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

Mallows & Harrod [2022] FedCFamC1A 92 (17 June 2022)

APPLICATION IN AN APPEAL – Where the father seeks an extension of time to file a Notice of Cross-Appeal and to remove the Independent Children’s Lawyer from the proceedings and have another appointed – Where the proposed grounds of appeal do not indicate that the proposed cross-appeal has reasonable prospects of succeeding – Not in the interests of justice for the application for the extension of time to file the Notice of Cross-Appeal – Where the evidence falls short of establishing that the Independent Children’s Lawyer has behaved in such a way to require replacement – Application dismissed.

 

Mandall & Camdyn (No 2) [2022] FedCFamC1A 91 (17 June 2022)

PARENTING – Where the appeal concerns final parenting orders for the child to live with the respondent – Where the respondent unilaterally moved interstate with the child – Whether the primary judge erred by failing to place sufficient weight on the benefit to the child to have a meaningful relationship with both of her parents – Whether the primary judge erred by placing excessive weight on the disruption to the child’s life if she were to move to the appellant’s place of residence – Whether the primary judge erred by finding that the respondent was likely to comply with future Court orders – Whether the primary judge erred by placing significant weight on the respondent’s interests – Appeal dismissed – no order for costs.

APPLICATION IN AN APPEAL – Where the appellant brought on two applications to adduce fresh evidence of circumstances after the delivery of final judgment by the primary judge and also after the hearing of the appeal – Applications dismissed.

 

Pascoe & Larsen [2022] FedCFamC1A 64 (13 May 2022)

PARENTING – Where the appeal concerns interim parenting orders for the child to live with the respondent – Where respondent unilaterally changed residences – Whether the primary judge erred in rejecting appellant’s proposal for the child to be returned to the City A region – Whether reasons were adequate – Both respondent and child of Aboriginal descent – Appeal dismissed – Child’s right to enjoy their cultures and traditions with respondent – Respondent’s right of freedom of movement – Submissions as to costs.

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

Hazra & Sekhar [2022] FedCFamC1F 332 (16 May 2022)

JURISDICTION – Where the applicant mother seeks a declaration that a child has at all times been habitually resident in Australia and thereby this Court has jurisdiction to determine his parenting arrangements – Where the child is currently in the care of the maternal grandmother in India under a temporary arrangement – Where India is a non-convention country – Where if a declaration is made the Court must determine whether it is the appropriate forum – Where the mother also seeks orders for the child’s return and the issuing of a passport – Where a declaration is made as sought by the mother – Where Australia is the appropriate forum – Where it is in the child’s best interests for an order to be made for his return to Australia – Where orders are made as sought by the mother – Where leave is granted for certain documents to be provided to an Indian Court or legal representative.

 

Catling & Gould [2022] FedCFamC1F 233 (13 April 2022)

JURISDICTION – Where proceedings were initiated in the Family Court of Australia prior to 1 September 2021 – Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208 followed – Legislative intent that the jurisdiction of the Family Court of Australia continue in the Federal Circuit and Family Court of Australia (Division 1) in respect of proceedings filed in it – Where the matter has been transferred by the Chief Justice of Division 1 and subsequently transferred by the Chief Judge of Division 2 – Where the Court is satisfied that Division 1 has jurisdiction to hear and determine this application.

PARENTING – Allegations of family violence and excessive alcohol consumption made against the father – Concern as to the father’s mental health – Where the father’s engagement with treating practitioners has suffered by his lack of candour with them – Where the father has been encouraged in his view that he is not responsible for the position he finds himself by those closest to him – Where it is only when there is some indication of changed thinking or changed behaviour that there can be confidence the father’s conduct won’t be repeated – Where interactions with the father cause the child and mother anxiety – Not in the children’s best interests to spend supervised time with the father – Orders for the children to live with their mother and spend no time with their father.

CHILD SUPPORT – Where hardship to the father can only be rectified by setting the child support agreement aside – Exceptional circumstances substantiated – Agreement set aside – Mother able to apply for child support assessment if required.

