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

Lim & Zong [2022] FedCFamC1A 146 (20 September 2022)

PARENTING – Appeal from orders allowing no time and no communication with the appellant – Where the appellant has engaged in a pattern of coercive and controlling conduct – Family violence and animal cruelty perpetrated by the appellant – Protracted litigation history – 22 grounds of appeal asserting factual finding errors – No merit in any grounds advanced – No error established – Appeal dismissed – Appellant to pay costs of respondent and Independent Children’s Lawyer.


Otieno & Mwangi [2022] FedCFamC1A 145 (19 September 2022)

COSTS – Application for costs in discontinued appeal – Where the appellant discontinued the appeal only days before the appeal hearing – Where the respondent and Independent Children’s Lawyer’s (“the ICL”) applications for costs were entertained on the day set aside for the appeal hearing – Where costs are deserved – Where neither party was legally aided in the appeal – Where the appellant failed to comply with procedural orders made by the appeal registrar – Where the appellant did not assert any financial hardship in having to meet any costs order – Application granted – Appellant to pay the respondent and ICL’s party/party costs of and incidental to the appeal in a fixed sum.


Yarrow & Yarrow [2022] FedCFamC1A 135 (1 September 2022)

PARENTING – Relocation – Where the mother appeals from orders providing for the children to live with the father in Australia and spend time with her if she relocates overseas – Where the mother sought that she be permitted to relocate to the United Kingdom with the children – Whether the primary judge failed to consider a meaningful relationship – Whether the primary judge failed to consider the parties’ competing proposals – Whether the primary judge erred by requiring compelling reasons to relocate – Adequacy of reasons – Where no appealable error is established – Appeal dismissed.


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

Tao & Ruong [2022] FedCFamC1F 581 (11 August 2022)

PARENTING – Where the mother sought to vary orders to prevent the child from spending overnight time with the father – Where the child made disclosures of violence perpetrated against him by the father – Where the child disclosed to his psychologist that he did not feel scared of the father – Where the father denies the allegations of assaulting the child – No change of circumstances sufficient to warrant variation of orders – Mother’s application dismissed.


Bradbury & Lander [2022] FedCFamC1F 548 (2 August 2022)

PARENTING – Where the father seeks sole parental responsibility for the child – Where the mother is impacted by mental health issues – Where the mother holds deeply entrenched views that the father has been abusive and neglectful towards her and her child – Where the mother has been exerting controlling and coercive behaviour and communication towards the father – Where there is risk that the mother’s behaviour and influence will negatively impact upon the child – Orders made for the child to live with the father, who will also have sole parental responsibility, and for the child to spend time with the mother.

PROPERTY – Settlement in relation to short marriage with small pool – Where both parties are in a parlous financial position – Where caution is exercised in considering any adjustment of the limited assets held by the parties – Where the father sought no adjustment to property – Where the mother sought adjustments, including of superannuation – Where no procedural fairness had been accorded to the superannuation trustee – Spousal maintenance application dismissed – Assets to remain with the parties.


Christy & Young (No 2) [2022] FedCFamC1F 519 (21 July 2022)

CHILDREN – Final parenting – Where expert evidence is given about the increased risk posed by a person who has perpetrated family violence in the past – Consideration of harms which may be experienced by children when their parent is in a relationship with a person who poses a risk of family violence – Where a proposal for limited time with a parent is justified where that parent lacks insight into the potential risks posed to their children by their partner – Where undermining a child’s relationship with a parent is found to constitute emotional abuse – Where evidence adduced in re-opened proceedings amplifies Court’s concerns and strengthens previous findings – Where presumption of equal shared parental responsibility is rebutted by evidence of a high level of mistrust between the parents and a parent’s inability to conduct themselves in a child-focussed manner.


Hawken & Hawken [2022] FedCFamC1F 508 (18 July 2022)

PARENTING – Interim Orders – Where the mother sought to relocate to Country E with the children – Where the father and Independent Children’s Lawyer opposed the relocation – Where the father has a long standing history of mental health issues – Where the mother raises serious allegations of family violence perpetuated by the father – Where there are clearly allegations of risk – Where it would not be in the best interests at this stage to separate the children with their father – Where the children need stability and regular time with the father – Where there is a practical difficulty in maintaining a physical relationship with the father if the children move to Country E – Mother’s application dismissed – Children to initially spend supervised time with the father, with supervision to be lifted after three negative hair follicle tests.


Conte & Galanas [2022] FedCFamC1F 501 (14 July 2022)

CHILDREN – Where dispute relates mainly to children’s time with the father – Where mother alleges that father poses an unacceptable risk of harm to the children on a number of bases including in relation to his alcohol misuse, perpetration of family violence and inappropriate sexualised behaviour – Where Court finds that father’s alcohol use gives rise to a need to protect the children from harm associated with neglect – Where Court finds father engaged in unacceptable and grossly offensive behaviour but that such behaviour does not fall within the definition of ‘family violence’ in the Family Law Act – Where Court finds that the children are at risk of physical and psychological harm as a result of the father’s inappropriate sexualised conduct towards them which causes them to be acclimatised to an environment that is sexualised and is sexualising them which increases the risk of sexual abuse by others – Where Court finds that a comparatively small risk of really serious harm amounts to unacceptable harm – Where Court holds concerns about the father’s capacity to meet the children’s needs on the basis of his emotional state and decision-making around emotional issues – Consideration of identity contact and its origins in the child protection system – Where Court finds that identity contact is not appropriate where children will maintain a close connection with one biological parent – Where Court also finds that identity contact does not take priority over protecting children from harm or contact with a person who poses a risk of harm – Orders made in accordance with mother’s proposal subject to minor amendments.

