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Significant cases published June 2023

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

Pandya & Pandya [2023] FedCFamC1A 85 (1 June 2023)

PARENTING – Where the mother appeals from an interim order permitting the father to change the child’s school – Procedural fairness – Whether the primary magistrate failed to afford the mother procedural fairness – Where the mother failed to file any material – Where any opportunity to put on further material would not have been availed of – Where the mother was afforded ample opportunity to make submissions – Whether the primary magistrate failed to give proper consideration to the child’s best interests – Where the currency of the judgment makes it unlikely that material was overlooked – Weight challenge – Where the giving of weight to matters of fact is quintessentially a matter for the primary magistrate – Where no ground of appeal succeeds – Appeal dismissed – Costs ordered in a fixed sum.

 

 

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

Gonzales & Gonzales (No 2) [2023] FedCFamC1F 438 (30 May 2023)

PARENTING – Interim Orders – Where the children currently live with the paternal aunt and uncle – Where the father has withdrawn from the proceedings – Where orders have been made for the children to spend supervised time with the mother – Where the mother seeks orders that will allow her to eventually spend unsupervised time with the children – Where the Independent Children’s Lawyer proposes that time move to unsupervised time subject to the mother complying with drug testing – Where there is no change and the risks identified by the experts remain – Where the Court needs to act cautiously in interim proceedings when there is a risk of harm – Orders made for the children to spend supervised time with the mother once a month.

 

Bradshaw & Bradshaw (No 2) [2023] FedCFamC1F 430 (26 May 2023)

PARENTING – Where both parties seek sole parental responsibility and the child’s residence – Where the child currently lives with the father and refuses any interaction with the mother – Where the mother and Independent Children’s Lawyer allege the father causes the child to suffer serious psychological harm by failing to ensure the child enjoys a relationship with the mother – Where the single expert reported there would be ongoing and lasting consequences for the child’s future social and psychological development if his alignment with the father is not rectified – Where the single expert evidence is accepted – Where it is found the father has engaged, and is engaging, in child abuse and the child requires protection from the risk of serious psychological harm in the father’s care – Where the child has demonstrated the capacity to flee the mother but can be viably moved to live with the mother – Where the presumption of equal shared parental responsibility does not apply – Ordered the mother have sole parental responsibility – Father restrained from any form of contact with the child for three months – Ordered the child live with the mother and spend defined time with the father.

 

Moon & Moon [2023] FedCFamC1F 414 (24 May 2023)

PARENTING – Allegations of family violence – Where the father alleges the mother is alienating him from the children – Where the children live with the mother and spend alternate weekends with the father – Where the father failed to attend interviews with a Family Report writer and a psychiatrist in contumelious disregard of Court orders – Where the self-represented father was prevented from personally cross-examining the mother – Where the father is found to have engaged in coercive and controlling behaviours – Where the father poses a risk of harm to the children by involving them in the dispute – Where there remains a benefit for the children in spending unsupervised time with the father – Where the risk of harm is sufficiently ameliorated by an order for alternate weekend time with the father throughout the year as well as orders that the father attend psychological counselling and complete a parenting course – Where the mother is also required to complete a parenting course.

 

Wagner & Oakley [2023] FedCFamC1F 390 (19 May 2023)

PARENTING – Where the Mother seeks sole parental responsibility and the Father seeks equal shared parental responsibility – Where the Father seeks increased time with the children – Where there are allegations of family violence by the Father against the Mother – Where the Father has mental health issues – Where the Father has drug and alcohol issues – Where there is a risk of harm to the children – Mother to have sole parental responsibility – Children to live with Mother and spend time with Father.

PROPERTY – Where the Father received multiple Total and Permanent Disability superannuation payments – Where the Father received a lump sum from a worker’s compensation claim – Where there have been numerous partial property settlements – Where the father made greater contributions but the mother has greater future needs – Order for a 60:40 alteration of property interests in the father’s favour.

