Skip to content Skip to sidebar Skip to footer

Significant cases published May 2023

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

Jagic & Mattias [2023] FedCFamC1A 57 (3 May 2023)

PARENTING – Where the mother appeals from interim parenting orders reversing the residence of the parties’ three young children and requiring them to spend professionally supervised time with her, at her cost – Where the father and the Independent Children’s Lawyer opposed the appeal – Where the primary judge found the mother assaulted the middle child and the children needed protection against the risk of suffering harm caused by their subjection to abuse by her – Where the mother was charged and exercised her right to silence – Where the father’s evidence of the mother’s culpability was unchallenged before the primary judge – Where no error of principle was identified – Where the mother lead no evidence of her supposed incapacity to pay for supervision – Appeal dismissed – Costs ordered in a fixed sum.


Halloran & Keats [2023] FedCFamC1A 56 (2 May 2023)

PARENTING – Appeal against the primary judge’s dismissal of the mother’s application to re-open proceedings and vary final consent orders made in 2018 – Where the consent orders give the mother the right to re-open the proceedings and seek variation of the orders regulating the manner in which the children spend time with her, subject to her acquisition of an independent psychiatric assessment – Where there is an anterior question as to the validity of those orders – Where the source of power to make the orders is unclear and, without any source of power, are ultra vires and hence invalid – Where the orders purport to exclude the operation of the principles established by Rice v Asplund under certain conditions – Where the primary judge imposed upon the mother the obligation to demonstrate materially changed circumstances in all respects despite her compliance with the terms of the orders – Procedural unfairness – Erroneous application of legal principles – Appeal allowed – Matter remitted for rehearing – Costs Certificates granted to the appellant and the respondent in respect of the appeal and the re-hearing.


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

Baumann & Tanev (No 2) [2023] FedCFamC1F 81 (3 May 2023)

PARENTING AND PROPERTY – Relocation – where the mother seeks to relocate to Country B with the children – where the children are very young – where the mother is the primary carer – Where the mother is permitted to relocate at the end of the year with the children – Where the father will have substantial time until the relocation – Where the mother and children will visit Australia once a year and spend time with the father.


Needham & Shao (No 2) [2023] FedCFamC1F 326 (24 April 2023)

LEGAL PRACTITIONERS – Discharge – Where the mother sought for the father’s counsel to be disqualified from appearing for the father – Where the mother has a personal relationship with the father’s counsel and his family – Where the father has a close personal and professional relationship with his counsel and his family – Where the Court finds it is in the interests of the administration of justice that the father’s counsel be restrained from representing him.


Ishak & Koroma [2023] FedCFamC1F 272 (19 April 2023)

JURISDICTION – Where the parties and the children are Australian citizens – Where the parties and the older children live in Australia and the younger children (“the twins”) were born and live in Country B – Mother seeks interim international relocation of the twins to Australia and interim parenting orders – Father opposes the relocation of the twins – Applicability of Subdivision B of Division 4 of Part XIIIAA of the Family Law Act 1975 (Cth) (“the Act”) – Father argues s111CC of the Act deprives this Court of jurisdiction – Where there is no evidence of whether there is a competent authority in Country B – Held Subdivision B does not apply and this Court has jurisdiction.

JURISDICTION – Habitual residence – In the alternative, if Subdivision B were to apply, the twins’ habitual residence pursuant to s111CD(1)(e) would be considered – The twins’ habitual residence would be Country B, not Australia – The Court would not have jurisdiction.

PARENTING – Interim orders – Not enough evidence and/or urgency to order international relocation for the twins on an interim basis – Not enough evidence to make orders in relation to the older children.


Department of Communities and Justice & Wilmer [2023] FedCFamC1F 202 (28 March 2023)

CHILD ABDUCTION – Hague Convention – child retained in Australia from the United Kingdom – where the date of wrongful retention was disputed – consideration of the principle of repudiatory retention – habitual residence – where there is a disagreement as to the nature and purpose of the parents’ travel to Australia – whether the father was exercising his rights of custody – jurisdictional facts established – where the mother asserted the father consented to the retention – where the mother asserted the father was not exercising his rights of custody – where the mother asserted there is a grave risk – where the mother has not discharged her onus – orders made for the return of child to the United Kingdom.


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

Rainger & Cadis [2023] FedCFamC2F 591 (22 May 2023)

PRACTICE AND PROCEDURE – Mother needs a litigation guardian – parenting case with high risks – both parents have intellectual disabilities – both parents and independent children’s lawyer in receipt of legal aid – experienced family law practitioner willing to act as litigation guardian – inability to secure funding – family report released – inability to progress the matter without a litigation guardian – disability conventions – access to justice.


Gerber & Beck [2023] FedCFamC2F 346 (30 March 2023)

PRACTICE AND PROCEDURE – Harman Undertaking – where the parties are engaged in Family Violence Intervention Order proceedings in the Magistrates’ Court of Victoria – where applicant father is the respondent in those proceedings and respondent mother is the applicant – where applicant father seeks release of documents – where the implied undertaking applies to those documents – found that special circumstances exist which would justify the release from the implied undertaking.

Confirm Password