COSTS – ICL costs – Where ICL seeks an order that the parties pay the ICL’s costs in equal shares – Where mother opposes ICL’s costs application – Where father did not address issue of ICL’s costs in his written submissions – Where Court observes that each party has financial capacity to meet an order for costs – Where Court considers it justified that an order be made that the parties contribute to the ICL’s costs – Where in light of father’s conduct in the proceedings and as he was wholly unsuccessful, father ordered to pay his half-share of ICL’s total costs – Where in the circumstances the Court considers it just that mother only pay her half-share of ICL’s basic composite fee – Orders made accordingly


Staley & Birch [2022] FedCFamC1F 494 (13 July 2022)

PARENTING – Where the father seeks sole parental responsibility for the child – Where both the mother and father are impacted by mental health issues – Where expert recognised that father had taken active steps to address mental health issues, whereas mother has limited insight into her conditions and taken minimal steps to receive support – Where mental health of parties has bearing on the capacity of the parents to care for their child – Where the relationship between parents has been marked by mutual acts of violence – Consideration of best interests of the child, particular regard for facilitation of meaningful relationship between both parents – Orders made for the father to have sole parental responsibility and for child to spend time with the mother.

PROPERTY – Settlement in relation to end of de-facto relationship which exceeded six years – Assessment of contributions made by mother and father – Where there are cross allegations of family violence – Where mother seeks application of Kennon principle – Where mother was incarcerated for shooting the father – Where mother alleged her contributions were made arduous due to her incarceration – Where responsibility for those contributions being rendered more arduous falls upon the mother rather than the father.


Pattinson & Denholm [2022] FedCFamC1F 506 (8 July 2022)

PARENTING – Family violence – Mental health – Substance addiction and abuse – Child suffers significant ongoing psychological trauma – Father seeks four professionally supervised contact visits and two cards a year and school reports – Child 13 and does not wish any contact with father – Child’s expressed views genuine and not coached by the mother – Issue as to extent of family violence – Child’s psychological trauma consistent even with admitted family violence – Father poses an unacceptable risk to child of further psychological harm even with supervised visits. Sole parental responsibility to mother – Child to live with mother – Child to have not time or communication with father – Father not to access school reports – s68B injunction against father consented to by father


Uzunlar & Uzunlar (No 2) [2022] FedCFamC1F 485 (8 July 2022)

PARENTING – Where both parents have exposed the children to psychological harm and are unable to prioritise the children’s welfare over their hostility toward one another – Expressed views of the children to live with their father – Where the eldest child has re-established a relationship with the mother but the youngest child is resistant – Mother poses no physical risk of harm to the children – Where no transition into the mother’s care could be effected without risk to the professional and trauma to the child – Orders for the children to live with their father and for the eldest child to spend alternate weekends with the mother – Order made under s68P of the Family Law Act 1975 (Cth) (“the Act”) where parenting arrangements are inconsistent with an ADVO.

PROPERTY – Marriage of nine years – Greater initial contribution by the husband – Assessment of equal contributions throughout the marriage – Material non-disclosure by the husband – No adjustments made pursuant to s75(2) of the Act – Each party to receive 50 per cent of the net assets by way of property distribution.


Crowley & Picton [2022] FedCFamC1F 459 (30 June 2022)

PARENTING – Where final orders had been made in 2017 for the child to have no contact with the father – Where the paternal grandmother sought orders for time with the child – Where the mother sought a dismissal of the paternal grandmother’s application – Where the paternal grandmother failed to comply with Court orders and directions – Where the paternal grandmother failed to appear on two occasions despite having notice that if she did not appear on the second occasion the matter would proceed on an undefended basis – Paternal grandmother’s application for time with the child dismissed – Where the mother also sought to restrain the paternal grandmother from approaching or contacting the child – Where there is a high degree of conflict between the paternal grandmother and mother – Where there is an unacceptable risk that contact with the paternal grandmother would result in the child being exposed to harm – Restraint orders made.


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

Orav & Keskula [2022] FedCFamC2F 1114 (30 August 2022)

PARENTING – cultural issues – child having just turned five years old – where child has been in the care of a non-parent since two years of age – where the non-parent asserts that she has traditionally adopted the child – following the legislative pathway, it is not necessary for the Court to make findings on traditional adoption –Finding that handover of the child to the non-parent was due to coercion – where not all of the legislative pathway applies to consideration of a non-parent – where the non-parent does not have the capacity to facilitate the child’s relationship with the birth mother ‑– order for child to live with birth mother.


Isaac & Steel [2022] FedCFamC2F 1008 (2 August 2022)

PARENTING – Best interests of the eight-year-old child – Where both parties have perpetrated family violence upon each other – Where there is agreement for the mother to have sole parental responsibility and the child live with her – Whether the child should spend time with the father – How communication between the father and the child should occur and/or be facilitated – unacceptable risk of harm established and to be ameliorated by postal communication only to occur quarterly with the father – child’s wishes to be taken in account at age 14.


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