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Significant cases published April 2023

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

Saller & Danell [2023] FedCFamC1F 122 (7 March 2023)

PARENTING – Where final parenting orders made in 2017 – Where father found to have engaged in serious acts of family violence to the mother and sexualised conduct towards the children – Where father previously found to be an unacceptable risk of harm to the children -– Where orders made in 2017 for mother to have sole parental responsibility – Where children see little of the father between 2017 to present – Where children clear in their views about wanting supervised time with the father – Where children clear in their views about not wanting regular time with the father – Where father made children uncomfortable during supervised time – Where orders made for limited supervised time.

PRACTICE AND PROCEDURE – Where father filed a Notice of Discontinuance – Where the mother and Independent Children’s Lawyer were prepared to proceed on an undefended basis – Where the father filed new material on the eve of trial –– Where matter proceeded on submissions.

 

Crestin & Algar (No 3) [2023] FedCFamC1F 120 (7 March 2023)

COSTS – ICL costs – Costs against a solicitor – Where the mother was in receipt of legal aid – Where the mother would suffer financial hardship if an order was made that she pay the ICL’s costs – Where the father would not suffer financial hardship if he were to pay a portion of the ICL’s costs – Where the father is in a superior financial position to the mother – Where the father makes complaints about the mother’s conduct – Where it is not found that the mother’s conduct caused the proceedings to be unduly prolonged or unduly expensive – Where both parties are responsible for the adversarial way the proceedings have been conducted – Where the father alleges the mother’s solicitor engaged in improper conduct which caused him to incur further costs – Where the Court is not satisfied that the mother’s solicitor should be liable for any costs incurred by the father – Where the father’s application for costs is dismissed – Where orders are made that the father pay a half-share of the ICL’s costs

 

Maloof & Kagan [2023] FedCFamC1F 119 (6 March 2023)

PARENTING – allegations of sexual abuse perpetrated by the father – where the children have been diagnosed with autism spectrum disorder and have special needs – whether the father poses an unacceptable risk – children’s best interests to live with the mother and spend time with the father – orders made.

 

Gin & Hing (No 7) [2023] FedCFamC1F 116 (28 February 2023)

PRACTICE AN PROCEDURE – application to invoke the overarching purpose of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to limit the length of the fathers’ closing submissions – held, the father’s submissions are limited to the remainder of 28 February 2023 and one hour at the resumption of the trial on 4 July 2023.

 

Scafides & Petrakou (No 6) [2023] FedCFamC1F 93 (20 February 2023)

PARENTING – Independent Children’s Lawyer – Application made by the Independent Children’s Lawyer for discharge from the proceedings – Where the Independent Children’s Lawyer is of the view that there is little she can do to assist the Court or the parties in the resolution of their dispute, in circumstances where the child is not of an age to provide her views via the Independent Children’s Lawyer and each of the mother and father have engaged experienced legal representatives – Where the parents’ relationship is characterised by high levels of mistrust and conflict – Where the parents adopted extreme positions on the first day of the trial and each makes serious allegations as to unacceptable risk against the other – Application dismissed.

 

Gin & Hing (No 6) [2023] FedCFamC1F 68 (16 February 2023)

ESTOPPEL AND WAIVER – Day 28 of the trial of a parenting proceeding – family consultant on day 5 of cross-examination – father unrepresented – father endeavouring to establish that family consultant has exhibited apprehended bias – counsel for the mother objecting to father’s cross-examination by reason of the father’s previous agreement given in November 2017 to take no point in this litigation to the effect that the family consultant exhibited apprehended bias – father seeking to resile from his earlier representation that he would not take such a point – held, father estopped from cross-examining family consultant on the point.

 

Director General, Department of Children, Youth Justice and Multicultural Affairs & Montgomery [2023] FedCFamC1F 44 (10 February 2023)

CHILD ABDUCTION – Hague Convention – Where the applicant alleges that three children were wrongfully removed or retained by the mother in Australia and seeks their return to New Zealand – Where the mother resists the making of a return order on three grounds, namely, that the father was not actually exercising ‘rights of custody’, there is a grave risk that the return of the children under the Convention would expose them to physical or psychological harm or otherwise place the children in an intolerable situation – Where return order made.

 

Hyne & Hyne [2023] FedCFamC1F 36 (6 February 2023)

PARENTING – Interim Orders – Where the mother sought to discharge existing interim consent orders – Where the mother contends that there has been a change of circumstances – Where the father sought to dismiss the mother’s application – Where the parties have a highly conflictual relationship – Where the father has not seen the children since October 2022 despite orders being in place – Where a vast sweep of allegations have been made including allegations of family violence and sexual abuse – Where the allegations of risk raised by the evidence cannot be ignored – Where the Court is satisfied that there has been a change of circumstances – Orders made for the father to spend supervised time with the children.

