Cases published August/September 2018
Family Court of Australia
Sahrawi & Hadrami [2018] FamCAFC 170 (4 September 2018)
FAMILY LAW – APPEAL – PARENTING – Where the primary judge found that the father behaved in a psychologically coercive manner to secure sex from the mother based upon words said in a recorded telephone conversation between the mother and the father – Where the father was not afforded procedural fairness to comment upon the primary judge’s interpretation of those words – Where another interpretation was available – Where this error led the primary judge to conclude that the presumption of equal shared parental responsibility did not apply and impacted upon s 60CC(2) and (3) considerations – Where the primary judge did not err in failing to make credibility findings – Where the primary judge erred in failing to make findings about whether the mother had fabricated allegations –Where the primary judge misstated the breadth of the test in M v M (1988) 166 CLR 69 – Where, given the error the primary judge made in finding that no determination could be made as to whether the mother had fabricated allegations, there is error in the primary judge’s consideration of the family consultant’s evidence and the Independent Children’s Lawyer’s submissions which were based upon the proposition that such a finding would be made – Where the father made an application pursuant to s 67ZC of the Act for the return of the children to Country E without the court making final parenting orders – Where the primary judge did not err in not making a summary order for the return of the children without making parenting orders – Where the appeal is allowed.
Barda & Teak [2018] FCCA 2401 (31 August 2018)
FAMILY LAW – Child aged almost five years of age – child has not interacted with father for approximately two years – mother has unilaterally relocated child interstate – meaningful level of relationship with each parent – freedom of movement – nature of interim hearing – additional considerations – court’s duty to deliver individual justice for the child affected – court has discretion to not apply presumption of equal shared parental responsibility in interim matters – best interests.