Federal Circuit and Family Court of Australia – (Division 1) Apellate Jurisdiction
Adler & Parrow [2024] FedCFamC1A 192 (21 October 2024)
PARENTING – Evidence – Effect of state court judgments in family violence proceedings – Whether issue estoppel arose – Whether judgment of state courts should have been adopted pursuant to s69ZX – Whether State Court judgements otherwise relevant or of weight where primary judge determining issues of family violence on evidence at hearing.
PARENTING – Evidence – Where the Family Report Writer unable to be cross-examined due to illness – Admissibility of Report – Whether report ought to have been excluded pursuant to s135 of the EVIDENCE ACT – Weight to be attached to report.
PARENTING – Definition of family violence – Whether the primary judge was correct in classifying all of the appellant’s behaviour as family violence – Where appellant destroyed engagement rings – Where limited evidence of circumstances of destruction of rings.
PRACTICE AND PROCEDURE – Error in order that is amenable to correction under the “slip rule” – Where appeal inappropriate prior to exhausting remedies with primary judge.
Federal Circuit and Family Court of Australia - (Division 1)
Secretary, Department of Families, Fairness and Housing & Whiting [2024] FedCFamC1F 479 (19 July 2024)
HAGUE CONVENTION – Child abduction – Return application to Belgium – Where there is an allegation of wrongful removal – Issue of habitual residence – Habitual residence of the child found to be Belgium – No regulatory exception to return raised – Return order to Belgium made – Conditions to return.
Sokoloff & Sokoloff [2024] FedCFamC1F 509 (31 July 2024)
PARENTING – Where the father seeks sole parental responsibility – Where the mother seeks equal shared parental responsibility – Where the Court finds the mother does not have any desire to support the children’s relationship with the father – Where the father seeks a change of residence order – Where a change of residence order is made – Where there is family violence – Where the parties have a highly conflictual co-parenting relationship – Where there is parental alienation – Where the children’s best interests are promoted by a moratorium on their time with the mother – Where the father’s evidence is preferred – The father to have sole parental responsibility – The children to live with the father – The children to have no contact with the mother for 12 weeks – Changeover of the children to be enacted at the Melbourne Registry with attendance by the ICL and a Family Consultant.
Grainger & Grainger (No 3) [2024] FedCFamC1F 470 (1 August 2024)
PARENTING – Relocation – Where the mother sought to permanently move to the United Kingdom with the child – Where the father opposed the relocation to the United Kingdom – Where the mother has unilaterally removed the child to the United Kingdom on a prior occasion – Where the High Court of Justice in the United Kingdom ordered the child be returned to Australia – Where the child has not spent time with the father since 2015 – Where final parenting orders were made in 2015 and again in 2019 – Where there is a complex and lengthy history involving high conflict between the parties – Where the Court determined that, on balance, the child’s best interests are met by permitting relocation.
PROPERTY – Where the mother sought enforcement of financial orders made in 2015 and to be made trustee for sale of the property – Where the father sought orders pursuant to s79A(1)(c) setting aside the consent property orders and for the Court to make new orders pursuant to s79 – Where the Court determined that previous property orders should be enforced and that the mother after a further 90 days be appointed as trustee of sale for the property.
Carey & Prescott (No 2) [2024] FedCFamC1F 512 (1 August 2024)
PARENTING – Where the child has lived with father and paternal grandparents for more than a decade – Where father died unexpectedly and paternal grandparents applied for orders under the Critical Incident List to make major long terms decision for the child as non-parents – Where mother has not seen the child for several years – Where mother’s time before that was sporadic due to hospital admissions and incarcerations – Where mother fixated on reconciling with father years after separation – Where no time order made in 2021 – Where mother applied for the child to live with her as a result of service of the Critical Incident List proceedings – Where child has steadfast and long held views not to see the mother – Whether there is a risk to the child that the mother would fixate on him and/or engage in stalking and other anti-social behaviour as she did with the father when he was alive – Where no time order again made as between mother and child.
HARMFUL PROCEEDINGS – Where parties in litigation from when the child was an infant to now at almost 12 years old – Where the rounds of litigation were largely a consequence of the mother’s anti-social and criminal behaviour towards the paternal family, her psychiatric admissions, and, her incarcerations for offences directed to the paternal family – Where further litigation harmful to child without leave of the court – Harmful proceedings orders made.
