Cases published May 2016

Padley & Padley [2016] FamCAFC 82 (23 May 2016)
Parenting – where the father appeals against interim parenting orders suspending his time with the
child – where the mother and Independent Children’s Lawyer conceded that the appeal should be
allowed – where the primary judge erred in finding that there was a risk of harm to the child that
would warrant the suspension of time – where the trial judge failed to consider other options which
might have enabled the child to regularly spend time with the father in a safe setting – orders set aside
– proceedings remitted for re‐hearing.
Costs – Costs Certificates – where the appeal was finalised by consent – where an order for costs as
between the parties would not be appropriate – whether appropriate to grant cost certificates – Cost
certificates granted to the parties and Independent Children’s Lawyer for the appeal and the rehearing.
Wardle & Wardle [2016] FamCAFC 77 (13 May 2016)
Parenting – the husband appealed a condition on a residence order requiring him to live with his
parents – the husband has convictions for possessing child pornography – the trial judge did not fail
to identify the risk posed by the husband, did not err in finding that the risk was unacceptable unless
the husband lived with his parents, did not fail to give reasons for imposing the condition, did not
improperly discount the evidence of the single expert and did not fail to consider the long‐term impact
of the orders – appeal dismissed – order for the husband to pay the wife’s costs.
Sahadi & Savva and Anor [2016] FamCAFC 65 (29 April 2016)
Application for leave to appeal – where the appellant required leave to appeal against interlocutory
orders – whether leave to appeal should be granted – application of test set out in Medlow &
Medlow (2016) FLC 93‐692 – where the nature of the issues raised and their implications for the
hearing of a serious criminal trial justify a grant of leave – leave to appeal granted.
Practice and procedure – release and use of expert report – where the police were granted leave to
inspect and copy court file – where police applied to release expert report for use in criminal
prosecution – whether police subject to implied obligation not to disclose the report – waiver of an
implied obligation – where pursuant to r 15.10(3)(c) of the Federal Circuit Court Rules 2001 report
released to the parties involved in the criminal proceedings and the Director of Public Prosecutions –
whether the best interests of the child were the paramount consideration – appeal dismissed.
Choudhary & McDonald [2016] FamCA 304 (5 May 2016)
Practice and procedure – evidence – question as to whether s69ZT(3) should be invoked and the
provisions of the Evidence Act 1995 (Cth) applied – allegations of sexual and physical abuse against
the father – allegations of emotional abuse against the mother – whether ‘exceptional circumstances’
– order that the rules of evidence apply
Practice and procedure – whether the respondent mother should be treated as the applicant for the
purposes of the final hearing – where the mother has made serious allegations against the father –
order that the mother be treated as the applicant for the purposes of the final hearing
Parenting – family consultants – application by the mother for a replacement of the family consultant
– where the family consultant proposed has previously prepared a s11F report and a family report –
where the mother alleges that the family consultant is biased – where the mother is also critical of
other professionals involved in the matter – principles in s69ZN of the Family Law Act 1975 (Cth)
considered – impact upon the children of a new family consultant considered – order that the family
consultant proposed prepare an undated family report

Clay & Jennings and Ors [2016] FamCA 204 (4 April 2016)
Parenting – where the first respondent is the mother of the two subject children – where the
applicant is the biological father of the eldest child – where the second respondent is the biological
father of the youngest child – where the applicant initially sought orders in relation to only the eldest
child – where the second respondent was subsequently joined as a party to the proceedings and the
youngest child was made a subject of the proceedings – where the NSW Department of Family and
Community Services intervened in the proceedings and was allocated parental responsibility for both
children on an interim basis
Parenting – best interests – where the eldest child did and does derive benefit from his meaningful
relationship with the mother, though much less benefit than he should ideally derive – where there is
no relationship of any sort between the eldest child and the applicant and the eldest child believes
the second respondent is his father – where the eldest child is closely attached to the second
respondent – where the youngest child has meaningful relationships with the mother and second
respondent, from which she derives benefit – where the eldest child is in need of protection from
psychological harm by his exposure to the applicant’s commission of family violence upon the mother
– where the re‐introduction of the applicant into the lives of the mother and eldest child would
probably overwhelm the mother’s capacity to cope – where the risk the second respondent poses to
the children through their subjection to sexual or physical abuse is relatively low – where a pivotal
issue was the mother’s parenting capacity, particularly in relation to the eldest child – where it was
improbable the mother had the ability to improve her parenting capacity through intensive therapy –
where the Department and Independent Children’s Lawyer proposed the removal of both children
from the mother’s care – where the single expert’s opinion that only the eldest child should be
removed from the mother’s care is accepted as correct – where there is no appreciable risk of harm
for the youngest child in the mother’s care – youngest child to remain living with the mother – where
if the present situation remains unchanged the mother poses a fairly strong risk of psychological harm
to the eldest child –– eldest child to live with a carer delegated by the Department – eldest child to
spend time with the mother and the youngest child for six weekends each year, after an initial
embargo period – where occasional written communication between the mother and eldest child is
permitted – where otherwise the mother, applicant and second respondent are restrained from
approaching the eldest child
Parenting– parental responsibility– Minister to have parental responsibility for the eldest child –
where it is in the best interests of the youngest child for the mother and second respondent to have
equal shared parental responsibility for her.
Janssen & Janssen [2016] FamCA 345 (1 February 2016)
Evidence – admissibility – admissibility of audio recordings made by the mother of exchanges
between the parties in circumstances where the recordings were made without the consent of the
father – admissibility of transcripts of the audio recordings – where the Court finds the audio
recordings fall within the exception contained in sub‐s7(3)(b) of the Surveillance Devices Act 2007
(NSW) as the recordings were reasonably necessary to protect the lawful interests of the mother –
where the court exercises its discretion to admit the audio recordings and transcripts into evidence –
certificate issued to the mother pursuant to s128 of the Evidence Act 1995 (Cth).
Evidence – application by the father under s69ZT(3) of the Family Law Act 1975 (Cth) for the provisions
of the Evidence Act 1995 (Cth) to apply – where there are serious allegations of family violence made
against the father – where the Court is satisfied ‘exceptional’ circumstances apply – rules of evidence
to apply to evidence given in respect of events on a specific date and alleged threats made by the
father concerning the children.

Miller & Murphy [2016] FCCA 974 (2 May 2016)
Practice and Procedure – applicant husband seeks release of family consultant’s advice to court for
use by him in defence of family violence intervention order sought against him by police – advice to
court included interviews with parties’ children aged 13 & 11 – youngest child reported to family
consultant that she did not see incident of violence complained of by the wife – wife deposed in her
statement to police that child did observe the incident in question – husband seeks to use statement
of child in the criminal proceedings – is document covered by provisions contained in s121 of the
Family Law Act – is document subject to implied undertaking that it will not be used in proceedings
other than the family law proceedings arising between the parties – should the husband be released
from such an undertaking – do special circumstances exist – interests of justice.