Family Court of Australia- Full Court

Clarence & Crisp [2016] FamCAFC 157 (18 August 2016)
De facto relationship – parentage– the appellant is the birth mother of the child, but the child was conceived using the respondent’s egg – appeal against a finding that the parties were in a de facto relationship at the time of the child’s conception and that the respondent is therefore a parent of the child – comparison of statutory tests relating to married couples and de facto couples – the relevant question was not whether the parties separated when the respondent moved out of their home, but whether the relationship subsisted at the time of the conception – the existence of a de facto relationship is a finding of fact that depends upon an assessment of all of the circumstances of the relationship – the trial judge did not err – appeal dismissed – order for the appellant to pay the respondent’s costs.

Oswald & Karrington [2016] FamCAFC 152 (16 August 2016)
Competence of appeal– where the father contended the appeal was out of time and thus incompetent – where ex tempore reasons for judgment were given at trial – where orders were made after the reasons for judgement were given – where the mother’s Notice Of Appeal was filed within 28 days of the orders – where s94AAA(5) provides the court jurisdiction in an appeal from a “decree” of the Federal Circuit Court of Australia – where reasons for judgment do not constitute a decree – where it was held the formal orders constitute a decree – where the mother’s Notice Of Appeal was filed in time.
Parenting – relocation– where the mother was the primary carer – where the issue on appeal was whether the trial judge was correct to make a coercive order as to where the mother was to live – where the children lived with the mother and spent time with the father each alternate weekend – where the mother had at separation relocated to receive emotional support and move away from her previous drug habits – where the mother would travel with the children to allow for the father to spend time with the children – where the trial judge found the travel was not safe for the children – where the trial judge assumed the mother would receive the same emotional support should she be ordered to relocate back to the father’s town – where it was held it was not open to the trial judge to make these findings – where the court’s power to make a coercive order should be exercised only in rare and extreme circumstances, namely for a parent to perform their role as primary carer – where the trial judge was required to consider alternative options available before making a coercive order – where it was held the trial judge erred in failing to consider alternatives to a coercive order – where the trial judge erred in considering s60CC factors by failing to consider the risk factors for the children should the mother be required to move back to the father’s town – where the mother argued at trial she would likely relapse and abuse drugs if ordered to move back to the father’s town – where the trial judge further erred in applying the factors under s65DAA – where it was found that the trial judge acted upon wrong principles and failed to take into account relevant material considerations and facts – where this failure led the trial judge to make a coercive order – where the appeal was allowed – where the parenting proceedings were remitted for rehearing – where the coercive orders were set aside.

Mankiewicz and Anor & Swallow and Anor [2016] FamCAFC 153 (16 August 2016)
Parenting – where the maternal great grandparents appeal against dismissal of their application to spend time with their great grandchildren and a vexatious proceedings order – where the appellants previously found to lack standing to apply for parenting orders – where the appellants subsequently instituted parenting proceedings on the same facts and seeking the same orders – whether the appellants had standing to institute parenting proceedings – where prior to determining the question of standing, the primary judge made orders under s102QB(2) dismissing the proceedings and restraining the appellants from instituting further parenting proceedings – whether the primary judge had jurisdiction to determine the appellants’ fresh application – consideration of ss65C(c) and 102QB of the Family Law Act 1975 (Cth) – where the orders were made within the court’s jurisdiction and power – where the grounds of appeal challenge the exercise of discretion of the primary judge – where findings were open – no error demonstrated – appeal dismissed.
Costs – where the appellants’ were wholly unsuccessful on appeal – where the circumstances justify an order for indemnity costs – appellants to pay the respondents’ indemnity costs fixed in the amount of $15,000.

