Significant cases published December 2022 – January 2023
Federal Circuit and Family Court of Australia – (Division 1) Appellate Jurisdiction
Hays & Department of Communities and Justice [2023] FedCFamC1A 3 (16 January 2023)
HAGUE CONVENTION – Appeal from orders requiring the return of the children to England pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) – Where the appeal challenged the primary judge’s rejection of the contended defences under reg 16(3) of the Regulations – Grave risk of harm – Amelioration of risk – Where parents should not be able to rely upon risks of harm of their own making to resist return orders – Whether the primary judge conflated the question of grave risk as posed by reg 16(3)(b) with the residual discretion under reg 16(5) – Whether the primary judge erred in rejecting a report by an adversarial expert into evidence – Rights of custody – Whether the mother was not actually exercising rights of custody at the time of retention – Where the mother’s proposal to the father for time arrangements with the children was itself an exercise of her rights of custody – Children’s objection to return – Age and maturity of the children – Where no challenge to the findings of fact about the children’s maturity was advanced – Whether the return order breaches human rights and fundamental freedoms – Where no ground of appeal succeeds – Appeal dismissed – Father to pay the Independent Children’s Lawyer’s costs in a fixed sum.
APPLICATION IN AN APPEAL – FURTHER EVIDENCE – AMEND GROUNDS OF APPEAL – Where the further evidence detailed events which occurred after the conclusion of the trial – Where the further evidence did not inform error by the primary judge – Discretion to admit – Where portions of the evidence is admitted into the appeal – Oral application to include an additional ground of appeal – Where the proposed ground enjoyed no merit and the amendment would be futile – Application refused.
Bielen & Kozma [2022] FedCFamC1A 221 (20 December 2022)
PARENTING – Appeal against final parenting orders changing the children’s residence from mother to father following a finding that the mother posed an unacceptable risk of harm to the children due to her belief that the children had been subjected to sexual abuse by the father – Where the children are currently aged 4 and 6 – Where the primary judge ordered no time with the mother – Where the primary judge failed to give consideration of methods of risk amelioration before considering no time as a last resort – Error established – Appeal allowed – Matter remitted for re-hearing on discrete issue – Costs certificates granted for the appeal.
Kisiel & Kisiel [2022] FedCFamC1A 218 (20 December 2022)
PARENTING – Risk of harm – Where the father appeals orders restraining him from approaching the mother and the parties’ child and for the child to spend only professionally supervised time with him – Procedural Fairness – Where the primary judge conducted the hearing on an “interim” basis – Where the primary judge has not since returned to finalise the interim dispute – Where there can be no procedural fairness by doing what the parties mutually want – Asserted error of law – Where it was unnecessary for the primary judge to address each and every factor prescribed by s60CC of the Family Law Act 1975 (Cth) when the parties did not do so – Whether the primary judge made the injunctions “without proper basis” – Where there can be no complaint when the father acquiesced to the injunctions – No error identified – Appeal dismissed – Costs ordered in a fixed sum.
APPLICATION IN AN APPEAL – Further evidence – Where the father is still able to revive the as yet unfinished interlocutory hearing –Where the evidence would be more appropriately adduced in support of an application to vary the appealed orders below – Application dismissed.
Federal Circuit and Family Court of Australia – (Division 1)
Bellamy [2022] FedCFamC1F 1064 (23 December 2022)
CRITICAL INCIDENT LIST – Where both of the child’s parents have passed away – Where major long-term decisions are required on an urgent basis – Where the applicants seek parental responsibility for the child – Where interim orders had been made for parental responsibility to allow the applicants to access service providers for the child – Where other family members support final orders being made in the applicants’ favour – Final orders made
Dodson [2022] FedCFamC1F 1043 (29 November 2022)
CRITICAL INCIDENT LIST – Where both of the child’s parents have passed away – Where parental responsibility is required on an urgent basis – Where the applicants seek parental responsibility for the child – Where interim orders were made for parental responsibility to allow the applicants to access service providers for the child – Where there is no opposition from other family to the applicants having parental responsibility for the child on a final basis – Final orders made.
