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ABBEY & SEYMOUR

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 112

 

This case is about a father who filed an application in relation to traveling with his child overseas.

Facts:

Mr. Abbey (Father and Applicant) sought that he be permitted to take the parties' child to Country A for three weeks during the long school holiday period at the end of each year.  He stated that he has plans of traveling to Country A with his new wife and the child, once he has the funds, to introduce them to his family there.   Ms. Seymour (Mother and Respondent) opposed the application, alleging that the child's anxiety and attachment issues raise great concern on how he will not cope being that far away from the mother and that the mother is the child's security blanket.  Further, she asserted that her communication with the father is barely civil and that the father refuses to communicate with her in Australia over simple things, which does not put her at ease with thought of the child going overseas. Finally, there will be a language barrier between the child and the family of the father.

Issue:

Whether or not traveling with the father overseas be in the best interest of the child.

Held:

It is of the view of the Court that the father's application to take the child to Country A for three weeks each year to visit the paternal family is premature and would not be in the best interest of the child. 

In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.[1]

The Court has a concern that the child will experience significant anxiety if spending three weeks away from the mother is allowed to travel to Country A with the father.  As asserted by the mother, the child has been experiencing anxiety having spent such time with the father and continues to receive psychological assistance for anxiety.  The Court was not persuaded that any anxiety experienced by the child, if allowed to travel to Country A, would be significantly alleviated by orders permitting the mother to speak to the child in Country A by telephone or other electronic social media, in view of the father's dislike of the mother and their apparent ability to communicate via email only.  Also, the language barrier may tend to aggravate the child's anxiety in being separated from the mother while visiting the paternal family in Country A.

Child's best interest paramount consideration in making a parenting order.  In this case, the Court considered that the child has been experiencing anxiety and continues to receive psychological assistance for anxiety.  Taking him abroad where there will be a language barrier between the child and the paternal family might tend to worsen the child's anxiety for being away from his mother.  The Court advised the father to give consideration to making a fresh application in due course after the child's anxiety issue has been resolved, and it would be helpful if the parties could take positive steps to bring about a more productive co-parenting relationship.

 

[1] Sect 60CA Family Law Act 1975.

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OWEN & OWEN

FAMILY COURT OF AUSTRALIA

[2020] FamCA 90

 

This case involves Court’s exercise of discretion to apply s102NA of the Family Law Act 1975.

Facts:

Ms. Owen (Wife and Applicant) applied for the discretionary application of the provisions of s102NA of the Family Law Act 1975, which provides a statutory scheme for dealing with cross-examination by unrepresented litigants in the context of a party to party family violence allegations.  She alleged that she, being the subject of family violence, would be re-traumatized, and her capacity to give clear evidence would be compromised if directly cross-examined by the alleged perpetrator of family violence. Mr. Owen (Husband and Respondent) indicated that he was comfortable with the discretion being exercised unless he is unable to retain legal representation.   If unable to obtain representation, he opposes the making of the order due to the importance of being able to question the evidence against him.

Issue:

Whether or not the Court should exercise discretion to ban personal cross-examination under s102NA of the Family Law Act 1975.

Held:

The discretion to impose the ban on personal cross-examination should not be exercised in this instance. 

In this case, Mr. Owen is unable to access legal representation.  The Independent Children’s Lawyer, who is an officer of the Legal Aid Office of the ACT, advised that there was uncertainty as to the funding of legal representation for the husband should an order be made.  This uncertainty points strongly against the exercise of the discretion.   

It is important to note that a fair hearing impacts not only on the parties but also, in a child-related case, upon the children, as a fair hearing is a necessary prerequisite to a proper consideration of what is in the best interests of a child.  Shutting a litigant out from the cross-examination of the other party has the potential to undermine the integrity of proceedings that have, as their object, the making of an order in the best interests of a child.  

With regard to the alleged family violence, the Court found the evidence was sparse.  It was not able to support the proposition that Ms. Owen would be either at risk of re-traumatization or suffer from a compromise of her capacity to give evidence. 

 

“The capacity to challenge another party’s evidence by means of cross-examination is a fundamental aspect of a fair hearing that determines the final rights of litigants. Being deprived of the capacity to cross-examine undermines the integrity of the litigation process.” [1]

 

[1] Owen & Owen [2020] FamCA 90 (17 January 2020) (33).

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HIRSCH & HIRSCH (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 18

 

This case discusses what the Court considers in matters pertaining to relocation.

Facts:

The primary judge made orders for the introduction of a 10/4 spend time regime in favor of Ms. Hirsch (Mother and Appellant) to be introduced over time.   Neither party objected to the order.  Thereafter, Mr. Hirsch (Father and Respondent) sought for the mother to be compelled by court order to relocate from City K, where she presently lives, to the Suburb O/Suburb L area.  Also, the father sought that the spend time regime previously in place before the mother moved to City K be reinstated.  The mother’s position is that she be permitted to remain in City K and that there be some adjustment to the father’s spend time regime to reflect the difficulties of travel that her residence in City K will produce.

Issue:

Whether or not allowing the mother with the children to remain in City K in the best interests of the children.

Held:

The Court referred to cases, which held, in principle, that, “What needs to be remembered is that the overarching and vital consideration is the best interests of the children, not the subjective positions and assessments of the parents.” [1]

Permitting the mother to relocate will be extremely inconvenient for the father.  However, there are several countervailing considerations like; first, the mother will be happier; second, the children will spend far less time in before and after school care, a matter that had plainly achieved a real significance before the mother moved; and third, the mother’s employment is to prove problematic once she is forced to return to Suburb O.  It is in the Court’s opinion that notwithstanding the various negative aspects of the mother’s decision and its consequences, it is plainly in the children’s best interests for the relocation to City K to take place.  For the Court, the positives outweighed the negatives.

Hence, the Court concluded that the mother should be permitted to relocate to City K.    It ordered, among others, for the parents to have equal shared parental responsibility for the children, for the children to live with the mother, and for the mother be permitted to relocate to City K area, and for the children to spend time with their father.

 

“What needs to be remembered is that the overarching and vital consideration is the best interests of the children, not the subjective positions and assessments of the parents.”

 

[1] Hirsch & Hirsch (No.2) [2020] FCCA 18 (10 January 2020) (49).

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PHILLIPS & HANSFORD

FAMILY COURT OF AUSTRALIA

[2020] FamCAFC 28

 

In this case, the father appealed the interim orders concerning the parties’ two children.  The mother, in response, filed sought for Costs Orders for the costs of the appeal and the application for costs.

Facts:

In 21 January 2015, a judge of the Federal Circuit Court of Australia in Canberra made orders, which provided for the children to relocate with Ms. Hansford (mother and respondent) to Adelaide; and in the event that the father also moved to Adelaide, which he did, the children were to spend equal time with each of the parents. 

In November 2018, the younger child, due to return to the care of the father, remained living with the mother.  In December 2018, the elder child refused to spend time with the father because of an injury.[1] The father then sought a recovery order in relation to both children, which was responded with the mother’s Initiating Application that sought to vary the interim parenting orders, so the children spent less time with the father.  An order was made that on 21 May 2019, the parties should be in a position to make submissions as to whether it was in the best interests of the children for the parenting orders made on 21 January 2015 to be reconsidered.   The primary judge also made the order that pending further order, the children spend only each alternate weekend with the father. The order specified four dates leading up to 21 May 2019 as the dates when that time should commence. The children were also to spend one week of the school holidays in April 2019 with the father.  The father appealed against the orders, while the mother sought an order that the father pays her costs of the appeal and the application for costs. 

Issue:

Should the father be made to bear the mother’s costs?

Held:

Yes.  Each party shall bear his or her own costs.[2]   If there are circumstances that justify it doing so, the Court may make such an order as it considers just. [3]

In this case, the Court gave regard to Sect 117(2A) (a), (e), and (f) in determining whether an order for costs should be made.  First, consideration is the financial circumstances of each of the parties.[4]  Second, consideration is that the appeal was wholly unsuccessful.[5] Lastly, both parties rely upon written offers between the parties to settle the proceedings. [6]  The mother offered that should the father elect to withdraw his appeal proper within 14 days of the date thereof, she will confine her claim for costs to the party claim, which the father did not respond to.  The Court found there was nothing of significance can be drawn from the first three letters, which contain complex parenting proposals and counter-proposals, which went beyond the issues of the appeal. While the mother offered no discount on the costs that had already been incurred by her, both parties would have been spared considerable expense if the offer had been accepted by the father. 

