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Significant cases published July 2023

Federal Circuit and Family Court of Australia – (Division 1) Appellate Jurisdiction

Gadhavi & Gadhavi [2023] FedCFamC1A 117 (21 July 2023)

PROPERTY – Whether the primary judge’s determination of a 60/40 contribution based division in favour of the wife was reasonable within the context of a Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757 claim and the husband’s significant initial financial contribution – Whether adequate reasons for the property division determination were given – Where the property division determination and the husband’s significant initial financial contribution are unable to be reconciled – Weighting of the wife’s contributions being made more arduous by the husband against the husband’s significant initial contribution cannot be reconciled with reference to the reasons – Categorisation of either a lack of adequate reasons or unreasonable determination unnecessary – Error established – Appeal allowed – Re-hearing – Written submissions as to costs.

 

Federal Circuit and Family Court of Australia – (Division 1)

Vitalis & Kazan (No 4) [2023] FedCFamC1F 579 (13 July 2023)

PARENTING – Interim – Where the applicant is a transgender female – Application to vary interim orders following release of single expert report – Where no risk of physical or psychological harm has been identified in the expert report – Applicant seeks unsupervised overnight time – Respondent seeks daytime only with a further interim hearing to be held in four to six months – Orders made for unsupervised overnight time in line with the Independent Children’s Lawyer’s proposal.

 

Jerrum & Jerrum [2023] FedCFamC1F 572 (7 July 2023)

PARENTING – Where the father was convicted of offences of indecent treatment of children and creation of child exploitation material, including in relation to one of the children – Where it is ordered that the father spend no time with the children and have no communication with them – Where a Registrar is to provide a copy of these Reasons to the Department of Child Safety, Seniors and Disability Services.

 

Dunham & Beeharry [2023] FedCFamC1F 545 (6 July 2023)

PARENTING – With who a child lives with and spends time with – Where the mother accepts the children adore the father – Consideration of risk – Where the single expert opines that the risk is emotional or psychological – Where the Court makes a finding that father was in the grip of a psychotic episode which resulted in an extreme act of family violence – Consideration of time spending – Where the father has not spent unsupervised time with the children since the psychotic episode in 2021– Consideration of whether the father is able to remain drug free and avoid mental health or psychotic episodes – Where following judgment being reserved, the mother filed an Application seeking to adduce further evidence – Where the Application was allowed – Where the father’s conduct and communication has been threatening and likely intended to cause fear – Where there is insufficient evidence to make a finding that the father’s mental health functioning has declined – Where the communication from the father and his sister constitutes significant family violence – Consideration of whether the father is now a direct threat to the mother – Where the father’s communication caused the ICL to now promote no time with the father – Where the mother resists such an outcome – Orders.

 

Evert & Pascal (No 3) [2023] FedCFamC1F 535 (3 July 2023)

PARENTING – Overseas travel – Where the mother seeks an urgent application permitting her and the children to travel to Country H to renew their passports – Where the father opposes the application – Where the mother asserts the children’s school will cause the children to be unenrolled if they do not have a passport number – Where the father asserts that requirement is for “overseas students” and the children are permanent Australian residents and do not require a passport number to attend school – Where the wife does not deny that the children are permanent residents – No evidence that the children’s enrolment is untenable – Where the Court finds no urgency exists – Application dismissed.

PROPERTY – Interim distribution – Where Orders were made in October 2022 to repatriate funds from Country H to Australia – Where the husband asserts there is an issue obtaining a tax clearance certificate and CGT assessment – Where the Court is not convinced by the husband’s purported efforts – Where the wife now seeks final orders for the children’s private school fees be prepaid – Where the children’s school fees are currently in credit – Where there is no evidence that the funds should be quarantined – No orders.

