Federal Circuit and Family Court of Australia – (Division 1)
PRACTICE AND PROCEDURE – COSTS – Where the second respondent and the ICL seek costs in relation to the applicant’s dismissed Initiating Application – Where the Initiating Application was forlorn of hope, likely to represent an abuse of process and was wholly unsuccessful – Consideration of whether the costs should be payable on a party/party basis or on an indemnity basis – Consideration of Prantage & Prantage  FamCAFC 105; (2013) FLC 93-544 – Orders.
PARENTING – application for final parenting orders – where the respondent received medical advice that the child’s illness indicated the child may have been sexually abused – where the respondent formed an entrenched view that the applicant posed a risk of harm to the child – where subsequent specialist medical advice contradicted the first – where there was no other evidence of sexual abuse – where the evidence does not establish that the applicant poses an unacceptable risk of harm to the child – where the respondent maintains a fixed belief in the absence of evidence that the child is at risk in the applicant’s care – where the respondent lacks the capacity to meet the child’s emotional need for a relationship with the applicant – where the court orders a change of residence from the respondent’s care to the applicant’s care.
PARENTING – protracted litigation – interim hearing – where the child is thirteen years old – where the co-parenting relationship is extremely poor – where the mother seeks a change of residence – where the mother seeks a moratorium on the child’s time with her father – where the child opposes having a relationship with her mother – change of residence not in the child’s best interests – where the father seeks to travel to Country B with the child – where Country B is not signatory to the Hague Child Abduction Convention – where the Australian Government has issued a travel warning to Country B – where the child is on the Family Law Watchlist – interim applications dismissed – matter set down for final hearing – orders made.
FINAL PARENTING – Undefended as against parents – Where the maternal grandfather seeks sole parental responsibility and care of the child in circumstances where the child has lived with him for majority of her life – Where the mother did not participate in the final hearing – Where the Court had the benefit of two family reports – Where the maternal grandfather and independent children’s lawyers proposed final orders are significantly aligned – long term supervision considered.
PARENTING – Where the mother contends for a final order for sole parental responsibility and for the children to live with her and communicate with the father in accordance with the children’s wishes – Where the father and the Independent Children’s Lawyer contend for a change of residence to the father’s care and a moratorium of time with the mother – Order made for the children to live with the mother.
PROPERTY – Two pool approached – Assessment of contributions – final property division orders to be made that achieve justice and equity for both parties.
Delisle & Mannion  FedCFamC1F 940 (1 December 2022)
PARENTING – Unacceptable Risk –Where there was a significant history of family violence perpetrated by the father – Where the father has issues with anger management and impulse control – Where the mother sought for sole parental responsibility and for the child to spend time with the father supervised by a professional agency and then a family member until he begins high school – Where the father sought equal shared parental responsibility and for time to progress to unsupervised time within six months – Where the father was found to pose an unacceptable risk to the child – Consideration of primary and additional considerations – Orders made for the mother to have sole parental responsibility and for the child to spend supervised time with the father until he begins high school.
COSTS – Where the Independent Children’s Lawyer sought for his costs to be equally shared by the parties – Where the costs order was opposed by both parties – Consideration of factors in s117(2A) of the Family Law Act 1975 (Cth) – Application for costs dismissed.
PRACTICE AND PROCEDURE – Application by the father for the removal of the Independent Children’s Lawyer – Allegations that the Independent Children’s Lawyer lacked impartiality, failed to properly fulfil her duties to the Court, failed to properly promote the best interests of the child and has not adhered to appropriate professional standards – Where there is no justification for the Independent Children’s Lawyer’s removal – Application dismissed.
PARENTING – Application by the father for equal shared parental responsibility – Where the child has exhibited behavioural difficulties and disturbed behaviour – Where the mother alleges the child is sexually abused by the father – Where the mother’s evidence is unreliable and not supported – Where the mother has subjected the child to a number of professional interventions and medical examination – Where the single expert says children who are exposed to interparental conflict can exhibit behavioural difficulties – Where the father has been a perpetrator of family violence towards the mother – Where the father minimises his violence and abusive behaviour – Where the father is observed to have a positive relationship with the child – Where the parents are incapable of co-parenting and communicating – Where the child has never spent overnight time with the father –Orders made for the mother to have sole parental responsibility – Orders made for the father to spend time with the child.
INTERIM ORDERS – Where the father currently has supervised contact with the child – Where the contact supervisor is no longer available – Orders made for the father’s sister to be the supervisor until such time as judgment is delivered – Where the father’s sister has a positive relationship with the child and is cognisant of the family court proceedings.
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.
PARENTING – Where the matter is currently part heard for final hearing – Where the parties have agreed to interim orders for the children to spend time with the mother on the basis of an undertaking given by the maternal grandmother under oath – Where there is a dispute as to an appropriate changeover location for the time with the mother – Where the father proposes a truck stop closer to his home – Where the Independent Children’s Lawyer proposes a midpoint changeover location – Where it would not be appropriate for changeover to occur at a truck stop – Orders made in accordance with the Independent Children’s Lawyers proposed minute of order.