To reiterate, each party should bear his or her costs.  However, the Court may make costs orders if it determines that is making one is justified after giving regard to the considerations enumerated in Section 117(2A) of the Family Law Act 1975.  The father was made to pay the mother’s appeal costs because he is in a better financial position than the mother; his appeal was unsuccessful, and the parties exchanged written offers to settle the proceedings.  Hence, the order of costs made by the Court is justified.

 

 

[1] Phillips & Hansford (No. 2) [2019] FamCAFC 165 (4 October 2019) (8).

[2] Family Law Act 1975 - Sect 117(1).

[3] Ibid (2).

[4] Ibid (s 117(2A)(a)).

[5] Ibid (s 117(2A)(e)).

[6] Ibid (s 117(2A)(f)).

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Naparus & Frankham

FAMILY COURT OF AUSTRALIA

[2020] FamCAFC 32 (18 February 2020)

 

This is an appeal from all orders made by a judge of the Federal Circuit Court of
Australia determining the parties’ dispute over their child.  The appeal was granted because of procedural unfairness.

Facts:

Ms. Naparus (Mother and Appellant) filed an Amended Notice of Appeal against the orders of the primary judge that was made in reliance upon a psychiatric assessment of Mr. Frankham (Father and Respondent) presented by the Independent Children’s Lawyer (ICL), which had neither been filed or served upon the mother. 

It was her case that the father suffered from some form of psychological or psychiatric condition, exacerbating his tendency to act violently, impulsively or irresponsibly, which conduct was inimical to his unsupervised care of such a young child.   However, the primary judge was not satisfied, based on the report presented by the ICL, that the father’s mental health precluded him from parenting the child adequately and found that the mother overstated the risks of harm posed by the father.  The orders made provided for the parties to have equal shared parental responsibility and for the child to live with her in Victoria.  Provision was made for the child to spend unsupervised time with the father, but for the child to instead live with him if the mother moved to live in Western Australia, as was her expressed desire.  She was dissatisfied with both her confinement to residence with the child in Victoria and the regime providing for the child to spend unsupervised time with the father. 

The Court, on appeal, set aside the orders made by the primary judge and granted the Application in an Appeal to adduce further evidence and remitted the case back to the Federal Circuit Court of Australia for rehearing by another primary judge because of the procedural unfairness experienced by the mother. 

Issue:

Did the primary judge fail to afford the mother fair trial?

Held:

The Court, under Ss 26 of the Evidence Act 1995 (Cth) (“the Evidence Act”), have statutory power for a court to control the questioning of witnesses.   The Court should be guided that “… all the rules to cross-examination are not rules dealing with rights of parties at all, but are guidelines to judges as to how they should, in fairness, conduct trials before them…”[1]  Most relevantly, the trial judge must so exercise his [or her] discretion in and about the examination and cross examination of witnesses so that a fair trial is assured. [2]  With respect to not permitting cross-examination of a witness, “The Court has a wide discretion decide whether or not permission will be granted to cross examine witnesses. There is no right to cross examine witnesses in the course of a hearing, but rather the right of all parties to a fair trial.” [3]

The procedural unfairness experienced by the mother relates to how the expert evidence of Dr. Q was handled.  The report was belatedly furnished to her and, even though she disputed it, she was denied any opportunity to challenge the efficacy of the evidence.  Although she expressed clearly that she wished to cross-examine Dr. Q, she was denied the opportunity to do so.  In this case, there is no suggestion from the transcript or from the reasons for judgment that the primary judge purported to exercise discretionary power pursuant to s 26 of the Evidence Act to refuse the mother permission to cross-examine Dr Q. In any event, for the reasons identified, it was necessary, in order to secure the mother’s right to a fair trial, that she have the opportunity to cross-examine Dr Q.[4]

Further, the mother was denied the chance to challenge expert opinion evidence which bore upon her ability to make good her case in respect of the factual issue about the stability of the father’s psychological health.   It was held in Stead v State Government Insurance, “Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference ... It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.”[5] 

The Court has the discretion whether to allow cross-examination of witness.  Regardless of whether or not it opts to exercise its discretion, it has the duty to ensure that the parties are afforded fair trial.

 

[1] GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 (“GPI Leisure”), Young J.

[2] LGM v CAM [2008] FamCA 185 at [197]- [199], O;’Ryan J.

[3] Ibid at (208).

[4] Naparus & Frankham [2020] FamCAFC 32 (18 February 2020) at (21).

[5] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 (“Stead”) at 145-146.

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GABALIS & AKULA

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 71

 

This case involves a parenting order application filed by the mother concerning parties’ child, X.

Facts:

Parties sought parenting orders be made by the Court concerning their child, X, diagnosed with Autism Spectrum Disorder (level 2), and Sensory Processing Disorder. The Court had to decide whether X should spend time with her father.

Ms. Gabalis (Mother and Applicant) commenced the proceeding in 2016. Orders were made, among others, for the parties not to denigrate, belittle and/or insult each other, or persons the other party is in a domestic relationship with or members of the other party’s family in the presence or hearing X or on social media. However, X became resistant to spending time with Mr. Akula (Father and Respondent).  

Ms. Gabalis sought parenting orders from Court for her to have sole parental responsibility, that X (Child) to live with her, and have no contact or communication with Mr. Akula. On the other hand, Mr. Akula sought an order for equal shared parental responsibility, that X to live with her mother, and to spend time with him.  

Issue:

Whether or not equal shared parental responsibility would be in X’s best interest.  

Held:

The legislation makes it clear that the benefit of a meaningful relationship must be weighed against the potential harm to X.[1] According to evidence from Region H Children’s Development Clinic, X’s Autism Spectrum Disorder and Sensory Processing Disorder make her particularly vulnerable to changes in her life and daily routine.[2] Mr. Akula’s proposal is for X to spend time with him on a specific schedule entails changes. Thus, an order for X to spend with her father poses potential harm to her. 

In addition, the Court considers the attitudes of the parties to X and their responsibilities as parents. The Court is critical of Mr. Akula’s failure to engage more with Region H Children’s Developmental Clinic in recent years. His attitude of resistance to authority is disconcerting. His breaches of the orders about social media speak of an attitude suggesting indifference to compliance with court orders. The Court has doubts whether he would comply with orders governing his conduct around X.

The Court determines that it is not in the best interest of X for her parents to have equal shared parental responsibility. Their relationship is a toxic one. They cannot communicate, and they do not trust each other.  

After considering the above premises, the Court made orders for Ms. Gabalis to have sole parental responsibility for X, for X to live with her, and for Mr. Akula be restrained by injunction from posting on any social media platform anything that relates to Ms. Gabalis, X, and the proceedings, among others.

 

Mr. Akula used social media, particularly Facebook, to vent out his frustrations over the breaking down of his relationship with his daughter. By doing so, he harassed Ms. Gabalis and violated Court orders. As a result, this not only made the Court doubt his capability to respect and follow court orders; he also lost his chance to restore his relationship with his daughter. 

 

[1] Gabalis & Akula [2020] FCCA 71 (23 January 2020) at (97).

[2] Ibid at (107).

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SAYER & CABELLO

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 104

 

This case involves an application that relates to both parenting and property matters following the breakdown of the parties’ 10-year relationship.

Facts:

Parties have a four-year-old son (X) who has special needs.  He has been diagnosed with Autism Spectrum Disorder (ASD), global developmental delay, sensory processing issues and severe language disorder.  In relation to parenting matters, Mr. Sayer (Father and Applicant) sought orders for equal shared parental responsibility for X, that X live with Ms. Cabello (Mother and Respondent) and spend unsupervised time with him for two nights per week.  On the other hand, Ms. Cabello sought sole parenting responsibility and that X spend no time with his father. 

Regarding property, Mr. Sayer argued that the credit cards/personal loans and taxation liabilities are their joint liabilities and should be paid prior to the equal division of their assets.  Ms. Cabello sought that Mr. Sayer be personally responsible for the credit card and personal loans taken out in his sole name during the relationship, as well as his outstanding taxation liabilities.  

Held:

Parenting:

  1. Whether or not equal shared parental responsibility will be in the best interests of X.
  2. Whether or not equal shared time or substantial and significant time is in X’s best interest.

