Family Court of Australia Full Court
O’Connor & Healy [2016] FamCAFC 111 (28 June 2016)
Practice and procedure– where the trial judge delivered oral reasons for judgment – where
the trial judge subsequently amended the reasons pursuant to the slip rule prior to
publication – where the trial judge substantially altered the substance of the judgment in
doing so – where such a change was impermissible – appealable error demonstrated.
Parenting ‐ interim orders– where the trial judge erred in his approach to an interim
hearing – where the trial judge made findings of fact on untested assertions on an interim
basis – where the trial judge ignored allegations of family violence – appealable error
demonstrated.
Costs– costs certificates – where the appeal was conceded by the father – where the Full
Court satisfied itself that an appealable error had been established – where the Full Court
had “heard the appeal” for the purposes of granting each of the parties a costs certificate
pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – costs certificates granted.
Finch & Shibo (No. 3) [2016] FamCAFC 109 (24 June 2016)
Parenting – parental responsibility – with whom a child spends time – the trial judge did not
err in ordering that the mother have sole parental responsibility given the expert evidence
about the father’s behaviour – the trial judge did not err in ordering that the father only
spend time with the child during school holidays; that the father’s time with the child be
cancelled if he fails to collect the child within 30 minutes of the designated time; or that the
mother have liberty to apply if the father misses two consecutive visits – appeal dismissed –
no order as to costs.
Salah & Salah [2016] FamCAFC 100(17 Jun 2016)
Parenting – appeal against interim parenting orders – where the trial judge failed to give
sufficient weight to issues of family violence and failed to have regard to and
apply s61DA(3) of the Family Law Act 1975 (Cth) – where interim parenting orders providing
for the respondent’s time with the children to be supervised had been made by consent
shortly before the interim hearing – where the trial judge made interim orders removing the
need for supervision – whether the trial judge erred in failing to give adequate reasons –
appeal allowed.
Costs – costs certificates – where the trial judge made material errors of law – where it is
appropriate to order a costs certificate to both parties – costs certificates granted.
Edgar & Strofield [2016] FamCAFC 93 (7 Jun 2016)
Parenting – interim orders – whether the trial judge erred in placing undue emphasis upon
the issue of relocation in determining interim parenting orders – where the parties had
been separated for six years – where the mother was the primary carer of the children –
where the mother moved 88 kilometres away with the children – where it was ordered on
an interim basis that there be a progression to shared care or for the children to reside with
the father if the mother did not return – where the trial judge was concerned with unilateral
decision to relocate – where the mother moved for employment and family health – where
the children had a primary attachment to the mother and relationships with their stepbrother
and maternal grandmother – where an application to stay the orders was made –
where the findings recorded in the Reasons for Judgment in the stay application
demonstrated an error of the trial judge in determining the interim orders – Where the
appeal was allowed.
Application to adduce further evidence – whether appropriate to grant leave for the
mother to adduce further evidence on appeal – where the evidence comprised of further
affidavits and the reasons for judgment of the stay application – whether the appellant
satisfied the criteria to adduce further evidence as per CDJ v VAJ(1998) 197 CLR 172 – where
it was held the evidence did not satisfy the criteria – where the application to adduce
further evidence was dismissed.
Costs– where appropriate to grant each party costs certificates pursuant to the Federal
Proceedings (Costs) Act 1981 (Cth).
Family Court of Australia
Bocelli & Holland [2016] FamCA 450 (8 June 2016)
Parenting– parenting orders – where there is a long history of family violence – where both
mother and father pose a risk of psychological harm to the child – where older children have
suffered harm from both parents – where all children have been diagnosed with mental
health issues – where extended family members pose a risk – where father does not accept
the psychological harm and poor life outcomes of all children are a consequence of his and
the mothers exposure to conflict – where parents are ordered to attend counselling – where
orders do not protect the child from harm, however, leaving the parties without any regime
would likely be a worse outcome for the child – where the parents coerce the children to be
on their “team” – where parties communication cannot support shared parental
responsibility – where sole parental responsibility is ordered – where child to live with
father and spend time with the mother.
Property – where proceedings not ready for trial – where parties contributions are assessed
as equal – where the parties have a net debt – where the father is required to pay the
mother for school fees – where residual balance should be used to fund parties’ counselling.
Lennox & Lennox [2016] FamCA 367 (19 May 2016)
Parenting– best interests – where the children’s relationships with the mother are
important and valuable to them – where the nature of the eldest child’s relationship with
the father means she derives little, if any, benefit from it and maintenance of that
relationship is liable to cause her psychological harm – where much the same may be said of
the relationship between the youngest child and the father – where the evidence proved
the father was an oppressively violent domestic partner – where the evidence of family
violence stops around the time of the parties’ separation, well over three years ago, and
accordingly there is no current need to protect the children from any psychological harm
from exposure to family violence committed by the father – where the father demonstrated
no tangible change in his attitude or insight into his past actions – children to live with the
mother – where orders requiring the children to spend more, unsupervised time with the
father would certainly be detrimental to the mother’s emotional stability – where the
children should not be treated differentially and so the orders must be a compromise
between the needs and desires of both children – children to spend supervised time with
the father on two occasions each year – where occasional written communication between
the father and the children is permitted – Where otherwise the father is restrained from
approaching the mother’s residence or any school attended by either child.
Parenting – parental responsibility – where the presumption of equal shared parental
responsibility does not apply because of the proven family violence between the parties –
where such an order would not be in the children’s best interests – where the party with
whom the children live should have exclusive parental responsibility – mother to have sole
parental responsibility.
Fleming & Fleming [2016] FamCA 362 –(18 May 2016)
Practice and procedure – release and use of expert report – where the father seeks the
release of the single expert report for use in Apprehended Violence Order proceedings
brought against him in the New South Wales local Court – where the Apprehended Violence
Order sought by the police lists the children as protected persons – whether the implied
obligation applies to the single expert report – consideration of Sahadi & Savva and
Anor [2016] FamCAFC 65 – where the Court finds the implied obligation does not apply to the
single expert report – whether in exercising the Court’s discretion the single expert report
should be released – where the Court finds it is not in the public interest for single expert
reports to be released without redaction and without an undertaking being provided to seek
a non‐ publication order.
