Significant cases published November 2023
Federal Circuit and Family Court of Australia – (Division 1) Appellate Jurisdiction
Cresswell & Conroy (No 2) [2023] FedCFamC1A 201 (22 November 2023)
PARENTING AND PROPERTY – De facto relationship – Mental health issues potentially impacting upon presentation of appellant mother as a witness – Where adverse credit findings were made by the primary judge against the self-represented appellant mother based on demeanour – Where limited weight was given to expert evidence as a result of the adverse credit findings – Where the appellant mother suffered an acute stress reaction during the final hearing and was subsequently hospitalised – Where the primary judge found that the child was at risk due to the appellant mother’s dishonesty and manipulation – Delay in delivering judgment – Where the primary judgment was infected by operative delay – Denial of procedural fairness – Inadequate reasons – Related impact upon property settlement orders – Appeal allowed – Costs set aside – Parties and Independent Children’s Lawyer to file submissions in respect to whether matter should be remitted or whether the Full Court should re-hear the proceedings – Written submissions in respect to costs of the appeal.
Littlefield & Pemble [2023] FedCFamC1A 198 (17 November 2023)
LEAVE TO APPEAL – Where the father seeks leave to appeal an order dismissing his application to release single expert reports for use in criminal proceedings – Implied Undertaking – Whether the primary judge erred by failing to apply correct legal principles – Discussion of legal principles applicable to release of single expert reports – Where the enquiry as to whether the single expert reports are within the scope of the implied undertaking is whether the circumstances under which the father obtained them mean that he cannot disclose them without leave of the court – Where no question of “privilege” nor s 121 of the Family Law Act 1975 (Cth) is applicable – Where appeal has merit – Substantial injustice – Leave to appeal granted – Appeal allowed – Discretion re-exercised – Leave given to release single expert reports – Costs certificates issued.
Beale & Harvie [2023] FedCFamC1A 181 (23 October 2023)
FAMILY LAW – APPEAL – PARENTING – Summary dismissal – Where the appeal was listed to afford the appellant mother the opportunity to be heard about why the appeal should not be summarily dismissed – Where the mother appeals from an order dismissing her application to discharge the Independent Children’s Lawyer (“the ICL”) – Where pursuant to s 68L of the Family Law Act 1975 (Cth) the appointment of an ICL in parenting proceedings lies in the discretion of the Court, as does the discharge of an ICL – Where the mother’s claim of the denial of procedural fairness is misconceived – Where the mother was afforded the chance to be heard but failed to attend the hearing before the primary judge – Where the mother appeals orders listing the matter for further directions and reserving costs of the father and the ICL – Where appeals only lie from judgments – Where none of the orders made by the primary judge is a judgment capable of supporting an appeal – Appeal summarily dismissed.
Federal Circuit and Family Court of Australia – (Division 1)
Bruce & Bruce [2023] FedCFamC1F 936 (3 November 2023)
PARENTING – Best interests – Where both parties seek residence of the two children – Where the father seeks sole parental responsibility – Where the mother seeks shared parental responsibility save as to medical and educational decisions reserved to her – Where the children currently live with the mother – Where the children have not spent time with the father since January 2023 – Where the mother’s allegations of abuse and family violence by the father were unsubstantiated – Where the father and Independent Children’s Lawyer allege the children are susceptible to emotional damage caused by the mother’s conduct – Where the single expert reported the elder child is at risk of developing a psychological disorder if she remains living with the mother – Where the single expert reported the younger child’s relationship with the father is likely to be entirely severed if he remains living with the mother – Where the single expert evidence is accepted – Where the Court is satisfied the children have sustained serious psychological harm by reason of their subjection and exposure to the mother’s emotionally abusive behaviour – Where the presumption of equal shared parental responsibility is rebutted – Ordered the father have sole parental responsibility and the children live with him – Mother restrained from any form of contact with the children for two months – Ordered the children spend defined time with the mother thereafter.
Dawbar & Hixson [2023] FedCFamC1F 900 (23 October 2023)
INTERIM – Parenting – International Relocation – Where the mother seeks to relocate the children to live in Country B for 18 months – Where the father opposes that application – Where the father has significant mental health issues – Where the children are currently spending supervised time with the father – Where relocation of the children to Country B until mid-2025 is found to be in the children’s best interests.
