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Cases published September 2016

Family Court of Australia Full Court

Saska & Radavich [2016] FamCAFC 179 (1 September 2016)

Parenting – parenting orders – proper interpretation of definition of family violence in s4AB(1) of the Family Law Act 1975 (Cth) (“the Act”) – whether mother a member of the family of the father within the meaning of s4AB(1) – father’s foreshadowed contention that absent findings of the existence of a de facto relationship or shared residence the mother not a “family member” of the father and that his conduct could not constitute “family violence” as defined – meaning of “family member” as defined in s4(1AB) – mother a “family member” of the father by operation of s4(1AB) – whether presumption in s61DA(1) applied – whether s65DAA of the Act ought to have been applied – error of fact contended for by the father – father’s contentions on appeal as foreshadowed abandoned in the course of argument of the appeal – appeal not abandoned and hence contentions dealt with – costs of appeal – no merit in appeal – appeal dismissed – costs orders in favour of respondents.


Family Court of Australia

Withers & Russell and Anor [2016] FamCA 793 (20 September 2016)
Parenting – where the wife seeks that the children be permitted to live with her in the United States – where the husband seeks that the children reside with him in Australia – where the wife makes serious allegations of family violence and child abuse – where the allegations of family violence and child abuse are largely made without substantial foundation – where the risk posed by the wife to the children’s relationship with the husband is far greater than the risk posed by the husband to the children’s relationship with the wife – where the husband is to have parental responsibility subject to conditions – where it is in the best interests of the children to reside in Australia with the husband and spend time with the wife and the maternal grandparents – where there is a delay in when the children will be permitted to spend time with the wife in the USA.
Parenting – passports – consideration of the provisions of s11 of the Australian Passports Act 2005 (Cth) (“APA”) – whether an order for sole parental responsibility is sufficient to give exclusive responsibility in the hands of the husband to apply for passports or travel related documents for the children – where it is not – consideration of power under APA exercised – consideration of form of orders to be made.
Practice and procedure – application to remove the ICL – where the application is dismissed.
Property – where the wife makes an application for the matrimonial law of California to apply when making the property settlement order – where the application is dismissed.
Property – where the parties’ net assets are almost entirely represented by the value of the husband’s superannuation interest – where properties held by the wife’s trust are cross collateralised against other property and debt held by the parties – where the wife made a significant initial contribution – where the parties’ contributions during the marriage are equal – where the wife received the net proceeds of the sale of two properties since separation – where the wife has made greater contributions in the role of parent since
separation – where there should be a 5 per cent adjustment in favour of the wife based on contributions – where the husband will have primary responsibility for the children – where there is a 5 per cent adjustment in favour of the husband based on s79(4)(d)-(g) factors – where the assets and liabilities of the parties should be divided evenly – where all properties need to be available to cover or repatriate debt but the parties are given a two month period in which to refinance or retain the properties – where orders are made by consent dismissing the husband’s application against the 2nd respondent.
Practice and procedure – disqualification application – where the application is dismissed. Practice and procedure – where the 2nd respondent makes an application to reopen the parenting hearing and adduce further evidence – whether it is necessary in the interests of justice and best interests of the children to reopen the case – where the application made by the 2nd respondent is replicated in the alternate application made by the wife in the substantive parenting proceedings – where considerable prejudice would be occasioned to the children and the husband if the case was reopened – where the application is dismissed.


Federal Circuit Court of Australia

Lloyd & Oxbourne & Ors [2016] FCCA 2026 (10 August 2016)

Practice and procedure – suppression and non-publication application – s15 Federal Circuit Court of Australia Act 1999 – part X1A Family Law Act 1975 – implied/inherent powers of court – application dismissed.


Gawley & Bass [2016] FCCA 1955 (1 August 2016)
Evidence – father seeks to tender affidavit and annexed transcripts of recordings secretly taken in mother’s home – s7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW) and sections 138 & 135 of the Evidence Act 1995 (Cth) discussed – affidavit admitted – accuracy of one transcript to be proved – balance of transcripts excluded.

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