The Court made orders that the mother have sole parental responsibility for X, that X live with her, and that he spends supervised time with his father each Saturday from 10:00 a.m. until 4:00 p.m.

Equal shared parental responsibility

Section 61DA of the Act provides that the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them.  However, this presumption is rebutted if there are reasonable grounds to believe that either of the parents have engaged in abuse of the children or family violence or where there is evidence that it would not be in the children’s best interests for the parents to have equal shared parental responsibility for their children.  In the circumstances of the case, it is apparent that it is not in X’s best interests for his parents to have equal shared parental responsibility as they are unable to communicate, and the father does not agree with the diagnoses of X’s special needs.  Hence, orders were made for Ms. Cabello to have sole parental responsibility for X.

Equal shared time or substantial and significant time

Whether or not an order is made for equal shared parental responsibility, the Court should still consider whether equal time or substantial and significant time is in the child’s best interest.[1] Given the facts, the Court found that the father poses a risk to X if he were to spend extended and unsupervised time with him.  He father is unable to accept X’s diagnosis and that he must parent X in the manner recommended by his treating specialists and therapists.  The Court made orders for the father to only spend limited time and not on weekdays to ensure that X’s current therapy and current weekly arrangements are not interrupted.

Property:

  1. Whether or not the credit card/personal loans and taxation liabilities are parties’ joint liabilities.

Credit cards/personal loans/taxation debts at separation

It appeared that Mr. Sayer made investments in relation to real estate and possibly shares with the view to improving and enhancing the parties’ financial circumstances.  The Court’s detailed examination of the bank statements and source documents in relation to the parties’ property transactions have to a large extent clarified how those properties were purchased and where the funds came from to enable the investments to take place.  Their property dealings have resulted in a net gain.  Hence, the Court was satisfied that the liabilities incurred should be considered joint liabilities of the parties and should be included in the pool of assets and liabilities of the parties.

 

[1] Goode & Goode [2006] FamCA 1346.

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PALMA & MURPHEY

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 120

 

This is the determination of the father’s application for costs, seeking an order for the maternal grandmother to pay his costs in responding to her Contravention Application.

Facts:

Ms. A Murphey (Maternal Grandmother and Respondent) filed a Contravention Application against Mr. Palma (Father and Applicant) as the latter had not been willing to negotiate a change in the orders of the Family Court of Australia.  The Contravention Application was dismissed after the Court determined that the paternal grandmother’s evidence in support of the filed application did not prove alleged contraventions.  Mr. Palma then filed an application for costs, seeking for Ms. A Murphey to pay his costs in responding to the Contravention Application. 

Issue:

Should the Court make orders for costs as sought by Mr. Palma against Ms. A Murphey?

Held:

The Court held that it would not be just for it to make an order of costs against Ms. A Murphey.

The Court referred to section 117 of the Act,[1] which relates to costs.[2]  Under the said section, it is provided that each party to proceedings under this Act shall bear his or her own costs. 

Further, Ms. A Murphey asserted that she does not have the funds to pay for Mr. Palma’s legal fees.  Moreover, she asserted that she had no choice but to file the Contravention Application as Mr. Palma had not been willing to negotiate a change in the orders of the Family Court of Australia.  Finally, the Court acknowledged that Ms. A Murphey’s Contravention Application led the Court to make variation orders under section 70 NBA (1)(b)(i) of the Act.  Hence, with these circumstances, the Court dismissed Mr. Palma’s Application.

 

Section 117 of the Family Law Act provides that each party to proceedings under this Act shall bear his or her own costs.  In addition, given the circumstances of Ms. A Murphey, including her financial circumstance, it is not just for her if she would be made to pay Mr. Palma’s court costs.

 

[1] FAMILY LAW ACT 1975 - SECT 117 Costs.

[2] (2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

  1. the financial circumstances of each of the parties to the proceedings;
  2. whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
  3. the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
  4. whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
  5. whether any party to the proceedings has been wholly unsuccessful in the proceedings;
  6. whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
  7. such other matters as the court considers relevant.
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A Brisbane mother who was set alight with her three young children "did everything she could to protect" them from her estranged husband.

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CHAU & CAO (NO. 2)

FAMILY COURT OF AUSTRALIA

[2019] FamCAFC 254

 

This is an appeal filed by the wife from orders made by the primary judge dismissing her application for property settlement.

Facts:

Ms. Chau (Wife and Appellant) filed a Notice of Appeal[1] against final property settlement orders made by the primary judge that dismissed her application for property settlement orders filed in 2014 and discharged an order made by a judge of the Federal Circuit Court of Australia restraining Mr. Cao (Husband and Respondent) from selling or otherwise dealing with real property and any of his investment shares.  Ms. Chau’s appeal was based on the grounds that the primary judge gave too little weight to her parenting contributions from the birth of the parties’ child in December 1991 until June 1993; that the primary judge was in error when she failed to take into account the growth of Ms. Chau’s contribution of $360,000 for 15 years; and that Mr. Cao controlled all the investments in Australia.

Relevant to the appeal is the fact that the parties agree that between 1996 and 1998, Ms. Chau sent a total of $360,000 of her funds to Mr. Cao in Australia to invest on her behalf.  There was no dispute that these funds were placed in bank accounts under Ms. Chau’s name in Australia.  Mr. Cao had returned a total of $435,680 to Ms. Chau, which is $75,680 more than the amount she had given him to invest on her behalf.

Issues:

  1. Did the primary judge give little weight to Ms. Chau’s parenting and homemaking contributions?
  2. Did the primary judge fail to take into account the growth of Ms. Chao’s contribution of $360,000 for 15 years and that Mr. Cao controlled all of the investment in Australia?

Held:

  1. As held in the case of Gronow v. Gronow,[2] a different view by an appellate Court only as to matters of weight will not justify a reversal of the decision of the primary judge.  After consideration of the fact that the parties jointly cared for their child until Mr. Cao returned to Australia in 1993[3], that Mr. Cao made almost all of the relevant parenting contributions,[4] that Ms. Chau did not pay child support or contribute to the enterprise of the family and the support of the child,[5] the primary judge found that Ms. Chau did not make a direct financial contribution and neither did she make a homemaking and parenting contribution which justifies recognition.  Further, the primary judge did not find that she made any indirect contribution to the acquisition, conservation, or improvement of the assets, particularly, to the accumulation of Mr. Cao’s superannuation entitlements.[6]  It is clear that the primary judge accepted that Ms. Chau made homemaking and parenting contribution, but in the circumstances concluded that they do not warrant recognition in a property adjustment order. 
  1. There was no dispute that Mr. Cao controlled Ms. Chau’s money and comingled these funds with his own.  However, it is undisputed that Mr. Cao returned the investment together with further amount of $75,680.  There is not doubt that the primary judge took account of the growth of the funds before the repayment by Mr. Cao.  Further, Ms. Chau made no argument before the primary judge that the repayment by Mr. Cao to her did not represent a proper return of the original investment together with interest, which is now not available for Ms. Chau to raise on appeal.[7]

 

Ms. Chau did not attempt to specify what weight should have been given by the primary judge to her parenting contribution, nor to quantify how such a contribution should have been reflected in any property adjustment order.  Further, she was unable to articulate how an exercise in the nature of an accounting would have resulted in any different result before the primary judge.   Hence, the Court dismissed Ms. Chau’s appeal because it found no merit in its grounds.

 

[1] EA 31 of 2019.

[2] Gronow v Gronow (1979) 144 CLR 513 at 519.

[3] Chau & Cao [2019] FamCA 97 (27 February 2019) at (160).

[4] Ibid at (161).

[5] Ibid at (162).

[6] Ibid at (167).

[7] Metwally v University of Wallongong (1985) 60 ALR 68.

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In this case, the Court is asked to make orders for the parties’ younger children’s time with the father to gradually increase to equal time.

Facts

Ms. Crisp (mother and applicant) and Mr. Crisp (father and respondent) come to Court seeking parenting arrangement, particularly for Y and Z.  Parties have very poor capacity to communicate.  They have negative and adverse view of each other, both as parents and as people, and their children have been caught up in a high conflict matter.  W and X do not spend time with their father.  Y and Z spend time with their father for four nights per fortnight.  The father seeks an order for equal time.

The Court ordered that the parents have equal shared parental responsibility for the four children.  It also made an equal time order for Y and Z that commences at the start of the second school term in 2022.  Prior to 2022, the time the children currently spend with their father will be increased at the commencement of the second term of school in 2020 and 2021 by an additional one night per fortnight.

