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Significant cases published December 2021

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


Hedlund & Hedlund [2021] FedCFamC1A 84 (15 December 2021)

PARENTING – Whether the effect of the orders is manifestly unjust or unreasonable – Whether primary judge took into account irrelevant considerations – Whether primary judge failed to take into account relevant considerations – Whether primary judge made a mistake as to the facts – Procedural fairness – Whether injunction under s68B of the FAMILY LAW ACT 1975 (CTH) is affected by error of law – Whether s68B injunction a parenting order – Discussion of the scope of s68B – Duration of s68B injunction – Where Personal Protection Order was of indefinite duration and went beyond injunctive orders actually made – Error of law in relation to Personal Protection Order established – Balance of appeal dismissed.


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

Clayton & Minshall [2021] FedCFamC1F 183 (10 November 2021)

PARENTING – Best interests – With whom the children shall spend time –Where the applicant and second respondent fathers contended the existing regime could not be sustained given the intensity of the dispute between the parties – Where the dispute narrowed to whether the time the children currently spend with the mother should remain the same or be expanded, reduced or eliminated – Risk of harm – Where the applicant father and second respondent father allege the children are at risk of physical and emotional harm in the mother’s care and sought to eliminate the children’s time with the mother – Where the children are at risk of emotional harm from the mother’s impaired style of parenting – Where the only measure which could temper such harm is curtailment of the time the children spend with the mother – Orders made – Applicant and second respondent fathers to retain parental responsibility and residence, with the children to spend limited time with the mother.


Sangster & Tailor [2021] FedCFamC1F 170 (2 November 2021)

PARENTING – Unacceptable risk of sexual, physical and emotional harm – Where the mother alleges that the father has sexually interfered with the children – Where the mother alleges the father has assaulted the children – Where the mother alleges that the father has committed serious acts of family violence and presents an ongoing unacceptable risk of future harm – Where the father denies that he poses any risk of harm to the children in the future – Where the father specifically denies ever behaving in a sexually inappropriate way with any of the children and/or physically harming the children – Where the mother does not address historic evidentiary matters yet contends that the evidence is relevant to her current belief – Where the mother appears to view events and statements through a prism of sexual abuse – Where the mother dismisses the inconsistencies between the children’s statements to her and independent observations of the children’s interaction with the father – Where it is found that the father does not pose an unacceptable risk of future harm to the children – Where it is found that the mother poses an unacceptable risk of emotional and psychological harm to the children.

PARENTING – What parenting order is proper – Where it is found a change of residence is necessary to protect the children from the unacceptable risk of future harm from the mother – Where the change of residence removes the children from their half-brother – Where there is to be an initial moratorium on the mother spending time with or communicating with the children and then a gradual increase to unsupervised time – Where the presumption in favour of equal shared parental responsibility does not apply.


Stavrou & Stavrou [2021] FedCFamC1F 164 (29 October 2021)

PARENTING – Interim parenting – Review of a Senior Registrar’s decision – Where the father seeks orders that the parents hold equal shared parental responsibility for the children and that his interim time with the children increase given their ages and developmental stage – Where the mother opposes the father’s application and seeks orders confirming the current parenting arrangement providing the father defined time with the children during the weekend and one week day – Where the ICL supports orders for an increase in the father’s interim time but proposes a different time regime to the father – Where at the hearing the parties agreed that the most salient risk factor to the children is their exposure to parental conflict particularly in the context of changeover events – Where the mother otherwise alleges that the children are at risk of harm in the father’s care on a number of bases but only pursued some at interim hearing – Where the father alleges that the mother has little capacity to support the children’s relationship with him – Where Court is satisfied that changeover orders made at the interim hearing mitigate risks relating to parental conflict – Where the Court is of the view that the current parenting arrangement fosters a meaningful relationship between the children and the father such that there is no need to increase children’s time with their father to promote an “optimal relationship” – Orders made confirming current parenting arrangement relating to children’s time with father as sought by the mother.


Cary & Cary [2021] FedCFamC1F 151 (22 October 2021)

INTERIM PARENTING – Review of a Registrar’s decision – Where interim orders were made providing that the two younger children live with the mother and spend supervised time with the father – Where interim orders were made providing that the older daughter live with the father and spend time with the mother in accordance with her wishes – Where the father seeks a review of interim orders in relation to the younger children’s time with him – Where the mother seeks that all three children live with her and spend supervised time with the father – Where there are serious allegations of family violence perpetrated by the father – Where there are serious allegations of coercive and controlling conduct perpetrated by the father – Where there are significant interconnected issues of risk – Where the eldest daughter has not spent time with the mother for almost 12 months – Where it is inappropriate for a child of age 12 to determine her parenting arrangements – Where it is likely to be found at final hearing that the father has perpetrated family violence – Where orders are made as sought by the mother – Where a Recovery Order issue in default if the father does not return the eldest daughter to the mother.


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

Dacey & Gladstone [2021] FedCFamC2F 413 (17 November 2021)

PARENTING – where the Mother has failed to prosecute the proceeding with due diligence – where the Father has failed to defend the proceeding with due diligence – proceedings dismissed.


Raju & Raju [2021] FedCFamC2F 158 (20 October 2021)

PARENTING – children in primary care of Mother until late 2018 – Mother takes children to Country B in late 2018 and remains there – Father institutes parenting proceedings in Country B and Australia – children return to Australia several months apart and in Father’s primary care since then – question of parental responsibility, residence and spending time.

COSTS – whether any order for costs should be made in a parenting case – consideration of Mother taking children overseas and remaining there without Father’s agreement – Father’s need to commence Court proceedings – Mother wholly unsuccessful – costs calculated on relevant scale.