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  • Grounds of Appeal - Guest J
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  • 10/12/2002 Make a Comment
  • Contributed by: admin ( 30 articles in 2002 )
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Grounds of Appeal were filed to be heard in the Full Court of the Family Court of Australia.

However, due to the father being unable to secure proper legal representation, having little money, suffering poor health plus the fact that residence of his son had now, after the jailing, been returned to him, has not been able to proceed through the Appeal process.

This case was to legally and publicly highlight the unlawful and unconstitutional jailings that happen all too often in our Family Courts and as usual, due to the secrecy of the court, very few people ever get to hear about them.

GROUNDS of APPEAL Drafted by David Perkins - Senior Counsel (One of the few honourable barristers around)

1) The learned trial judge was guilty of actual or alternatively imputed bias towards the father, and was so guilty in circumstances where any failure to object is or should be immaterial, and alternatively the father's failure to object is irrelevant in the light of the publication and contents of an article on Justice Guest published in The Weekend Australian Magazine on the 7-8 December 2002.

2) The learned trial judge was in error in failing to hold that he was obliged to enquire into the welfare of the child Andrew Knight prior to and as a condition of extending, confirming or otherwise dealing with the order of Justice Carter of 8 November 2002.

3) The learned trial judge was in error in ordering that the father deliver the child as if the child had no will or ability to make decisions for himself and to act thereon; and further was in error in failing to define with precision or at all the steps which the father was obliged to take pursuant to the order.

4) The learned trial judge fundamentally and consistently misconceived and failed to apply the obligation upon him to look to the best interests of the child.

5) The learned trial judge should have ruled that the provisions of the Family Law Act 1975 (as amended) concerning the welfare of the child required that his first, central, and predominant enquiry and decision be concerning the child's welfare and in accordance with his plainly expressed wishes, and his maturity and development.

6) The attitude of the learned trial judge and the entire conduct of proceedings by him trivialised or ignored, or alternatively erroneously displaced the core facts, namely:

    a. That Andrew was about the age of puberty and expressing an overwhelming preference not to have to live with and be confronted by the sexuality of his lesbian mother and the mother's lesbian partner;

    b. That the child was expressing and was determined to act upon his preference to live with his father and his sibling Danielle;

    c. That the child had on four prior occasions run away from residence with the mother;

    d. That the mother, without the consent of the court, the father, or the child, was treating the child as having a psychiatric illness;

    e. That the separate representative approached and continued to approach the child on a fundamentally inappropriate basis, namely, on the basis that he was not obliged to act on Andrew's instructions, thereby leaving Andrew effectively unrepresented.

7) The learned trial judge failed to distinguish and keep distinct the bligations cast on Federal Police pursuant to a Recovery Order, and his own obligation to adjudicate in compliance with the statutory obligation to look to and act upon the best interests of the child.

8) The orders by the learned trial judge failed to anticipate and provide for the resolution (if necessary by adjudication) of issues of fact arising from any alleged failure by the father to comply with the order.

9) The orders were contrary to law.

10) The orders were in the ...of the hearing and impingement of the father's rights or privileges (including rights or privileges arising directly or by implication from the Constitution) or alternatively were contrary to law, and made in disregard of due process and natural justice.

11) To the extent (if any) that the learned trial judge used or purported to use the provisions of the Commonwealth Powers (Family Law - Children) Act that enactment in the absence of a referendum was beyond the legislative competence of the Commonwealth.

12) The learned trial judge was in error in failing to make proper provision for the service of the order on the father.

13) In the circumstances the learned trial judge acted contrary to law and due process by treating the father as having the benefit of counsel, or as otherwise being represented in any material or sufficient way.

14) Such and further grounds of appeal that the Appellant may add in an Amended Grounds of Appeal.


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