Significant cases published July 2022
Federal Circuit and Family Court of Australia – (Division 1) Appellate Jurisdiction
Isles & Nelissen [2022] FedCFamC1A 97 (1 July 2022)
PARENTING – Unacceptable risk – Standard of proof – Whether the primary judge erred at law by not applying s140 of the EVIDENCE ACT 1995 (Cth) (“the Evidence Act”) to a finding that the father posed an unacceptable risk of harm to the children – Where s140 of the Evidence Act is reserved for the proof of facts and is not the measure by which an unacceptable risk of harm is assessed – Where the assessment of risk is a predictive exercise and risk is postulated from known historical facts and present circumstances, not requiring the proof of any possible harm as a probability – No error identified – Tendency evidence – Whether the primary judge erred by admitting and then relying upon certain evidence as tendency evidence and using such evidence to facilitate the finding of unacceptable risk – Where the father did not object to the admissibility of the evidence at trial – Where the tendency rule has no bearing on the assessment of risk – Where evidence which is relevant to and influential in that predictive inquiry is admissible – No error identified – Appeal dismissed – No order as to costs.
Federal Circuit and Family Court of Australia – (Division 1)
Ilyushin & Kublanova [2022] FedCFamC1F 286 (4 May 2022)
INTERIM ORDERS – Where the parties consented to a declaration of parentage – Where the child is not in Australia – Where the mother has not appealed – Where the mother now alleges that the father is not the biological father of the child –– Where the parties consented to stay the operation of the declaration – Validity of stay absent appeal.
Michaels & Vidal [2022] FedCFamC1F 252 (21 April 2022)
PROPERTY – BINDING FINANCIAL AGREEMENT – Application to set aside a financial agreement – Where the planned birth of a child in a same-sex relationship does not constitute a “material change in circumstances” or give rise to “hardship” – Unconscionable conduct not substantiated – Where the respondent’s first language is Country DD language – Where the respondent would not have been unable to understand the advice received including the consequences of entering the agreement if it was given in English and of the nature stipulated in Abrum & Abrum [2013] FamCA 897 – Where it would not be unjust or inequitable on the applicant to set the agreement aside –Agreement set aside pursuant to s90UM(5)(A) of the Family Law Act 1975 (Cth).
CHILD SUPPORT – Application for child support departure order – Where the Child Support Registrar hasn’t been served – Application dismissed.
CHILD MAINTENANCE – No power to make a child maintenance order where there is a child support assessment in force – Application dismissed.
PARENTING – Where the applicant seeks to increase his time spent with the child – Child’s expressed wishes for the current parenting arrangement to continue – Benefits of the child spending more time with the applicant are outweighed by other considerations – Orders for the child to spend a block of five nights per fortnight with the applicant from Term 1 2023 – Orders removing the child from the Family Law Watchlist.
Federal Circuit and Family Court of Australia – (Division 2)
Roble & Roble [2022] FedCFamC2F 684 (9 June 2022)
PARENTING – Dispute as to father’s time with the children aged 8 and 11 – Where the children and father have a loving relationship – Where mother is seeking no time order as father is unacceptable risk – Where the father is involved in crime culture and uses illicit substances – Where the father has manipulated drug test results – Where the father has inflicted family violence on the mother in the presence of the children – Where the father had the opportunity to reform his behaviour but failed to do so – Held father poses an unacceptable risk of harm to the children – Held this risk of harm cannot be mitigated – Orders made that father spend no time with the children – Orders made for the personal protection of the mother and the children.
Griggs & Oduro (No 2) [2022] FedCFamC2F 703 (1 June 2022)
PARENTING – almost 6 year old child – final consent orders from January 2020 for equal shared parental responsibility and shared care arrangement –mother reopened parenting proceedings in February 2021 –mother has withheld the child from the care of the father on three occasions since final orders were entered into on the basis of abuse allegations – mother has continued to make allegations that the father physically and sexually abuses the child – where the child has been forensically interviewed on multiple occasions – where the mother’s allegations have not been substantiated – where mother seeks at Trial for the father’s time with the child to be terminated or in the alternative occur on a limited supervised basis – where father seeks for the child to live in his primary care due to the mother’s conduct and failure to support the child’s relationship with him – where the mother and her family members hold an implacable view that the child has been abused by the father – where both parties seek a finding of the other being an unacceptable risk to the child – where if the child continues to live in the mother’s primary care his relationship with the father will be compromised – no unacceptable risk in the father’s care – where Court has little confidence in the mother’s ability to support the child’s relationship with his father – where it is in the child’s best interests for there to be a reversal of primary care and sole parental responsibility to the father – for the mother’s time with the child to be suspended for a period of time and then gradually increased over time – where the Independent Children’s Lawyer supports such orders being made.