Tindall & Saldo [2016] FamCAFC 146 (10 August 2016)
Parenting – practice and procedure – where final parenting orders were made in 2012 providing that there was no face to face contact between the child and the father – where the father sought a variation of those orders through a Rice and Asplund (1979) FLC 90-725 argument – where the trial judge indicated she would conduct a threshold hearing separate to a final hearing – where the trial judge subsequently determined the threshold matter and final hearing together – where the mother had only filed an affidavit relating to the threshold issues – where the mother was not given leave to rely on the entirety of an affidavit from the 2012 proceedings – where the trial judge failed to afford the mother procedural fairness in not permitting her to put relevant evidence before the court – appealable error demonstrated.
Parenting – whether the trial judge properly considered the principles in Rice and Asplund (1979) FLC 90-725 – where the trial judge failed to consider any change in circumstance against the rationale that the identified change must justify a reconsideration of the issues – appealable error demonstrated.
Parenting – where it was contended that the trial judge erred in the weight she attributed to various s60CC factors of the Family Law Act 1975 (Cth) – where the father had pleaded guilty and been convicted on charges of violence against the mother – where the trial judge found she could not come to a definite conclusion about an assault involving the child – where such a conclusion was unsupported by the evidence and was not open to the trial judge – where the trial judge failed to give sufficient weight to the evidence of family violence in her consideration of s60CC(2)(b) of the Family Law Act 1975 (Cth) – where the child expressed a desire to see the father – where the trial judge elevated the child’s views over the primary consideration of protecting the child from harm – where the mother indicated concerns about the child’s safety and the father finding out where she lived if the child were to have contact with him – where the trial judge gave insufficient weight to the mother’s fears without proper consideration of the evidence of violence – appealable error demonstrated.
Costs – certificates – where neither party sought costs orders but both parties sought a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) should the appeal be allowed – where the appeal was allowed on an error of law – orders for costs certificates made.


Family Court of Australia

Bechara & Hejazi [2016] FamCA 690 (10 August 2016)
Ex parte parenting orders – father on remand – child in Lebanon – orders required to keep child safe from harm and that she be returned to Australia – issuance of passport without father’s consent – parenting orders with extra territorial effect – Commonwealth personal protection measure under s111CD(1)(e) – father at liberty to bring urgent application in response or to vary or discharge this holding order.



Federal Circuit Court of Australia

Lockley & Bardot [2016] FCCA 1982 (12 August 2016)
Parenting – change of residence – best interests of 8½ year old boy – significant evidence by mother’s sister that strongly supported the father – repeated opportunities by the mother during the trial to re-consider her position in relation to the child’s time with the father and other beliefs she held in relation to the father which independent evidence established were untenable (e.g. whether the father had any mental health issues, which expert evidence confirmed that he did not) – the Court’s strong view that the mother would continue not to promote the child’s relationship with the father – expert evidence that the mother and child were in an enmeshed relationship that also resulted in a separation dynamic between them – expert evidence also concluded that the child was being “conditioned” by the mother regarding the child’s views of the father – expert evidence not accepted by the mother who relied upon her own observations and assessment – evidence clearly supported a good, happy and relaxed relationship between father and son – change of residence ordered.

Rogers & Mooney [2016] FCCA 1951 (12 August 2016)

Parenting – father’s application for orders concerning spending time with five children – where the father has numerous convictions for offences of violence against third parties and pleaded guilty to charges arising out of a siege at the parties home but otherwise denies committing extensive violence during the relationship as alleged by the mother – court satisfied the mother’s allegations are true – no remorse, insight or empathy demonstrated by the father – where the father’s extremely poor attitude to the mother has manifested itself in Facebook posts by his partner in recent months – where the two youngest children do not know the father, the next child does not want to see him, the next child is ambivalent and the eldest child does want to see him – weight to be given to the children’s views – where the Independent Children’s Lawyer proposed that the three youngest children spend no time with the father but the two oldest children spend time with him on four occasions each year in the presence of the paternal uncle and his partner – where the paternal uncle and his partner do not accept that the father was violent to the mother and have provided no support to the mother since separation – where they are not suitable supervisors even if an order for time was otherwise appropriate – order made for no time and no communication for all the children.

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