Federal Circuit and Family Court of Australia – (Division 1) Appellate Jurisdiction
Miyajima & Mikkelsen [2024] FedCFamC1A 208 (7 November 2024)
PARENTING – Allegations of family violence perpetrated by the father – Primary judge accepted the father posed a risk of harm to the children – Primary judge made orders for the father’s time with the children to be conditional on his engagement in psychological therapy and completion of courses – Application of Lainhart & Ellinson [2023] FedCFamC1A 200; (2023) FLC 94-166 – Order uncertain – Order constitutes an improper divestiture of judicial power – Appeal allowed – Costs certificates issued.
Gerard & Santino [2024] FedCFamC1A 218 (21 November 2024)
PARENTING & PROPERTY – International relocation – Where the father appeals from final parenting orders permitting the mother to relocate with the parties child to the United Kingdom – Where the father asserts denial of procedural fairness – Where the father asserts discretionary error – Where the father asserts failure to give reasons – Application in an Appeal – Where the father seeks leave to adduce further evidence – Where none of the further evidence demonstrates error by the primary judge – Application dismissed – Appeal dismissed – No orders as to costs.
Federal Circuit and Family Court of Australia – (Division 1)
Arap & Arap [2024] FedCFamC1F 601 (10 September 2024)
PARENTING – Family violence – Whether the father poses an unacceptable risk of future harm to the children by reason of his alleged history of family violence – Whether the mother has actively negatively influenced the children’s view of the father – Where the family violence perpetrated by the father is at the most serious end of the spectrum and the risk posed to the children and mother is potentially lethal – Where it is found that the father has strangled the mother and one of the children – Where the father poses an unacceptable risk of harm to the children that cannot be ameliorated by supervision nor therapy – Where the father has no insight into the damaging impact of his behaviour and has demonstrated himself to be controlling, overbearing, violent, and passively aggressive – Where the mother has not actively negatively influenced the children – Where the children have their own negative experiences of the father – Where it is not in dispute that the children will live with the mother and she will have sole parental decision making – Where there is limited benefit in the children receiving communication from the father – Where personal injunctions are made against the father enjoining him from approaching the mother and/or children.
Erlbaum & Catley [2024] FedCFamC1F 635 (19 September 2024)
PARENTING – Where the children have not seen the mother for several years – Where the father and ICL propose the children spend no time nor communicate with the mother – Whether the mother presents an unacceptable risk of harm to the children – Where the mother sends appalling communications to and posts about the father, his wife, the children’s school and church – Where the mother committed an act of physical violence against a child - Where the children’s exposure to the mother’s emotional dysregulation and lack of pro-social boundaries would cause trauma to the children - Where the mother fails to follow court orders – Order made for the father to solely have responsibility for making decisions about major long-term issues in relation to the children and the children spend no time and do not communicate with the mother – s68B restraints made.
Melounis & Melounis (No 4) [2024] FedCFamC1F 778 (15 November 2024)
PARENTING – Where the mother asks the Court to reconsider final parenting orders under s65DAAA of the FAMILY LAW ACT 1975 (Cth) (“the Act”) – Where the father and Independent Children’s Lawyer oppose this – Where the father proposes minor variations to the final parenting orders – Where the mother and the Independent Children’s Lawyer oppose this – Where the Court determines that minor variations to final parenting orders are governed by s65DAAA of the Act – Where the Court determines that a significant change of circumstances has occurred since the final parenting orders – Where the Court considers the impact of recent amendments on s60CC of the Act – Where the Court considers the meaning of “to promote the safety of a child and their carer” – Where the Court determines that the best interests of the children require a reconsideration of the final parenting orders – Where the Court allows the mother’s s65DAAA application – Where the Court orders the appointment of a single joint expert.
PROCEDURE – Where the Court considers various procedural aspects of s65DAAA proceedings – Where the Court determines that specific parenting orders are permissible without reconsideration under s65DAAA where the nature and content of the specific parenting orders were not covered by the “final parenting orders” – Where the Court determines that s65DAAA proceedings should be heard as initial threshold proceedings.
EVIDENCE – s117C of the Act – s131 of the EVIDENCE ACT 1995 (Cth) (“the Evidence Act”) – Where the solicitor for the father seeks to adduce correspondence from the mother’s legal representative – Where the mother’s counsel objects to the production of the letter due to it being headed “without prejudice” – Where the correspondence was produced following the delivery of the final parenting orders – Where the Court determines that the mother was not intending to appeal the final parenting orders – Where the Court determines that the correspondence was not an offer as no proceedings were on foot – Where the Court allows the production of the letter.
EVIDENCE – s117C of the Act – s131 of the EVIDENCE ACT – Where the solicitor for the father seeks to adduce letters to the mother’s legal representative containing offers to settle – Where the mother’s counsel objects to the production of the offers on the basis the offers were made without prejudice (r4.07 of the FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (FAMILY LAW) RULES 2021 (Cth)) – Where the content of the offers directly relates to the current dispute and where proceedings are still on foot – Where the Court declines to admit the letters into evidence.
Re: Kelly (No 2) [2024] FedCFamC1F 776 (14 November 2024)
PARENTING - Medical procedures – Gender Dysphoria – Where the child currently takes Stage 1 hormone treatment and wishes to move to Stage 2 treatment – Where the child is Gillick competent – Where the child’s medical practitioners and mother support the treatment – Where the father has not provided consent for the treatment and has not participated in the proceedings – Where the child has not communicated with or seen the father for some time – Where the child’s sibling has had sporadic and minimal contact with the father – Where the mother seeks sole decision making and parental responsibility for the children – Where the Court found that it was in the best interests of the children for mother to have sole decision making and parental responsibility for the children and for the child to undergo Stage 2 hormone treatment – Orders that children live with the mother – Orders that the children spend time with and communicate with the father as agreed between the parents from time to time.
Federal Circuit and Family Court of Australia – (Division 2)
Sampey & Sampey [2024] FedCFamC2F 1289 (16 September 2024)
APPLICATION SUMMARILY DISMISSED – Proceedings are frivolous, vexatious and an abuse of process, and have no reasonable prospect of success within the meaning of s102QAB of the FAMILY LAW ACT 1975 (Cth) – application sought to re-agitate issues other previous proceedings.
Channing & Channing (No 4) [2024] FedCFamC2F 1287 (19 September 2024)
PARENTING – Both parents with limited capacity to act in best interests of children – Findings of family violence – Weight given to views of Children – Leaving door open for children to have relationship with the other parent.
Tahan & Radlov [2024] FedCFamC2F 1303 (20 September 2024)
PARENTING – Drug use – physical discipline – verbal abuse – neglect – lack of parenting boundaries – parental denigration – lack of insight – stability for children – evidence of current risks – amelioration of risk – injunctions – joint decision making – international travel – trial commenced pre-6 May amendments to the FAMILY LAW ACT.