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Significant cases published May 2021

Family Court of Australia – Full Court

Oberlin & Infeld [2021] FamCAFC 66 (7 May 2021)

FAMILY LAW – APPEAL – Parenting – Where the mother appeals final parenting orders – Where the orders conditioned the circumstances under which the children could spend time with the mother, required her to seek therapeutic treatment and imposed conditions which must be met before she may file fresh proceedings to seek a variation of the orders – Procedural fairness – Where orders are not vitiated because they do not match those devised by the parties – Where an order unconditionally forbids the mother from bringing fresh proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) for two years and thereafter without providing expert psychiatric evidence – Where the primary judge did not identify the source of power for the order – Where the order is styled as an injunction but could not have been made pursuant to ss 68B114 or 102QB of the Act – Where the order cannot be a parenting order within the meaning of s 64B(2) of the Act – Where the conditions imposed by the order are ill-defined and misconceived – Where the order is not an order within the contemplation of s 64B(2)(g) – Where no statutory power existed for the order impeding the mother’s entitlement to commence fresh proceedings under Pt VII of the Act – Where the mother appeals an order requiring her to seek therapeutic treatment – Where the order is a self-standing order untethered from any parenting order – Where the “unique circumstances” required to support such an order under s 67ZC of the Act are not present – Order made without power – Where the appeal succeeds – Re-exercise of discretion – Vitiated orders quashed – Costs certificates granted.

Milton & Milton [2021] FamCAFC 64 (6 May 2021)

FAMILY LAW – APPEAL – PARENTING – Unacceptable risk – Where there is no unacceptable risk of sexual abuse to the children by the father – Where the children are at ongoing risk of psychological harm from the mother due to her fixed belief that the father had sexually abused the children – Where the primary judge’s findings were open on the evidence – Where the primary judge’s findings were not limited to whether the children were abused – Where the primary judge did not fail to “engage properly” with the evidence – Appeal dismissed – Mother to pay the father’s costs in a fixed sum.

FAMILY LAW – APPEAL – STAY PENDING APPEAL – Appeal against refusal to stay final parenting orders pending appeal – Where the substantive appeal is dismissed – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Adduce further evidence – No sufficient basis for the admission of further evidence – Applications dismissed.

Family Court of Australia

Department of Communities & Justice & Kingsley (No. 2) [2021] FamCA 308 (17 May 2021)

FAMILY LAW – CHILD ABDUCTION – Hague Convention proceedings – Application by the mother to discharge a return order – Consideration of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Where the Court found the mother’s failure or refusal to fund the child’s return to Canada does not constitute an ‘exceptional circumstance’ – Where the Court found the COVID-19 pandemic alone does not constitute an ‘exceptional circumstance’ – Where the Court found the mother is not unable to travel to Canada – Application dismissed.

Garrety & Steyn (No. 2) [2021] FamCA 277 (4 May 2021)

FAMILY LAW – CHILDREN – Rice & Asplund issue – Where final parenting orders were made in December 2014 requiring the children to live with the father – Where final parenting orders were made again March 2019 reversing the children’s residence – Where the father seeks to re-contest parenting orders again on the basis of changed circumstances – Where the mother denied any material change of circumstance – Where there has been continued involvement of police, ambulance officers and emergency doctors in relation to the children’s welfare – Concluded there has been a material change of circumstances – Where the mother applied to transfer the proceedings from Newcastle to Parramatta – Order made.

Family Court of Western Australia

DARCY and EVANS [2021] FCWA 81 (12 May 2021)

PARENTING – Where the wife has commenced proceedings seeking to set aside parenting orders made following a trial – Where there is a long history of litigation, including two trials, and the wife maintains various beliefs as to risk issues which were found at both trials to be unsupported by evidence – Consideration of the rule in Rice and Asplund – Where the only matter raised by the wife demonstrating a change of circumstances sufficient to justify further litigation is the question of whether the child should change schools – All other aspects of the application dismissed.

Federal Circuit Court of Australia

Agambar & Agambar [2021] FCCA 1113 (4 May 2021)

FAMILY LAW – where Final Consent Orders were made in 2019 – where an issue arose in the exercise of parental responsibility upon which the parents could not agree and thus requires judicial determination– where a child has launched action for compensation against his mother from a motor vehicle accident that is subject to a compulsory third party claim – where the child sustained serious and ongoing medical issues – where the mother is a defendant – where the mother is precluded from exercising equal parental responsibility – where it is not in the best interest of the child for the father to exercise default sole parental responsibility – whether an independent person should be in charge of the management of the claim – where a litigation guardian cannot be involved in preliminary matters prior to litigation officially commencing – whether it is appropriate to grant the independent person sole parental responsibility for this very narrow aspect.