 

Mornony & Nicolle (No 2) [2023] FedCFamC1F 31 (31 January 2023)

EVIDENCE – application for the use of recordings made from a mobile telephone of skype conversations – whether communications that are prohibited by the Surveillance Devices Act could be adduced pursuant to the exception in s11(2)(b)(ii) – consideration of the meaning of “lawful interests” in s11(2)(b)(ii) of the Surveillance Devices Act – the exception in s11(2)(b)(ii) was engaged in the circumstances of this case – recordings admitted into evidence.

 

Mohammed-Salah & Gastana [2023] FedCFamC1F 67 (19 January 2023)

PRACTICE AND PROCEDURE –Application in a Proceeding by unrepresented litigant – Alleged perjury – Where Independent Children’s Lawyer made an administrative error – Application dismissed.

 

Frost & Morrison [2022] FedCFamC1F 1034 (22 December 2022)

PARENTING – Application by the father seeking orders to spend graduated time with the child of the relationship in circumstances where he has not seen the child since May 2020 – Application opposed by the mother who contends that the child is at risk of sexual harm in the father’s care – Consideration of unacceptable risk – Unable to make positive finding that the father intentionally sexually abused the child – Unable to make positive finding that the mother fabricated or manipulated a false allegation of sexual abuse – Finding of unacceptable risk of sexual and emotional abuse of the child in the care of the father – Consideration of tools to mitigate that risk – Order for no time between child and father – Dismissal of mother’s application for a change of the child’s surname to her own surname

 

Harries & Harries [2022] FedCFamC1F 1009 (16 December 2022)

PARENTING – unacceptable risk of harm – where mother ceased contact between children and father from November 2020 to June 2021 due to allegations of sexual abuse/sexual interference/inappropriate touching – where mother had asserted father is an unacceptable risk of harm arising from inappropriate sexual touching and family violence – where mother capitulated midway through final submissions and consented to the immediate resumption of unsupervised time – where allegations of inappropriate sexual touching are groundless – where mother found to have ‘weaponised’ the allegations of sexual abuse and family violence against the father to limit his relationship with the children – where children have been deprived of a meaningful relationship with their father for spurious reasons – where the father and family report writer expressed concern for the children’s home schooling environment and the mother’s permissive parenting style – where the mother is implacably opposed to the children attending mainstream schooling – where the mother is an unacceptable risk of emotional and psychological harm to the children – where the Court orders sole parental responsibility to the father and the children will live with the father – where the mother will spend alternate weekend and holiday time with the children following a period of supervision.

 

Jin & Jin [2022] FedCFamC1F 927 (28 November 2022)

PARENTING – Best interests – Where there are three children of the marriage – Where the first child reached 18 years old during the proceedings and the second child died during the proceedings – Where the third child is the only child subject to the proceedings – Where the mother seeks the child live with her and spend supervised time with the father until age 16 – Where the father seeks alternate weekend time and holiday time unsupervised forthwith – Where the mother initially sought no time and the father initially sought the child live with him and spend supervised time with the mother – Parental responsibility to be held by the parent with whom the child primarily resides – Family violence – Risk – Where the mother seeks a finding that the father posed an unacceptable risk of harm to the second child and therefore caution needs to be taken with time for the third child – Where the father seeks a finding that the mother poses an unacceptable risk of emotional harm to the child – Finding that the father posed an unacceptable risk of harm to the second child – Finding the father poses an unacceptable risk of harm to the third child currently if time is unsupervised – Finding that the father has engaged in highly inappropriate behaviour towards all the children – Balancing risks of harm – Where the child is at a risk of harm in spending unsupervised time with the father immediately – With whom a child lives – Orders made for the child to live with the mother – With whom a child spends time – Child’s views – Where at the hearing the child was nearly 14 years old – Where the expert evidence identifies that the child feels restrained by interim supervision orders – Where the risk of harm posed by the father necessitates time being initially supervised – Where the father’s time is to progress to unsupervised day time at 15 years old.

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

Maddison & Forbes (No 2) [2023] FedCFamC2F 214 (2 March 2023)

COSTS – where the Respondent has been found to have repeatedly contravened parenting orders without reasonable excuse – where the Court is not satisfied that it would not be in the children’s best interests for the Respondent to pay all of the Applicant’s costs.

 

Whalan & Rapallo [2023] FedCFamC2F 133 (20 February 2023)

PARENTING – best interests of the child – where there are current orders for week about basis – where the father now seeks sole parental responsibility and reduced time with mother – where the child has been exposed to parental conflict – where there is a lack of parental cooperation and communication – where there have been several intervention orders applied for by both parties.

 

Rivett & Lamore [2023] FedCFamC2F 148 (9 February 2023)

PARENTING – undefended hearing – unacceptable risk of family violence – orders made.

 

Gaze & Maltby [2022] FedCFamC2F 1013 (4 August 2022)

PARENTING – Application to dismiss an Initiating Application for Parenting Orders on the basis the Applicant was not a parent – Same sex couple – Consideration as to whether the parties were in a de facto relationship at the time of the child’s conception achieved through a private artificial conception procedure – Declaration as to parentage.