Cases published January 2016

[vc_row][vc_column][vc_column_text]Family Court of Australia Full Court
Dautry & Wemple (No. 2) [2015] FamCAFC 248 ‐ 23 Dec 2015
Parenting – where final orders were made granting the father sole parental responsibility and
moving the child from the mother’s residence to the residence of the father – where the
appellant mother submitted that the orders were plainly unreasonable and manifestly unjust
and punitive to her because they were based on adverse credit findings against her and there
was no finding of unacceptable risk posed by the mother to the child – where the Full Court
found that despite the trial Judge’s concerns regarding the mother’s credibility, he had
recognised that parenting orders must ultimately be based on the best interests of the child
and that there were a range of reasons for the orders beyond just concerns regarding the
mother’s credibility– appeal dismissed – costs order made.
Costs – where in interim proceedings the trial Judge made a final order in relation to the
schooling arrangements for the child – where the Full Court found it was an error to make
final orders in relation to a child’s schooling where final orders in relation to parental
responsibility and the residence arrangements for the child were yet to be made – appeal
allowed – order set aside – costs certificates granted.

Family Court of Australia
Re: Carla (Medical procedure) [2016] FamCA 7 ‐ 20 Jan 2016
Parenting – medical procedures – where the applicants are the parents of a five year old girl
who has a genetic disorder – where the parents seek an order authorising them to consent to
the child undergoing certain medical procedures including a gonadectomy – where the
procedure would result in the child being infertile – where the parents and medical experts
agree that it is in the best interests of the child to undergo the procedure – whether the
procedure is in the best interests of the child – whether the medical treatment proposed falls
within the bounds of permissible parental authority – whether court sanction is required.
Bills & Bills [2015] FamCA 1193 ‐ 24 Dec 2015
Practice and procedure – stay of proceedings – where the parties are Australian citizens living
and working in the United Kingdom – where the husband has issued parenting proceedings
in the United Kingdom and financial proceedings in Australia – where the wife has
subsequently issued divorce and financial proceedings in the United Kingdom – where the
wife issues an Application in a case for the Australian financial proceedings to be permanently
stayed – “clearly inappropriate forum” test applied – final orders that the husband’s
application for financial orders in Australia be permanently stayed.

Re: Jacinta [2015] FamCA 1196 ‐ 22 Dec 2015
Parenting – where a child’s mother sought a declaration that the child was competent to
consent to phase 2 treatment for Gender Dysphoria – where the child’s father failed to engage
with the proceedings – where the Court is satisfied the child is sufficiently competent to
understand the nature and express a decision about the receipt of phase 2 treatment – where
the child’s best interests would be advanced by her receipt of phase 2 treatment – discussion
of the form the orders should take – where it is appropriate to make a declaratory order –
declared the child is able to consent to phase 2 treatment – order made suppressing the
identities of the parties and the publication of any information that would identify them.

Fisher & Davis and Anor [2015] FamCA 1180 ‐ 22 Dec 2015
Parenting – interim parenting – application by grandparents where parents’ marriage is
intact.
Sully & Sully and Anor [2015] FamCA 1111 ‐ 16 Dec 2015
Parenting – final orders – where the children are Aboriginal – where the sibling group is split
– where the two older children live with the grandmother and three younger children live
with the mother – where the grandmother seeks orders for all children to live with her –
where the mother seeks orders for the three younger children to remain in her care – where
the father seeks unsupervised time with the three younger children – where there are
allegations of drug and alcohol abuse, family violence, child sexual abuse and alienation –
where there is a high level of dysfunction between the parties – where there are multiple
family reports – where it is recommended that the parties promote a relationship between
the sibling group – where the independent children’s lawyer promotes the currently living
situation with regular sibling unification – where consideration is given to the best interests
of the children as the paramount consideration – where the additional considerations are
outlined and deliberated – where orders are made for parental responsibility – where it is
ordered that the two older children live with the grandmother and the three younger children
live with the mother – where detailed orders are made for time spent – where it is ordered
that on two occasions per year the sibling group spend time together.
Parenting – family violence – where the father admits a history of extreme and damaging
domestic violence perpetrated against the mother – where consideration is given to what
impact the father’s history of domestic violence should have on the orders he seeks – where
the father lacks insight into what impact his behaviour has on the children – where the father
is so inculcated into an environment where family violence is the norm that he has suffered a
level of desensitisation – where consideration is given to the unacceptable risk of harm to
children in seeing violent behaviour – where the father’s evidence was unconvincing and
unreliable – where orders are sought for the father to undergo counselling and a parenting
course and that his time with the children be supervised – where the family consultant does
not consider the father’s violent history a barrier to the children spending time with him on
an unsupervised basis – where consideration is given to the allegations and history of
domestic violence in applying the best interests test – where it is ordered that the father
attend anger management, domestic violence and substance abuse counselling before
spending supervised time with the children on a gradually increasing basis.