Ritchie & Ritchie [2022] FedCFamC1F 922 (23 November 2022)
PRACTICE AND PROCEDURE – Requirements of s102NA(2) of the Family Law Act 1975 (Cth) ordered to apply.
Sandison & Thornhill [2022] FedCFamC1F 894 (18 November 2022)
CONTRAVENTION – contravention of final parenting orders – where the mother pleaded guilty to the alleged contraventions – where the mother acknowledged she had no reasonable excuse – consideration of whether to apply Subdivision E or Subdivision F of Division 13A of Part VII of the Family Law Act 1975 (Cth) – where the contraventions are regarded as less serious – penalty – bond without security and without surety – where a bond of twelve months is imposed upon the mother – whether there should be make up time ordered.
COSTS – where the applicant sought indemnity costs – whether costs should be ordered on party-party or indemnity basis – consideration of factors in s117(2A) of the Family Law Act 1975 (Cth) – costs ordered in a fixed sum.
Linnane & Linnane (No 2) [2022] FedCFamC1F 858 (8 November 2022)
FINAL PARENTING – Where there is one child of the proceedings – Where the contest for parenting orders is between the maternal aunt and the interveners – Where the interveners are the adoptive parents of four of the child’s brothers – Where the mother and father are not participating – Where child lived with the maternal aunt since birth but moved from that household to the interveners’ care several months prior to the final hearing due to risk issues in the maternal aunt’s care – Where substantial agreement was reached at the commencement of final hearing about the child’s parenting arrangements and the remaining dispute relates to the child’s time with the maternal aunt – Where the evidence suggests that there continues to be risks of harm to the child posed by the maternal aunt in relation to neglect and exposure to family violence – Where court child expert opines that there should be cohesion and consistency with any approach taken to a regime of orders for the child – Where the court child expert is also of the view that the child should have a relationship with the maternal aunt for “identity purposes” only – Where Court concludes that the child will be placed at an unacceptable risk of harm if he were to spend any unsupervised time with the maternal aunt – Orders made as sought by the ICL and adopted by the interveners that the child spend supervised and limited time with the maternal aunt as determined by the interveners.
Munir & Munir [2022] FedCFamC1F 851 (4 November 2022)
CONTRAVENTION – Where the wife contended that the husband breached Court orders, including a bond – Where the husband contended that a prima facie case was not established and that if it was then he had reasonably attempted to comply or alternatively that he had a reasonable excuse – Where the standard of proof is on the balance of probabilities – Where a prima facie case was established – Where in respect of the charges it was found that the husband had a reasonable excuse, had made a reasonable attempt to comply and did not breach the bond – Wife’s application dismissed – Husband’s solicitor directed to provide submissions as to why his conduct should not be referred to the Law Society of New South Wales.
Shahidi & Beiranvand [2022] FedCFamC1F 862 (28 October 2022)
PARENTING – Where father lives in a Middle Eastern country and never met the child – Where father proposed a 4:3 arrangement with the child should he come to Australia – Where father made numerous unsuccessful complaints about mother to the ATO, Home Affairs, Immigration, the Health Complaints Tribunal, a Professional Healthcare Board, the District Court, the Supreme Court, and her employers – Where the father said the mother is to be jailed for 10 years – Where the father sought “joint custody” and the child live with the mother whilst he is overseas – Where the father sought a psychiatric report about the mother – Where the father has secured an overseas passport for the child in a different name – Where the father wants the child’s last name changed to his – Where mother and ICL propose the child spend no time with the father – Where personal protection orders sought – Where Airport Watchlist orders are sought or resisted – Where child’s birth certificate to be amended
Marshall & Kilpatrick [2022] FedCFamC1F 817 (24 October 2022)
PARENTING – Schooling – Where the father sought for the children to attend to a private school – Where the parties had put the children’s names down for the private school since shortly after each child was born – Where the mother sought for the two children to go to a public school – Consideration of s 60CC primary and additional considerations – Where the mother’s evidence was inconsistent – Ordered that the children attend the private school.