Issue:

Whether or not it is in the best interests of Y and Z to spend equal time with their parents.

Held:

The Court held that Y and Z would benefit from living in an equal time parenting arrangement with their parents.  The Court explained that a slow but important increase in time will allow the children to adjust to living in both parents’ households, will permit the parents to see how the children adjust, and persuade both W and X to spend some time with their father at his home. 

The Court must turn to the factors under section 60CC of the Act[1] in determining which order is in the children’s best interest.  The primary considerations under section 60CC (2) are:

  1. the benefit to the child of having a meaningful relationship with both of the child’s parents; and
  2. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.

Y and Z benefit from a meaningful relationship with each of their parents.  Their closest emotional attachment has been their mother.  However, they have a strong relationship with their father and a desire to spend more time with their father.  On the other hand, neither can promote a positive attitude in the children towards the other parent, and they each have their reasons for this; yet, each of them can provide for the children’s emotional and psychological needs. 

 

Although there are negative aspects which militates against an equal time order, such as poor and conflicted parental communication, lack of respect by each parent of the other as a parent of the children and as a person generally, high conflict, different rules in the parents different households, different household priorities and standards, different attitudes to what is best for the children, and for Y and Z, knowing their elder siblings spend no time in their father’s home, the Court crafted the orders for Y and Z to continue their all-important relationship with their father.  It is hoped that by Y and Z continuing their relationship with their father, and time with their father increasing, their father making some positive changes in his attitude to their mother, that W and X will seek to resume some form of relationship with their father. 

 

[1] FAMILY LAW ACT 1975 - SECT 60CC

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MOLKENS & ANSELL

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 37

 

This case involves the alienation of children by one parent against the other.

Facts:

In this case, the Court is asked to make parenting orders concerning their four children: Z, 15 years old, W, 13 years old, Y, 12 years old, and X, 10 years old.  Ms. Molken (Mother and Applicant) was concerned that Mr. Ansell (Father and Respondent) was alienating all the children from her.  On the other hand, Mr. Ansell was concerned about Ms. Molken's husband and the quality of housing provided to the children. 

Issue:

  1. Whether or not the presumption of equal share parental responsibility is in the best interests of the children.
  1. What is in the best interests of the children in this case?

Held:

  1. The legislative framework mandates that when making a parenting order, the court must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility. This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not the children’s best interests for it to apply. [1]   In this case, the judge decided that the presumption of equal shared parental responsibility would not be in the best interests of the children given the difficulties experienced by the parties in communicating and making decisions together.
  1. Further, in determining the child’s best interests, the court should consider the following:

                 (2)  The primary considerations are:

(a)   the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.[2]

The judge found that the father has systematically undermined the mother’s parent/child relationship and enticed the children to reject their mother, as shown by Z’s physical and verbal aggressiveness towards his mother, his refusal to communicate with her, and his offensive Facebook comments against his mother.  The judge found the father have involved the children throughout the dispute and failed to promote relationships between the children and their mother.  The judge was satisfied that there is a real risk that if the children continued living primarily with the father, the relationship of the three children would go the same way as that of Z.

In the issue of risk of harm, the judge was satisfied that the children are not at any risk of physical or psychological harm in the care of their mother or her husband.  However, the judge had concerns that the children would be subject to psychological or emotional harm in their father’s care, given his involvement of them in the dispute and his deliberate attempt to align the children with him.  The judge decided that the risk could be mitigated if the children spent shorter periods with the father.

Hence, the judge held that it is in the best interests of Z to live with his father, while the other three children live with their mother. 

 

The Family Law Act 1975 provides that it is in the best interests of the children if they have a meaningful relationship with both of the parents.  In this case, the father alienated the children from their mother and failed to promote the relationship between them.  The Court found that living with the father is not in the best interests of the children; thus, the Court retained Z under his father’s care and the other children were ordered to live with their mother.  The Court ordered a moratorium of six-weeks to allow the children to settle into the mother’s primary care again free from the negative comments by the father. 

 

[1] Molkens & Ansell [2020] FCCA 37 (14 January 2020) at (9).

[2] FAMILY LAW ACT 1975 - SECT 60CC.

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SOTTO & HENSLEY

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 32

 

This case involves an Application to stay the operation of an order allowing the change of name of the child.

Facts:

Mr. Sotto (Father and Applicant) filed an application before the Federal Circuit Court of Australia to stay the change of name order that allowed Ms. Hensley (Mother and Respondent) to seek a change of name on behalf of their daughter.  Mr. Sotto was concerned that if the orders are not stayed, the change of name will be implemented, and it will significantly prejudice his case in the appeal, making it nugatory.

Issue:

Whether or not the Application for stay of name change orders should be granted.


Held:

The circumstances that will justify an order for a stay will naturally vary from case to case. The strongest ground is usually the real risk that to deny a stay will render a successful appeal nugatory or will make it impossible or impracticable to restore the situation presently existing.  Further considerations that may properly be taken into account in deciding whether to grant a stay include the grounds and merits of the appeal.[1]

Regarding the appeal, the judge stated that it is not rendered nugatory by the non-granting of the stay.  If the stay is not granted, and the appeal is successful, then the mother will be ordered to change the name back. There is no practical impediment to that occurring. 

Although the views of the judge are no way determinative of the appeal, which will be a matter for the Appeal Court, the judge was unpersuaded that the chance of success on appeal is good.  The judge sees the child’s correspondence deeply disturbing and incontrovertible.  The child’s material presented to the Court suggests that it is causing her acute discomfort, to put it at its lowest, to be having the surname that she presently has.  The child’s wishes, in the judge’s view, bear significantly upon the matter.  With these circumstances, the judge declined to grant the application for stay of change of name order.

 

In this case, the judge gave weight to the desire of the child to change her name to that of her mother’s.  As per the judge, “The authorities make it clear that the question of a change of name is all about the child’s best interests first and last. She has obviously aligned herself with her mother and her mother’s family’s name. For reasons not, to my mind, entirely clear, she has a surprising detestation and disturbing detestation of her current surname, but, in my view, her views should prevail and her name should be changed to Hensley, for all the difficulties that might reasonably be thought to potentially engender.”[2] 

 

[1] CCH Family Law in Practice Volume 2, at paragraph 53.330.

[2] Sotto & Hensley [2019] FCCA 3358 (23 October 2019) at (18).

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  • Rose Flast Hi! In this case, the child is 13 years old. :)

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    • April Lockhart Rose Flast ya totally appropriate my daughter is 14 and wants hers change due to her father being absent.

       

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      • Rose Flast April Lockhart That must be hard for her not seeing her dad.
        However, that will entail legal processes. In case you need information regarding that or any matter regarding family law issues, you may want to join FLAST. You can ask questions or join discussions with other members who are legal professionals or who have legal experience, without giving legal advice. Here's the website: www.flast.com.au.

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        Can my ex-wife be estopped from denying an agreement exists?

        I entered into a Private Property Agreement with my wife as part of our Family Law process.

        In order to gain 50/50 access to children etc, my ex-wife demanded and induced me into a Private Agreement that:

        I refinance the matrimonial home into my name and provide her 50% of the equity upon refinance ($90k).

        All matrimonial debt is consolidated into my name for me to pay with no percentage awarded against her even though the financial split, as determined by my lawyers, was 68/32 my way.

        As a result, in performance of my obligations under that agreement and in reliance of that agreement that we would settle property by consent, I refinanced the house into my name, paid her $45k, assumed all debts into my name and paid all transfer and conveyancing costs.

        My ex-wife has now said she will not honour our agreement and will not settle the property.

        Can I estop my ex-wife as part of 'equity law' due to her denying an existing agreement? I have emails and text messages that support my position.

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        PULLMAN & GARAFOLO

        FAMILY COURT OF AUSTRALIA

        [2020] FamCA 3

         

        In this case, the Court determines whether equal shared parental responsibility would be in the best interest of the child.

        Facts:

        In an Amended Initiating Application, Mr. Pullman sought sole parental responsibility for the child, for the child to live with him, and for the mother to spend time with the child subject to her engagement with a mental health professional to receive appropriate treatment. On the other hand, Ms. Garafolo sought sole parental responsibility for the child and for the child to live with her. She maintained her allegations of serious sexual impropriety against Mr. Pullman, seeking orders that the child has no time with the father if the Court determines that the father was an unacceptable risk to the child.