 

Wenlack & Cimorelli [2022] FedCFamC1F 180 (28 March 2022)

PRACTICE AND PROCEDURE – Where an oral application was made at the conclusion of final hearing for an order that the Department of Communities and Justice disclose the identity of a person who made a Helpline Report – Where application made pursuant to s29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) – Where application made pursuant to s69ZW(6) of the Family Law Act 1975 (Cth) – Where consideration given to Full Court decision in Department of Family and Community Services & Jordan and Ors – Where in the particular circumstances of the case the Court is satisfied that the identity of the reporter is critically important to the proceedings and that failure to admit it would prejudice the proper administration of justice – Orders made as sought by father disclosing the identity of the reporter with a further order relating to its use as evidence in parenting proceedings relating to the children.

 

Allum & Ervin [2022] FedCFamC1F 177 (25 March 2022)

PARENTING – Where the mother makes serious allegations against the father including in relation to sexual abuse of the child and family violence – Where the mother also alleges that the child’s mental health difficulties arise from the child’s fear of the father and her experience of being sexually abused by him – Where the father alleges that the mother maliciously and intentionally constructed a false allegation that he sexually abused the child – Where the parties otherwise make competing contentions about the risk of psychological harm posed to the child – Where differing suites of orders are proposed depending on the findings of the Court – Where the Court is not satisfied that the father poses an unacceptable risk of harm to the child on any basis – Where in light of expert evidence the Court considers that the mother holds an overvalued belief that the father had abused the child rather than maliciously constructed a false allegation – Where the Court considers the psychological difficulties experienced by the child most likely arise from her exposure to the parental dispute and dynamics – Where significant weight is attached to the expert’s opinion about the steadfast nature of the mother’s beliefs in finding that the child would be at an unacceptable risk of psychological abuse if she were to continue to live in the mother’s primary care – Orders made in the terms proposed by the ICL providing in summary that the father hold sole parental responsibility for the child and that the child live with the father and spend defined time with the mother conditional upon the mother continuing to engage in psychological treatment and the family attending family therapy – Orders otherwise made as proposed by the mother that the child’s surname be changed to include the mother’s surname and be hyphenated.

 

Paintal & Paintal [2022] FedCFamC1F 89 (25 February 2022)

PARENTING – Where father asserted that if orders are made for the child to live primarily with the mother, or if orders other than that he have sole parental responsibility are made, that he would spend no time with the child until she turns 13 years old, at which time the child should undertake further assessment – Where the father perpetrated serious family violence upon the mother – Where the father sought to undermine the mother’s role as primary carer by involving the child in the dispute – Where the father claimed that the mother manipulated the Court processes – Where there is no paradigm requiring a victim of family violence to respond in a demure or cowering fashion, or to refrain from responding in an aggressive manner – Where orders are made for no time with the father.

PROPERTY – Where the father did not provide proper financial disclosure – Where the father remitted significant sums of money to India to deplete the pool of property – Where the father confected sham loans to deplete the pool – Where the father manipulated his financial circumstances – Where the father claimed but did not prove Capital Gains Tax liability accruing on making payments to the mother.

 

Donney & Howard [2022] FedCFamC1F 79 (21 February 2022)

PARENITNG – need to accord the child respect in parenting proceedings.

PARENTING – where there are complex parenting proceedings about a child (11 years old) – where this is the third major parenting proceedings concerning the child since child was 1 year old – where parents agree on an outcome.

PARENTING – where independent children’s lawyer required to inform child of orders which parents propose be made – where child’s view of resolution was taken into account as an additional consideration.

PARENTING –when seeking final parenting orders be made by consent, independent children’s lawyer should give prior consideration to whether it is appropriate or desirable for the child to be informed of the proposed resolution, which has been finally agreed between the parties, before orders are sought to be made by consent. Whether the judge can be informed of the child’s view of the proposed resolution. How a child affected by an order is to be informed of the order having been made and how the order will operate.

 

Sutherland & Bowron [2022] FedCFamC1F 60 (16 February 2022)

PARENTING – Parental Responsibility – Where the mother seeks sole parental responsibility in circumstances where the child was diagnosed with autism spectrum disorder level 2 and where evidence is that the father has denied diagnosis up until the trial – Presumption rebutted due father’s attitude to diagnosis and lack of education in relation to his sons’ condition together with poor attitude to and behaviour towards the mother.

PARENTING – Spend time with – Where the father sought overnight time with the child in circumstances where he was not able to currently adequately care for the needs of the child given his lack of understanding of the consequences of the child’s diagnosis – Overnight time ordered to commence in 2024 and time to increase on a gradual basis contingent on the father completing a parenting course and attending therapy sessions with the child.

