Federal Circuit and Family Court of Australia – (Division 1) Appellate Jurisdiction
PARENTING – Where the father appeals from final orders permitting the mother to relocate with the children interstate – Whether the primary judge failed to consider s65DAA of the Family Law Act 1975 (Cth) – Where the primary judge’s reasoning does not comply with the strictures of s65DAA, particularly as raised by the evidence – Inadequacy of reasons – Where a consideration of whether either regime was in the children’s best interests and reasonably practicable was not apparent in the reasons – Where the primary judge’s rejection of the family report writer’s recommendations and evidence is not articulated – Appeal allowed – Matter remitted for rehearing – Costs certificates issued to the parties.
Federal Circuit and Family Court of Australia – (Division 1)
FINAL PARENTING – Where mother concerned about the possibility that father sexually abused one of the children based on child’s disclosures and sexualised conduct – Where mother also alleges father perpetrated family violence – Where Court does not consider it necessary to resolve the parties’ dispute concerning family violence or to make a finding in relation to this matter as sought by the mother – Where several issues identified with the development of eldest child’s disclosures, their nature and the context in which they were made over time – Where expert expressed concern about the mother’s ability to set appropriate boundaries for the children in her home – Where proximal influences such as the children’s exposure to inappropriate media in mother’s home most likely contributes to the children’s ongoing sexualised behaviour – Where Court is not satisfied that father abused the children or any of them sexually or in any other manner in the past – Where Court attaches weight to expert opinion that there are more psychological risks to the children remaining in the mother’s care than with the father – Where questions are raised about mother’s attitude towards the responsibilities of parenthood due to her opposition to the children having a relationship with the father – Where parents demonstrate a clear incapacity to make decisions for the children jointly – Orders made in accordance with the father’s proposal that the father hold sole parental responsibility for the children and that the children live with the him and spend time with the mother initially supervised and gradually increasing to unsupervised alternate weekends.
PRACTICE AND PROCEDURE – EVIDENCE – Where both parties are self-represented – Where there are contentious and serious allegations of family violence perpetrated by both parties – Where the mother has indicated that she would not be able to directly cross-examine the father – Consideration of application of s102NA of the Family Law Act 1975 (Cth) – Where s102NA does not require for proof of family violence, but that there be an allegation of family violence – Where there is a potential risk that available evidence is compromised in the trial and there is aggravation of personal impact, if the parties engage in direct cross-examination of each other.
PARENTING – Where the parents resolved many issues by consent – Dispute as to whether the three children should be vaccinated for the Covid-19 virus – Whether it is in the best interests of the children for a week about arrangement to be ordered – Orders made in accordance with the mother’s proposal for the children to live with her and sped significant and substantial time with the father
JURISDICTION – Where child is habitually resident in China with mother – Mother commenced property proceedings in this Court and father seeks parenting orders in this Court – Previous judgment found that this Court had jurisdiction the exercise of which was not prevented by the application of Subdivision B of Division 4 of Part XIIIAA of the Family Law Act – Mother seeks summary dismissal of father’s parenting application – Where mother has commenced parenting proceedings in China– Father seeks anti-suit injunction – Where there was previously no evidence of Chinese law – Expert evidence tendered – Mother seeks orders permitting her to renew child’s Australian passport – Where child may otherwise be deported from China– Welfare power under s67ZC invoked – The best interests of the child are the paramount consideration in exercising the welfare power – Deportation would likely be traumatic for the child – Forum non conveniens – Mother’s application for summary determination invokes Court’s inherent jurisdiction – Mother argues Australia is a clearly inappropriate forum – Paramountcy principle only applicable where prescribed by the Act – Where forum non conveniens test applies, best interest of the child remain a weighty consideration, but not paramount – Where nature of orders sought means best interests of the child remain the paramount consideration – Australian proceedings would not be in child’s best interests – Father’s application for parenting orders and anti-suit injunction dismissed.
PARENTING – Where there are two children of the marriage aged ten and six – Where the mother seeks orders for sole parental responsibility, the children live with her and for the children to continue to spend supervised time with the father – Where the father and Independent Children’s Lawyer seek orders for equal shared parental responsibility, the children to live with the mother and spend significant and substantial time with the father – Unacceptable risk – Allegations by the mother that the father poses an unacceptable risk to the children – Where the mother, maternal aunt and maternal grandmother allege the daughter made disclosures between 2015 and 2016 to them that the father sexually abused her – Where the mother fervently believes the daughters allegations and has an inability to consider innocent or other alternatives which are contrary to her own view – The mother’s categorisation of the children’s alleged sexualised behaviours is demonstrative of her hypervigilance – Where the daughter has not made disclosures to the police, family consultant, child protection officers, treating doctors and psychologists and has otherwise made contradictory statements – Where the father denies the allegations – Where the daughter is very positive in comments about her father – Where the father has only spent supervised day time with the children since separation in November 2016 – Where the Independent Children’s Lawyer holds the view that the father does not pose an unacceptable risk – Finding that the father does not pose an unacceptable risk to the children – Orders made substantially in accordance with the proposals of the father and ICL.
PARENTING – Application by the father to spend unsupervised time with the children – The mother seeks sole parental responsibility and permission to relocate interstate – Where the mother has experienced family violence perpetrated by the father – Where the father has undergone rehabilitation – Discussion of ‘meaningful relationship’ – Whether the child is able to maintain a relationship with their father that is important, significant and valuable even if the child is relocated – Orders made for the father to spend increased time with child until the end of 2023 – Orders made to permit the mother to relocate interstate at the end of 2023 – Orders made for the child to spend time with the father on the first weekend of every month and one weekend of every school holiday period.