        The focus of the trial was on the allegation of sexual misconduct against Mr. Pullman and the state mind of Ms. Garafolo. Dr. C, a psychiatrist, gave evidence about an assessment that he had made of the parties. Dr. C concluded that Ms. Garafolo was likely suffering from a postnatal depressive illness and a delusional disorder and did not consider that the father had a personality disorder, nor that he represented any risk to the child from a psychiatric perspective. Dr. H, a forensic psychologist, reported the same finding. Ms. Garafolo then changed her position and no longer pursued that Mr. Pullman posed as an unacceptable risk to the child and no longer pressed allegation of sexual impropriety. However, she maintained that she should remain the primary carer of the child. Her position then changed to the child to continue living with her, and spend gradually increasing time with the father, and that there should be shared parental responsibility.

        Issue:

        Is it in the best interests of the child for the parents to have equal shared parental responsibility?

        Held:

        The Court held that the statutory presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility (s 61DA(1))[1] does not apply: s 61DA(2).[2]  The Court regarded the bitter relationship between the parties and considered that it would not be in the best interests of the child for her parents to have equal shared parental responsibility. Based on the evidence of Dr. H, the parties are not capable of the level of communication and cooperation, which would allow joint parental responsibility. Hence, the Court gave sole parental responsibility for the child to Mr. Pullman and ordered for the child to live with him.

        A parenting order[3] may deal with matters including with whom a child is to live, the time a child is to spend with another person, and the allocation of parental responsibility for a child. The paramount consideration when making a parenting order is the best interests of the child or children.  

         

        [1] (1) When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

        [2]  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

              (a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

              (b) family violence.

        [3] Defined in 64B of the Act.

         

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        • Sanjoy Kumar Mukherjee Adv Rose Flast sure would love to . Any legal issue/s only enhances our faculties in the subject matter. Thank you so much.

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          • Williams Yo Excellent. Would be nice to know if precedence can be used.

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            • Phoebe Grace Right decision.

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              ALBERT & PLOWMAN

              FAMILY COURT OF AUSTRALIA

              [2020] FamCAFC 23

               

              In this case, the mother appealed[1] against the final parenting orders made by a judge of the Federal Circuit Court of Australia providing that the child live with the father, spend time with her, and restraining contact between the child and her partner’s son. 

              Facts: 

              As a background, the child was born in 2013. The parties separated when the child was about four months old. Proceedings between the parties in respect of the child under Part VII of the Act[2] concluded in March 2016. The Federal Circuit Court made consent orders for the child to live with the mother, for him to spend substantial time with the father, and for the parties to have equal shared parental responsibility for him. Ms. Albert commenced fresh proceedings because the parties and the Independent Children’s Lawyer (ICL) accepted that the existing offers were not working and no longer served the child’s best interests. Ms. Albert was then proposing to relocate with the child where her new partner resides, while the father intended to remain living in the Suburb C area. Interim parenting orders were made in March 2018, which restrained Ms. Albert from moving the child’s residence and compelled her to ensure his continued attendance at the pre-school where he was then enrolled. The following month, in April 2018, the child disclosed to Mr. Plowman’s new partner that Ms. Albert’s new partner’s teenage son (A) had sexually assaulted him. In response to the child’s disclosure, the father petitioned the Court for fresh interim parenting orders to reverse the child’s residence and restrain the child’s contact with A. Judgment in respect of the father’s interim application was reserved. Still, the parties agreed to implement what the trial judge described as “a shared-care arrangement” in the interregnum. Police notified the parties in June 2018 that no prosecution would result from the investigation of the sexual abuse allegations made against A, due to the insufficiency of evidence.

              Consequently, the trial judge formally dismissed the father’s pending application for revised interim parenting orders and left in place the existing consent orders for the parties to have “shared care” of the child. The trial continued and pronounced orders, the subject of Ms. Albert’s appeal, in December 2018. The appeal was dismissed by the Court.

              Issues:

              Whether or not the orders of injunction to restrain contact between the child and A be imposed.

              Held:

              The question for the trial judge was how to deal with any residual risk of harm posed by A to the child. Considering that the risk of harm exists, the trial judge compared the protective capacity of the parties. The trial judge found the father was more protective of the child than the mother. This was based on the considerations, which are Ms. Albert’s dismissive attitude to the sexual abuse allegation against A reported to her and her subsequent willingness to have A attend a family party at which the child would also be in attendance even though there was an existing injunction precluding the child’s contact with A. According to the evidence before the trial judge, the mother did nothing at all to protect the child from A after she learned of the initial sexual abuse allegation against A in April 2017. There was no evidence she did anything to monitor or regulate the child’s interaction with A until April 2018.
              Essentially, the trial judge concluded the possibility the sexual abuse had occurred, and the risk it might re-occur could only be adequately managed by an injunction because the mother’s dismissive attitude to the allegations meant her capacity to protect the child was diminished.

               

              The trial judge weighed all the evidence presented to him in making the parental orders, and he did not put excessive weight on the sexual abuse allegation alone. The parent’s protective capacity is only one of the factors considered by the Court. The Court will still render judgments or orders in favor of child welfare, safety, and best interests.

               

              [1] EA 8 of 2019

              [2] Family Law Act 1975.

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              • Nick Odoherty Shit loads more women out there that see their kids as nothing more than why the government gives them money , ITS ABOUT TIME MALES GENUINE CONCERNS ABOUT THE CARE , PPL AROUND THEIR CHILD IS TAKEN SERIOUSLY , OR end the child support , if men only equate to money in the child's life and has no say in what his on around their children how the fuck is it not understandable to not pay some chicks way , as money rarely ends up spent on child , and the child needs more than money and this little tacker sounds to be all alone is someone else's family and not their own , MEN ARE ACCUSED YET NITHING NEEDS TO BE PROVEN , TIME IT GOS FOR BOTH GENDAS

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                • vGavan Smith My kids mum just talked my kids out of week on week off, she let us have a trial, telling me not to tell centrelink. Kids loved it, did it for about 3 months, but, with their mum listening, a few weeks ago, they said they wanted to go back to every other weekend. Kids have since told me it was mums idea, and they want to keep doing it. 12, and 13, yr old.

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                  Does smacking children create an unacceptable risk of harm?

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                  HAAK & JUSIC

                  FEDERAL CIRCUIT COURT OF AUSTRALIA

                  [2020] FCCA 45

                   

                  This is a case wherein the mother who has borderline personality disorder (BPD) accepted the Single Expert’s opinion that the parties’ child’s safety requires supervised time with the mother.

                  Facts:

                  Not long after the birth of the parties’ child, Ms. Haak (Mother and Applicant) and Mr. Jusic (Father and Respondent) separated.  Thereafter, the Department of Family and Community Services (FACS) placed the child in the care of the father.  There was supervised time between the mother and the child.  On 2017, interim orders were made, giving the father sole parental responsibility and required the child to live with the father. The mother was to have 5 hours of supervised time with the child per week.  The mother’s Initiating Application sought equal shared parental responsibility and for the child to return to live with her and spend time with the father for daytime visits 3 times per week and on special occasions.  At the end of the hearing, during oral submissions the mother accepted the evidence of the expert and that the present arrangement should not substantially change.  

                  Issue:

                  Whether or not the orders made were in the best interests of the child.

                  Held:

                  The Court, accepting the Single Expert’s opinion, ordered the father to have sole parental responsibility for the child and for the child to live with his father.

                  The paramount consideration is the child’s best interests taking into consideration the factors set out in s60CC[1]

                  In this case, the judge considered these two primary considerations, in order of weight:

                  • the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
                  • the benefit to the child of having a meaningful relationship with both of the child's parents.

                  For the first consideration, the judge agreed with the ICL that having the child live with the father and only allowing supervised time with the mother is firstly and primarily protecting him.  For the second consideration, the judge was satisfied that a meaningful relationship of the child with her mother can be safely achieved and afforded through the use of supervision.

                  In many cases, the Court, in making parental orders on the parties' child/children, is directed by the laws and rules to consider the child/children's best interest, first and foremost.  In this case, the judge not only ensured that the child is protected from physical or psychological harm but also ensured that the child will still have a meaningful relationship with his mother.

                   

                  [1] FAMILY LAW ACT 1975 - SECT 60CC How a court determines what is in a child's best interests.

