Family Court of Australia – Full Court
FAMILY LAW – APPEAL – INTERNATIONAL RELOCATION – Appeal from final parenting orders permitting the mother to relocate with the child to the United States of America – Inadequacy of reasons – Where the primary judge made premature determinations before an adequate consideration of relevant matters – Where the primary judge’s findings on issues are inconsistently expressed – Failure to consider the reasonable practicability of the child spending substantial and significant time with the father if the child was permitted to relocate – Justice not seen to have been done – Appeal allowed and orders set aside – Costs certificates issued to each party.
FAMILY LAW – APPEAL – PARENTING – Appeal against final parenting orders providing for the children to live with the mother and spend graduating time with the father, commencing with supervision – Orders restrain the mother from relocating with the children outside of Australia – Failure to take into account family violence pursuant to s 60CC(3)(j) of the Family Law Act 1975 (Cth) – Failure to consider the mother’s proposal of no contact with the father and the benefits of relocation – Practicality of orders – Where the mother argued the injunction preventing her relocation with the children was plainly wrong – No error demonstrated – Appeal dismissed – Costs ordered in a fixed sum with payment stayed until finalisation of property settlement proceedings.
Family Court of Australia
FAMILY LAW – CHILDREN – Rice & Asplund threshold hearing – previous final parenting orders were made in 2015 and 2017 – Whether the mother’s application to re-open proceedings and to have new parenting orders made should be struck out – Where the mother submits that her application should not be regarded as a Rice & Asplund application as the existing 2017 orders varied the 2015 orders and were not made following a final hearing on the merits – Where the mother submits that her application should not be struck out and says the fresh evidence before the Court demonstrating a change of circumstances is primarily that the children are older since the last orders were made and that the Court should infer that the limited contact between the children and the mother has been going well – Where the father submits that the mother’s application is entirely hopeless, not supported by probative evidence, and that none of the material produced by the mother amounts to changed facts and circumstances or fresh evidence –Where it is found that the mother is required to meet the threshold test and that she has failed to provide any evidence that there had been a material change in circumstances pursuant to the principles in Rice & Asplund – Application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious proceedings order – Where the father seeks a vexatious proceedings order against the mother under s102QB of the Family Law Act 1975 (Cth) – Where the mother has initiated most of but has not been successful in any of the litigation between the parties which has been on-going since 2014 – Where it is found that the mother has frequently instituted or conducted vexatious proceedings in relation to parenting issues – Order made against the mother pursuant to s 102QB.
FAMILY LAW – COSTS – Circumstances justifying order – Where father seeks costs against mother – Where it is found the mother’s conduct and that she has been wholly unsuccessful in relation to her applications for increasing time with the children justify the making of a costs order against the mother on a party/party basis.
FAMILY LAW – CHILDREN – Final Parenting Orders by Consent – Where there is an issue of construction in the final orders – Whether there is ambiguity in final orders – Where final consent orders provide for children to spend time with the father in a fortnightly cycle – Where fortnightly cycle suspended during school holidays but taken to continue to apply notionally during the school holiday period – Where parties have different interpretations of which week in the fortnightly cycle applies at the commencement of Term 2, 2021 and thereafter.
FAMILY LAW – MEDICAL PROCEDURES – Gender Dysphoria – where Applicant mother seeks order that child is competent to consent to Stage 2 treatment for Gender Dysphoria – where Respondent father does not consent to the child undergoing Stage 2 treatment for Gender Dysphoria – where the child wishes to undergo Stage 2 treatment for Gender Dysphoria – where there is no unanimity between the parents that the child is Gillick competent – where the Applicant mother and the child’s medical experts are of the view the child is Gillick competent – where the Respondent father disputes the diagnosis of Gender Dysphoria – where the child is found to have Gender Dysphoria and found to be Gillick competent – where it is in the best interests of the child to undergo Stage 2 treatment – where orders relating to confidentiality are made.
FAMILY LAW – CHILDREN – SURROGACY AGREEMENT – Legal parentage of children born in a surrogacy arrangement – With whom the children should live – Where the Court makes a declaration that the first applicant is the legal father of the children pursuant to s 69VA of the Family Law Act 1975 (Cth) – Whether orders should provide for the children to spend time with their legal and biological mother (the first respondent) and her husband – Orders made for the applicants to have equal shared parental responsibility for the children – Orders made for the children to live with the applicants – No orders made as to time between the children and the respondents.
FAMILY LAW – PRACTICE AND PROCEDURE – Whether legal professional privilege was waived during proceedings – Where the Court determined that the solicitor’s advice was given with the dominant purpose of maximising payment from the applicants to the respondents – Orders made referring the proceedings to the Commissioner of Police for New South Wales and the Legal Services Commissioner for New South Wales.