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Significant cases published October 2021

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

Secretary, Department of Communities and Justice & Opunui [2021] FedCFamC1A 41 (20 October 2021)

PARENTAL RESPONSIBILITY – Where the primary judge rejected the mutual proposal of the parties and the Independent Children’s Lawyer for orders directing the children to live with the mother and vest her with sole parental responsibility – Where the primary judge found the mother posed an unacceptable risk of harm to the children and made orders vesting the Minister for Families, Communities and Disability Services with parental responsibility for the children – Where the Secretary of the New South Wales Department of Communities and Justice (“the Secretary”) appeals that order – Judicial intervention – Where the Secretary did not specify how the intervention amounted to recognisable appealable error – Error of law – Where the ground was misconceived as it contended a finding was unfair and/or manifestly unreasonable – Inadequate reasons – Where the reasons for judgment were lengthy and adequately explained the making of the order – Where there was no contradictor in the appeal – Appeal dismissed – No order as to costs.


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

Wickham & Pace [2021] FedCFamC1F 50 (15 September 2021)

PARENTING – Interim Order – Where the biological and birth mother passed away after birth of twins – Where the applicants are a same sex couple – Where the respondent and the deceased birth mother were in a same sex relationship – Where the children have been living with the applicants since shortly after birth – Whether an interim order is to be made providing for parental responsibility and where the children are to live – Where there is evidence that raises concerns about the respondent’s functioning and how that may impact on her parenting capacity – Where respondent unable to spend time with the children due to COVID-19 border closures – Where there is a dispute about whether the respondent has standing to apply for a parenting order – Where the applicants are unable to obtain private health insurance or Medicare for the children – Where it is found to be in the best interests of the children for the applicants to have sole parental responsibility, that the children live with the applicants and that the order for the respondent to spend time with the children be suspended.


Federal Circuit and Family court of Australia (Division 2) Family Law

Barret & Barret [2021] FedCFamC2F 14 (24 September 2021)

PARENTING – parenting arrangements of three children – relationship of approximately 12 years – where the parties respective positions are polarised – where co-parenting relationship is fractured – where there is parental conflict – where both parties positions are diametrically opposed – complex family dynamic – where the parties communicate poorly – where each party proposes a change to the current care arrangements – allegations of family violence perpetrated by the father – where children have been exposed to family violence – coercive and controlling behaviour – whether the father has not been upfront in making disclosures regarding anger management and family violence – where father denies the allegations of family violence – where the eldest child is refusing to spend time with the father – best interests considerations – how the court determines a child’s best interests – where the children have learning difficulties – where both parties assert the other parent is compromised – where there is no evidence to support the mother is a compromised parent – where there is a finding of family violence perpetrated by the father – where the mother is allocated sole parental responsibility – where the children are very protective of their mother – where there is a need to prevent the children from being subject to further litigation.