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Cases published August 2017

Family Court of Australia 

Glavas & Forsyth and Anor [2017] FamCA 641 (25 August 2017)
Parenting – allegations of abuse of children by father resiled from– where the father, maternal grandmother, and Independent Children’s Lawyer tendered written terms of settlement – where the state child welfare authority asserted the allegations of sexual abuse were substantiated, refused to join in the settlement, and refused to withdraw from the proceedings – where analysis of the evidence reveals flaws and peculiarities which debase the reliability of the allegations – findings of the court are not dictated by conclusions reached by the child welfare authority- concluded the evidence did not satisfactorily demonstrate any risk of the father causing harm to the children by their sexual abuse.

Dickens & Dickens [2017] FamCA 572 (3 August 2017)
Practice and procedure – application for the single expert to answer questions to clarify his report – where answering those questions would involve the single expert in an unreasonable amount of work .
Practice and procedure – application for the single expert report not to be relied upon – where no basis is established for the single expert report to be wholly excluded from the evidence.
Practice and procedure – application for the discharge of the Independent Children’s Lawyer and for no replacement Independent Children’s Lawyer to be appointed – where part of the foundation for that application relies on the father’s own action in commencing civil litigation against the Independent Children’s Lawyer – where the mere existence of civil litigation forms no basis for the granting of the father’s application – where there is no basis for the Independent Children’s lawyer to be removed for actual or perceived bias.


Federal Circuit Court of Australia

Benedict & Gill [2017] FCCA 1437 (27 June 2017)
Interim parenting application – unilateral revocation of spend time arrangements – consideration of best interests of the child – child should spend substantial and significant time with each of her parents.
Evidence – letter from psychologist tendered in evidence – objection to tender – resolution of objection in interim application – objection grounded on failure to meet Makita principles – letter from psychologist expressly disavows status of expert report – Makita principles not relevant – further objection on basis of privilege – joint privilege – letter from psychologist prima facie inadmissible – contents of letter from psychologist affect rights of child – letter admissible under exception created by s131(2)(i) Evidence Act 1995 (Cth).
Evidence – expert evidence – court is authorised to decide on all of the evidence an ultimate fact in issue – expert evidence is not determinative.