Cases published October 2020
Family Court of Australia – Full Court
Nakul & Sabharwal [2020] FamCAFC 262 (29 October 2020)
Parenting – where the father contends that the primary judge erred in making an order providing the mother with sole parental responsibility with respect to the child’s school – where this ground fails as no such order was made, but there was a notation to that effect – where having made no order for equal shared parental responsibility, the primary judge was not required to consider an order for significant and substantial time pursuant to s 65DAA of the Family Law Act 1975 (Cth) – where his Honour nonetheless did consider significant and substantial time, but rejected the arrangement proposed by the father – where it was not necessary for the primary judge in the exercise of his discretion to detail each fact or argument said to be relevant, nor make an explicit finding on each disputed piece of evidence – where the primary judge, in effect, rejected the father’s proposals for school holiday time and communication beyond what the orders made provided – where there can be no error in making an order for the mother to travel overseas with the child when the father’s counsel made that concession at trial – where there is no merit in the grounds of appeal – appeal dismissed.
Property – where the father raises weight challenges to the primary judge’s assessment of the parties’ contributions and adjustment under s 75(2) of the Family Law Act 1975 (Cth) – where the reasons are adequate – where no error of law or fact demonstrated – where the father’s claim that the decision was “plainly unreasonable or unjust” does not have a “discernible proper foundation” and must be rejected – where procedural fairness was afforded – where there is no merit in the grounds of appeal – appeal dismissed.
Costs – where both the mother and the ICL seek costs against the father – where there are circumstances justifying a costs order being made in favour of both the mother and the ICL – where no financial hardship would be suffered by the father – costs orders made as sought by the mother and the ICL.
Warnett & Amerson (No. 2) [2020] FamCAFC 260 (23 October 2020)
Parenting – majority decision – appeal against final parenting orders – unacceptable risk of harm – whether the appellant father posed an unacceptable risk of sexual abuse to the child – where orders were made for the child to spend limited supervised time with the father until 2024 – adequacy of reasons – where the many allegations made by the child had different probative value – where a close analysis as to what each allegation actually meant in light of all the evidence was required in this case – where the primary judge did not discuss and weigh each allegation made by the child – appeal allowed – orders set aside – matter remitted for rehearing – no order as to costs – costs certificates awarded to the parties and the Independent Children’s Lawyer.
Federal Circuit Court of Australia
Perin & Perin [2020] FCCA 2877 (22 October 2020)
Parenting – interim arrangements for care of children aged 4 & 3 – recent separation – significant allegations of family violence and drug usage – nature of interim hearing – best interests – assessment of risk.