 

Grafton & Gorecki [2023] FedCFamC1F 452 (29 June 2023)

PARENTING – Order for sole parental responsibility to the father in circumstances where the father is less likely to place the burden of parenting decisions onto the children – Where there is likely to be a continuing risk posed by the mother of emotional and psychological harm to the children by inappropriately involving them in parenting decisions and in the conflict more generally – Where on balance an order for equal time, week about is in the children’s best interests – Where such an arrangement is more likely to reduce the risk posed by the mother, both parties seek an order for equal time in relation to at least the two youngest children, the children have historically spent close to equal time in each household, and the independent children’s lawyer supports the arrangement – Where the mother is restrained from relocating the children’s residence further than 15 kilometres from Suburb C Post Office – Where the mother is restrained from attending at medical or other allied health appointments for the children so as to remove the children from exposure to a source of potential conflict.

 

Diggs & Meyers [2023] FedCFamC1F 497 (22 June 2023)

PARENTING – Where the parties came to the Court with orders by consent on a final basis – where the father has been convicted of sexual offences – where the child lives interstate with the mother – child forthright in her views to live with the father – where the proposed final orders by consent provide for the child to live with the father – interim orders made for the child to live with the father.

 

Adesina & Crowe [2023] FedCFamC1F 475 (14 June 2023)

PARENTING – Parental responsibility – Where each parent seeks sole parental responsibility – Where the father has not seen the child since separation – Where the mother has unilaterally relocated the child – Where the mother alleges the father is an unacceptable risk – Where the mother makes sexual abuse allegations – Where the father denies allegations – No finding of sexual abuse – Orders for equal shared parental responsibility, save the father to have sole parental responsibility regarding educational decisions – The mother to relocate child’s residence – Restraint on the mother further relocating the child – Child to attend upon a counsellor – Child to live with the mother and spend supervised time with father – Child’s time with the father to increase – Recovery Order to be issued if the mother does not relocate the child’s residence – The mother to continuing attending upon a psychiatrist

 

Cheng & Mong (No 2) [2023] FedCFamC1F 460 (8 June 2023)

PARENTING – With whom a child lives – Relocation – Where the mother seeks the child live with her in Country B – Where the father seeks the child live with him in Australia – Consideration of principles in relocation applications – Finding it is not in the best interests of the child to live permanently in Country B – Application refused – Parental responsibility assigned to the live-with parent – Orders made for the mother to spend time with the child when she visits and/or resides in Australia – With whom a child communicates – Orders made for the mother to have video and other electronic communication with the child while she resides in Country B – Passports – Orders made that the father may apply for a passport for the child without the mother’s consent.

PRACTICE AND PROCEDURE – Adjournments – Where there are concurrent property proceedings in Australia and Country B – Where a previous judgment held that Australia is not a clearly inappropriate forum – Where the property proceedings in Country B may be finalised in mid-April 2023 – Orders made listing the property proceedings for possible final hearing after judgment is delivered in the Country B Supreme Court.

 

Vrolijk & Beaulne [2023] FedCFamC1F 416 (24 May 2023)

PARENTING – With whom a child lives with – Relocation – Where the mother lived in Country B until 2021 – Where the child was born in Country B – Where the mother has employment, housing and family support in Country B – Where the mother cannot work in Australia because of her visa – Where the mother cannot afford rental accommodation – Where the father has not financially assisted the mother – Where there is a significant disadvantage in not affording the mother the ability to relocate with the child – Consideration of whether the child could develop a meaningful relationship with the father if relocated – Consideration of the child’s young age – Orders providing for the father to establish a relationship with the child free of the condition of supervision prior to relocation permitted.

PARENTING – With whom a child spends time with – Where the mother alleges family violence and inappropriate sexualised behaviour by the father – Where the court finds that the mother’s evidence was not reliable and that the father does not present as a risk to the child – Whether the mother is able to support the child’s relationship with the father –Where the mother is opposed to the father spending any time with the child that is not supervised – Consideration of the extent to which a final order that a party’s time with a child should be the subject of long term supervision – Consideration of orders that would best maintain the child having a meaningful relationship with the father until the mother is permitted to relocate – Orders.

