Significant cases published August 2021
Family Court of Australia – Full Court
Blann & Kenny [2021] FamCAFC 161 (25 August 2021)
PARENTING – Unacceptable risk – Appeal against parenting orders – Allegations of sexual abuse – Where the primary judge did not err in finding the father did not pose an unacceptable risk of harm to the children – Procedural fairness – Where the primary judge was not obliged to re-list the proceedings to inform the mother of a conclusion which defeated her expectations at trial – Where there is no principle of law that obliged the primary judge to finally dispose of the proceedings – Appeal dismissed – No order as to costs.
Family Court of Australia
Alam & Sayid [2021] FamCA 564 (3 August 2021)
PARENTING – Where the mother and independent children’s lawyer seek that the current parenting orders continue – Where the father seeks a reversal of the current parenting arrangements to see the children live with him and spend time with the mother – Where both parties question the credibility of the other – Where the father alleges a serious violent incident occurred between the mother and maternal grandfather and risk of sexual abuse between children in the mother’s home – Where evidence equivocal – Where no unacceptable risk found – where evidence discloses likelihood of excessive chastisement by the mother in the past – Where the children indicate a preference to remain in the primary care of the mother – Where both parties have parenting deficits.
PROCEDURAL – Leave to reopen – Where the mother fell pregnant to her new husband between the time judgment was reserved and when it was delivered – Where there was no dispute about the fact of the pregnancy – Where the father applied for leave to reopen to lead evidence of the pregnancy – Where this was considered a material fact which could affect the outcome – Leave granted.
PARENTING – Where Evidence Act, 1995, s 79 does not apply by reason of s 69ZT(1) of the Family Law Act, 1975 – Where expert evidence of family report admitted – Where father challenges the weight to be attributed the report – Whether weight of expert report should assessed in part by reference to principles which govern admissibility of expert evidence where s 79 applies – Where father contended the expert did not expose his reasoning, constructed his own facts – Where held the expert’s opinions were inferences drawn from communicable data and he drew inferences from his observations of both parents.
EVIDENCE – inferences – Discussion of principles of inferential reasoning in parenting maters – Rule in Jones v Dunkel – Where other principles of inferential reasoning applicable – Disclosures by children to one parent where high parental conflict – Where father contends the mother failed to call maternal grandfather so that inferences should be drawn in his favour.
Federal Circuit Court of Australia
Leonard & Gregory (No 2) [2021] FCCA 1712 (28 July 2021)
PARENTING – second interim application – where the paternal grandparents seek orders reducing the mother’s time with child – Rice & Asplund threshold argument – change in circumstances found – adverse credibility findings against the mother – best interests of the child.