Cases published August 2020
Family Court of Australia – Full Court
Jasapas & Johns (No. 2) [2020] FamCAFC 203 (17 August 2020)
Parenting – where the mother appeals from the second set of final parenting orders made in these proceedings – where the primary judge’s orders provided for the children to be transferred from the mother’s care to live with the father and spend supervised time with the mother following a moratorium of six months – where the mother’s case was based on allegations that the father physically and sexually abused the children – where the primary judge found that the father presented no unacceptable risk to the children – where the primary judge found the mother presented an unacceptable risk of exposing the children to emotional harm – where the primary judge found the mother is unable to let go of her beliefs that the father has physically and sexually abused the children – where the expert evidence supported the primary judge’s findings – where the mother contends the primary judge erred in failing to consider the rule in Rice and Asplund [1978] FamCAFC 128; (1979) FLC 90-725 – where the rule in Rice and Asplund [1978] FamCAFC 128; (1979) FLC 90-725 was not raised by any party until the mother’s closing submissions – where it could not sensibly be suggested that there had not been a sufficient or material change in circumstances as to warrant reconsideration of parenting orders – apprehended bias – where the primary judge changed his time of delivery of judgment to a time when the children were spending supervised time with the father – where that change was consequent upon correspondence received from the ICL setting out concerns raised by the contact supervisor – where such correspondence was appropriate given the exceptional circumstances of the case – where, in any event, the primary judge had already decided the case such that no apprehension of bias as to the question to be decided could arise – where the remainder of the mother’s grounds of appeal have no merit – appeal dismissed – no order as to costs.
Nghiem & Alberts and Ors [2020] FamCAFC 187 (6 August 2020)
Parenting – appeal from final parenting orders – where the primary judge declined to make the orders sought by the appellant to have the children returned to live with her – where the primary judge declined to disqualify himself – whether the primary judge should have disqualified himself – where the primary judge’s reasons for judgment are adequate – weight and assessment of considerations under s 60CC of the Family Law Act 1975 (Cth) and the single expert’s opinions – appeal dismissed – appellant to pay the respondents’ costs in fixed sums.
Family Court of Australia
Pickford & Pickford [2020] FamCA 656 (11 August 2020)
Parenting – review of the decision of a Senior Registrar – where the father seeks to vary orders to increase time with the children – where the children are aged five and two and a half – where the mother is the children’s primary caregiver – orders for a graduated time regime – where the father seeks an injunction to prevent a friend of the mother from attending her home – where the father has engaged in extensive surveillance of the mother and her friend – where there is no basis for this injunction.
Kocak & Fahri [2020] FamCA 652 (10 August 2020)
Parenting – best interests – where the mother seeks the discharge of interim parenting orders – where the mothers case was that there had been a disproportionate and unfair focus on her mental health – where the mother failed to comply with orders made by consent that she attend upon an independent psychologist nominated by the Independent Children’s Lawyer for review of her mental health including whether she presented any risk to the child – where the child lives with the father and spends supervised time with the mother – where there is insufficient evidence to vary the parenting arrangements – where the mother’s application is dismissed.
Parenting – Independent Children’s Lawyer – where the mother seeks orders for the removal of the Independent Children’s Lawyer – where the mother alleges that the Independent Children’s Lawyer has targeted her and has a palpable bias against her – where the role of the Independent Children’s Lawyer is examined – where the mother fails to understand the role of the Independent Children’s Lawyer in parenting proceedings – where the mother has not established that the Independent Children’s Lawyer has acted contrary to the legislation – where the mother’s application is dismissed.
Legal practitioners – conflict of interest – where the father seeks that in the interests of justice the mother’s solicitor be restrained from acting on her behalf – where the mother’s solicitor acknowledged during the course of the hearing that she had a conflict of interest – where the evidence demonstrates the fact that the mother’s solicitor lacks any objectivity – where there is a risk that the mother’s solicitors lack of objectivity has been prejudicial to the mother’s case and may have indirectly negatively impacted on the welfare of the child – where the mother’s current legal practitioner is restrained from acting on her behalf.