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Cases published November 2019

Family Court of Australia – Full Court

Rader & Rader and Ors (No. 2) [2019] FamCAFC 227 (21 November 2019)

FAMILY LAW – APPEAL – INTERIM PARENTING – Parenting arrangements – Where children were placed in the care of their maternal grandparents – Assessment of risk – Where a recovery order should not have been sought or granted –Where the father was denied procedural fairness by not being afforded the opportunity to meet the ICL’s proposal that the children live with the maternal grandparents – Appeal allowed and orders set aside – Where the best interests of the children are served by them returning to live with the father until the rehearing, subject to the conditions recommended by the single expert – Where the father is to have parental responsibility – Where no orders are made for time with the mother – Costs certificates ordered for the appellant and respondents for the appeal and the rehearing of the matter – No costs certificates ordered for the ICL to consider evidence that was before his Honour – Discretion miscarried – Appeal allowed – Cost certificates ordered.

Sargent & Selwyn [2019] FamCAFC 232 (12 November 2019)

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant father seeks to have the Independent Children’s Lawyer discharged – Best interests of a child – Where the Independent Children’s Lawyer had been discharged pursuant to orders made by the primary judge – Where the appellant father had numerous complaint concerning the Independent Children’s Lawyers conduct during the proceedings – Where the Independent Children’s Lawyer had met their obligation in regards to presenting evidence – Where the father’s claims of the Independent Children’s Lawyer being partisan towards the mother does not withstand scrutiny – Where the Full Court makes an order for the Independent Children’s Lawyer to be appointed pursuant to s 68L(2) of the Family Law Act 1975 (Cth) – Application dismissed.

Family Court of Australia

 Syms & Syms [2019] FamCA 724 (10 October 2019)

FAMILY LAW – CHILDREN – Magellan List – With whom the children shall live and spend time – Where the subject children are boys aged 10, eight and six – Best interests – Where the children currently live with their mother and maternal grandparents, and spend supervised time with the father – Where the applicant father seeks a reversal of the children’s residence and following a period of no contact for them to spend supervised time with the mother graduating to unsupervised time – Where the respondent mother seeks orders for the children to remain living with her and no proposal for the children to spend time or communicate with the father – Where the Independent Children’s Lawyer proposed a change in residence and a four month moratorium prior to the mother spending professionally supervised time with the children – Where there are unsubstantiated allegations of the father sexually abusing the children – Where the mother has developed a fixed idea that the father has abused the children – Where the mother’s mental health declined prior to separation and she was subsequently diagnosed with depression – Where each parent is of the view that the children require protection from the other parent – Where the children have a meaningful relationship with both parents – Where the mother is the children’s primary attachment – Where the relationship between the father and the children is under strain – Where there is no unacceptable risk of harm or abuse for the children in the care of the father – Where the mother’s actions, although intended to be protective; have caused the children emotional and psychological harm – Where the risk of emotional abuse in the mother’s care is heightened by the maternal grandparents’ loyalty to the mother – Where the father is untested as a single parent – Where the mother cannot and will not support a relationship between the father and the children – Where the mother’s capacity to care for the children is impaired by her belief that the father has sexually abused the children – Where the single expert is of the view that the children will likely suffer adverse developmental consequences if they remain in the care of their mother – Where a reversal of residence is appropriate – Ordered the children will live with the father – Ordered the children will spend supervised time with the mother for a period of 12 months following a four month period of no time – Ordered the mother to spend time thereafter supervised, at the discretion of the father as to supervision being dispensed with at any future time.

FAMILY LAW – PARENTING – Where both parents seek sole parental responsibility – Where each parent has negative beliefs about the other – Where trust between the parents may never return – Where the presumption of equal shared parental responsibility does not apply – Where the resident parent should have sole parental responsibility – Ordered the children live with the father and therefore he shall have sole parental responsibility.

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