The Internet, titillation, and the Family Court of Australia

Does a predilection for masturbation mean that someone should not spend overnight time with their children?

Judge Ryan of the Family Court of Australia at Sydney delivered a judgment in a case that concerned this issue in January 2016. The full text of the judgment is available here(http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCAFC/2016/3.html ).

The case was an appeal from the initial decision in the Federal Circuit Court.

In brief, it is a question that turns very much on the facts – in this situation, there was it appeared no evidence that the children would be exposed to the material that the father accessed, and that if they were to do so, every indication was that the father would act promptly to correct the issue. Additionally, there was no evidence that the children were aware of the father’s habits, and there was no evidence that they had ever interrupted the father during masturbation.

No material appeared to be permanently stored on the father’s television, phone or tablet.

It also seemed that although there was reference to pornography by lawyers acting for the parties, the material concerned may have been at least in part more properly described as television shows containing sex scenes, which would have passed censoring of some sort, rather than wholly pornography.

The father would it appears watch a show on the TV or tablet, and sometimes masturbate in the bathroom afterwards. The mother in the situation was highly critical of the father’s other parenting skills as well, which may have contributed to a perception that her concerns were out of line with wider community expectations.

The Court made a careful consideration of the facts, and the children were permitted to spend time with their father for one overnight per fortnight on an alternate weekend, and for three nights per week during school holidays.

Media reports on the case have missed some of these subtleties and may inadvertently misdirect a party as to what is acceptable conduct and how to conduct yourself during Court proceedings. Broad sweeping statements about what type of behaviour is or is not permitted can lead people astray.

It is for these types of reasons that detailed, specific and expert advice tailored to your particular circumstances is important to reach a happy ending.

Contact our Liz Hall and Richard Hamilton on 03 9614 7111 or Melbourne@nevettford.com.au to talk through your situation.

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Honesty is the Best Policy

In family law cases, many clients think that some information they have available to them is not relevant, are ashamed to admit something, or are actively trying to disguise their true intentions from a lawyer.

You may be aware that your lawyer has a duty to not mislead the Court and so you may withhold information from them as a result.

However your lawyer is the person best positioned to advise you as to whether something is relevant or irrelevant.

For example, in parenting cases, sometimes a response to your Court documents is received that suddenly raises allegations of drug use, alcohol use or a prior criminal history. When asked about why the client did not mention this to you previously, the response might be that ‘it was irrelevant’ or a client felt ashamed about their situation. This leaves you and your lawyer having to perform a great deal of work to catch up and explain why there was not disclosure initially.

It also feeds into a perception that you are not being upfront or able to deal with problems, or that you will not openly admit to any difficulties that may arise in the future.

If you tell your lawyer early on, they are able to provide you with guidance to help you address any drug or alcohol issues, or direct you towards appropriate resources such as counsellors to support you to avoid delays.

Similarly, a business deal or written agreement might not be mentioned to a lawyer in a property proceeding because you did not want to bring a third party into your personal life. Again, your lawyer is best positioned to assess whether this is necessary; they can then give you all the options and you can make a conscious choice, instead of regretting a failure to even discuss the issue latter.

Having to disclose such a document later in proceedings ignites accusations from other parties that the document may have been prepared after the fact or that there has been an attempt to ambush. A failure to disclose may also result in another party to your case seeking costs against you for your conduct of the case.

As a rule of thumb, it is better that you are transparent and honest with your motivations, history and difficulties you are currently facing to your lawyer, so that you and your lawyer aren’t caught off-guard.

To find out more or for specific advice about your circumstances, call us on 03 9614 7111 or email Melbourne@nevettford.com.au.

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Interstate Relocation

What do I need to do if I want to move interstate with my children? Communicate your intention, communicate your reasons, focus on the benefit to your children and get permission to relocate to avoid being dragged back interstate. Most importantly, speak to a good lawyer before you do anything. Call Richard Hamilton at Nevett Ford Lawyers on 03 9614 711 or email Melbourne@nevettford.com.au for more information or to discuss your situation.

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