Significant cases published June/July 2024
Federal Circuit and Family Court of Australia – (Division 1) Appellate Jurisdiction
Galvis & Galvis [2024] FedCFamC1A 123 (26 July 2024)
APPEAL – Contravention – Where the primary judge found the appellant had contravened parenting orders –Where the primary judge denied the appellant procedural fairness by not affording her the opportunity to make supplementary submissions on the question of sanction – Where the appellant was sentenced globally for multiple contraventions – Where the primary judge erred by not imposing individual sanctions for the individual contraventions – Where the reasons for judgment do not explicate material considerations in the sentencing exercise – Where discretion miscarried – Appeal allowed – Where the appellant was not ready to adduce additional evidence in the appeal for the re-exercise of discretion – Where the question of penalty is remitted for rehearing – Costs certificates granted for the appeal only.
Federal Circuit and Family Court of Australia – (Division 1)
FIRST INSTANCE Cattrall & Cattrall [2024] FedCFamC1F 241 (16 April 2024)
PARENTING – Where the children spent very little time with the father for two and a half years following separation – Where the parents agreed to a moratorium on the children’s time and communication with the mother on the third day of trial – Where re-introduction therapy with the father was successful – Where the matter returned for a part-heard defended hearing to determine what care arrangements are in the children’s best interest – Where limiting the children’s relationship with their mother is unnecessarily restrictive – Where the presumption of equal shared parental responsibility does not apply – Where equal shared parental responsibility is nonetheless in the children’s best interests – Where the children will live in an equal time arrangement with the parents after a gradual re-introduction to the mother.
PROPERTY SETTLEMENT – Just and equitable – Where the parties are in dispute about the weight to be given to the husband’s greater financial contributions and wife’s greater homemaking contributions – Whether there should be an adjustment based on the disparity in parties’ incomes – Where contributions favour the husband in the proportion 55/45 – Where there is a five percent adjustment in favour of the wife for earning disparity – Where the property will be subject to equal division including a superannuation splitting order.
Alard & Dinesh [2024] FedCFamC1F 260 (19 April 2024)
PARENTING – Discrete issues – Where all outstanding parenting issues were resolved by consent on a final basis barring the retention of the child’s name on the airport watchlist and the question of international travel – Where father holds concerns of the mother absconding with the child and wishes for the child to remain on the airport watchlist – Where parties have Country B heritage – Where mother is a permanent resident in Australia and father is an Australian citizen – Where mother has strong employment ties to Australia – Where risk of the mother absconding with the child is low – Consideration of security – Orders made permitting international travel.
Ball & Ball (No 5) [2024] FedCFamC1F 261 (23 April 2024)
PRIVILEGE – where the mother was required to produce all electronic communications between her and a child pursuant to Orders of 14 March 2024 – where the mother asserts the privilege against self‑incrimination – where the Court exercises its jurisdiction to review the documents.
REASONABLE EXCUSE – Where on the material provided by the mother she had a reasonable excuse for all but one communication with the child – no privilege arises where there is no actionable breach because of clear reasonable excuse – all but one communication to be produced to the other parties.
PRIVILEGE – mother is not required to produce to the parties the one communication which might, arguably, not be the subject of an obvious defence of reasonable excuse.
Bosch & Annema [2024] FedCFamC1F 280 (24 April 2024)
PRACTICE AND PROCEDURE – Where an order pursuant to s102NA of the FAMILY LAW ACT 1975 (Cth) (“the Act”) was made by a judge of Division 2 – Where the father does not reside in Australia and does not intend to travel to Australia for the purposes of a trial – Where his oral application to attend the trial by way of electronic communication was refused – Where the scheme pursuant to s102NA of the Act is not available to non‑Australia residents who are not attending the trial personally – Where the allegations of violence are historic – Where s102NB of the Act can be invoked to ensure there are appropriate protections in place during any cross‑examination, if it occurred, during the trial.
Bligh & Vello [2024] FedCFamC1F 291 (3 May 2024)
PARENTING – Application for “reunification therapy” – Where applicant was previously found to pose an unacceptable risk to child – Where child’s mother has since passed away – Orders for reunification therapy inappropriate – Family report – Appointment of independent children’s lawyer – Applicant to pay costs of family report in first instance.