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                  • Loz Derbyshire Erica Cox ahhh I see so it's his fault he is like that? Trying to use his mental health to label him a bad parent? Its women like you that give the rest of us a bad name! You do know bpd can be hereditary? I pray ur daughter doesn't get it with a mother like you.

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                    • Loz Derbyshire Both my brother and sister have this and they are amazing parents and I show signs of it. Yet again discrimination against mental health boils my piss!!!

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                      • Storm Elexandria Glassheart Studies have shown that with adequate treatment (particularly DBT) 50% of BPD sufferers experienced no symptoms after 10 years. So not totally "incurable".
                        I just wanted to put that out there for other parents suffering from this disorder. You're not inherently bad because you suffer from mental illness, even if the other parent tries to spin it that way :)

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                        GLADWELL & GLADWELL
                        FAMILY COURT OF AUSTRALIA
                        [2020] FamCAFC 16 

                         

                        This case involves the issue involving the child’s best interests and the mother’s Application in an Appeal seeking to expedite appeal against final parenting orders that concern the parties’ seven-years-old child.[1]

                        Facts:

                        As background, this case sprang from the action filed by Mr. Gladwell (Father and Respondent) for the issuance of parenting orders that are in the best interests of the parties’ child.  During the trial before the primary judge, Ms. Gladwell made allegations of family violence against Mr. Gladwell, [2] which the primary judge found otherwise.[3]  It was determined that Ms. Gladwell (Mother and Applicant) involved the child in her reporting of the alleged family violence to the police.  The primary judge found that there is a risk that Ms. Gladwell’s entrenched suspicion of the father and action may impact upon the child’s relationship with the father.[4]  While the judgment was reserved, parties applied for the final hearing to be reopened.  This time, the concerned events predominantly relate to Ms. Gladwells involvement of the child in further interviews with police and disputation between the parties concerning the child’s health.[5]  The primary judge made orders providing for the child to live with Mr. Gladwell and for the latter to have sole parental responsibility for him.  It also provided for the child to spend five nights per fortnight during the school term with his mother and half of the school holidays.

                        Ms. Gladwell (Mother and Respondent) filed a Notice of Appeal against the final orders made by the primary judge  In her appeal, Ms. Gladwell raised the following grounds: First, she challenged the adequacy of the trial reasons concerning the application of s60CC(3)(d).  Second, the primary judge erred by ordering that the child live with the father and that the father have sole parental responsibility as the decision was based on insufficient evidence.  She abandoned the ground challenging the orders which operate to restrain her from presenting her child to the police, other than in case of an emergency, as this is inconsistent with her Application to expedite the appeal.

                        Issue:

                        Whether or not best interest of the child was served when the primary judge ordered that the father shall have sole parental responsibility upon the child, and that the child shall live with his father and spend time with his mother.

                        Held:

                        Section 60CA of the Family Law Act of 1975 provides that in deciding whether to make a parenting order in relation to a child, a court must regard the best interest of the child as the paramount consideration.

                        The primary judge found it is in the best interest of the child to live with the father and for the father to have sole parental responsibility upon the child based on the evidence presented during the trial.  It was determined that Mr. Gladwell had not engaged in family violence as opposed to Ms. Gladwell’s allegations.  He also found that Ms. Gladwell’s evidence in support of some of the allegations was “strongly misleading” and “highly inconsistent” and that she demonstrated a troubling lack of insight as to the consequences of taking the child to the police.  Ms. Gladwell also has a history of non-compliance with Court Orders, particularly the orders relating to medical treatment and time with the father. 

                         

                        In the matter of the application seeking for the expedition of the appeal:

                        1. While there is no provision in the Act or the Rules which specifically sets out the criteria for deciding expedition of an appeal, r 12.10A of the Rules deals with expedition applications in relation to trials. The criteria contained in that rule provides useful guidance for the approach to be adopted when determining expedition of an appeal, over and above consideration of the merits of the proposed appeal.[6]
                        2. The Court opined that although it accepted Ms. Gladwell’s evidence that the child’s behavior, which she attributed to separation from her, creates genuine concern for her, the child’s behaviors reflect transition only.  The Court cannot see that bringing the appeal earlier than ordinary would likely result in a material change in the child’s emotional welfare in that period.  On the other hand, Ms. Gladwell’s health condition may constitute a relevant circumstance in the application to expedite appeal.[7]  However, the Court found that although her health issues weigh in favor of expedition, they are not so persuasive to outweigh other matters which do not support it.  There is insufficient evidence before the Court that will show that hearing the appeal earlier would make any difference to her diagnosis or ability to deal with it.

                         

                        [1] EA 121 of 2019.

                        [2] Ibid at (8).

                        [3] Ibid at (8).

                        [4] Gladwell & Gladwell [2019] FamCA 731 (14 October 2019)

                        [5] Supra at (9) to (10).

                        [6] Supra at (16).

                        [7] (4)  For paragraph (2)(d), a relevant circumstance includes:

                                  (a)  whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness.

                         

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                        • Shari DaCalamari Damned if you do, damned if you dont!! It's always a lose-lose situation in this system. Don't report concerns and you are neglectful, do report and you're abusive.

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                          • Rose Flast It wouldn't be a lose-lose situation if a party is prepared and has strategic plans on how to go about his/her legal battles. That is what FLAST is here for. We prepare our members through webinars and training programs that guide them through the family law processes. If you are in the same or similar situation, consider joining FLAST and be well-informed and prepared for family law legal cases. Visit our website at www.flast.com.au. :)

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                            • Certified Sammy Rose Flast Thankyou I have found many of your articles on your page useful
                              This article was particularly interesting
                              I found this case very interesting as the mum went to the police with the child but the judge ironically used that against her and punished her by the judge abusing her power
                              Which was extreme

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                              HARRISON & HARRISON

                              Family Court of Australia

                              [2019] FamCAFC 261

                               

                              This is an appeal case against the final parenting orders made by a judge of the Family Court of Australia, which gave sole parental responsibility and custody to the children’s mother and the two younger children only to spend time with their father at specified times.

                              Facts:

                              Mr. Harrison (Father and Appellant) filed an Amended Notice of Appeal, supported by the Summary of Arguments that covered much the same points as the Amended Notice of Appeal, against the final parenting orders made in the Federal Circuit Court of Australia, which provided for Ms. Harrison (Mother and Respondent) to have sole parental responsibility and that they live with her, and that the two younger children (Y, born 2019, and V, born 2013) spend time with their father at specified times.  No orders were made in relation to the eldest child (Q, born 2003).  The orders were made based on the primary judge’s conclusion that Ms. Harrison posed no risk to the children of physical or emotional harm and finding that Mr. Harrison’s conduct in embroiling the children in the dispute with Ms. Harrison have the potential to damage the younger children’s relationship with their mother.[1]  The appeal against the orders was dismissed, and the father was ordered to pay the respondent mother’s costs of and incidental to the appeal fixed.

                              Issue: 

                              Whether or not one or the other parent posed as an unacceptable risk to the children in his or her care.

                              Held: 

                              The Court agreed to the finding of the primary judge that Mr. Harrison had been emotionally abusive to his children and presents an ongoing risk of harm to them.[2]  Mr. Harrison was found to have told Y to lie about being physically and emotionally abused by his mother during an interview with the Family Report Writer, the Department of Health and Human Services Victoria (DHHS) and other parties.  The primary judge found that Mr. Harrison’s conduct toward the children, especially to Y, was harmful, and that he not only exposed, but also involved them in his conflict with Ms. Harrison.    Hence, Mr. Harrison was found to have posed as an unacceptable risk to the children.

                              The Amended Notice of Appeal was supplemented by the Summary of Arguments, which the Court found to have covered the same points.  The Court found the Summary of Argument merely repeating the ground of appeal.  In the case of Bahonko v Sterjov[3], the Full Court of the Federal Court of Australia held that:               

                              “Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error. This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable (sic) error.”

                              Hence, as neither written or oral submissions supported appealable error or any proper basis for challenging the primary judge’s orders and the ground of appeal did not appear to raise any question of general principle, the Court dismissed the appeal. 