PARENTING – Where there is one child aged eight – Where the child lives with the mother – Where the mother believes the father has groomed the child and taken sexual pleasure from her – Where the father denies this – Where the child has made no disclosures of sexual abuse – Where the Court is not satisfied that the father has groomed or sexually abused the child – Where the Court does not consider that the father poses an unacceptable risk of sexual, or other, harm to the child – Where the Court finds that the mother was not acting maliciously but genuinely believed and believes that the father posed, and continues to pose, a risk of sexual harm to the child – Where the mother has avoided involving the child in the allegations to date – Where the mother has not sought to undermine the child’s relationship with the father despite her beliefs – Where the child has a meaningful relationship with both parents – Where the father accepts the child should live primarily with the mother and an equal time arrangement would not be in the child’s best interests – Where there is overwhelming mutual distrust between the parents – Where it is not feasible for the parties to effectively share equal parental responsibility – Where the Court is concerned, however, about the mother’s exercise of parental responsibility in relation to secondary schooling: Ordered that the mother have sole parental responsibility, except for selecting a secondary school which is to be shared, provided she take into consideration any views expressed by the father – Ordered that the child live with the mother – Ordered that the child spend time with the father – Ordered that the mother engage with a psychologist – Other orders.
PARENTING – Whether the children spend time with the father – Where the father had a history of florid mental ill-health and drug abuse – Where the father had committed acts of family violence and abuse – Where the father committed acts of anti-social behaviour – Where the mother saw or learned of the father’s violence, abuse and anti-social behaviour – Where supervised time ordered by the Court – Where the mother stopped supervised time – Where the children have not seen the father for three years – Whether the father’s functioning now presented an unacceptable risk to the children – Where the Single Expert assessed risk as minimal on the father’s proposal for time – Where the ICL proposed supervised time – Where the ICL set out a pathway to unsupervised time if in the children’s best interests – Where the mother sought no time – Whether the father be included in a child’s birth certificate – Whether the children should have changes to their last names.
PARENTING – One child aged 11 – Where both parties have loving relationship with the child – Where first segment of final hearing was held in February 2021 – Where parties filed numerous interim applications after judgment was reserved – Second set of final hearing dates allocated in 2022 – Where father was self-represented – Intractable conflict between the parties – Where child has made threats of self-harm – Mother seeks order for sole parental responsibility – Father seeks order for shared parental responsibility – Father originally sought week about time, however now refuses to see the child until Term 3, 2023 – Father argues that his relationship with the child has been destroyed by false allegations made by the mother – Presumption of equal shared parental responsibility rebutted – Where AVO against the father for the child’s protection subsequently dismissed before judgment delivered – No finding of unacceptable risk – Where child has expressed wish to spend time with father – Order for child to spend time with father according to his wishes – Order for sole parental responsibility to the mother.
PARENTING – parental responsibility – with whom child lives – with whom child spends time – best interests of the child – where the father seeks an equal time arrangement – where the mother has been the child’s primary carer since birth – where the mother has made unfounded allegations of sexual abuse perpetrated by the father – where the mother has repeatedly questioned the child – where the mother’s behaviour has exposed the child to emotional harm – where the mother chose not to pursue her allegations of sexual abuse – where the mother is a medical professional – where the mother should have sole parental responsibility – where the child’s time with the father should gradually increase toward a shared care arrangement.
PARENTING – One child of the relationship aged 7 – Brief relationship – Where mother was self-represented throughout proceedings – Allegations made by father that mother has pathologised the child – Where child has half siblings on both sides – Where parties live hours apart – Where mother has been primary carer since separation – Current interim orders for child to spend three weekends per term and half of school holidays with the father – Both parents seek sole parental responsibility and for the child to live with them – Where both parties make allegations of abuse or family violence – Allegations of emotional abuse and coercive control in father’s household – Allegations of sexually inappropriate behaviour between child and step sibling – Allegations of physical discipline inflicted by the father – Where mother’s anxiety and lack of stability in child’s life is said to be psychologically damaging to the child – No findings made of abuse or family violence – Where child has positive relationship with both parents and half siblings – Where mother has a history of contravening Court orders – Where neither parent has willingness nor capacity to co-parent – Unilateral decisions made by the mother concerning the child’s medical treatment – Where child is undergoing numerous forms of intervention – Where it is possible the child has ADHD and behavioural or learning disorders – Presumption of equal shared parental responsibility rebutted – Where disruption to child with behavioural problems likely caused by change of residential parent militates in favour of leaving the child with the mother – Distance between parents’ homes makes equal or significant time impractical with non-residential parent – Orders made for child to live with mother and spend time with father three weekends each school term and half of school holidays – Order made for mother to have sole parental responsibility.
PARENTING – Interim orders – Where the mother sought to spend time with the children – Where there is an unacceptable risk to the children in spending unsupervised time with the mother – Where the risk can be managed by supervised time – Interim orders made for supervised time.