Catrine & Isak (No 2) [2024] FedCFamC1F 311 (14 May 2024)
PARENTING – Best interests – Where on the first day of trial, the parents presented a signed minute of order resulting in a change in the primary care of the child – Where the independent children’s lawyer did not consent to the proposed order but did not oppose the order – Where the matter was adjourned part-heard to enable the parents to file sufficient evidence to satisfy the Court that the agreed arrangement was in the best interests of the child – Where the children lived with the mother and spent time with the father after separation – Where there was a change in care in 2019 following the mother’s voluntary admission to a psychiatric hospital – Where a consent order was entered in relation to the two older children, and a dispute only remained about the arrangements for the youngest child – Where there were allegations of significant family violence suffered by the mother which were disputed by the father – Where the mother has demonstrated her continued recovery from mental illness and/or alcohol addiction over an extended period – Where the parents now present a united front about what order best meets the child’s future interests – Where the child will live with the mother and spend five nights a fortnight with the father – Where the parents will share parental responsibility, save for health and education in which the mother will have sole parental responsibility.
COSTS – Where the independent children’s lawyer made an application against the parties or their solicitors for costs thrown away as a result of the adjourned trial and an application against the mother for costs of the trial adjourned in 2021 – Where the parents are both represented in proceedings by a grant of legal aid under the Commonwealth Family Violence and Cross Examination of Parties Scheme – Consideration of the meaning of “legal aid” in s117(4) – Where both parents are employed – Where an order for the father and mother to equally share the costs thrown away by the adjournment but not for the entire trial is justified in the circumstances.
Gillespie & Gillespie [2023] FedCFamC1F 1128 (22 December 2023)
PARENTING – Relocation – Where the wife seeks to relocate the children’s residence from one town in regional Victoria to another town in regional Victoria that is several hours away from the husband’s home – Where the children are aged 9 and 7 years – Where the wife alleges that the children and she were subject to family violence by the father – Where the wife alleges that the children are at risk of harm in the father’s care due to his alleged volatile nature – Where the husband makes similar allegations in relation to the wife and alleges the children are at risk of being alienated from him by her –Where both parents have not behaved in a child focussed manner – Where the mother wishes to relocate due to purported employment and education opportunities – Where there is no evidence of these opportunities – Where the mother has been secretive in her actions in the lead-up to her proposed relocation – Where the mother unilaterally enrolled the father’s daughter of a previous relationship in a school in vicinity to which she proposes to relocate to – Where the mother leased a house for the father’s daughter to live in and only provided the father with the lease at trial – Where the mother purchased a property in the vicinity of the town to which she proposes to relocate and only provided the father with the contract on the eve of the trial – Finding that the mother behaved in a manipulative manner in relation to the relocation – Unchallenged evidence of the Family Report Writer that the relocation is not in the best interests of the children – Where the mother did not seek to cross-examine the family report writer – Relocation not allowed – Orders made for the children to spend 5 nights per fortnight with the father, increasing to equal time.
PROPERTY – Where the parties were married for approximately 10 years – Where there are children of the marriage and of the parents’ previous relationships – Contribution-based entitlements – Where the applicant husband made substantial initial financial contributions – Where that property continues to subsist and provided a springboard for the acquisition of other properties – Where the respondent wife made significant s79(4)(c) contributions – Contributions assessed as 62.5 per cent in favour of the husband and 37.5 per cent in favour of the wife – No further adjudgment pursuant to s79(4)(e) of the FAMILY LAW ACT 1975 (Cth) on account of s75(2) factors.
Mendy & Trossard [2024] FedCFamC1F 99 (1 March 2024)
PARENTING – Where the mother alleges that the father poses a risk to the children if he spends overnight time with them – Where the mother raises concerns about the father’s parenting capacity while spending extended periods of time with the children in light of his alleged consumption of alcohol and history of depression during the marriage – Where the mother alleges that the father has been physically and verbally abusive toward the children – Where the mother alleges the father has left the children unsupervised – Where the children have reported these concerns to the mother – Where the father denies the mother’s and the children’s allegations – Where the Single Expert opines that the parental dysfunction and different parenting and communication styles of the parents have led to the children developing erroneous ideas about the father – Where the Single Expert opines that if the current arrangements continue there is a real risk that the children will regard their father as peripheral to their lives – Where the Court makes orders, reflective of the recommendations of the Single Expert, that the father spend substantial and significant time with the two younger children, including overnight time – Where the parties do not seek spend-time orders that bind the oldest child –Where the orders enable the oldest child to choose what time she spends with the father.
