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Significant cases published September 2021

Family Court of Australia

Granato & Granato (No. 2) [2021] FamCA 635 (27 August 2021)

PARENTING – Unacceptable risk of sexual harm – Where the mother alleges the father is an unacceptable risk of sexual harm to the child due to historical allegations, alleged child pornography in the father’s possession and allegations made by the child – Where it is found the father does not pose an unacceptable risk of harm to the child – Where little weight can be placed on historical allegations – Where it is likely that the mother has fabricated allegations that the father possessed child pornography – Where the child’s allegations of sexual abuse are unreliable and made in the context of being enmeshed in the parental conflict.

ABUSE – Where the mother will not promote the child’s relationship with the father – Where the mother has involved the child in the parental dispute and this involvement amounts to abuse – Where the impact on the child being involved in the dispute is likely to have long term impacts – Where the child has aligned with the mother and fully rejected the father.

PARENTING – What parenting order is proper – Where despite the father not presenting an unacceptable risk of harm, the child refuses to see him and demonstrates strong resistance that places her at risk in the event of removal from her mother – Where the father lacks judgment and insight – Where a third party was proposed to care for the child – Where it is found not to be in the child’s best interests to remove her from the care of her mother – Where the child is to live with the mother.


Salmani & Hasan (No. 2) [2021] FamCA 623 (25 August 2021)

SUBPOENA MATERIAL – Where mother and the Independent Children’s Lawyer seek access to unredacted sections of a medical report about father – Where there is a claim to public interest immunity in relation to the report made by an intervener – Where only the Court has access to a confidential affidavit – Where Court received confidential submissions – Where parties were unable to make submissions about the claim to public interest immunity – Where Court has power to determine matters arising out of child related proceedings – Where best interests of child remains the paramount consideration – Where avoiding impairment of the administration of justice has a stronger claim in parenting proceedings than ordinary civil litigation – Where disclosure of unredacted report would place father and therefore place the children at risk of harm – Claim upheld.


Brogden & Brogden [2021] FamCA 642 (23 August 2021)

PRACTICE AND PROCEDURE – COVID-19 –Adjournment of final hearing – In circumstances where the State of New South Wales is in lockdown – Where children would be present whilst trial occurs electronically, and mother would have to give evidence – Where possibility of a face-to-face hearing is more likely in the coming months – Where there are allegations of family violence against the father – Electronic hearing may be deficient in assessing father’s character – Matter adjourned.


Bergmann & Bergmann [2021] FamCA 599 (12 August 2021)

PARENTINGInternational relocation – Where the mother seeks to relocate to City B with the two children of the relationship and will do so in any event – Where the father opposes the relocation – Where the mother has lived in City B since 2017 and travelled to Australia to maintain a week-about parenting arrangement until the onset of the COVID-19 pandemic – Where both children have expressed a strong wish to spend more time with their mother – Assessment of the competing proposals and the impact of those proposals on the children – Where although the Court finds the mother is the more flexible parent and better able to assist the children to deal with change, the impact of change for the children in moving to City B and being separated from all that they have known in Australia including their father militates against such an order being in their best interests – Orders made for the children to remain in their father’s care in Australia.


Irvine & Irvine [2021] FamCA 541 (5 August 2021)

PARENTING – Where the principles of Rice & Asplund are considered – Where COVID-19 international travel restrictions have prevented travel for the child with the mother as contemplated by final Orders made in 2019 – further orders made in relation to international travel.

SPOUSE MAINTENANCE – Where the mother seeks further spouse maintenance after the expiration of a previous spouse maintenance Order – Application dismissed.


Family Court of Western Australia

Galipo & Anor and Christie [2021] FCWA 148 (11 August 2021)

PARENTING – Stay of orders pending appeal – Where the parents of the children are deceased – Where the paternal grandparents and the maternal uncle each sought orders in relation to the children – Where the matter proceeded to trial over 12 days – Where final orders were made on 5 August 2021 for the children to live with the grandparents, and permitting the grandparents to return to Country A with them – Where the uncle has filed an appeal against those orders, and seeks a stay pending the determination of that appeal – Where the uncle concedes that if the stay is granted the appeal should be expedited – Preliminary assessment of the grounds of appeal – Consideration of whether a successful appeal would be rendered nugatory if a stay is not granted – Consideration of other matters relevant to the exercise of discretion in the granting of a stay – Stay granted on strict conditions, on the basis that the appeal can be heard on 5 November 2021 – Turns on its own facts.


GALIPO & ANOR and CHRISTIE [2021] FCWA 140 (5 August 2021)

PARENTING – where the parents of the children are deceased – where the paternal grandparents and the maternal uncle seek orders in relation to the children – consideration of the nature of the children’s relationships and the respective capacities of the parties to provide for their needs – where the children’s best interests are served by maintaining their primary attachment – children to live with the grandparents who have permission to relocate them to Country A.