PARENTING – Parental responsibility – Presumption of equal shared parental responsibility – Where the parties have a demonstrably poor relationship – Where the parties are unable to communicate – Where equal shared parental responsibility would not be in the child’s best interest – Orders.

 

Haenkel & Haenkel (No 2) [2023] FedCFamC1F 420 (23 May 2023)

PARENTING – Where final consent orders were previously made according the respondents parental responsibility for the child other than in relation to any decision regarding the child’s treatment for gender dysphoria – Where the child seeks to formally change the child’s first and last name – Where the applicant parents oppose a formal change of the child’s first and last name – Where the Court found that it was in the child’s best interests for the child’s first and last name to be changed.

 

Sagar & Janushan (No 2) [2023] FedCFamC1F 369 (15 May 2023)

FINAL PARENTING – Where the father poses an unacceptable risk of harm to the child – Where the child would not receive the benefit of a meaningful relationship with the father – Where the ICL seeks orders supported by the mother –Where the expert identified deficits in the father’s parenting capacity – Where the child is at risk of parentification by the father – Where I am satisfied that the mother and child have been subjected to coercive and controlling family violence perpetrated by the father – Where the father unilaterally exercised control over the movements of the mother and the child – Where the father exercised control over the mother’s ability to obtain employment – Where the father unreasonably prevented the mother from exercising her financial autonomy and unreasonably withheld her financial support – Where I am satisfied that the actions of the father amounts to emotional abuse to the child – The mother have sole parental responsibility for the child.

 

Federal Circuit and Family Court of Australia – (Division 2)

Dornan & Moloney [2023] FedCFamC2F 691 (13 July 2023)

PARENTING – Where it is uncontroversial that the child should live with the mother – Where the father seeks orders for supervised time with the child until she attains the age of thirteen years and thereafter pursuant to the child’s wishes – Where the mother and the Independent Children’s Lawyer seek orders for the child to spend no time with the father where the child does not have an existing relationship with the father – Where findings are made that the father has perpetrated serious acts of family violence upon the mother including physical assaults, non‑lethal strangulation, threats to kill the mother, monitoring her movements via CCTV and other forms of coercive and controlling behaviour – Where it is found that the mother’s parenting capacity would be adversely affected were the child to spend time with the father – Where it is found that the child is at an unacceptable risk of harm in spending time with the father and that such risks cannot be mitigated by the orders sought by the father including supervision – Order made that the child spend no time with the father and protective injunctive orders made.

 

Hutching & Noyer [2023] FedCFamC2F 788 (23 June 2023)

PARENTING – discrete issues hearing – where final parenting orders made by consent except for the discrete issue of whether the child is permitted to accompany the father during hunting and shooting activities – where child has diagnosis of ADHD and is medicated – order that the child is permitted to participate in shooting activities once she attains the age of 12 years holds a minor’s firearms permit – order that the child is permitted to participate in hunting activities once she attains the age of 14 years holds a minor’s firearms permit.

 

Tassell & Bannister [2023] FedCFamC2F 688 (9 June 2023)

RELOCATION – mother lives in City B, Victoria – father lives in City C, Western Australia – father a transport worker with the Armed Forces – father is likely to move again in next twelve months – risk to children – children with special needs – ability to meet needs – neglect – lack of supervision – exposure to drug affected persons – splitting siblings – children permitted to relocate to live with the father.

 

Sachs & Massen (No 2) [2023] FedCFamC2F 738 (31 May 2023)

PARETING APPLICATION – where the mother has not seen the children for 10 years – where the mother says she was subjected to family violence by the father during their relationship – were the father does not support the children having a relationship with the mother – where the mother is an Aboriginal woman – where the mother has a history of drug and alcohol dependency – where the mother is seeking orders allowing to spend time with her – where the ICL supports the children spending time with the mother – where it is appropriate the orders sought by the ICL are made.

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