Allwright & Allwright (No 2) [2023] FedCFamC1F 901 (20 October 2023)
PRACTICE AND PROCEDURE – Review of decision – Parenting – Where the paternal grandparents review orders made by a senior judicial registrar dismissing their application for the children to spend time with them – Where the paternal grandparents abandon their proposal requiring the children to travel interstate during each school holiday period to spend time with them – Where the paternal grandparents seek orders in accordance with the recommendation of the Independent Children’s Lawyer (“the ICL”) – Where the ICL proposes the children spend time with the paternal grandparents under professional supervision at a contact centre on a monthly basis – Where the mother opposes the review and contends the orders of the senior judicial registrar be maintained – Where the mother was unable to articulate how the children may be exposed to the risk of psychological harm by occasionally spending professionally supervised time with the paternal grandparents – Where the children are willing to spend time with the paternal grandparents at a contact centre – Where the re-introduction of the paternal grandparents into the children’s lives is modest and cautious – Orders of the senior judicial registrar discharged – Interim orders made for the paternal grandparents to spend professionally supervised time with the children once per month.
Gagan & Pavola [2023] FedCFamC1F 897 (20 October 2023)
PARENTING – Relocation – Where the mother sought to relocate to Country B with the children – Where the father sought for the children to stay in Australia and for him to have the children’s primary care – Where the parties and children migrated to Australia in 2018 – Where the Court is unable to make findings of family violence as contended for by the father – Where the Court is satisfied that both parents have capacity to capably care for the children and are not a risk to the children – Where there are advantages and disadvantages to each of the proposals – Where the mother’s ability to obtain a permanent visa is unknown – Where the mother will be able to engage in financially remunerative and intellectually stimulating work in Country B – Consideration of primary and additional considerations pursuant to s 60CC of the Family Law Act 1975 (Cth) – Mother permitted to relocate to Country B.
Marquez & Cisternino [2023] FedCFamC1F 875 (20 October 2023)
CHILDREN – Where the father has convictions relating to child exploitation material – Where the father concedes any time spent with the child should be supervised, however, does not concede that he poses an unacceptable risk of harm to the child – Where the material accessed by the father was described by the sentencing judge in 2016 as “[…]” – Where the father was sentenced to a further term of imprisonment for further offences in 2021 – Where the father continues to minimise his offending behaviour – Where the father also has a history of alcohol and prescription drug abuse – Finding that the father poses an unacceptable risk of harm to the child – Where an order for long-term supervision is not in the child’s best interests – ICL to provide reasons for judgment to the Department of Child Safety, Seniors and Disability Services to ensure welfare of relative children not directly related to these proceedings.
Haering & Willis (No 2) [2023] FedCFamC1F 914 (16 October 2023)
PRACTICE AND PROCEDURE – Stay application – Where final parenting orders where made changing residence from respondent to applicant – Where orders were executed and residence changed prior to respondent applying for a stay – Where granting of a stay would result in multiple changes of residence if appeal is unsuccessful – Where only short time until appeal to be heard – Where appeal does not have strong prospects of success – Application dismissed.
Kavanagh & Kavanagh [2023] FedCFamC1F 861 (13 October 2023)
CHILDREN – Whether mother’s new partner presents a material risk of harm – whether mother’s presence ameliorates risk – whether risk unacceptable – new partner has extensive history of substance abuse and mental health issues associated with dysregulated behaviour, self-harm, family violence and criminality – in cross examination new partner admits to drinking more than nineteen drinks per day and poor mental health until six weeks prior to hearing – mother had not disclosed this – mother denies new partner presents any risk at all. Held: New partner presents risk of physical and psychological harm to children – mother’s presence does not ameliorate risk – risk unacceptable. By consent father to exercise sole parental responsibility with an obligation to consult, children to live with father, various standard restraints and orders to keep informed. Order: Pursuant to s68B mother restrained from allowing children any time, contact or communication with new partner – undertaking in same terms – mother’s unsupervised time conditional on ongoing compliance with injunction and undertaking – children’s time with mother as agreed between ICL and parties in event of a finding of unacceptable risk.
Muir & Rodelo (No 2) [2023] FedCFamC1F 845 (6 October 2023)
PARENTING – Where there are three children of the marriage – Parental responsibility – Presumption of equal shared parental responsibility – Where the mother seeks sole parental responsibility – Family violence – Finding the father has perpetrated family violence upon the mother and his current partner – Presumption rebutted – Order made for the mother to have sole parental responsibility – With whom a child lives – Order made for the children to live with the mother who holds sole parental responsibility – With whom a child spends time with – Where the findings of family violence against the father include physical, sexual, verbal abuse, and coercive and controlling conduct – Unacceptable risk – Consideration of risk posed by the father to the children – Where the father acts in a vengeful manner – Amelioration of risk – Orders made for day-time only during the school term, separate days during school holidays and special events.
CHILD SUPPORT – Application for departure – Where the mother sought a departure order for expenses relating to schooling, medical and extra-curricular activities – Where the mother also sought a lump sum payment order for past expenses – Lump sum order refused and is to be considered as a post-separation contribution – Consideration of factors required for a departure order – Finding an order is in the interest of both parties – Finding of special circumstances – Departure order made for the father to pay half of expenses of schooling expenses including school fees – Departure order made for half of medical expenses not covered by Medicare or a private health fund to be paid by father.