PARENTING – Children’s views – Where the children are aged 14, 12, and 8 – Where the children have complained to the mother about the behaviours of the father – Where the children have alleged instances of physical and verbal abuse by the father – Where the mother alleges that the children have told her they do not want to spend overnight time with the father – Where the mother alleges that the children are fearful of the father – Where the parents had given the oldest child the ability to choose what time she spends with the father – Where the oldest child does not spend overnight time with the father – Where the oldest child told the Single Expert that she did not want the current arrangements to change – Where the father denies the allegations of the mother – Where the Single Expert opines that the continuation of the current arrangements would have an adverse effect on the children’s social, academic, and psychological development – Orders made that the two youngest children spend substantial and significant time with the children, including consecutive periods of overnight time – Orders made that if the oldest child expresses a desire to spend time with the father, the parents shall facilitate that happening.
Sander & Lynwood [2024] FedCFamC1F 126 (13 March 2024)
PARENTING – Unacceptable risk – Whether the children are at unacceptable risk of psychological or emotional harm from the mother –Where the mother previously alleged the father had sexually abused one of the children – Where there was a considerable escalation in the mother’s allegations over time – Where the mother ceased the children’s contact with the father for periods of time since separation – Where the mother indicated she has abandoned the allegations against the father but maintains suspicions – Where the mother has not explained why she has abandoned the allegations and agreed to unsupervised time with the father – Where it is not accepted that the father made an admission of inappropriate touching – Where the child was likely exposed to the mother’s belief that she had been sexually abused – Where the child was likely encouraged to rehearse disclosures – Where the mother’s allegations, beliefs or suspicions are entirely irrational and unreasonable and unlikely to have been genuine – Where the children will live with the father, and after a moratorium of three months, and a short period of supervision, spend alternate weekends and half school holidays with the mother.
Leon & Bonnay (No 2) [2024] FedCFamC1F 305 (9 May 2024)
PARENTING–Where the parties agree to equal shared parental responsibility – Where the parties have a highly conflictual co-parenting relationship – Where credit issues – Where the mother’s evidence is preferred – Where the ambit of the dispute was narrowed to the children’s spend time with each of the parents during school terms – An intractable dispute – Where the mother demonstrated a willingness to support the children’s relationship with the father – Where the father pursued an equal time arrangement – Where the children’s best interests are promoted by the proposal of the mother namely the children live with the mother for nine nights a fortnight and with the father for five nights a fortnight.
PROPERTY– Where each of the parties sought an alteration of property interests – Where financially controlling and coercive behaviour found resulting in a Kennon adjustment – Where husband failed in his duty of disclosure – Where a s75(2) adjustment is made – Where orders made for the sale of real properties – Where orders made for the retention of other real properties.
Cafferty & Bowles [2024] FedCFamC1F 314 (13 May 2024)
PRACTICE AND PROCEDURE – Undefended hearing – Where the mother’s solicitors filed a Notice of Ceasing to Act – Where the mother has not filed any documents for the trial – Where the Court is advised that the Independent Children’s Lawyer and solicitors for the father have not had contact with the mother since her solicitors ceased acting for her – Where there is evidence of the mother’s poor mental health – Where the father filed an Application in a Proceeding seeking that the matter proceed on an undefended basis, and this Application was served upon the mother via text message – Where the mother did not appear at the trial – Trial proceeded undefended as against the mother.
PARENTING – Consideration of amendments to Pt VII of the FAMILY LAW ACT 1975 (Cth) by the FAMILY LAW AMENDMENT ACT 2023 (Cth) – Final orders made in 2022 that the child live with the father and spend time with the mother and for the parents to have equal shared parental responsibility – Where the father has filed an Initiating Application seeking to relocate to City C, Country B with the child – Where the father seeks to relocate for employment reasons – Where there is a significant change in circumstance – Where the mother’s mental health has deteriorated and she has spent minimal time with the child since the final orders – Where the Family Report Writer’s findings support the child’s relocation to Country B with the father – Where the Independent Children’s Lawyer supports the orders proposed by the father – Relocation allowed – Father to have Parental Responsibility for decision-making for the child in relation to all major long-term issues – Child’s surname, being that of the mother, to include that of the father too.