PARENTING – Where the mother has requested an adjournment of final hearing for a third time to further contest an appeal decision in which Legal Aid NSW has refused to grant legal aid to the mother – A party does not have a right to legal aid – Application for an adjournment refused.
Federal Circuit and Family Court of Australia – (Division 2)
PARENTING – Family violence – Coercion and control – Physical violence– Sexual abuse – Humiliation – Threats – Harassment – Monitoring – Deprivation of liberty – Isolation – Social abuse – Economic and financial abuse – Cultural abuse – Spiritual abuse – Exposure to family violence – Arranged marriage – Fear – Unacceptable risk – Application that child spend no time with a parent –Impact on mother’s parenting capacity – Mitigation of risk – Orders made for sole parental responsibility – Injunctive orders – No time ordered.
PARENTING – application for final orders –where the Father was incarcerated at the time of final hearing – where the Father has not spent time with the children since 2019 – where the Court finds it is in the best interests of the children to spend time with the Father on a graduated and initially supervised basis – where the Court finds it is in the best interests of the children for the Mother to have sole parental responsibility for the children.
PROPERTY – application for final orders – assessment of property pool and addbacks – where Court finds it is not just and equitable to make an order under s79.
COSTS – costs of ICL sought – where Father was waived from contributing to the ICL’s costs in 2015 – where the Mother opposes the application on the basis of financial hardship and Father’s actions delaying the proceedings – Court declines to make orders sought.
PARENTING – RESIDENCE – child’s best interests – where there is a lack of parental cooperation and communication – where the child has been exposed to parental conflict – weight to be given to the views of the child – change of residence.
CONTRAVENTION – penalty hearing– costs – more serious category of contravention.
PARENTING – RELOCATION – where mother seeks to relocate to Queensland with child age 6 – whether it is better for child to live with the mother in Queensland or with the father in Melbourne – evaluation of competing proposals – where the mother has been the predominant care giver in child’s life – where the prospect of the father relocating is not explored – where the right of freedom of mobility ought defer to the paramount considerations of child’s best interest to warrant interference.
PARENTING – interim parenting arrangements for child aged 14 – nature of interim hearing – weight to be given to child impact report – mother alleges the father coercively alienating the child from her – father alleges mother has exposed child to family violence – parents have no capacity to co-parent – high conflict parenting relationship – mother resides in former family home after father and child have left home – child expresses wishes to return to the family home with his father – best interests of child – weight to be given to child’s expressed wishes – sole occupancy – what is proper – injunction for psychological protection of child.
PARENTING – equal shared parental responsibility agreed by all parties – child to live with mother – nature and progression of time with father – father’s engagement in psychological counselling with respect to alcohol use, family violence, and/or impulse control – whether counselling should be a condition attaching to the child’s time with the father – additional consideration of whether a ‘positive report’ from the father’s treating psychologist should condition the father’s time – where the father currently spends time subject to supervised changeover and breathalyser tests at a police station – restrictions upon father’s time reduced – whether s 68B injunction should remain effective on final basis.
PARENTING – Mother to have sole parental responsibility – Father demonstrates rigid views and lacks insight into effects on children of his uncompromising attitudes and behaviour – How to best promote meaningful relationship between children and the father – Eldest child to spend time with the father in accordance with her wishes – Reduction in alternate weekend time – Maintenance of mid-week time against ICL’s and mother’s proposed orders.
CHILD SUPPORT – Identifying distinction between departure orders under Part 7 Division 4 of the Child Support (Assessment) Act 1989 (Cth) and orders under Division 5 for provision of child support otherwise than in the form of periodic amounts – s124 as a source of power in absence of an order under s117 – Lightfoot v Hampson (1996) FLC 92-663 followed – Ivanovic v Ivanovic (1996) FLC 92-689 considered – Test for ‘special circumstances’ in s125(2) met with respect to school fees but not for orthodontic expenses – Gyselman and Gyselman  FamCA 93; (1992) FLC 92-279 followed – Order for husband to provide security for payment of child support – Malcher & Malcher  FamCA 1063 followed.
PROPERTY – Effect of husband’s failure to comply with procedural orders – Effect of husband’s non-compliance with disclosure obligations – Weir and Weir  FamCA 69; (1993) FLC 92-338 applied – Parties own contributions pale into insignificance compared to amounts advanced by the wife’s father and the husband’s inheritance from his father – necessary to adopt asset-by-asset approach to achieve a just and equitable result.
Family Court of Western Australia
APPEAL – Where the father seeks to appeal parenting orders made by a Family Law Magistrate after a trial – Discussion of principles relevant to the grant of leave, and the proper distinction to be drawn between interim parenting orders and orders made following a trial, notwithstanding that both forms of orders are interlocutory in nature – Where the father asserts errors of law and in the exercise of discretion, inadequacy of reasons, and absence of procedural fairness – Where there is merit in each of the grounds of appeal – Leave to appeal granted and appeal allowed – Matter remitted for rehearing.
PARENTING – where the child who is 15 years and nine months of age has been diagnosed with Gender Dysphoria and wishes to access stage 2 gender affirming hormone treatment – where the child is in the care of the first applicant pursuant to a protection order (until 18) – the procedures of [Service A] – where it is found the child is Gillick competent to consent to treatment – where a declaration is made to that effect – where it is in the best interests of the child that an order be made authorising treatment.