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Significant cases published September 2024

Federal Circuit and Family Court of Australia – (Division 1)  Apellate Jurisdiction

Leventis & Leventis [2024] FedCFamC1A 141 (23 August 2024)

PARENTING – Family violence – Where the primary judge found that the father had perpetrated family violence as defined in s4AB of the FAMILY LAW ACT 1975 (Cth) (“the Act”) – Error of law – Where the primary judge failed to engage in any analysis of whether the father’s alleged conduct coerced or controlled any relevant family member, or caused them to be fearful, such that it met the definition in s4AB(1) of the Act – Inadequate reasons – Where despite lengthy reasons for judgment the path of reasoning is unclear – Errors identified – Appeal allowed – Re-exercise of discretion – Where the appeal’s dismissal would have enlivened wholly unworkable orders that neither party would seek to enforce – Where the mother does not intend to engage in the litigation any further – Where both parties conceded that it would be appropriate to dismiss their Initiating Applications – Where in the face of no other realistic alternative no parenting orders will be made, the effect of which is the parties will both have parental responsibility.

Federal Circuit and Family Court of Australia – (Division 1) 

Rasheem & Rasheem [2024] FedCFamC1F 595 (6 September 2024)

PARENTING – Where the mother seeks to reconsider parenting orders under s65DAAA of the FAMILY LAW ACT 1975 (Cth) (“the Act”) – Where the father opposes this – Where the Court considers the nature and scope of s65DAAA – Where s65DAAA is materially different to the previous common law position – Where the Court declines to reconsider the parenting orders – Where the parties disagree on the utility of additional expert evidence – Where no further evidence is required.

PROCEDURE – Where the father seeks to dismiss the Independent Children’s Lawyer – Where the mother and the Independent Children’s Lawyer oppose this – Where the Court finds that the Independent Children’s Lawyer has fulfilled their role – Where the Independent Children’s Lawyer remains appointed.

INJUNCTION – Where the father alleges that the children’s treating psychologist is biased against him – Where the father seeks a s68B injunction against the mother from causing the children to receive therapy from the psychologist – Where the Court finds that the psychologist had acted outside of her role and caused additional conflict – Where the Court restrains the mother under s68B of the Act.

Pickford & Pickford (No 2) [2024] FedCFamC1F 500 (26 July 2024)

PARENTING – Where there are allegations of family violence – Where the father seeks equal time with the children and the mother seeks three nights per fortnight – Where both parties seek sole parental responsibility – The Court finds the father has engaged in behaviour that is coercive and controlling towards the mother – Where the children have been impacted by the parties’ conflict and the family violence perpetrated by the father – Order for the mother to have sole parental responsibility – Order for the children to live with the mother and spend four nights per fortnight with the father – Order prohibiting the father from causing surveillance of the mother.

Waugh & Rozon (No 2) [2024] FedCFamC1F 518 (2 August 2024)

PARENTING – Where orders made for the mother to have sole parental responsibility by consent – Where the mother alleges the father is an unacceptable risk of harm – Where the mother alleges the father perpetrated coercive and controlling family violence against her – Where the mother alleges the father perpetrated physical family violence against her – Where the mother alleges the father poses an unacceptable risk of harm due to his mental health – Where the father has not engaged in treatment of his mental health – Where the father alleges the mother poses a risk of harm due to her mental health – Where the father has not spent time with the children since separation – Consideration of Re Andrew principles – Where the father poses an unacceptable risk of harm – Orders made for the father to spend no time and have no communication with the children.

Federal Circuit and Family Court of Australia – (Division 2) 

Nalder & Cato & Nalder [2024] FedCFamC2F 721 (6 June 2024)

PARENTING – Allegations of emotional manipulation of children and ‘pathogenic parenting’ by Mother – where Mother found not to pose an unacceptable risk to children.

PARENTING – Unacceptable risk – where the Father conducted himself throughout the proceedings in a manner which was abusive, threatening and intimidating towards the Mother, the Mother’s legal representatives, the Independent Children’s Lawyer and the Court – where the Father subjected the Mother to coercive and controlling violence – where the Father refused to comply with an order for a psychiatric assessment – where the Father poses an unacceptable risk to the children – no time or communication ordered between Father and children.

PARENTING – Application by paternal grandparents – where children refused to spend time with grandparents at contact centre – where grandparents declined to pursue reunification therapy – where there is a risk that time with grandparents would result in exposure to Father – where paternal grandparents found to be unlikely to shield children from hostility towards Mother – no time or communication ordered between paternal grandparents and children.

PRACTICE AND PROCEDURE – Where an order made pursuant to s102NA of the FAMILY LAW ACT 1975 (Cth) applies and the Father refused to avail himself of legal representation through the Family Violence and Cross-Examination of Parties Scheme – where Mother’s evidence is largely unchallenged and is accepted.

Lamport & Garside [2024] FedCFamC2F 1007 (31 July 2024)

PARENTING – Two children aged 7 and 4 – where the father is currently incarcerated and will be eligible for parole in 2029 – where the father pleaded guilty to a serious offence against the oldest child – where the father seeks parenting orders to resume a relationship with the children – where the mother seeks a decree pursuant to s102QAB of the FAMILY LAW ACT 1975 (Cth) – consideration of the welfare of the children’s primary carer – whether there is a real issue of fact or law to be determined – family violence – assessment of harm – harmful proceedings order made – application dismissed.

Family Court of Western Australia

BABIC and TACCINI [2024] FCWA 203

PARENTING – Where following a trial final orders were made in December 2023 whereby the husband has sole parental responsibility, and the children live with him and spend limited supervised time with the wife – Where the wife commenced fresh proceedings in June 2024 seeking to reverse those arrangements such that she would have sole parental responsibility, and the children would live with her and spend alternate weekends with the husband – Where there is no relevant change in circumstances since the primary orders were made – Consideration of the application of s65DAAA of the FAMILY LAW ACT 1975 (Cth) (“the Act”) and whether relevant principles have changed since the legislative amendment which enacted it – Where the relevant principles are unchanged

HARMFUL PROCEEDINGS ORDERS – Where the husband seeks a harmful proceedings order pursuant to s102QAC – Discussion of relevant principles – Where there are clearly reasonable grounds to believe that the children would suffer harm if the wife institutes further proceedings – Order made.

COSTS – Where there are circumstances justifying an order for costs – Turns on its own facts.

 

 

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