PARENTING – Spend time with – An application by the paternal grandparents for overnight time for one weekend every two months in circumstances where the child is to slowly progress his time with his father –Where finding that the grandmother was not accepting of the child’s diagnosis and its consequences – Where the child had never spent overnight time at the paternal grandparent’s house – Where the grandmother did not accept she had behaved poorly towards the mother in the presence of the child – Where the father and his parents have a good relationship and can see the child when he is with his father – Separate time with the paternal grandparents not an order in the child’s best interests – Application dismissed.

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

Otieno & Mwangi [2022] FedCFamC2F 469 (2 April 2022)

PARENTING – Parenting dispute about best interests of 14 year old girl and 12 year old boy – father seeking eight/six regime in his favour – three court appointed experts expressing concerns about the father’s mental health if he refuses ongoing treatment – father denying all mental health difficulties and refusing to undertake treatment – family consultant initially recommending nine/five regime in favour of the mother but changing this to daytime only after being made aware of the father’s position – orders made as sought by the Independent Children’s Lawyer.

 

David & Cohen [2022] FedCFamC2F 357 (30 March 2022)

PARENTING – Parenting dispute about best interests of 9 year old girl – girl and half-sibling brother born to same sperm donor but two different women – one woman asserting 22-year same-sex relationship and that both children were conceived as part of a family unit – other woman wholly denying same-sex relationship and seeking to exclude other woman and half-sibling – court fully convinced of same-sex relationship – denial of the role of the second mother and half-sibling relationship damaging to the child – orders made for the child to live with non-biological mother and half-sibling and to spend limited time with biological mother.

 

Hughes & Miller [2022] FedCFamC2F 218 (4 March 2022)

PARENTING – same sex relationship – 7 year old child – where respondent is the biological mother to the child – where the applicant commenced a relationship with the respondent shortly after the birth of the child – where the applicant has spent time with the child during her relationship with the respondent and post separation – where the applicant seeks equal shared parental responsibility and ongoing time spending orders with the child – where the respondent seeks an order for sole parental responsibility and opposes any time spending orders being made – allegations of family violence – consideration of who may apply for a parenting order – where applicant is not a parent but is a person concerned with the care, welfare and development of the child – where the Family Consultant supports an ongoing involvement between the applicant and the child – where there should be an order for sole parental responsibility in favour of the respondent but orders for the applicant to spend time with the child – best interests of the child.

Family Court of Western Australia

LAGEMAN and JESSOP [2022] FCWA 74

PARENTING – change of name – child’s Aboriginal culture.

 

GLANTZ and PLESKOT [2022] FCWA 84

PARENTING – undefended proceedings – where there has been family violence perpetrated by the father against the mother – risk to the child – where it is in the child’s best interests that the mother have sole parental responsibility for her and she lives with the mother – case turns on its own facts PROPERTY – undefended proceedings – where it is found that a de facto relationship between the parties did not exist.

 

DEPARTMENT OF COMMUNITIES and DEAKE [2021] FCWA 237

PARENTING – Parens patriae jurisdiction – 13 year old child with significant neurodevelopmental issues against a background of significant trauma – Child in the care of the CEO of the Department of Communities and subject to a Protection Order (Time Limited) – Ongoing behavioural issues – Serious risk of harm to child and violence to others – Proposed managed ongoing residential detention – Order made in exercise of jurisdiction.

 

RE: G6 [2021] FCWA 225

PARENTING – where the child has been diagnosed with Gender Dysphoria and wishes to access stage 1 puberty blocking treatment – where the child is in the care of the applicant pursuant to a protection order (until 18) – where the child’s parents support the orders sought – where the child is not Gillick competent to consent to treatment – where it is necessary to determine the application under the welfare jurisdiction of the Court having regard to the best interests of the child as the paramount consideration.

 

RE: G5 [2021] FCWA 228

PARENTING – where the mother seeks an order that she and the father facilitate the child’s referral to [Service A] at [Hospital A] for assessment as to any diagnosis of Gender Dysphoria – where the father opposes the order at this time – where the Independent Children’s Lawyer supports the order – where the child wants to be assessed – where the father questions the approach of the Service A – where the father seeks an order that he be permitted to provide a report of [Dr D] regarding the assessment process to his nominated expert to critique the report – where the Position Paper of the RANZCP is discussed – where it is found to be in the best interests of the child to make the order sought by the mother – where the father is permitted to obtain a critique of Dr D’s report.

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