Cases published June 2019

High Court of Australia

Masson v Parsons [2019] HCA 21
Constitutional law (Cth) – Courts – Federal courts – Federal jurisdiction – Matter arising under Commonwealth law – Where Commonwealth law provides rules in respect of parentage of children born of artificial conception procedures – Where State law provides irrebuttable presumption that biological father of child conceived by fertilisation procedure is not father in specified circumstances – Whether s 79(1) of Judiciary Act 1903 (Cth) operates to pick up and apply text of State law as Commonwealth law – Whether State law regulates exercise of jurisdiction – Whether Commonwealth law has “otherwise provided” within meaning of s 79(1) of Judiciary Act – Whether tests for contrariety under s 79(1) of Judiciary Act and s 109 of Constitution identical – Whether State law applies of its own force in federal jurisdiction.
Family law – Parenting orders – Meaning of “parent” – Where Family Law Act 1975 (Cth) presumes best interests of child served by shared parental responsibility – Where s 60H of Family Law Act provides rules in respect of parentage of children born of artificial conception procedures – Where appellant provided semen to first respondent to conceive child with belief that he was fathering child – Where appellant had ongoing role in child’s financial support, health, education and general welfare and enjoyed extremely close and secure attachment relationship with child – Where first respondent later in de facto relationship with second respondent – Where appellant found to be “parent” within ordinary meaning of word but not under s 60H – Whether s 60H exhaustive of persons who may qualify as “parent” of child born of artificial conception procedure – Whether “parent” used in Family Law Act according to ordinary meaning except as otherwise provided – Whether appellant is “parent” within ordinary meaning – Whether ordinary meaning of “parent” excludes “sperm donor” – Whether appellant is “sperm donor”.

Family Court of Australia

Garrety & Steyn [2019] FamCA 238 (17 April 2019)
FAMILY LAW – JUDGMENTS – Stay – where final parenting orders and judgment was delivered following a defended hearing – where a change of residence was ordered – where the children are living with the mother – where the father has filed a Notice of Appeal in relation to the final orders and seeks a stay of those orders pending the final outcome of the appeal – where the stay application was opposed by the mother and Independent Children’s Lawyer – where the stay application is dismissed – where the stay would deprive the mother of the benefit of the judgment – where the father is not seeking a stay simpliciter but is seeking orders that are different to the previous orders in place or those sought at the final hearing – where there is no evidence about how this new proposal would affect the welfare of the children –where the best interests of the children and their welfare is given considerable weight – where the children would suffer significant stress and confusion if their residence was again changed – where the mother has been managing a major adjustment for the children and they are settling – where the final orders were put in place in circumstances where the relationship between the mother and children was at risk and the mother was powerless to overcome the father’s attitude and his compliance with the orders – where if the stay application was granted hardship would fall most heavily upon the mother and children – where the impact would be adverse if the stay application was successful and the appeal was unsuccessful – where it would be cruel to remove the children from the mother where they have been told they are permanently living now – where if the stay and appeal were both successful then it would remove any tentative reconciliation between the mother and children.

Mitchell & Mitchell [2019] FamCA 213 (12 April 2019)
FAMILY LAW – CHILDREN – Interim orders – Best interests of the children – With whom the children shall live and spend time with – Where there are six subject children – Where current interim orders provide for the children to live with the father and spend time with the mother – Where the children have not spent time with the mother for nine months – Where the children have not communicated with the mother for two months – Where the mother proposed the four youngest children immediately start spending time with her on a gradual basis transitioning them to live with her – Where the father proposed the children live with him and communicate weekly with the mother by telephone – Where the Independent Children’s Lawyer proposed the children live with the father and spend time with the mother commensurate to the distance between the parties’ homes – Where neither household can offer an entirely beneficial residential experience to the children – Where the children generally have meaningful relationships with both parties but currently appear to derive much more benefit from their relationship with the father – Where each party allege the children are at risk in the other’s household – Where both parties have been the perpetrator of past family violence – Where there is no evidence of family violence between the parties since separation – Where the mother has physically abused the children in the past – Where the mother alleges there is a risk of emotional harm to the children from their exposure to family violence between the father and his current partner – Where additional factors under s 60CC(3) of the Family Law Act 1975 (Cth) are considered – Where the views of the two eldest children, aged 13 and 14, are considered – Where a change of residence would be disruptive to the children – Where both parties lack insight into the children’s needs but the father is better equipped to provide for the children’s physical and intellectual needs – Where the mother is untested as a single parent – Where the mother’s proposed orders would mean separating the children – Ordered the children live with the father and spend graduating time with the mother over the next three months – Ordered the children spend time with the mother thereafter every third weekend during school terms, half of the school holidays and 10 days during the summer school holidays.
FAMILY LAW – CHILDREN – Parental responsibility – Where the presumption of equal shared parental responsibility does not apply – Finding of past family violence – Where sole parental responsibility allocated to the residential parent – Where an order made to compel the residential parent to ensure the child with a disability is promptly provided with every benefit available under the National Disability Insurance Scheme.

Family Court of Western Australia

Ellis and Penn [2019] FCWAM 81

Protection proceedings; Chief Executive Officer of the Department of Communities having intervened; Interim orders sought for the child to remain in provisional protection and care; interim orders sought to allow the mother and child to relocate to Queensland; discussion as to whether the child is in need of protection; discussion of the limits of the Western Australian protection jurisdiction in allowing interstate relocation of a child in need of protection; possible transfer of proceedings to Queensland; possible involvement of the Queensland counterpart to the Department of Communities; consideration of the relevant Queensland legislation; finding that child is in need of protection; order that the child remain in provisional protection and care; order made placing the child in the mother’s care; discussion of the impact of the Court’s orders on the mother’s application for parole and the father’s potential incarceration pursuant to pending criminal charges; discussion of father’s bail conditions ; indication by the Department that if the child is placed with the mother, the protection application would be withdrawn; parenting orders made to take effect when such application is withdrawn; parenting proceedings transferred to the Federal Circuit Court in Brisbane.

Federal Circuit Court of Australia

Fontenay & McClure [2019] FCCA 1692 (24 June 2019)
FAMILY LAW – Final orders in 2016 for child’s residence – Mother develops new relationship – Mother focused on that relationship – Mother not child focused – Mother lacks insight – Father better option to maintain and develop parent/child relationship with both parents – Stepfather hostile to father and may undermine father and son relationship.

McCutcheon & Rafferty [2019] FCCA 1585 (11 June 2019)
FAMILY LAW – Bitter parenting dispute – pervasive allegations of violence by all relevant adults – father’s major concern being the alleged violence by the mother’s partner – both parents seeking residence – mother’s chaotic incapacity to organise her life – mother’s extraordinary presentation in court – Independent Children’s Lawyer supporting Father as primary carer and limited spend time required with mother – Orders made as sought by the Independent’s Children’s Lawyer.