Family Court of Australia – Full Court

Sandwell & Sandwell [2019] FamCAFC 24 (15 February 2019)
FAMILY LAW – APPEAL – PARENTING – Change in living arrangements – Single expert report – Father’s psychiatric health – Whether the primary judge erred by relying on assertions of risk of harm posed by the father’s psychiatric health in the single expert report as a basis for changing the older child’s residence – Where the primary judge determined parental responsibility and with whom the children would live based on the children’s strong attachment to the mother, the lack of a risk to them in her care and the desirability of the children living together – No error demonstrated.

FAMILY LAW – APPEAL – PARENTING – Supervised time – Where the primary judge ordered that the children spend supervised time with the father – Where the primary judge took into account the single expert’s opinion in ordering supervised time – Where any risk posed by the father’s psychiatric health could not be ameliorated by an order for supervision – Error demonstrated – Appeal allowed in part – Order for supervised time set aside – Interim parenting orders made in lieu by consent.

 

Family Court of Australia

Frangoulis & Xennon [2019] FamCA 103 (28 February 2019)
FAMILY LAW – CHILDREN – Interim – With whom a child spends time – Where the father was required by earlier order to engage with a therapist who has experience with anger management and family violence – Where the parties are in dispute as to whether there was compliance – Where the professional expertise with respect to anger management and family violence of the therapist is disputed by the mother – Where the father seeks to have time with the children reinstated – Where the father seeks to have time with the children in the substantial presence of a supervisor.

Sandison & Thornhill [2019] FamCA 85 (25 February 2019)
CHILDREN – Parental responsibility – Where the parents have equal shared parental responsibility for their child – Where the parents are unable to agree about which school their child will attend – Where one of the child’s half siblings attends the school proposed by the mother – Where the mother is primarily responsible for delivering and collecting the child from school – Where it is not practical for the mother to travel to the school proposed by the father – Where if the mother was required to travel to the father’s proposed school it would likely place great strain upon her and impact her capacity to parent the child – Where an order is made for the child to attend the school proposed by the mother.

Herbert & Herbert (No. 2) [2019] FamCA 79 (22 February 2019)
FAMILY LAW – CHILDREN – PARENTING – Interim – Where the mother is currently restrained from seeing or contacting the two male children of the marriage – Where the mother seeks interim parenting orders varying the current regime to return them to her care in the lead up to the trial and for them to spend time with the father on weekends and school holidays – Where the mother did not provide adequate evidence to support the orders she seeks – Where the application is dismissed.
FAMILY LAW – CHILDREN – Independent Children’s Lawyer – Where the mother is seeking that the Independent Children’s Lawyer be discharged – Where the mother did not adequately show that the Independent Children’s Lawyer is not discharging her duties independently and professionally – Where the application is dismissed.
FAMILY LAW – CHILDREN – Interim – Where the father and the two male children of the marriage are seeing a psychologist for family therapy – Where the mother seeks to restrain the psychologist from providing family therapy to them as she alleges there is a “conflict of interest” – Where the evidence provided by the mother does not justify restraining the psychologist from seeing the father and the two male children of the marriage – Where the application is dismissed.

Bakker & Ralston [2019] FamCA 75 (21 February 2019)
FAMILY LAW – CHILDREN – Final hearing – Where there is one child aged eight years – Where it is agreed that the child will live with the mother – Where the mother seeks that the child spend four nights per fortnight with the father – Where the father seeks that the child spend five nights per fortnight with him – Where the expert did not have a strong view about whether the child should spend four or five nights with the father – Where the child and his father have a close relationship and the father has a lot to offer the child in terms of his parenting – Where it is ordered that the child spend five nights per fortnight with the father.
FAMILY LAW – PARENTAL RESPONSIBILITY – Where the mother and father both seek that they have sole parental responsibility for decisions relating to medical treatment – Where it is agreed that the parents will have equal shared parental responsibility in relation to decisions that do not relate to medical treatment – Where the father alleges that the mother has exaggerated the child’s illnesses in the past – Where the mother has behaved inappropriately in not informing the father of medical treatments in the past but the Court accepts that she is contrite and has acknowledged this error – Where the mother will have primary care of the child – Where it is practical for the mother to have sole parental responsibility for medical decisions with the proviso that she must consult with the father.

SCA & Rilling [2019] FamCA 74 (15 February 2019)
CHILD ABDUCTION – prima facie case of wrongful retention admitted – whether return will expose child to grave risk of harm or expose him to an intolerable situation.
CHILD ABDUCTION – Direct judicial communication.
CHILD ABDUCTION – independent children’s lawyer.
CHILD ABDUCTION – specialised Hague mediation – free of charge to the parties.
JURISDICTION – orders made for parenting arrangements immediately on return – recognition by operation of law under Article 11 of Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.

