term ‘parental responsibility’ or ‘parental rights’ be amended to:
    • A person has parental responsibility/parental rights if under a parenting order the child is to spend unsupervised time with the person; and
    • A person does not have parental responsibility/parental rights if he/she has a restraining/personal protection order preventing them from spending time with the child under the Family Law Act 1975 or a law of a state or territory unless there is a Family Law Act order providing that person has parental responsibility for the child.

    The Law Council noted that the current configuration of the MHR system means that there are "serious issues for children and parents who may be at risk of harm if their location was to be disclosed through the MHR system to a perpetrator of family violence. As the MHR system is currently opt-out this issue must be urgently addressed and education provided to the community for those who may be at risk of family violence or harm". Parents may need to be proactive about either opting out of the MHR system for their children if there are safety concerns.

    The Senate committee (18 October 2018) was not satisfied “that women and children are adequately protected and believes that further work is required to ensure that MHR is not used by perpetrators to gain access to records”, and made a range of recommendations including those below to address these safety concerns such that:

    1. Record access codes should be applied to each MHR by default and an individual should be required to choose to remove the code.
    2. Amendment of the My Health Records Act 2012 to protect the privacy of children aged 14 to 17 years unless they expressly request that a parent be a nominated representative.
    3. Amendment of the My Health Record Rule 2016 to extend the period for which an MHR can be suspended in the case of serious risk to the healthcare recipient, such as in a domestic violence incident.

    The committee also raised concerns about the potential security vulnerabilities associated with having a centralised database with broad access. Other privacy concerns include that audit logs kept by the system only show access to the data at an organisation level, not at an individual level, so any unauthorised access to a health care recipient’s information will be trackable to an organisation level not an individual and whether the end user’s IT security systems such as those located at a small medical practitioner office would provide adequate safeguards to protect the MHR system.

    Despite the recent amendments to the legislation made by the government, privacy concerns remain. According to the Annual Report of the Australian Digital Health Agency 2017-2018, there were 42 data breaches (in 28 notifications) of the MHR system reported to the Office of the Australian Information Commissioner in 2017-18. Of the 42 breaches, the agency confirmed that one was the result of “unauthorised access to a My Health Record as a result of an incorrect parental authorised representative being assigned to a child”.

    Family lawyers will need to consider advising any affected clients to take steps to notify ADHA about their circumstances if they consider they may be at risk. The concerns about safety remain unless affected parents take action to notify ADHA of their circumstances. The opt-out model means the burden is placed back on victims to protect their safety and to take further steps and ‘prove’ the risk through provision of court orders, rather than the MHR system being built to protect by default.

    A parent who has concerns is being advised by the ADHA to contact them to request that their child’s record be immediately suspended or cancelled (for a permanent solution).

    Source : Lawyers Weekly 

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    The Family Law Amendment (Family Violence and Other Measures) Act 2018 was passed by both houses of Parliament on 22 August 2018 and received royal assent on 31 August 2018. All amendments commenced on royal assent.

    The Act makes two significant changes to the exercise of family law jurisdiction by state courts.
    First, by an amendment to Family Law Act 1975 s46, the monetary limit of state courts exercising family law jurisdiction can be raised by regulation.

    Previously, where the total property value exceeds $20,000 and the respondent seeks different orders, the court must transfer the proceeding to the Family Court, Federal Circuit Court or the Supreme Court unless both parties consent to the court hearing and determining the proceeding. Through the introduction of s 46A, this $20,000 limit can be raised by regulations. Magistrates will therefore need to stay informed about any exercise of this regulation power.

    This change applies to proceedings instituted after commencement.
    Second, the new s 69GA allows the Commonwealth to prescribe certain courts as courts that have family law jurisdiction. The purpose of this provision is to allow regulations to be made to remove the current uncertainty about whether the Children’s Court of Victoria has family law jurisdiction. Again, magistrates will need to keep watch for the relevant regulations.

    This change applies to decisions made after commencement, regardless of when the proceedings were instituted.
    INTERACTION BETWEEN FAMILY VIOLENCE INTERVENTION ORDERS AND FAMILY LAW ORDERS Under Family Law Act 1975 s 68R, a court that makes or varies a family violence intervention order has power to revive, vary, discharge or suspend certain family law orders.

    Section 68T provides that, where the order or variation is of an interim nature, the revival, variation or suspension ceases to have effect at the earlier of either when the interim order stops being in force or at the end of 21 days starting when the interim order was made.

