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

Hood & Weaver [2022] FedCFamC1A 123 (5 August 2022)

PARENTING – Where the mother appeals from final parenting orders vesting the father with sole parental responsibility and residence of the children and ordering the children to regularly spend time with the mother – Where, since the appeal was filed, fresh proceedings were commenced by the father and the primary judge has since reversed the orders in respect of the eldest child, rendering part of the appeal otiose – Expert evidence – Where the mother was unable to point to any finding which relied upon the acceptance of any inadmissible expert opinion evidence – Findings allegedly not open on the evidence – Where the findings were open as they were premised upon underlying findings about the mother’s neglect of the two eldest children’s intellectual needs – Weight challenge – Where the mother’s emphasis of other evidence she perceived to be advantageous to her case does not demonstrate the challenged finding was wrong – Where the appeal fails for lack of merit – Appeal dismissed – No order as to costs

 

Berry & Andrews [2022] FedCFamC1A 120 (3 August 2022)

PARENTING – Change of Residence – Appeal from final parenting orders giving the father sole parental responsibility and changing the residence of the child from the mother to the father – Whether there was a denial of procedural fairness – Whether the primary judge relied on an academic article that was not admitted into evidence – Where the primary judge’s reliance upon the academic article breached the rules of procedural fairness – Where the breach of procedural fairness was not material – Where no challenge was made to the primary judge’s factual findings – Where the subject error has not resulted in a miscarriage of justice – Appeal dismissed.

 

Wagstaff & Wagstaff [2022] FedCFamC1A 119 (2 August 2022)

RELOCATION – Appeal from orders requiring the mother to relocate to a location within 20 kilometres of the children’s school – Whether the primary judge erred at law – Whether the primary judge failed to consider the advantages and disadvantages of the parties’ proposals – Challenges to weight given to mother’s right to freedom of movement – Children’s views – Adequacy of reasons – No error established – Appeal dismissed.

 

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

Charters & Webb [2022] FedCFamC1F 527 (25 July 2022)

PARENTING – Application by maternal grandmother to spend time with the child – Where there are existing consent orders between the parents made in previous proceedings – Where the parents and Independent Children’s Lawyer oppose the orders sought by the maternal grandmother – Aboriginality of the child – Finding that it is not in the best interests of the child to spend time with the maternal grandmother.

 

Newett & Newett (No 2) [2022] FedCFamC1F 439 (8 July 2022)

PARETNING – Contested residence – Where the Court finds the mother is an emotional and psychological risk to the children – Where the Court finds the mother would be unable to facilitate and support the children having any relationship with their father – Allegations of family violence – Where the Court adopts some of the findings made by the Magistrates Court of Queensland and District Court of Queensland pursuant to s69ZX(3) of the Act – Allegations of sexual abuse – Consideration of M v M (1988) 166 CLR 69 – Where it is not open on the evidence to find the father has or is likely to sexually abuse the children – Where the presumption for equal shared parental responsibility is rebutted – Orders made for the children to live with the father and for the father to have sole parental responsibility – Where any time between the children and the mother must be professionally supervised – Where the mother’s evidence is that she would not take up any order that required the children’s time with her to be supervised – Order for supervised time made.

 

Cornwall & Cornwall [2022] FedCFamC1F 389 (1 June 2022)

INTERIM PARENTING – Where the final hearing of the matter could not proceed – Where interim parenting orders were sought by the parties – Consideration of risk of harm to children – Consideration of expert reports – Where the Court takes a risk averse approach to the sibling violence – Best interests principles – Where orders made splitting the children’s primary residence – Where mother is restrained from spending time and communicating with the youngest child – Where orders made for equal shared parental responsibility in relation to the oldest child and sole parental responsibility for the youngest child.

 

Collingwood & Collingwood (No 3) [2022] FedCFamC1F 388 (31 May 2022)

PARENTING – Where the children are aged 15 and 11 – Where the mother has always been the children’s primary carer and responsible for managing their health and education – Where the children have always been home-schooled – Where the mother has exposed the children to her negative views of the father – Where it is unlikely the mother will support the children having a relationship with the father – Where the mother has not complied with previous orders for the children to spend time with the father – Where the mother alleges the father perpetrated family violence towards her and the children – Where the mother has struggled with a physiological dependence on prescription medication – Where the mother’s evidence has to be approached with significant caution – Where the father’s post-separation parenting is largely untested – Where the father is more likely to accept recommendations made by therapists and experts – Where the father is more likely to support the children having a relationship with the mother.

 

Brock & Canning [2022] FedCFamC1F 395 (27 May 2022)

PARENTING – Undefended hearing – With whom the children shall live and spend time – Parental responsibility – Best interests – Where previous interim orders by consent provided for the children to live with the father and spend time with the mother – Where this arrangement broke down with the father alleged to have hit the youngest child with a belt and leading to his current Apprehended Violence Order – Where the children currently live with the mother and spend irregular time with the father – Where the eldest maternal half-brother was convicted on three charges of sexual misconduct relating to two of the subject children – Where the Court concludes that the mother accepts that her eldest son cannot be brought in contact with the subject children – Where the Court concludes that the mother has matured and understood the consequences of her own children, and has been better able to access services and implement recommendations – Where the mother has the assistance of her parents in a practical way – Ordered sole parental responsibility and residence to the mother – Ordered the children shall spend time with the father as agreed between the parties in writing – Ordered restraints on the mother from allowing the children to be brought into contact with their eldest maternal half-brother and her ex-partner.

