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Significant cases published March 2022

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

Angeli & Farina [2022] FedCFamC1A 40 (24 March 2022)

FAMILY LAW – APPEAL – INTERNATIONAL RELOCATION – Appeal from final parenting orders permitting the child to relocate with the respondent to the USA – Whether the primary judge gave adequate reasons – Whether the primary judge failed to take into account relevant considerations – Whether the primary judge failed to attribute appropriate weight to the evidence – Where no ground of appeal is established – Appeal dismissed – Costs ordered in favour of the respondent and the Independent Children’s Lawyer.

Bergmann & Bergmann [2022] FedCFamC1A 38 (21 March 2022)

FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the mother appeals from orders providing for the children to live with the father in Australia, declaring Australia their habitual place of residence, and providing for them to spend time with the mother – Whether there was a denial of procedural fairness – Whether the wrong legal test was applied – Whether there was a failure to consider mandatory considerations – Adequacy of reasons – Mistaken findings – Where the primary judge fell into error by finding, contrary to the available evidence, that the father could not travel to France – Where the error is material and critically fed into the exercise of discretion, causing it to miscarry – Appeal allowed – Proceedings remitted for re-hearing – Costs ordered in a fixed sum.

Baisman & Cartmill [2022] FedCFamC1A 36 (15 March 2022)

FAMILY LAW – APPEAL – PARENTING – COSTS – Appeal from an order dismissing an Initiating Application and a costs order – Relevant principles of the rule in Rice and Asplund [1978] FamCAFC 128(1979) FLC 90-725 – Whether the primary judge erred in the application of the rule – Discretionary judgment – Weight challenges – Procedural fairness – Where appellate intervention in relation to costs orders is only mandated if there is either obvious injustice or wrong application of principle – No error established – Appeal dismissed – Appellant to pay costs of respondent in a fixed sum.


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

Cranston & Persson (No 2) [2022] FedCFamC1F 187 (25 March 2022)

FAMILY LAW – PARENTING – Medical procedures – COVID-19 vaccinations – Where father seeks that neither parent be permitted to cause the children to be vaccinated against the COVID-19 virus without written consent of the other party – Where the children have received the first dose – Whether the mother should be given sole parental responsibility with respect to having the children vaccinated against the COVID-19 virus – Children attend school – Public health advice classifying schools as ‘high risk settings’ for transmission of the virus – No contraindications for the children receiving the vaccination – Father’s failure to adduce further evidence – Order for mother to have sole parental responsibility for discrete issue of children receiving COVID-19 vaccinations.

Cranston & Persson [2022] FedCFamC1F 158 (15 March 2022)

FAMILY LAW – PARENTING – Adjournment – Where the father has filed an application for an order that neither party will cause the children to receive the COVID-19 vaccination – Where the father seeks an adjournment pending determination of Federal Court of Australia judicial review proceedings concerning approval of vaccine for five to 11 year old age group – Application dismissed.

Gambera & Lethbridge [2022] FedCFamC1F 25 (31 January 2022)

FAMILY LAW – CHILDREN – UNACCEPTABLE RISK – Where the mother does not seek a finding that the father poses an unacceptable risk of sexual harm to the child – Where the Department of Children, Youth Justice and Multicultural Affairs investigation concluded the father posed an unacceptable risk of sexual harm to the child – Where the Court finds the father does not pose an unacceptable risk of sexual harm to the child – Where the Court finds the father does not pose an unacceptable risk of emotional harm to the child by way of denigrating the mother in the presence of the child – Where the Court finds the mother does not pose an unacceptable risk of emotional harm to the child by way of encouraging the child to make false allegations against the father, denigrating the father in the presence of the child and directly involving the child in the conflict.

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Where the parents sought equal shared parental responsibility – Where the child will live with the mother and spend substantial and significant time with the father – Where the parents have capacity to make joint decisions about major long-term issues.


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

Little & Thornton (No 2) [2021] FedCFamC2F 434 (24 November 2021)

FAMILY LAW – PARENTING – Change of residence – where proceeding set down for final hearing – where previous interim orders made for progression of spend time between father and child – where child repeatedly withheld by respondent unilaterally – where father seeks sole parental responsibility and that the child live with him and partner – where mother seeks to relocate to Queensland with child and that the child live with her – where child is two years and six months old – where highly conflictual relations exist between father, mother, and their families – where parties’ positions have changed in respect to parental responsibility and care throughout proceedings – where father and mother made allegations against each other in respect to family violence and mental health issues – where intervention orders have been sought by each party – where court has been assisted by material on subpoena from Victoria Police, Department of Families, Fairness and Housing and other health services – where a number of affidavits filed by parties – where only father, mother and experts were called to give evidence and be cross-examined – where viva voce evidence given by parties – where parties provided differing accounts of their relations and incidents concerning child – where issues respecting parties’ mental health addressed by expert – where expert confirms parties do not exhibit any mental health or personality disorders – where court assisted by experts’ child inclusive conference memorandum, consultations, family report and evidence in conclave – where recommendation child spend more time with father – where expert observed disturbed and dysfunctional attachment between mother and child – where expert concerned about mother’s unwillingness to support father-child relationship – where expert found child not thriving in the care of her mother – where parties cannot co-parent – where relocation introduced after mother resists child spending time with father – applicable principles – whether father should have sole parental responsibility – what spend time arrangements are appropriate – orders made.

Family Court of Western Australia

RE: G3 [2021] FCWA 99 (15 March 2022)

CHILDREN – where the child has been diagnosed with Gender Dysphoria and wishes to access stage 2 gender affirming hormone treatment – where there is no dispute or controversy – where it is found the child is Gillick competent to consent to treatment – where it is in the best interests of the child that a declaration be made to that effect

BAYMAN and FJELSTAD [2022] FCWA 23 (15 March 2022)

CHILDREN – where the single expert witness holds a high level of concern for the mental health of a child – where the Independent Children’s Lawyer supports the recommendation of the single expert witness for a change in the children’s living arrangements – where it is in the best interests of the children to order that their living arrangements be changed notwithstanding the proximity of the trial

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