Sofia & Treacy [2022] FedCFamC1F 777 (14 October 2022)
PARENTING – Parentage – artificial conception – same-sex relationship – where the respondent is the child’s biological mother – whether the applicant is the other intended parent – whether the parties were in a de facto relationship at the time of the artificial conception procedure – declaration of parentage is not permitted to be made – witness credibility.
Department of Communities and Justice & Hays [2022] FedCFamC1F 752 (30 September 2022)
CHILD ABDUCTION – HAGUE CONVENTION – Children brought to Australia from the United Kingdom – Where it is disputed that the children are habitually resident in the United Kingdom – Where it was disputed that the children were wrongfully retained – Where the children were not wrongfully removed but were wrongfully retained – Where it is disputed that the requesting mother had and was exercising her rights of custody before the removal of the children from the United Kingdom – Where all the jurisdictional facts have been satisfied – Where the respondent father disputed every possible ground of jurisdiction and relied on every regulatory exception in reg 16(3) – Whether there is a grave risk of physical or psychological harm or an intolerable situation should the children return to the United Kingdom – Whether the children’s objections show a strength of feeling beyond mere expression of preference or ordinary wishes – Whether the children have attained an age and maturity such that their wishes should be taken into account – Whether there would be an impermissible breach of the children’s fundamental human rights should they be returned – Where none of the reg 16(3) defences found – Held, the father has not discharged his onus – Children to return to the United Kingdom.
EVIDENCE – Whether the respondent father could rely on a unilaterally obtained psychological report of the children – Where the father took the children for psychological assessment in Australia in breach of orders made in the United Kingdom – Where the orders in the United Kingdom were binding on the father in personam – Held, the father was not given leave to rely on evidence improperly obtained.
Merino & Artigas (No 2) [2022] FedCFamC1F 742 (29 September 2022)
PARENTING – Risk of harm assessment – Allegations of sexual assault of the child –Credit issues – Finding of no sexual assault – Discussion of expert evidence opining the mother’s mental health – Presumption of equal shared parental responsibility rebutted with respect to matters of health.
Blackmore & Roth [2022] FedCFamC1F 704 (16 September 2022)
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’s desire to relocate to the United Kingdom is bona fide – Consideration of s 60CC primary and additional considerations – Where the Court is satisfied that the mother’s proposal ensures that the child is able to maintain a meaningful relationship with the father and that she is supportive of the child’s relationship with the father – Orders made permitting the mother to relocate with the child to the United Kingdom.
Myer & Givan [2022] FedCFamC1F 573 (12 August 2022)
PARENTING – Family Violence – Whether supervised time should be ordered where the children expressed wishes not to see their father – where evidence – where the children expressed a strong view to not see the father – where orders for supervised time have been made in the past and have not worked – where there is a finding that the father has subjected the mother to significant family violence during the course of the relation and the mother continues to suffer the effects of that –assessment of risk and finding of unacceptable risk to the children
Federal Circuit and Family Court of Australia – (Division 2)
Mancari & Padova [2022] FedCFamC2F 1593 (22 November 2022)
FINAL PARENTING ORDERS – indefinite supervision – significant and sustained family violence during the relationship and after separation by the Father – evidence by way of recordings of verbal threats to harm and kill Mother in presence of child – corroborating evidence in Mother’s case by third party witness who was a stranger to the parties at the time – sustained and repeated threats made by Father to turn the child against the Mother – Father a witness of poor credit – child spending fortnightly supervised time with Father pursuant to interim orders – Court finds there to be no indication on the evidence that the unacceptable risk to child will abate in the future – where single expert witness recommends ongoing supervised time in the matter’s circumstances – consideration of authorities on indefinite supervision – Court finds the risk to the child when only having ‘identity’ time with Father to be worse than ongoing supervision –monthly indefinite supervision ordered.
Gilmartin & Oates [2022] FedCFamC2F 1553 (15 November 2022)
PARENTING – relocation – where one party lives in NSW and the other in Queensland – child living with non-biological father – DNA testing during the course of proceedings – credit – child’s relationship with siblings – need for child to have stability – encouragement of relationship.