Thatcher & Thatcher [2024] FedCFamC1F 324 (17 May 2024)
PARENTING – Assessment of risk – Assessment of credibility of the parties – Sexual abuse risk – Where the mother asserts that the father has sexually abused the child – Where such allegations are based primarily on disclosures made by the child to the mother and other people – Disclosures made to the family report writer – Where the father denies such allegations – Consideration of expert evidence – Finding of unacceptable risk – Finding of unacceptable risk where there is no positive finding that the father did sexually abuse the child – Child to live with the mother – Sole parental responsibility – Supervised time with the father on four occasions each year.
PROPERTY – Where there is an equitable claim by one of the fathers’ parents – Where this claim is based on contributions towards the purchase of real property and the building of a granny flat – Equitable claim found – Assessment of the credibility of the parties – Where both parties seek orders that they receive the same real property – Twelve year relationship – Assessment of contributions – s75(s) adjustment – Superannuation split.
Saarinen & Saarinen (No 3) [2024] FedCFamC1F 325 (17 May 2024)
PARENTING – Where the father seeks that the children move from City B to live with him in Brisbane – Where the mother seeks the children remain living with her in City B and spend time with the father – Where the father voluntarily left City B in 2017 – Where there has been substantial conflict in the parental relationship – Where the father has a history of discussing and involving the children in the proceedings – Where the father sent numerous emails to the mother’s solicitor and the Independent Children’s Lawyer which were of an abusive nature – Where it is in the children’s best interests to continue to live with the mother in City B and spend time with the father – Where the mother is accorded sole parental responsibility.
APPLICATION FOR REVIEW – Where the father sought to review a costs order made by a Senior Judicial Registrar – Where the father contended the Senior Judicial Registrar did not have power to make the order – Where the application is dismissed.
Rossi & Hardwicke [2024] FedCFamC1F 335 (17 May 2024)
PRACTICE & PROCEDURE – Application of ACT provisions relating to sexual assault and family violence counselling records to proceedings conducted under the FAMILY LAW ACT 1975 – s79 of the JUDICIARY ACT 1903 – The provisions of the FAMILY LAW ACT and the FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (FAMILY LAW) RULES 2021 and the EVIDENCE ACT 1995 provide otherwise – ACT provisions do not apply.
Barber & Chalke [2024] FedCFamC1F 356 (22 May 2024)
PARENTING – Solicitor filing Notice of Ceasing to Act that does not comply with r 3.10 – Notice of Ceasing to Act filed 4.03am on day matter listed – Solicitor failing to appear – Litigant represented by solicitor not appearing – Referral of conduct of solicitor to Legal Services Commissioner – Costs ordered.
Arena & Arena (No 6) [2024] FedCFamC1F 364 (28 May 2024)
PARENTING – Final hearing – Where orders were made by consent for the mother to have sole parental responsibility – Where the mother alleges the father poses a risk of harm to the children if they spend overnight time – Where the mother alleges coercive and controlling behaviour by the father – Where one of the children is neurodiverse – Where the children are involved in the parental conflict – Where the parents have a high conflict relationship – Where the children spend unsupervised time with the father – Whether the children should spend overnight time with the father – Where orders made for the children to live with the mother – Where orders made for the children to spend overnight time with the father – Where orders made for the children to spend special occasions and school holiday time with the father – Where the mother is permitted to take the children overseas for holidays.
EVIDENCE – s138 of the EVIDENCE ACT – Unauthorised recordings of private conversations – Alleged contravention of SURVEILLANCE DEVICES ACT – Consideration of the meaning of “lawful interests” – Where the mother was found to be protecting lawful interests – Where recordings admitted into evidence.