                               

                              [1] Harrison & Harrison [2019] FamCAFC 261 (20 December 2019) at (7)

                              [2] Ibid at (341)

                              [3] Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415

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                              • Ronald Masilo but women do that all the time ,what an evil man

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                                • Natalie Sutherland Aslo lieing in court papers should be looked at to

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                                    BAUKHAM & PITRESSO

                                    Family Court of Australia at Sydney

                                    [2020] FamCAFC 3

                                     

                                    Ms. Baukham filed an Application in an Appeal to expedite her appeal[1] against certain final parenting orders made in the Federal Circuit Court on September 13, 2019, particularly the orders allowing Mr. Pitresso (Father and Respondent) to spend time with their child, which were stayed pending the outcome of the appeal.

                                    Facts:

                                    As background, Ms. Baukham filed a Notice of Appeal[2], seeking to have the September 13, 2019 orders set aside.  In the appealed order, the primary judge gave significant weight to the family consultant’s opinion, in a Family Report[3], which expressed that the child would benefit from spending four nights per fortnight with Mr. Pitresso and otherwise live with her other, and that time with him could increase to five nights per fortnight after a couple of years.  The primary judge determined that there was mutual family violence during the parties’ relationship and that the existing Apprehended Violence Order (AVO)[4] “might help” to moderate the father’s behavior.[5]  Further, the primary judge found that the father did not pose an unacceptable risk of sexual harm to the child.[6]  Moreover, the primary judge found no risk of emotional or psychological harm to the child in spending time with her father.[7]  Ultimately, the primary judge determined that it was the child’s best interest for her to spend time with her father.[8]  On her appeal, Ms. Baukham argued that the primary judge erred by failing to give sufficient weight to the concerns and risk factors she identified and by relying on an outdated Family Report.[9]

                                    Issue:

                                    Whether or not an order for expedition should be made.

                                    Held:

                                    Under the Family Law Rules 2004 (Rules)[10], a party may apply to expedite the first day before the Judge and may take into account:

                                    1. whether the applicant has acted reasonably and without delay in the conduct of the case;
                                    2. whether the application has been made without delay;
                                    3. any prejudice to the respondent; and
                                    4. whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.

                                    For subparagraphs a and b, Ms. Baukham lodged her application for expedition in a timely manner[11]; hence, these subparagraphs weigh in favor of an order for expedition.  For subparagraph c, Mr. Pitresso supported the expedition and had not deposed to matters that would support a submission concerning prejudice to him if an order of expedition were made.[12] 

                                    The Rules provided for relevant circumstances under subparagraph d[13] the court considered (d) to be most relevant to Mr. Pitresso, which is concerned with the hardship caused to a child by the continuation of the stay order.  Mr. Pitresso’s submissions focused on the impact of the cessation of the current arrangements relating to his time with his daughter.  The expedited appeal is said to have the effect of reducing the potential for an emotional upset for the child. 

                                    The Court found the factors justify expedition of the appeal; hence, the Court ordered for the expedition of the appeal.

                                    The Court held, after considering factors, that the matters that go to the welfare of a young child and her ability to spend time with her father in accordance with orders, which the primary judge was satisfied, are in her best interest, and which are presently stayed, tips the balance in favor of expedition. 

                                     

                                    [1] EA 100 of 2019; filed on December 5, 2019

                                    [2] Baukham & Pitresso [2020] FamCAFC 3 (9 January 2020) at (22)

                                    [3] Ibid at (16)

                                    [4] Ibid at (11)

                                    [5] Ibid at (18)

                                    [6] Ibid at (19)

                                    [7] Ibid at (20)

                                    [8] Ibid at (21)

                                    [9] Ibid at (23)

                                    [10] Rule 12. 10A of the Family Law Rules 2004 (Cth)

                                    [11] Supra at (28)

                                    [12] Supra at (30)

                                    [13] Family Law Rules 2004 - Rule 12.10A (4)

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                                    • Rose Flast No, it was not just "dished out". The AVO was issued to protect the mother from the father's behaviour.

                                      Your interest in the details of the case tells me that you are interested in cases like this. I suggest that you join FLAST for more cases readings. Not only that. You can also join discussions and share your views and ideas with other members. And you can gain access to information, ask questions and get answers, and to our other services. Consider joining FLAST. Here's the link: https://flast.com.au/page/create-account:)

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                                      • Andrew Putnam Thanks I appreciate that Rose. Having lived it I prefer to only get into this stuff occasionally. :)

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                                        • Rose Flast Andrew Putnam The more reason that you should engage in these matters. Not only will it train and keep you abreast with current court rulings and issues that may be useful in situations that require legal knowledge, who knows, you might be able to help others who are going through same or similar experience. :)

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                                          Handbury & State Central Authority and Anor [2020] FamCAFC 5 (21 January 2020)

                                          Ms. Handbury appeals against the order of the Family Court Judge, granting the application of the State Central Authority (First Respondent) for an order that the child is returned to the United Kingdom (UK).

                                          Facts:

                                          Ms. Handbury (Mother and Appellant) and Mr. Handbury (Father and Second Respondent) married in Australia but lived in the UK. Their only child was born in the UK and is a dual British and Australian citizen. In 2016, Ms. Handbury was verbally offered a relocation package to Australia with a joint venture partner of her employer. Mr. Handbury’s understanding was that the placement was a temporary role of two years, after which the family would return to the UK. Months after they arrived in Australia in 2017, the parties had disagreements about the intended duration of their stay in Australia. After that, Ms. Handbury did not intend to return to the UK based on evidence. They separate yet remained living under one roof. In 2019, Mr. Handbury moved to another accommodation and commenced the shared care of the child.

                                          At the request of Mr. Handbury, the SCA filed an application in the Family Court for the return of the child according to the Family Law (Child Abduction Convention) Regulations 1986, which give effect to Australia’s obligation as a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980. Respondents alleged that parties agreed to travel to Australia with the child and remain there for two years only. Also, they alleged that the child had been wrongfully retained away from her state of habitual residence, which is the UK. Finally, they claimed that the retention was “repudiatory retention.” In her response, Ms. Handbury alleged that the move to Australia would be for two or three years, and they would decide in the future whether to remain in Australia or return to the UK; that the child had become and remained habitually resident in Australia; and that Mr. Handbury consented to the child remaining in Australia. The trial judge granted SCA’s application.

                                          Issue:

                                          • Did Ms. Handbury’s unwillingness to return to the UK constitute repudiatory retention?
                                          • Did the trial judge err in concluding that any retention of the child in Australia was in breach of the Mr. Handbury’s rights of custody, therefore, a wrongful retention under the Regulations?

                                          Held:

                                          • In re C (Children)(International Centre for Family Law, Policy and Practice intervening) [2018] UKSC 8; [2019] AC 1 (“Re C”), a UK Supreme Court case, it was held that repudiatory retention occurs when a retaining parent forms a subjective intention not to return the child to the state of habitual residence at the expiration of the period which was agreed between the parties as the date upon which the child would be returned.
                                          • The trial judge considered Ms. Handbury’s comments to the effect that she did not wish to return to the UK and that they had serious intimacy issues, and disclosure that she felt a spark for a colleague as circumstances that led Mr. Handbury to believe that Ms. Handbury would not abide to their agreement to return to the UK after two years.  The Court agreed with the trial judge that Ms. Handbury’s words and intentions were clear and unequivocal unilateral repudiation of the parties’ prior agreement for a temporary stay in Australia.

                                          • The Court considered that a repudiation of the agreement is a breach of Mr. Handbury’s rights of custody. In summary of the applicable legal principle under the same case (per Lord Hughes JSC), the repudiation of an agreement for a temporary stay is a repudiation of the rights of custody of the left-behind parent. When Mr. Handbury agreed to live in Australia temporarily, he was exercising his rights of custody by permitting such moves on terms. When Ms. Handbury repudiated the agreement to remain in Australia for two years, the retention of the child in Australia was no longer on the terms, which the parties had agreed initially. Her unilateral decision not to abide by the terms of the agreement is a breach of Mr. Handbury’s rights of custody, specifically the right to determine the place of residence of the child. Hence, the trial court was correct when it found that there was indeed a breach of rights of custody.


                                          Finding that there are no merits on the grounds for appeal, the Court dismissed the appeal. In this case, it was apparent through her comments to Mr. Handbury, to her child, and her friend that she did not want to go back to the UK. It is tantamount to breach of the parties’ agreement that they will stay temporarily in Australia for two years. Hence, it was a clear act of repudiatory retention. As a result, it breached Mr. Handbury’s rights of custody.

