Federal Circuit and Family Court of Australia – (Division 1) Appellate Jurisdiction
Sujatha & Gutierrez [2024] FedCFamC1A 223 (2 December 2024)
PARENTING – Where the mother and father appeal from final parenting orders permitting the mother to relocate to the USA with the children after 1 June 2026 subject to the children’s wishes –– Where the orders do not specify when and how the wishes are to be ascertained – Where the operation of the orders is a divestiture of judicial power – Where the orders are not prescriptive and enforceable – Appeal allowed – Matter remitted for rehearing – Costs certificates granted.
Sciacchitano & Zhukov [2024] FedCFamC1A 224 (2 December 2024)
PARENTING – Where the primary judge found he could not determine what was in the three year old child’s best interest beyond six years of age – Where the primary judge did not fail to consider the prospect of further litigation – Construction of s65DAAA – Where the orders accord with recommendations from the Court Child Expert such that the parties were on notice – No procedural unfairness – Claims the respondent’s evidence should not have been accepted – Where the outcome is not glaringly improbable or contrary to compelling inferences – Adequate reasons – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.
Radecki & Radecki [2024] FedCFamC1A 246 (19 December 2024)
PARENTING – Where the appellant seeks leave to appeal against an order made dismissing his application to re-open parenting proceedings – Consideration as to whether s65DAAA codifies the rule in In the marriage of Rice and Asplund [1978] FamCAFC 128; (1979) FLC 90-725 (“the rule in Rice and Asplund”) – Clarification of the principles which apply to applications under s65DAAA of the FAMILY LAW ACT 1975 (Cth) – Whether the wording of s65DAAA creates a meaningful distinction and departure from application of common law principles – Whether the Court is still required to make a finding about changed circumstances or alternatively, merely “consider” whether or not there has been any change – Where parliament’s intention was to codify the rule in Rice and Asplund – Where a literal interpretation of the wording of s65DAAA is at odds with the purpose of the statute and leads to absurdity – No discernible difference between the threshold to be applied under the new statutory regime and the common law principles espoused by the rule in Rice and Asplund – Appealable error established – Leave to appeal granted – Remitted for rehearing of the application under s65DAAA – Costs certificate granted.
Pickford & Pickford [2024] FedCFamC1A 249 (20 December 2024)
PARENTING – Where the father appeals from final parenting orders – Where the primary judge improperly considered extraneous evidence which amounted to the denial of procedural fairness – Where findings made of the father’s perpetration of family violence were not legally and factually open to the primary judge – Where the primary judge fell into error by finding the father committed family violence against the mother by refusing to consent or submit to orders sought by her – Where the father was entitled to maintain an application for an injunction against the mother – Where the father’s objection to the mother’s referral of the child to counselling was not an act of family violence – Where there was independent evidence about the fragility of the mother’s mental health – Where it was not a deliberate controlling strategy of the father to raise and maintain the issue of the mother’s mental health at trial – Where the primary judge erred when making findings about the father’s influence of the children’s expressed views – Where the primary judge’s orders to engage an Independent Children’s Lawyer for a further 12 months were aspirational and unenforceable – Appeal allowed – Proceedings remitted for re-hearing in respect of the order which should be made under s64B(2)(b) of the FAMILY LAW ACT 1975 (Cth).
Federal Circuit and Family Court of Australia – (Division 1)
Oyama & Oyama [2024] FedCFamC1F 738 (5 November 2024)
PARENTING – Consideration of “safety” pursuant to s60CC(2)(a) and “safe” pursuant to s60CC(2)(e) – Where there is a risk to the safety of the children arising from the mother's serious mental health conditions – Where the parties agree that the children will live with the father and spend time with mother – Disagreement as to whether the children's time with the mother should be professionally supervised or supervised by the mother's family or merely in the substantial presence of the mother’s family – Orders for mother to direct treating practitioners to advise the father of certain events – Father to hold sole parental decision-making responsibility in relation to health and education related issues.