Obando & Obando [2024] FedCFamC1F 461 (10 July 2024)
PARENTING – Best interests of the child – Where both children have autism spectrum disorder (“ASD”) and global developmental delay – Where the eldest child is 13 years old and has been diagnosed with ASD level 3 – Where the father does not accept that the youngest child has ASD level 2 – Both children require significant support to meet their neurodiverse needs – Where the children enjoy spending time with both parents – Where the youngest child has expressed a desire to spend more time with his father – Where the children share a close bond with each other – Where it would be inappropriate to separate the children – Consideration of the father’s capacity to provide for the children’s needs – Finding that the father engaged in family violence – Mother exposed to a pattern of coercive and controlling conduct which continued post-separation – Where the Family Report Writer opined that an order for equal shared parental responsibility would only be suitable if the Court does not find a risk of ongoing coercive and controlling behaviour – Presumption of equal shared parental responsibility rebutted – Where the father has spent irregular time with the children – Where the father deflects responsibility for two physical acts of violence which led to criminal charges – Parenting orders made substantially in accordance with those sought by the mother and Independent Children’s Lawyer – Children live with the mother – Mother granted sole parental responsibility – Increase in time with the father contingent on him not failing to see the children on three successive planned visits.
PROPERTY – Application for an adjustment under s79 of the FAMILY LAW ACT 1975 (Cth) – Father’s earning capacity considerably greater than that of the mother – Where the mother is primary caregiver for the parties’ children – Mother cannot work full-time due to children’s special needs – Where mother is entitled to an adjustment of five per cent in respect to financial and non‑financial contributions and an additional 15 per cent in respect of future needs – Former matrimonial home transferred to the mother and the father to pay the outstanding mortgage.
Federal Circuit and Family Court of Australia – (Division 2)
Payne & East (No 2) [2024] FedCFamC2F 377 (7 March 2024)
FINAL PARENTING ORDERS – mother have sole parental responsibility – children live with mother – decision of no time between the father and the children – father to see children at the wishes of the mother – Kennon claim for course of conduct after end of relationship – father was a litigant in person – provisions of 102NA prohibited the father from cross examining the mother – concerns of the fathers mental health – where father believes there is no problem with his mental health – where there is real concern of risk of psychological and physical harm to the mother and children – the father’s behaviour towards the mother is unpredictable, intimidating and threatening – parenting orders to be determined with the evidence provided to the court, not as they could be with future assistance – where the father has previously been incarcerated – where there is a current final intervention order in place – where the fathers involvement in proceedings was sporadic – superannuation split – 60/40 split in the mothers favour – where the former relationship home is up for sale prior to orders being made.
Keneally & Neaves [2024] FedCFamC2F 438 (15 March 2024)
PARENTING – one child, aged 6 – where the parents were in a drug-fuelled and violent relationship – where the father has not spent any time with the child since late 2020 – where the maternal grandparents have provided a great deal of care and support to the child – where the father seeks supervised time graduating to substantial and significant time – where the mother seeks that the father has no time and no communication with the child and that the child lives with her – where the maternal grandparents seek that the child live with the mother unless the Court considers she would pose an unacceptable risk of harm, in which case they would then seek the child live with them – where the Court considers that the child should live with the mother and share parental responsibility with the maternal grandparents – where the Court considers that the father should spend no time and no communication with the child – best interests of the child.
Vaikar & Hegadi [2024] FedCFamC2F 442 (25 March 2024)
WHERE THE MOTHER OF THE CHILD HAS RECENTLY DIED – where the step father wants to take the child to Country B for funeral rituals – where the biological father seeks a watchlist order and restraint on the child from being removed from Australia – Country B not Hague convention country – where biological father alleges deceased mothers family prevented him from having relationship with the child – where family violence alleged during the relationship between the mother and biological father – where biological father has not seen six year old child for three years – where the biological father believes the step father will leave the child in Country B with maternal grandparents – watchlist order denied – where the maternal grandfather also made an undertaking in court that he ensured the child returns to Australia – where the stepfather has substantial ties to Melbourne – all other extant applications adjourned.
Brochard & Chaucer [2024] FedCFamC2F 370 (26 March 2024)
PARENTING – unjustified allegations of medical neglect – allegations maintained despite no evidence – lack of insight into children’s emotional needs – risk of emotional and psychological harm – greater the time the greater the risk – balancing of competing considerations – overseas travel – equal shared parent responsibility.