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                                          • Dimitri Stamatakis Rose Flast both my lawyer and the British consulate refuse to accept any law has been broken. I cannot afford to privately fight this. I am told is too complex and have never found anyone in my situation, until I read this development. It reads like the last three years of my life.... and future it seems. I have a 'life sentence in NSW' for simply trusting someone's words and motives. I've been told directly it was planned all along.

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                                            • Dimitri Stamatakis Every other lawyer I speak to just goes crossed eyed at the story. I need to speak to this legal team.

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                                              • Rose Flast Dimitri Stamatakis Dimitri, what I would suggest first of all is that you join FLAST as a basic member where you can get support and training.

                                                That way as case digests and issues that are relevant to your matter come out of the Family Court you can keep on top of it.

                                                As you have already experienced, even the experts don't know everything, let alone you trying to handle this on your own.

                                                Come join us here at FLAST where you can also communicate Anonymously so your questions are not linked to your real identity.

                                                https://flast.com.au

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                                                Pinson & Pinson [2020] FamCAFC 8 (17 January 2020)

                                                This is a case where a mother challenges the interim parental orders allowing her only to a supervised time nominated by a Contact Centre and giving child custody to the father.

                                                Facts:

                                                Ms. Pinson (Mother and Applicant) filed an Application for an extension of time to file a Notice of Appeal against the interim parenting orders. The order provided for the parties' eight-year-old daughter to live with Mr. Pinson (Father and Respondent) and to spend only supervised time nominated by a Contact Centre with Ms. Pinson. It also ordered Ms. Pinson to pay the costs of supervised time. Finally, it directed a series of injunctions, designed to prevent her from having any contact with her child outside the ordered supervised time, to Ms. Pinson. Ms. Pinson challenged the form of the order made by the trial judge concerning supervision or supervised time for her being "as nominated by the Contact Centre," and the trial judge's use of psychiatric evidence in the case.

                                                Issue:

                                                Are there substantial issues to be raised on the appeal that will warrant an extension of time?

                                                Held:

                                                (Kent, J) Yes.

                                                Determining whether to extend time necessarily involves consideration as to whether an applicant establishes that there is a substantial issue to be raised on appeal.

                                                Ms. Pinson raised that the order providing for a supervised time nominated by the Contact Centre is vague and ambiguous. She also challenged the trial judge's use of psychiatric evidence, which have driven the trial judge to order for the child to live with Mr. Pinson, and not with her. The Court explained that the order regarding giving Ms. Pinson supervised time nominated by the Contact Centre only is not sustainable as it might be seen as delegating judicial power to a third party. The Court also found that the trial judge was in error in using psychiatric evidence in coming with the decision.

                                                Observing that there are substantial issues to be raised in the appeal, the Court granted the extension of time for Ms. Pinson to file her Notice of Appeal.

                                                The Court found, based on Ms. Pinson’s Notice of Appeal, that there are substantial issues to resolve. First, the order providing for a supervised time nominated by a Contact Centre might arguably be seen as delegating judicial power to a third party. Second, the use of the trial judge of evidence raised by a psychiatrist that driven the trial judge’s decision to order for the child to live with her father and not with her father. Hence, the Court gave weight to these substantial issues in granting the application for an extension of time for Ms. Pinson to file her Notice of Appeal.

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                                                  • Monica Simpson Yep, I relate to this, my ex is has lied to police and me and I'm the one who is criminally charged with common assult, I grabbed my son's ear for a matter of seconds to get his attention, I was and have evidence of not being able to speak properly and had impacted ear was making me deaf in one ear at the time, they told police I dragged him thru the house, now as the actions have been downgraded to grab and tank of the ear I have plead an early guilty and co operating I have to wait another week for sentencing and as this is wrapping up tried to put a dvo on me with our two youngest kids, of I could afford a solicitor I had a good chance at winning this but I simply can't do it....he's been told legally to get his shit together and have evidence while in adjournment phase but until then I can't get the legal aid application in waiting for sentencing of assult charge.....he's the one with PTSD and used previously 6 attempts of suicide with the plan for the next time and my kids are safe with him???? He's not allowing me to call my children let alone see them and our 5 yr old screams and shouts for me when I have run into them or spoken to them on the phone.....he's stopped me contacting them on the 16 Dec and I have a funny feeling he's even changed their schools......and here I am with this assult charge and can't do anything about it but still expects money from me for child support living off of 690 a fortnight with 400 of that in rent.....I feel for this lady, we are mums and we sacrifice our lives for our children sometimes and we are the bad ones? All this and seeing it for what it really is in the real world like this makes me more and more wanting to be an advocate in some way for the victims of dv be or physical financial mental and emotional.....we need to find the loophole that judges are overseeing and we need to find a way these narcissist exs are lieing to make themselves feel better but the children that are caught in the crossfire and traumatised are the ones that need the help, they are the ones who need to have someone listen to them and be their mouths in the larger scale of court.....it's always the kids that suffer

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                                                    • Monica Simpson I relate

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                                                      Jebbett & Corey [2019] FamCA 774 (22 October 2019)

                                                      Facts:

                                                      Ms. Jebbett (Mother and Applicant) sought for a stay of various orders contained in the final parenting orders pending appeals. The appealed order provided that the child's best interests were served by attending some form of mainstream schooling as opposed to home-schooling and by having therapy. The reasons for judgment were based on an overwhelming body of expert evidence supportive of the child attending mainstream schooling and for therapy suggested by qualified experts. The best interests of the child will not be served by a stay order; thus, the Court dismissed the application for the stay of orders.

                                                      Issue:

                                                      Whether a stay of the orders would be in the best interests of the child.

                                                      Held:

                                                      In the case of Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at[18], it was stated that the burden to establish a proper basis for the stay is on the applicant for the stay. However, the applicant doesn't need to demonstrate any "special" or "exceptional" circumstances … if the best interests of the child, the subject of the proceedings is a significant consideration. Ms. Jebbet was not obliged to demonstrate any special or exceptional circumstance, but she had the burden to establish a proper basis for the stay of order. However, Ms. Jebbet's arguments for the stay of order were attempts to revisit the matters that were subject to evidence at the trial and the reasons for judgment. She was not able to prove that the orders would be of no value in respect of the appeal if the stay is not granted.  

                                                      Ms. Jebbet sought to lead evidence, not in admissible form, from various studies, news articles, and other kinds of extrinsic evidence regarding the benefits of home-schooling did not meet the criteria for admission into evidence. None of the materials provided about the child's specific needs and whether it was in his best interest to be home-schooled rather than attend a special school or mainstream school. She insisted that she did not see any benefit of her child to attend a mainstream school despite expert opinions to the contrary.  

                                                      The trial judge accepted the overwhelming evidence of the experts and other independent professionals referred to that attending formal or mainstream schooling holds enormous potential benefits for the child that home-schooling by his mother does not. The trial judge reasoned that although Ms. Jebbet is an intelligent and educated person, she is not equipped to formally educate a child, much less her child who has particular needs. Also, the trial judge did not accept that the child is at great risk of bullying in mainstream schooling, which Ms. Jebbet read on Facebook, or that the risk is not enough reason to deny the child of the benefits of formal education. Finally, the trial judge relied on expert evidence that if the child is to have any prospect of achieving some level of independence in the longer term and to find his way in the world, he needs to begin the process of interacting with people other than his mother and therapists.

                                                      The Court understood Ms. Jebbet's hesitation in taking her child to a mainstream school. However, evidence from experts presented that the child will benefit more from attending a mainstream school than just being home-schooled. The Court's judgment was evoked by the child's best interest. On the other hand, parents have different experiences about their children. Experiences posted on Facebook may not be the same for every parent. When the trial judge gave more weight to the evidence of experts and independent professionals, it was because they have exhibited more benefits for the child.

                                                       

                                                      • Comment
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                                                      • Yani Costa I will home school him so he is not exposed to life and he turns out like me. Best thing for this child is school but needs to be watched he is not bullied.

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                                                        • Vera Konco Main stream schooling more advantidge for future. Child will find out all the ins and out about human kind!!!!!!! It is not easy from the beginig but will serve the purpose for the later in life....

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                                                          • Rose Flast Thank you for your comments. :) It's nice to read various opinions on the topic. It plainly shows that each one has his or her own experience. This is true also with court decisions. It is different to each one's case. More case digests and discussions in our website. Read more at www.flast.com.au. :)

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