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Significant cases published September 2023

Federal Circuit and Family Court of Australia – (Division 1) Appellate Jurisdiction

Rubra & Potter [2023] FedCFamC1A 159 (18 September 2023)

PARENTING – Where it was not disputed at the appeal hearing that the mediation was conducted by a “family dispute resolution practitioner” – Where the primary judge erred by using information given at the mediation, the orders proposed by the mediator and the mother’s refusal to agree in a very significant way – Where the error was material to the outcome – Appeal allowed – Orders of the primary judge set aside – By consent, parenting orders made – Costs certificate granted to the mother.

Federal Circuit and Family Court of Australia – (Division 1)

Samaras & Allen (No 3) [2023] FedCFamC1F 787 (13 September 2023)

PRACTICE AND PROCEDURE – Legal Practitioner – Where subpoena issued for the production of documents – Where solicitor received documents answering subpoena directly from the subpoenaed body’s solicitor – Where the other parties had not been included in that communication – Where the Court had granted view only access to documents produced pursuant to the subpoena – Where the firm had given an undertaking to not release documents to the client – Where the solicitor sent the documents to the client – Where solicitor waited a week to advise the Court contrary to the terms of the undertaking given for immediate notification – Where the email notifying the Court was inadequate in its explanation – Where neither the ICL or the father’s representatives were included in that communication to the Court, contrary to the protocol for doing so – Where papers referred to the Legal Services Commission.

Harrison & Harrison [2023] FedCFamC1F 724 (24 August 2023)

PARENTING – Third trial of parenting issues – Father concedes parental responsibility and ‘live-with’ to the mother but continues to assert her tendency to “assault children” and her consequent incapacity – Mother says father undermines her parenting – Mother’s late proposal to relocate to the United Kingdom – Fundamental issue of credit – Both parents not credible witnesses – Relocation not permitted – Time for children with the father.

George & George [2023] FedCFamC1F 718 (11 August 2023)

PARENTING – where the two children lived in a week about shared care arrangement following the separation of the parents – where the children now aged ten and eight have not seen the mother since July 2021 – where the father unilaterally stopped the children’s time with the mother – where the father failed to support and failed to facilitate the children’s relationship with the mother – a consideration of risk issues – evidence of alienating behaviour by the father – change of residence necessary – moratorium of the children’s time with the father – followed by supervised time with the father – graduating to unsupervised time – where the children will otherwise live with the mother – where the mother will have sole parental responsibility.

Hasek & Thurstan [2023] FedCFamC1F 647 (3 August 2023)

FAMILY LAW – COSTS – Where the parties settled the matter by consent on the second day of the final hearing – Where the Independent Children’s Lawyer made an application to the Court for the parties to equally share in the costs of the Independent Children’s Lawyer – Where the Independent Children’s Lawyer has assisted the parties in facilitating the production of a single expert report – Where there were opportunities for the matter to be resolved prior to the parties incurring additional expenses of a final hearing and prior to the public incurring expense in respect to the Independent Children’s Lawyer – Application granted – Parties to share equally in the costs of the Independent Children’s Lawyer.

Emmett & Boon [2023] FedCFamC1F 620 (28 July 2023)

PARENTING – Where the mother contends for final orders that the children spend no time with the father – Assessment of risk – Where the father was convicted of possessing child exploitation material and faced other serious criminal charges – Where supervised time has continued since 2018 – Whether the mother’s parenting capacity will diminish if even supervised time continues.

Pacetti & Dambrose (No 2) [2023] FedCFamC1F 616 (28 July 2023)

PARENTING – Where each party contends that the other has perpetrated family violence – Where the father and the ICL contend that the mother poses an unacceptable risk of psychological and emotional harm to the child – Where the father and ICL seek orders that the child live with the father and spend no time with the mother – Where the Court finds the mother has perpetrated family violence – Where the Court finds that the mother poses an unacceptable risk of harm to the child – Where the mother lacks genuine insight – Where the risks cannot be mitigated by long term supervision – Where orders are made for the children to live with the father – Where orders are made for no contact with the mother.

Federal Circuit and Family Court of Australia – (Division 2)

Moyland & Shearer [2023] FedCFamC2F 1202 (15 September 2023)

PRACTICE AND PROCEDURE – discharge of expert via oral Application for which no leave was sought – similar Applications regarding the same expert made in the Family Court of Western Australia both of which failed – non-compliance by Mother and her lawyer with Rules regarding filing Affidavits in support of Applications in a Proceeding – further non-compliance by Mother’s lawyer with Court Order to answer questions in the form of interrogatories with those same basic questions previously asked of Counsel at the hearing – in the light of the FCWA judgments, Mother’s identical Application was doomed to fail but continued to be pressed – accusations however made by the Mother that any delay and or expense was somehow the Court’s fault where the Mother alone pressed two separate Applications on the Court – oral Application dismissed – costs reserved pending submissions.

Cousins & Peake (No 3) [2023] FedCFamC2F 925 (31 July 2023)

PARENTING – where agreement was reached as to the allocation of parental responsibility and children’s living arrangements – where parties’ older child spends no time with his mother – amount of time the younger child should spend with his mother – regulation of mother’s interactions with children’s schools – whether father’s sole parental responsibility for the children should be fettered.

VEXATIOUS PROCEEDINGS ORDERS – mother has frequently instituted and conducted vexatious proceedings – order made.