 

Adamec & Donal [2022] FedCFamC1F 364 (24 May 2022)

PARENTING – Complex and protracted proceedings including a part-heard trial – Where there were initial consent orders made as between the mother and the father on 16 March 2015 – Where the current proceedings began as between the mother and the father – Where the father was removed as a party as a result of non‑participation – Where the paternal grandmother was added as a respondent – Where the maternal grandmother was later added as another respondent – Where the children were exposed to abuse, neglect and family violence in the household of their parents and when in their parents’ respective care post-separation – Where both parties engaged in serious drug use and where the father inflicted serious domestic violence on the mother – Where the mother’s drug use was of significant importance during the course of the proceedings and the trial – Where the children have been residing with the paternal grandmother since 21 June 2018 – Where X in particular now suffers significant mental health and behavioural challenges as a result of his childhood trauma – Where the paternal grandmother facilitates the necessary psychological assistance for X – Where the mother gave birth to twins during the course of the proceedings – Where those children were taken into care by the Department for Child Protection and are under the guardianship of the Minister until they attain the age of 18 years – Where the children the subject of these proceedings are not aware of the existence of their twin siblings – Where the application of the maternal grandmother was resolved by way of consent order on 19 August 2021 – Where there were only five discrete issues remaining for determination as at the time judgment was reserved – Where final orders have previously been made by this Court as to sole parental responsibility and “lives with” arrangements – Where the Court cannot make a finding that it is in the children’s best interest to spend time with the mother at this time – Where the mother is permitted to communicate with the children by way of age and content appropriate letters, cards, gifts and photographs.

 

Shellback & Shellback [2022] FedCFamC1F 329 (17 May 2022)

PARENTING – Unacceptable risk of physical, emotional and/or psychological harm – Where the mother was convicted of manslaughter for killing her husband – Where the child was cared for by the paternal family while the mother was incarcerated in Brisbane –Where the child lives with the paternal grandfather in Queensland – Where the mother wants the child to live with her – Where the Independent Children’s Lawyer supports the child continuing to live with the paternal grandfather – Where the Court orders the child live with the paternal grandfather and spend supervised time with the mother.

 

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

McGowan & Brennan [2022] FedCFamC2F 1082 (17 August 2022)

PARENTING – COVID-19 – Best interests – Vaccinations – Judicial notice – Where the mother seeks the father be restrained from causing the child to be vaccinated against the COVID-19 virus – Where the father seeks sole parental responsibility with respect to having the child vaccinated against COVID-19 – Where the child is nine years of age – Where the child has received the first dose – Where there are issues of whether judicial notice can be taken of the Government health advice – Where the mother adduced expert evidence recommending against administering the vaccine – Where there was no adversarial expert evidence from the father – Where the father is permitted to cause the child to receive all vaccinations against the COVID-19 virus – Where the mother’s application for costs is dismissed – Where the parties shall share equally in the costs of the Independent Children’s Lawyer.

 

Zahir & Yulay [2022] FedCFamC2F 993 (29 July 2022)

PARENTING – long running litigation where proceedings were discontinued in 2014 and re-filed in 2020 – where the Father left Australia in 2014 with no explanation and has only seen the children on one occasion since – where eldest child opposes any contact with the Father and orders were made by consent for her to spend time with him in accordance with her wishes – final orders sought are only in relation to the youngest child, who has no memory of the Father – Father has displayed volatile and abusive behaviour towards the Mother, the Mother’s family, the ICL and the Court – where the Mother and the eldest child are fearful of the Father – where the Father’s volatile behaviour and conduct towards others is of concern to the Court – where there is a risk that commencing time between the Father and younger child could progress poorly and re-traumatise the Mother and eldest child – limited evidence that there is any benefit to the child in commencing time with the Father – where children are doing exceptionally well with the Mother and there are no risk factors associated with the Mother – where it is in the best interest of the children that orders are made as sought by the Mother, and supported by the ICL, for no time with the Father, removal of the children from the watchlist and a 2 year injunction preventing the Father from contacting the Mother and children.

 

Kemp & Vinson [2022] FedCFamC2F 963 (22 July 2022)

PARENITNG – Where the applicants voluntarily placed the child in the care of the respondents from birth – Where the applicants remain in a relationship and the respondents are now separated – Where the child currently spends time with the respondents on a week about basis as agreed between them – The parties agree that the child should continue to live with the respondents – Where the respondents took the child to Country C in 2015 for a period of 16 months and thereafter did not facilitate the child spending time with the applicants –Where Orders previously made for the parties to engage in family therapy to expose the child to her parentage and for the applicants to spend supervised time with the child – Where the Orders for supervised time and family therapy have been thwarted by the respondents – Consideration of risk in the applicants’ household of family violence and drug use – Where such risks can be mitigated by day only time – Orders made for the respondents to have equal shared parental responsibility, the child to live with the respondents as agreed and spend incremental time with the applicants with such time to be initially supervised at a Contact Centre – Parties to continue to engage in family therapy.

 

Hansen & Kane [2022] FedCFamC2F 949 (19 July 2022)

PARENTING – Review of a registrar’s decision – Where the mother unilaterally relocated with the child in September 2021 – Where the registrar made orders for the child to live with the mother and reside in her new residence – Where the father seeks a review of the totality of the registrar’s decision – Where the father seeks for the mother to return with the child to their former location or for change of residence if the mother remains residing in her current residence – Where it is not in the best interests of the child to relocate with the mother – Review application dismissed

 

Ressam & Benida [2022] FedCFamC2F 874 (8 July 2022)

PARENTING – allegations of family violence – allegations of sexual violence – whether the father is acting in the best interest of the child – whether father has ability to co-parent with the mother – whether mother should have sole parental responsibility for the child – whether father should spend time with the child – child has severe behaviour issues – whether father spending time with the child is causing child’s behavioural issues – mother to have sole parental responsibility – child to spend no time with the father.

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