COSTS – Child representative – Where the costs sought were for the last six days of hearing – Orders made as sought by the Independent Children’s Lawyer.
INJUNCTIONS – Protection of child – Personal protection – Where the mother and Independent Children’s Lawyer sought various injunctions against the father in relation to her and the children – Where injunctions sought a power of arrest – Where the Court has found the father has engaged in coercive and controlling behaviour – Where the Court has previously been required to issue recovery orders in relation to the children – Orders made as sought by the mother and Independent Children’s Lawyer – Preservation of property – Where the wife sought injunctions relating to a property if she is appointed as trustee for its sale against the husband – Orders made as sought by the wife.
JURISDICTION – Whether the Federal Circuit and Family Court of Australia (Division 1) (“Division 1”) has jurisdiction to hear applications under the Child Support (Assessment) Act 1989 (Cth) (“CSAA”) – Consideration of the effect of proceedings transferred pursuant to s 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Catling & Gould [2022] FedCFamC1F 233 applied – Finding that Division 1 has jurisdiction to hear the application under the CSAA.
PROPERTY – Addbacks – Where both parties sought addbacks – Where the addbacks included a partial property settlement and utilisation of cryptocurrency – Partial property settlement figure added back to the property pool – Where cryptocurrency was transferred unilaterally and hidden – Finding the husband effected the transfers – Finding the husband has engaged in subterfuge – Cryptocurrency added back to the property pool and attributed to the husband.
PROPERTY SETTLEMENT – Contributions – Where the husband made a superior initial contribution – Where the contributions during the marriage were equal – Where the wife made greater contributions both financially and to the care of the children post-separation in circumstances where she also suffered from psychological vulnerabilities – Where the Court does not accept the husband has disclosed all his assets including cryptocurrency – Division assessed to be 55 per cent in favour of the wife – Future needs – Where the wife has effective sole care of the children due to the risk of harm posed by the husband – Adjustment of 5 per cent in favour of the wife – Just and equitable – Finding the orders made are just and equitable.
WITNESSES – Credibility – Where multiple instances of the respondent’s evidence was found to be false and misleading – Finding the respondent to have no credibility – Credit of the respondent impugned.
Kornel & Kornel [2023] FedCFamC1F 377 (15 May 2023)
PARENTING – Proceedings between the mother and the grandmother – Where the mother seeks orders for sole parental responsibility and no time with the grandmother – Where the grandmother seeks sole parental responsibility and for the children to spend time with the mother – Two children – Where one child has a disability – Family violence – Best interests of the children – Supervision – Where the mother and the grandmother have a dysfunctional relationship – Orders made for the children to live with the mother and spend limited supervised time with the grandmother.
Federal Circuit and Family Court of Australia – (Division 2)
Sylvan & Sylvan [2023] FedCFamC2F 1176 (27 September 2023)
CHILDREN – Where it is undisputed that the children should live with the mother – Where the father and Independent Children’s Lawyer seek orders for the children to spend graduated and overnight time with the father – Where the mother seeks orders for the children to spend no time with the father – Where the mother asserts that the father presents an unacceptable risk of harm to the children in the form of coercive and controlling behaviour – Where the mother alleges that the father has perpetrated physical assaults upon her and an assault upon one of the children- Where the father has spent regular supervised time with the children for two years – Findings made that the father was coercive and controlling of the mother during their relationship – No findings able to be made that the father has perpetrated physical violence – Finding that the children have a secure attachment and loving relationship with the father -Where the father has shown some insight and remorse as to his conduct towards the mother during the relationship – Finding that the children are not at an unacceptable risk in the father’s care -– Finding that the mother’s parenting capacity will not be significantly adversely affected should the father spend time with the children – Orders made for the children to spend graduating time with the father over an extended period of time.
Metrellis & Chase [2023] FedCFamC2F 1241 (25 September 2023)
PARENTING – where father is a member of an outlawed gang – where father has engaged in attempted gang related offences –where father has significant criminal history–where father has history of drug and alcohol abuse – where father has history of family violence – recent steps by father to reform – partial insight by father and partial consent parenting orders – unacceptable risk to child and mother – no spend time- identity contact only.
Roche & Donato (No 2) [2023] FedCFamC2F 1225 (25 September 2023)
PARENTING – final hearing – ten year old child – consideration of best interests of the child – parental responsibility – where both parties have a history of illicit substance abuse – where the mother was the primary caregiver up until 2018 – where the father is now the primary caregiver – where the child has allegedly been exposed to drug usage and potentially dangerous circumstances and dangerous individuals in the mother’s care – where the mother has been late to or failed to submit to requests for drug testing – orders made for the child to live with the father and spend supervised time with the mother moving to unsupervised time upon the mother returning a series of negative drug tests.