Bilyk & Bilyk (No 4) [2024] FedCFamC1F 563 (26 August 2024)
PARENTING – With whom a child lives with and spends time with – Where the children currently live with the respondent mother and spend supervised time with the applicant father – Consideration of risk – Where the respondent alleges that the applicant sexually abused the child – Where the evidence of sexual abuse is confined to the respondent’s allegations that the child made disclosures to her – Where there is no corroborating evidence – Where the Court finds the applicant does not present as a risk – Consideration of whether the respondent is a psychological risk of harm to the children – Where the child kept a journal – Consideration of the respondent’s involvement in the journal – Where the child brought journal notes to multiple interviews – Consideration of whether the respondent attempted to manipulate the investigations – Best interests – Where the ICL submits the children should have a relationship with the applicant – Consideration of what time the children should spend with the applicant – Where the single expert considers a gradual increase in time with the applicant should be adopted – Orders made for a graduated increase in time with the respondent.
Nakai & Nakai (No 2) [2024] FedCFamC1F 536 (16 August 2024)
PARENTING – Where the mother, at the conclusion of the trial, concedes that the evidence does not support a finding that the father poses an unacceptable risk because of sexual abuse – Where the mother nevertheless seeks indefinite supervision of the father’s time with the children by reason of an alleged unacceptable risk of exposure to family violence – Where the father seeks that the children live with him and there be a three-month moratorium on them spending any time with the mother – Where the allegations by the mother that the father has sexually abused the youngest child are groundless – Where the mother’s conduct in repeatedly questioning the child amounts to emotional abuse – Where the father does not pose an unacceptable risk of harm to the children by exposure to family violence – Where the children will remain in the mother’s primary care for various reasons, including that a change of residence would likely cause emotional distress to the children – Where the children will spend gradually increasing unsupervised time with the father and ultimately alternate weekends and half school holidays – Where neither parent considers that they are able to make joint decisions – Where the mother will have sole decision making responsibility with an obligation to seek input from the father.
Hoyt & Hoyt (No 3) [2024] FedCFamC1F 384 (24 May 2024)
JURISDICTION — Where the independent children’s lawyer seeks various restraining injunctions against the mother—Where the extensive correspondence sent by the mother to the independent children’s lawyer has been insulting and harassing—Where the mother agrees that she be restrained from contacting the Independent Children’s Lawyer and counsel instructed by her—Where the court may grant an injunction interlocutory order in any case in which it appears to be just or convenient to do so—Injunctions made.
Szczepanska & Amatore [2024] FedCFamC1F 585 (2 September 2024)
PARENTING – Final hearing – Family violence - Where parties reached consent position on the first day of trial that the child should live with the mother and the mother have sole parental responsibility – Where only outstanding issue was mother and father’s joint proposal for child’s indefinite supervised time with father – Finding that the father presents an unacceptable risk of harm to the child – Child Court Expert does not support indefinite supervised time – ICL opposes indefinite supervised time - Finding indefinite supervised time not in child’s best interests –Orders made for no time and communication with the father – subject to Birthday and Christmas Cards permitted on mother’s review –Injunctions – DCJ to be provided with Orders and Reasons indicating there is no positive finding that the child is safe in the mother’s care.
Mizushima & Crocetti (No 3) [2024] FedCFamC1F 542 (15 August 2024)
PARENTING – Where the applicant seeks declarations as to parentage – Where neither party is biologically related to the children – Whether the applicant is a parent – Consideration of s60H – Whether the parties were in a de facto relationship at the time of conception – Whether the applicant is a parent pursuant to s69R- Where the respondent contends that the presumption of parentage is rebutted by the applicant’s coercive and controlling conduct – Consideration of coercive and controlling behaviour – Where the presumption under s69R has not been rebutted – Where it is found that the applicant is a parent according to Masson v Parsons – Whether the respondent should be permitted to relocate with the children to the UK – Whether relocation in the best interests of the children – Where relocation not permitted.