Department of Family and Community Services & Falcous [2019] FamCA 64 (14 February 2019)
FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where there is one child aged three years – Where the paternal grandmother relocated with the child from New Zealand to Australia in January 2018 – Where prior to the relocation the child was living with the paternal grandmother – Where in 2017 the mother signed a document stating that the paternal grandmother was the primary carer of the child – Where the mother asserts that in 2017 she consented to the paternal grandmother taking the child to Australia for a holiday of up to one month – Where the paternal grandmother asserts that the mother consented to her relocating with the child to Australia indefinitely – Consideration of reg 16 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Abduction Regulations”) – Where the paternal grandmother argues that the mother was not exercising rights of custody prior to the retention in Australia – Where the mother had commenced parenting proceedings in New Zealand and subsequently initiated action under the Hague Convention – Where the mother was exercising rights of custody immediately prior to the time of retention and she would have exercised some of those rights but for the retention – Where the circumstances fall within the provision of the Abduction Regulations – Where the paternal grandmother sought to establish a defence that the mother consented to the child relocating to Australia – Where the note asserting that the paternal grandmother is the primary carer of the child does not amount to consent to relocation – Where the child is required to be returned to New Zealand.

Grainger & Grainger [2019] FamCA 56 (11 February 2019)
FAMILY LAW – CHILDREN – Where final parenting orders were made in 2015 for the child to live with the mother and spend supervised time with the father with provision for the father to apply to vary the time with orders – where in 2016 the father sought to vary the final orders – where the child has not spent any substantial time or communicated with the father since September 2015 – where the Court finds the child’s persistent opposition to spend time with the father a significant issue – orders made for the child to live with the mother and spend no prescribed time with the father.

Wentworth & Wentworth [2019] FamCA 57 (8 February 2019)
FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests of a child – Where the mother seeks equal shared parental responsibility, that the child live with her and spend time with the father – Where the father seeks sole parental responsibility, that the child be removed from the mother’s care to live with him and spend time with the mother – Where the mother made allegations that the father sexually abused the child –Where the mother withdrew the allegations of sexual abuse against the father during the final hearing – Where the Court finds that the father did not sexually abuse the child – Where the mother presents an unacceptable risk of emotional or psychological harm to the child – Where the mother does not have the capacity to promote the child’s relationship with her father – Where the child will live with the father – Where the risk of harm by the mother can be ameliorated by supervision and psychological therapy –– Where the mother will spend time with the child on a basis graduating from supervised time in a contact centre to unsupervised time on alternate weekends after a six week no contact moratorium.

Independent Childrens Lawyer & Johal [2019] FamCA 65 (1 February 2019)
FAMILY LAW – COSTS – Application by Independent Children’s Lawyer for costs – Where the Court finds that the father’s evidence is insufficient to establish that he would experience financial hardship if he were to be required to meet that cost – Where the Court finds that the public interest supports an order being made for the payment of the Independent Children’s Lawyer’s costs – Application granted.

Zaccardi & Zaccardi [2019] FamCA 39 (1 February 2019)
FAMILY LAW – CHILDREN – Interim Parenting – Where there are competing applications for time with the child – Where the mother has ceased the child’s contact with the father – Where the mother seeks a no-contact order – Where the father seeks a reinstatement of supervised time with the child – Where an Apprehended Violence Order has been issued for the protection of the mother, the child, and the maternal grandmother from the father– Where the father was found guilty of assault occasioning actual bodily harm of the mother – Where the father has recently been charged with possession of ammunition and stalking/intimidation charges – Where the father alleges these accusations are deliberately false – Where the seriousness of allegations pose too high a risk to the mother and child – Where supervised contact will not ameliorate that risk – Orders made for no contact.

Lipovic & Sorrel [2019] FamCA 38 (1 February 2019)
FAMILY LAW – CHILDREN – Final parenting – Where a non-parent seeks orders to spend time with the child – Where the non-parent stepfather is the father to the child’s half siblings – Where the father has perpetrated family violence against the mother – Where it is the opinion of the expert that it is in the child’s best interests to spend time with the non-parent – Consideration of relevant principles – Where order made for child to spend time with non-parent stepfather.

 

Federal Circuit Court of Australia

Purcell & Purcell [2019] FCCA 447 (27 February 2019)
FAMILY LAW – Parenting – where foreign tourists on 18 month sailing holiday separate whilst in Australia – where no current right to remain in Australia beyond 3 month tourist visa – where father wants to remain with children in Australia and seek a work visa – where mother wants to return to place of domicile and last place of habitual residence – jurisdiction of foreign Court if children return – best interests of children – children are to return to last place of habitual residence.

 

 

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