 

Ostell & Ostell [2023] FedCFamC1F 375 (19 May 2023)

PARENTING – Where the mother has relocated to Western Australia and the children haven’t seen their father in two years – Where there are allegations of family violence – Where there are allegations that the father is actively seeking to undermine the children’s relationship with the mother – Where there is an order for no time and no contact between the children and the father – Where the father seeks for the children to be relocated to Melbourne and live in his primary care – Where the oldest child has expressed clear wishes to live with the father – Where the family report writer indicates the children’s wishes should not be given weight as they have been unduly influenced by the father

 

Tarelli & Langley [2023] FedCFamC1F 386 (18 May 2023)

PARENTING – With who a child lives with and spends time with – Where the father engaged in overt family violence up to the parties’ separation in 2014 – Where the mother has PTSD as a result of the family violence – Where the mother was the primary carer up until 2017 – Where Orders were made in 2017 reversing the primary care arrangements – Where the child has lived with the father since 2017 and not spent time with the mother – Where further Orders were made in 2020 to again reverse the primary care arrangements – Where the handover was demonstrably unsuccessful – Where the single expert opined the failed handover was considered to be a cruel procedure, traumatic and likely solidified the child’s negative perception of the mother – Where the mother seeks orders that the child live with her and spend virtually no time with the father – Where the mother, by reason of her unresolved PTSD, cannot spend time with the child should he remain living with the father – Where a third change in the primary care is likely to cause the child extreme distress and a deleterious mental health outcome – Where there is scant evidence as to the process required to effect a transition or how to deal with the psychological and emotional sequelae that would likely result – Where the evidence supports a finding that there is no viable process to effect a change in the child’s primary care – Where there is no evidence that the mother could cope with spending time with the child if he remains living with the father – Orders.

PROPERTY SETTLEMENT – Contributions – where the parties cohabitated for four years – Where the mother made significant financial contributions – Where the maternal grandmother has also made significant financial contributions on or for the behalf of the mother – Where the father has the sole care of the child – Where the mother is likely unable to return to paid employment arising from her PTSD – Consideration of family violence – Orders.

 

Penna & Saunders [2023] FedCFamC1F 356 (11 May 2023)

PARENTING —Failure by Applicant to engage in the trial — Where the matter proceeded on an undefended basis — Concerns about the parties mental health — Where the father poses an unacceptable risk — Where there are allegations of sexual abuse — Where the child has complex care needs — Where the mother seeks orders for sole parental responsibility — Consideration of whether the child should spend time with the father — Orders made in accordance with the joint proposal of the mother and Independent Children’s Lawyer – Orders made for the mother to have sole parental responsibility and for the child to live with the mother.

 

Noble & Noble [2023] FedCFamC1F 397 (10 May 2023)

PARENTING – Where in 2021 the Court changed the children’s residence to the father and ordered a moratorium of time with the mother, with a gradual increase of time with the mother – Recovery Order now sought by the father – Where the children continue to express a wish to live with the mother – Where there is recent updated family report which recommends the children continue to live with the father for their emotional development and wellbeing, and limit the children’s time with the mother to block school holiday time – Where the expert opines that the children’s maturity is less than their chronological age – Where the expert has seen a decline in the children’s emotional and developmental progress when they were having increased time with the mother – Children to return to the father’s care.

 

Hanns & Bampton [2023] FedCFamC1F 347 (8 May 2023)

PARENTING – With whom a child spends time with – Family violence – Where the Court finds that the father’s engaged in overt family violence – Where the father has an obsessive interest in the mother – Where the children have been exposed directly and indirectly to significant family violence – Where the children have been the subject of litigation for six years – Where the children have not spent time with the father since 2017 – Where the children have attended multiple single experts and psychologists – Where reunification therapy has failed – Where the children may be placed at significant emotion or psychological risk should the Court order orders for time spending – Where the experts opine that the children should spend no time with the father – Orders.

PARENTING – Children’s Surname – Where mother seeks that the child be known by her surname – Where the father opposes the change of the children’s surname –Where the mother has informally changed the children’s surname at their school – Where the Court finds that there has likely been unilateral conduct on the mother’s part to promote the change of surname – Where it would be confusing for the children to be known by two last names – Consideration of which surname is in the best interest of the children – Consideration of the factors set out in Reagan & Orton [2016] FamCA 330 – Where the complete cessation of any connection with the father was not considered by the experts to be in the children’s best interest – Where the mother did not present sufficient evidence that would support a change in name – Where an order is made restraining the mother from using her last name in relation to the children – Orders.