PARENTING – With whom the children live and spend time – Best interests of the children – Children aged 10 and 7 at the time of trial – Where the mother seeks orders for sole parental responsibility and no time spending with the father – Where the father seeks orders for shared parental responsibility, the children to live with the mother and spend substantial and significant time with him – Where at the time of trial the children had not spent time with the father for three years – No meaningful relationship between the children and their father at the time of trial – Children opposed to spending time with the father – Mother and children are fearful of the father – Where the Court finds the mother and children’s fears are genuine – Where the Court finds the father has engaged in domestic violence (including coercive control) including post-separation – Where the Court places significant weight on the children’s views – Where the children are to live with the mother and spend no time with the father – Where orders are made enabling the father to communicate with the children by way of letters, cards and/or gifts.
PARENTING – Interim Orders – Where orders had been made for the children to live with the maternal grandmother and to spend supervised time with the father – Where the older child ran away from the maternal grandmother and now resides with the father – Where the maternal grandmother contends that the father poses a risk to the children – Where the father sought equal shared parental responsibility of the children and unsupervised time with the child residing with the maternal grandmother – Where this is a case of risk and the Court must therefore act cautiously – Final hearing dates allocated – Orders made increasing father’s time with the younger child and for the older child to spend time with the maternal step-grandfather.
PRACTICE AND PROCEDURE – Leave to Re-open – Where the mother and Independent Children’s Lawyer (“ICL”) sought leave to re-open the proceedings – Where police subpoena material highlight concerning allegations made against the father by his current partner – Leave granted.
PARENTING – Best interests – Family violence – Risk – With whom a child spends time with – Where the mother and ICL sought an order that the children spend no time with the father in light of recent police subpoena material – Where the father resisted this order – Where the recent material highlights serious concerns about the conduct of the father – Where the father poses an unacceptable risk to the children – Orders made for the children to spend no time with the father and he ensure the return of the children to the mother.
EVIDENCE – Expert evidence – Where the mother sought the father be responsible for costs relating to an updating expert report – Where the father and his conduct has caused a need for an updated expert report – Order made for an expert report and associated and consequential costs to be paid for solely by the father.
INJUNCTION – Personal protection – Where the mother sought various injunctions restraining the father – Where father poses an unacceptable risk – Where the father has previously defied orders of the Court resulting in various recovery applications – Orders made as sought by the mother.
Federal Circuit and Family Court of Australia – (Division 2)
PARENTING – final hearing – high conflict co-parenting relationship – whether presumption of equal shared parental responsibility is rebutted – relationship between adolescent children and father presently estranged – children’s views are strong and longstanding – where father contends parental alienation – where mother contends children’s views independently formed – weight to be placed on children’s views – whether any order can be made for time with father other than in accordance with children’s wishes – application for costs by Independent Children’s Lawyer – orders made for sole parental responsibility in favour of mother – orders that children spend time with father in accordance with their wishes – orders to facilitate mother obtaining travel documents for children and for children’s travel outside of Australia – order that father pay proportion of the Independent Children’s Lawyers costs in the fixed sum of $1,000.
PARENTING – final hearing – relocation dispute – sole parental responsibility – family violence – allegations of sexual abuse – where the mother has significant mental health concerns – evidence of treating psychiatrist and independent psychiatric assessment – where each party makes serious allegations against the other and yet ultimately proposes significant unsupervised time – where court does not agree with recommendations of the family report writer – where the mother’s mental health is well-managed such that significant time spending can occur – where children remain in primary care of the father – relocation not permitted – court not bound by any proposal – orders made on court’s own proposal.
PARENTING – one child, aged six years – where the father has perpetrated a high level of family violence upon the mother – where the father has a significant history of alcohol abuse – where the mother seeks a “no time and no communication” order – where the Independent Children’s Lawyer supports the mother’s position – where the father seeks that his time graduate from supervised time to weekends and overnight – where the Court must consider the risks posed by the father and whether the mother’s parenting capacity would diminish significantly if an order for time was made – where the Court must act protectively – best interests of the child.
Family Court of Western Australia
PARENTING – where the proceedings concern two children in respect of whom the father is the parent of both – where the mother is the parent of one child and seeks orders in respect of both – where the other child’s mother did not seek parenting orders – where the father seeks orders for family therapy and thereafter that the children spend time with him – where the mother agrees with the orders sought by the Independent Children’s Lawyer which are that the children live with her, that she have sole parental responsibility for them and the father be restrained by injunction from communicating with the children unless in response to direct contact from them – where there has been family violence perpetrated by the father upon the mother and the children – where it is assessed the father does not have a mental illness – where the father has engaged in use of social media accounts to publicly refer to the proceedings – where the father has sent unacceptable correspondence to the single expert witness and the Independent Children’s Lawyer – where it is found the father poses an unacceptable risk of harm to the children which cannot be ameliorated – where the impact on the mother of the children spending time with the father is taken into account – where the orders which are in the best interests of the children are those sought by the Independent Children’s Lawyer and mother