    The Act removed that 21-day time limit and replaced it with the earlier of the following three cut-off times:

    1. When the interim order stops being in force;
    2. At the time specified in the interim order as the time when the revival, variation or suspension ceases to have effect; or
    3. At the time the family law order is affected by an order of a court, made under section 68R or otherwise, after the revival, variation or suspension.

    The effect of this change is that the automatic 21-day cut-off has been replaced with a power to set when the interim order stops affecting the family law orders. In addition, the effect of the interim order ceases when the family law orders are affected by another court order (whether by the Magistrates’ Court or otherwise).

    This change applies to all exercises of power under s 68R that occur after the commencement date.

    INTERACTION BETWEEN FAMILY LAW ORDERS AND FAMILY VIOLENCE INTERVENTION ORDERS Section 68P requires a court to give certain explanations when the court makes an order under the F a m il y L a w A c t 1 9 7 5 that it knows is inconsistent with an existing family violence intervention order.

    The Act introduced amendments to s 68P which mean that a court does not need to give these explanations to the child who was protected by the intervention order if the court is satisfied that it is in the child’s best interests not to receive that explanation.

    The final significant change is that the Act introduced a broader summary dismissal power than the previous s 118, which only provides for dismissing proceedings that are “frivolous or vexatious”. The Act introduced a new s 45A, which provides for summary judgment if satisfied that the other party has no reasonable prospects of success. The “no reasonable prospects of success” test does not require that the proceeding be “hopeless” or “bound to fail” (s 45A(3)). Section 45A(4) reintroduces the frivolous or vexatious ground for dismissing proceedings, along with finding the proceeding is an abuse of process.
    The new s 45A applies to proceedings instituted before and after commencement.

    Victorian Judicial College

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    Brisbane Airport reopens after 'domestic violence' incident, man faces multiple charges


    1:00PM Sunday 3/2/2019

    A 50-year-old Surfers Paradise man is facing bomb hoax, assault and stalking charges after an alleged domestic violence incident resulted in the emergency evacuation of Brisbane Airport's international terminal last night.

    Key points:

    • A Surfers Paradise man will appear in court on Monday on multiple charges
    • Police alleged the incident was domestic violence and not terrorism-related
    • One witness, who said she saw a man with a knife, said the incident looked like a "family feud"

    Queensland Police Commissioner Ian Stewart said the incident was highly volatile and absolutely life-threatening.

    "First responders, including the Australian Federal Police, security officers at the airport and ultimately Queensland police, were faced with a dynamic and a very real situation that was initially in its perception, absolutely life-threatening," he said.

    Witnesses reported seeing a man with a knife and hearing shots just after 8:30pm but police said there were no reported injuries.

    Police decided to evacuate the airport after finding what they believed was a suspicious device.

    Police Commissioner Stewart said it appeared to be a sophisticated device and "clearly indicates just the extraordinary lengths that a person has gone to to create perception of risk, threat and fear".

    Officers negotiated with the man before firing beanbag rounds to subdue him.

    Superintendent Tony Fleming said the rounds struck the man in the torso.

    "He's been examined by [paramedics], he has no significant injuries," he said.

    The man was taken to the Brisbane watch house, where he was charged this morning with staging a bomb hoax, making a false statement, assault, contravening a domestic violence order, stalking and stealing.

    He is due to appear in the Brisbane Magistrates Court tomorrow.

    The incident caused major disruption at the airport precinct as it was shut down and trains to the terminal were halted.

    Police said there was no evidence to suggest the incident was terrorism-related.

    "It's my understanding that the man approached a woman, that woman was known to the man," Superintendent Fleming said.

    "There was some communication there and then he spoke with another female and it's at this point that circumstances deteriorated."

    Witness Zoe Bickerstaffe said she saw an older man holding a small knife, and the incident looked like a "family feud".

    "[He] got up and almost started chasing these two younger girls that looked like they were part of his group, he had a knife in his hand and then the girls started screaming, everyone started screaming and they just said 'get out he's got a knife'," she said.

    Traveller Evan Wasuka, who had just arrived from the Solomon Islands, said security was "very firm" in moving people out of the building.

    "All of a sudden, security started [moving] everybody out," he said.

    "They were very rushed, they were very firm in moving people out of the door. There were a lot of them. It all happened pretty fast."

    The terminal has since reopened.

    A spokeswoman for Brisbane Airport said flights were delayed by one to three hours on Saturday night, but that by early Sunday morning no flights were delayed due to the security incident.

    Police also conducted searches on the Gold Coast in relation to the airport incident.

    About 9:00pm, they placed an emergency exclusion zone around a car park in Surfers Paradise, where the bomb squad examined cars and a nearby apartment complex.

    But police declared the area safe and revoked the exclusion zone at 1:40am.



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