 

Dansey & Dansey [2023] FedCFamC1F 290 (24 February 2023)

PARENTING – interim hearing – application in a proceeding – unacceptable risk – amelioration of risk – supervision of time – where father seeks variation of previous interim parenting orders – where father seeks a change of residence for children to live with him – where father seeks children to spend supervised time with mother – where mother seeks children remain living with her – where mother seeks maternal grandfather to be discharged of undertaking in relation to supervision – where mother seeks children remain living with her with new supervisor – where there are competing allegations of unacceptable risk of harm to children in care of the other parent – where single expert opines risk of “psychological harm” to children living with mother – where single expert recommends immediate change of residence and professional supervision – where second single expert opines there is “a risk to the children of emotional harm” in mother’s care – immediacy of risk of harm – where matter is listed for expedited final hearing – whether children exposed to unacceptable risk in care of mother necessitating immediate change of residence and supervision – mother’s ongoing treatment providers opine that mental health is improving – adjournment application on day of interim hearing by mother – orders made for increased time with father – orders made releasing maternal grandfather from undertaking – orders made for supervision of time with father to continue – orders made for supervision of mother’s time with children pursuant to undertaking.

 

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

Merritt & Bruckner (No 2) [2023] FedCFamC2F 592 (19 May 2023)

PARENTING – parenting proceedings concerning children aged 11 & 9 – parties have been engaged in litigation since 2016 – proceedings finalised by way of final order made in Division 1 of the Court in March of 2022 following lengthy contested hearing – trial judge determined that the children concerned should live with the father and he be conferred with sole parental responsibility – father subsequently recommenced proceedings alleging mother had withheld the children from him in contravention of the orders – original trial judge has recused himself – recovery order subsequently issued – children subsequently returned to father in controversial circumstances – older child has returned to mother – further application for recovery order – issues of child abuse – involvement of Department for Child Protection – application to disqualify Independent Children’s Lawyer – nature of interim hearing – assessment of risk – assessment of views of children – weight to be given to children’s view – best interests.

 

Mulroney & Mulroney [2023] FedCFamC2F 490 (28 April 2023)

PARENTING – Consideration of parenting arrangements for two children aged 12 years and 8 years-Older child diagnosed with Autism Spectrum Disorder and other conditions – Younger child diagnosed with Autism Spectrum disorder and other conditions – Father primary carer for children since 2017 – Both children require significant levels of support to meet their special and unique needs –Consideration of each parent’s capacity top provided for the children’s needs- Children’s characteristics and needs dictate the options which are available to facilitate their relationships with each parent-Practical difficulty and expense – Allocation of parental responsibility children- Passports and international travel

 

Janco & Riordan [2023] FedCFamC2F 470 (28 March 2023)

PARENTING – Mother seeking to re-visit earlier parenting Orders contending that she consented to them without proper advice and/or that she did not fully or properly understand them; recommendation of Family Consultant that there be no change to the child’s primary living circumstances of living with his Father in Sydney and spending regular time with his Mother in City J; reliance and contentions regarding drawing adverse inference based on principle in Jones v Dunkel; according to authority drawing adverse inferences is not mandatory but remains a discretion of the Court.

 

 

Family Court of Western Australia

WORRALL and BARTLEY [2023] FCWA 2

PARENTING – Where the only child of the relationship was born [in] 2009 and the parties have been involved in litigation about parenting issues since September 2010 – Where the child has lived with the father since February 2016 and has spent no time with the mother since April 2019 – Where the mother declined to engage with ordered supervisor and the Single Expert Witness – Where the mother retains beliefs that the father poses a risk of harm to the child notwithstanding previous findings to the contrary and her professed acceptance of those findings – Where during the currency of the proceedings, the mother has engaged in surreptitious and manipulative communication with the child which is harmful to her – Where the risk to the child arising from the mother’s maintained beliefs and ongoing behaviours is unacceptable – Where there are no steps which could be taken to ameliorate or mitigate that risk while permitting the mother to spend time and communicate with the child – Consideration of the need to explain the Court’s decision to the child in an age-appropriate manner and in a therapeutic context, and the means by which that might be achieved – Turns on its own facts.

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