Cases published March 2020
Family Court of Australia – Full Court
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 (25 March 2020)
FAMILY LAW – APPEAL – CHILD ABDUCTION – Hague Convention – Appeal against order for the return of children removed from their country of habitual residence – Where the appellant is the children’s primary carer – Grave risk – Family violence – Where requesting parent has significant criminal history – Requesting parent permanently banned from Australia – Application to adduce further evidence pertaining to requesting parent’s criminal history and family violence allowed by consent – Appellant given leave to raise new defence on appeal – Grave risk of intolerable situation – Risk not manageable through conditions – Discretion of the Central Authority to refuse to act on a request made by a left behind parent – Model Litigant Guidelines – State or Agency should not require a person to prove something that the State/Agency knows to be true – Appeal allowed – Application by Central Authority dismissed – No order as to costs.
Asher & Wilkinson [2020] FamCAFC 44 (5 March 2020)
FAMILY LAW – APPEAL – PARENTING – Relocation – Competing proposals – Where the mother and the child were ordered to live in Western Australia and geographical restrictions were imposed on where they could live in Western Australia – Where the primary judge erred by concentrating on what his Honour perceived to be the practicalities of where the parents should reside and not on the parties’ competing proposals – Discussion of the Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference – Where the mother’s fall-back position was incorrectly elevated to a proposal – Appeal allowed – Matter remitted for rehearing.
FAMILY LAW – APPEAL – COSTS – No order as to costs – Costs certificates granted to each of the parties for the appeal and the rehearing of the matter.
Family Court of Western Australia
FRASER and LAFAYETTE [2020] FCWA 43 (17 March 2020)
PRACTICE AND PROCEDURE – operation of mandatory ban on personal cross examination pursuant to s102NA of the Family Law Act 1975 (Cth) – where a final family violence order is in place – where the alleged perpetrator of family violence has been granted assistance under the Commonwealth Family Violence and Cross-examination of Parties Scheme and the alleged victim has not – whether a trial can fairly proceed where a mandatory ban applies and one party is unable to secure representation – considerations to be applied if, as asserted, the refusal of assistance under the Scheme is based on a determination that the relevant party has the means to fund private representation.