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Cases published December 2018

Family Court of Australia

Macey & Liddell and Anor [2018] FamCA 1027 (7 December 2018)

FAMILY LAW – CHILDREN – Interim – With whom a child spends time – Where the mother opposes the child spending any time with the father – Where the father seeks to spend time with the child under professional observation at a contact centre – Where the father has spent lengthy time in jail – Where there are concerns about the father’s history of anger, aggression, alcohol and illicit substance use – Where the father’s compliance with parole conditions is a concern – Where the father has not engaged in therapy for anger management – Whether risk to the child is outweighed by the benefit of spending time with the father.

Corey & Jebbitt (No. 2) [2018] FamCA 1034 (3 December 2018)

FAMILY LAW – CHILDREN – Independent Children’s Lawyer – application by mother for removal of the Independent Children’s Lawyer – where it was difficult to identify with any precision whether the mother contended for the discharge of the Independent Children’s Lawyer on the basis of alleged bias against her and/or misbehaviour or incompetence – where none of the matters agitated by the mother demonstrated apprehended bias or a lack of impartiality on the part of the Independent Children’s Lawyer – where there is no merit in the allegations of misbehaviour or incompetence advanced by the mother against the Independent Children’s Lawyer – application dismissed.


Family Court of Western Australia


CHILD ABDUCTION – Hague Convention – Child habitually resident in [Country A] immediately before her removal by the mother to Australia – Child had previously been living with her uncle in [Country A] – The child’s uncle, mother and father are guardians under [Country A] law and therefore have “rights of custody” – There was a breach of rights of custody as the uncle was not consulted about the child’s removal and had he been consulted, would have objected – The uncle is now imprisoned but made proper arrangements for the accommodation and care of the child – Friedrich v Friedrich, 983 F 2d 1396 (6th Cir, 1993) considered – Found the uncle was exercising rights of custody despite being incarcerated – Found the mother wrongfully removed the child – Held no grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation – Mother will return to [Country A] with the child if return order made – Found the child’s stated wishes do not go beyond an expression of a preference and therefore do not satisfy the requirements in reg 16(3)(c) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Conditions made for return of the child.


Vince and Spruce [2016] FCWA 97 (5 October 2016)

CHILDREN – WITH WHOM A CHILD SPENDS TIME – The children live with the mother and the father is incarcerated – Whether the children should spend time with the father and paternal grandparents against their wishes – Order for the family to engage with the Adoption Research and Counselling Service with a view to improving the relationships between the children and the father and paternal grandparents.


Federal Circuit Court of Australia

Penner & Penner [2018] FCCA 3557 (11 December 2018)

FAMILY LAW – Interim parenting – risk assessment – where recovery order made but Police declined to implement – where Father ordered to forthwith return the children to the Mother’s care.

Walthorpe & Vass [2018] FCCA 3583 (7 December 2018)

FAMILY LAW – Parenting – application by Mother to relocate from Australian Capital Territory to Sydney to be near her sister (Mother’s first preference was to relocate to Perth to be near her Mother) – considerations relevant to best interests of the child moving with the Mother or remaining in the ACT where the Mother feels isolated and somewhat unsupported which was also the case during the marriage with the Father who required the Mother to adjust her life to accommodate the Father’s business and other interests – application granted.




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