Lennan & Gillivray [2024] FedCFamC2F 381 (27 March 2024)
PARENTING – the Mother has a long history, starting in high school, of significant drug use which she says arises in times of “stress” – the Mother has stopped her own supervised time with her young daughter at a supervised contact centre – the young child, aged approximately 5 years, has lived primarily with the Father for the last three years – yet the Mother ran a case seeking that the child should change residence from the Father and live primarily with her – the longest period the Mother has been drug free has been 18 months – for all of this, the Mother still holds down a good job in the public service and has been candid with her employer and managers that she uses illicit drugs on a semi-regular basis – Mother also has a history of not completing drug rehabilitation – best interests considerations – child to continue to live with the Father, Mother to undergo regime of hair-follicle testing before re-commencement of supervised time.
Jin & Zhen (No 3) [2024] FedCFamC2F 440 (12 April 2024)
PARENTING – Where the mother would not facilitate a meaningful relationship with the father – Change of residence ordered – One-month moratorium of no time with the mother.
COSTS – The mother to pay the costs of the Independent Children’s Lawyer
Tandy & Padula [2024] FedCFamC2F 671 (29 May 2024)
PARENTING – Independent Children’s Lawyer’s (“ICL”) obligation under s 68LA(5A) to meet with the child – When parent alleges that child refuses to meet with and/or express a view to the ICL – Does the Court have power to Order that a parent facilitate a meeting between the child and the ICL? – Should the Court make detailed orders about when and how the ICL meets with the child? – Where the Court orders the father to facilitate meeting with the child on the terms proposed by the ICL.
Samper & Harpe [2023] FedCFamC2F 1646 (22 December 2023)
PARENTING – unacceptable risk – where Father has pleaded guilty to sexual offences against Mother when she was a minor – where Father is registered sex offender – where Court finds Father has additionally subjected Mother to serious family violence – where Father holds unremittingly negative attitude towards Mother and accepts no responsibility for his own conduct – where Father is lacking in insight – orders made for no time or communication with Father.
Cagney & Nankervis [2024] FedCFamC2F 192 (15 February 2024)
CONTRAVENTION – contraventions of order providing for children to communicate with Father – whether no case to answer – eight contraventions proven without reasonable excuse.
Watton & Watton [2022] FedCFamC2F 1095 (18 August 2022)
PARENTING – what time, if any, the Father spends with the children – what time, if any, the Paternal Grandparents spend with the children – where the Mother alleges family violence perpetrated by the Father during the relationship – the Mother argues the Father poses an unacceptable risk to the children – where the Father has diagnosed mental health issues and a history of illicit substance abuse which the Father fails to acknowledge or undertake treatment for – the Mother argues the Paternal Grandparents are unable to prevent the Father attending their time with the children – where the Paternal Grandparents do not accept the Father is a risk to the children.
HELD – the Mother have sole parental responsibility – the children live with the Mother – there be no time or communication with the Father – the Father be permitted to send the children gifts and cards on special occasions – there be no face to face time with the Paternal Grandparents – there be weekly FaceTime communication with the Paternal Grandparents – the Paternal Grandparents be permitted to send the children gifts and cards on special occasions.
Castano & Castano [2023] FedCFamC2F 1104 (29 August 2023)
PARENTING – whether Father with stimulant use disorder in sustained remission presents an unacceptable risk of harm to eleven year old child.
Haigh & Parkinson [2024] FedCFamC2F 89 (30 January 2024)
CONTRAVENTION – failure to comply with orders providing for time and communication with grandparents – reasonable excuse not established.
Parry & Sadler [2024] FedCFamC2F 603 (15 May 2024)
PARENTING – where the mother would not facilitate a meaningful relationship with the father – change of residence ordered – short respite of no time with the mother.
Gallion & Kaplin [2024] FedCFamC2F 621 (20 May 2024)
PARENTING – arrangements for two year old child to spend with her father – allocation of parental responsibility.
Whitehill & Talaska [2024] FedCFamC2F 768 (5 July 2024)
INTERIM HEARING – whether rules or practice attached or consequent to rule in Rice & Asplund apply to s65DAAA – whether Goode and Goode applies to amended s60CC – whether final orders can be suspended on interim basis without section 65DAAA being satisfied – change of circumstances not required but whether there is must be considered- s65DAAA “governing” provision of s65DAAA- attached rules of body of law of Rice & Asplund applied – principles of Goode and Goode with necessary changes applied-Not satisfied s65DAAA(1)(b) satisfied – one parent’s opinion of mental health of other parent not accepted – parent’s concern not dismissed – final orders not discharged or suspended – single expert psychiatric examination ordered.