Bohler & Jugovac [2024] FedCFamC1F 592 (6 September 2024)
PARENTING – HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 – Application pursuant to the FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986 – Where the Court finds the child was habitually resident in Japan at the time of the retention – Where the applicant did not file her application within one year of the child’s retention – Where the child is settled in Australia – Application dismissed.
Batas & Gaire (No 2) [2024] FedCFamC1F 672 (18 October 2024)
PARENTING – With whom a child spends time – Family Violence – Where the father carried out a retributive attempted suicide at the mother’s place of work – Where the Court finds the father was the perpetrator of significant family violence throughout the relationship and post separation period – Where the father’s actions constitute family violence in the form of coercive and controlling behaviour– Where the Court is satisfied that the family violence that the mother has experienced has been significant and severe – Where the Court is satisfied that the father used the trial process itself to inflict further psychological harm on the mother – Where the father attempted to minimise his conduct constituting family violence throughout his evidence – Where the father has an inability to understand the impact of his behaviours – The mother is to have sole parental responsibility for the child and the child is to live with the mother.
PARENTING – Unacceptable risk – Where the mother’s case is that the father presents an unacceptable risk to the child – Where the mother suffers from Post Traumatic Stress Disorder (“PTSD”) – Where the mother suffers a range of symptoms which have a debilitating effect on her – Where the court accepts that ongoing time spending between the father and the child will continue to be a PTSD trigger for the mother – Where the mother’s emotional and psychological functioning is significantly compromised –Where the mother’s functioning is impacted by the father having contact with the child – Where the mother’s functioning needs to be protected – Where the father has not taken any meaningful steps to address the significant risks that he presents – Where the father displayed an incapacity for reflection, insight and remorse – Where the risk of harm posed by the father is extreme – Where the protection of the child from harm centres around the mother’s security and safety – No time spending between the father and the child – Injunctions granted for the personal protection of the mother and the child.
Federal Circuit and Family Court of Australia - (Division 2)
Almeras & Velez (No 2) [2024] FedCFamC2F 1117 (9 August 2024)
EVIDENCE – Contravention – admissibility of evidence – whether videos can be accepted into evidence – whether recordings of the father were illegally obtained – where the recordings reasonably necessary to protect the children’s lawful interest – if the recordings were illegal can they still be admitted in the Court’s discretion.
Dendy & Penta [2024] FedCFamC2F 1116 (20 August 2024)
PARENTING – Res tempore Reasons – Travel to Region C – Child of Aboriginal descent – Whether the child travelling to Region C poses an unacceptable risk – Connection to Aboriginal heritage and culture – Cultural practices.
Dayal [2024] FedCFamC2F 1166 (27 August 2024)
LEGAL PRACTITIONERS – duties of solicitors – solicitor appearing as agent tendered a list and summary of authorities which are acknowledged by the solicitor not to exist – list and summary generated using software relying on artificial intelligence (AI) – accuracy of the document produced was not verified by the solicitor – unconditional apology offered by the solicitor for what is acknowledged to be a breach of the professional standards expected of a solicitor in this court – referral made to the Office of the Victorian Legal Services Board and Commissioner, being the statutory body and officer responsible for the maintenance of professional standards of solicitors in Victoria – decision for referral not intended to be punitive – responsible use of AI tools in litigation an issue of public interest.
Bellanger & Wemble (No 3) [2024] FedCFamC2F 1139 (20 August 2024)
PARENTING – Where children alleged to have been removed by force from the “live with” parent in a foreign place – grandparent alleged to have aided and abetted contravention of final orders and recovery order – whether a grandparent should be restrained from leaving Australia – where it is alleged a parent retains children in a foreign country and a grandparent aids and abets that retention- consideration of impact of culture and customary law of a foreign country – where it is alleged children detained to enforce return of dowry – dowry paid in animals more than a decade ago – whether injunctions may support return of children to the “live with” parent – whether any risk of flight – potential serious penalties if mother’s case made out, including imprisonment – whether s92 of the CONSTITUTION implied freedom of movement – interim injunctions made.
Ghani & Nassif (No 2) [2024] FedCFamC2F 1135 (27 August 2024)
PARENTING – Family violence – pornography - real and significant risk of emotional and psychological harm - best interests of the children – no time.