Welch & Abney (No 2) [2015] FamCA 1116 ‐ 14 Dec 2015
Practice and procedure – where the wife adduced evidence to support a Kennon argument –
where the husband objected to the receipt of such evidence – where the case did not fall
within the exceptional category identified by the Full Court – where the wife’s evidence, taken
at its highest, could not support a Kennon submission and it was therefore futile to receive it
into evidence.
Property– where the wife submitted for expenditure of over $600,000 to be notionally
regarded as property of the husband – where the parties have both spent large sums of
money since separation but their expenditure was not profligate or unreasonable – where it
is just and equitable to adjust the parties’ property interests – where a global assessment of
contributions to assets and superannuation was preferable – where the husband made a
greater capital contribution at the commencement of cohabitation – where the parties’
financial and non‐financial contributions during some 16 years of cohabitation should be
regarded as relatively equal – where after separation, the wife’s contributions were greater,
especially with regard to the care of the parties’ two children – where the wife’s overall
contribution‐based entitlement is 55 per cent – where the husband’s prospective common
law claim and the wife’s continuing exclusive responsibility for the parties’ youngest child
warrant, in aggregation, an adjustment of 5 per cent in her favour – where the wife is entitled
to 60 per cent of the parties’ net assets and superannuation interests – husband entitled to
40 per cent.
Luthra & Betterley [2015] FamCA 1080 ‐ 4 Dec 2015
Injunctions – application to restrain a solicitor from acting – where the applicant engaged in
counselling sessions with the mother of the solicitor acting for the respondent – where the
applicant disclosed confidential information to the psychologist in such counselling sessions
– where the applicant argues that there is a risk that his confidential information will be
imparted to the respondent’s solicitor – where the psychologist gave evidence that she had
never discussed anything the applicant said to her with the respondent’s solicitor – where the
applicant caused a subpoena to be served on the psychologist which required her to produce
relevant documents to the court – where leave was given for the parties to inspect such
documents, and confidentiality was lost – whether the court should exercise its implied
powers to supervise a solicitor appearing in the court – where it was found it was not
necessary for the respondent’s solicitor to be restrained from continuing to act – where the
application was dismissed.
Mowery and Anor & Mylin and Anor [2015] FamCA 1067 ‐ 2 Dec 2015
Parenting – best interests – relocation – review of registrar’s decision – where the children
have lived with their parents, being lesbian partners, since their birth – where the biological
father of the children and his partner, being the respondents, have spent time with the
children by agreement with the parents – where the parents moved to Western Australia with
the children – where the Senior Registrar made orders requiring the return of the children to
the greater Sydney area upon application by the respondents – application by the parents of
the children for review of the Senior Registrar’s decision – where it is found that the children’s
primary attachment is to their parents – where the orders of the Senior Registrar are likely to
cause financial stress for the parents – where the orders of the Senior Registrar would result
in a separation of the children from their birth mother, who would stay in Western Australia
to remain in her employment – where it is found that it is in the best interests of the children that they be permitted to live with both their parents – review application successful – orders
made that the children remain living in Western Australia with their parents and spend time there with the respondents there.
Crisp & Clarence [2015] FamCA 964 ‐ 9 Nov 2015
Parentage – where the parties underwent an in‐vitro fertilisation procedure (IVF) – where the
applicant is the biological progenitor of the child – where there was a donor sperm – where
the respondent is the surrogate mother – where the respondent opposes any finding that the
applicant is a parent – where the issue for determination is whether the applicant is a parent
of the child either by reference to state legislation or the Family Law Act 1975 (Cth) – where
the child was born in South Australia but the fertilisation procedure occurred in another state
– where if it is found that the parties were in a de facto relationship then the child will be
considered a child of the respondent and the applicant.
De facto relationship – consideration of whether a de facto relationship existed – where the
date of separation is in dispute – where it is found that notwithstanding the physical
separation of the parties the de facto relationship endured and continued beyond the date of
conception.
Parenting – parental responsibility – where the parties live in different states – where it is
ordered that both parties have shared parental responsibility for the child – where it is
ordered that one party have sole parental responsibility of the child in respect of education
and health – where it is ordered that the child live with the respondent and spend gradually
increasing time with the applicant.
Commonwealth Central Authority & Cotter [2015] FamCA 1202 ‐ 1 Jul 2015
Interim Hague return proceedings – case management – exceptional circumstances requiring
appointment of independent children’s lawyer.[/vc_column_text][/vc_column][/vc_row]