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LEVY & MOLLISON

FAMILY COURT OF AUSTRALIA

[2020] FamCA 582

 

This case is an application to review the decision of the Senior Registrar when orders were made for the father’s time with his child to be supervised.

FACTS:

Mr. Levy (the father) filed an Application in a Case in which he seeks to vary the orders made on 22 November 2019 by dispensing with the requirement for supervision and allowing him to spend unsupervised time with X (the child).

Ms. Mollison (the mother) and the Independent Children’s Lawyer opposed the application. The mother alleged that the father is unable to contain his hostility towards her in his dealing with the child. The father sent offensive or threatening messages to the mother.  

ISSUE:

Whether or not the Court should grant the father’s application for orders dispensing the requirement for supervision during his time with the child.

HELD:

The Court accepted that the supervision reports provided by M Services show a loving and appropriate relationship between the child and her father and that there is no instance reported of the father’s being disrespectful or critical of the mother. However, that is in circumstances where the father is well aware of the supervisor’s presence and reporting function and where there is no contact between the father and the mother.

Whether the father can continue to restrain himself in the absence of a supervisor and the presence of the mother is untested. The issue of the disputed allegations of family violence remains alive and cannot be resolved until there is a hearing where the competing evidence can be fully explored. 

The Court held that it is not appropriate that the need for supervision be revisited until the father’s attitudes towards the mother can be explored in cross-examination. Hence, the Court dismissed the father’s application.

 

 

PARISI & ZEIN

FAMILY COURT OF AUSTRALIA

[2020] FamCA 587

 

This case is an application for an parenting order concerning the children of the parties.

FACTS:

Mr Parisi (the father) lives on the outskirts of metropolitan Melbourne whereas Ms Zein (the mother) and the two children live in an inner suburb. Also, the eldest child, who is currently 13 years of age is exhibiting concerning behavioral traits creating for each parent major problems when that child is in his or her care.

Mr Finn, the Independent Children’s Lawyer, sought professional advice from an experienced clinical psychologist, Dr B, who provided a report dated 14 July 2020, recommending the separation of the two siblings. Dr B reported that the eldest child needs to be kept safe and that the eldest child’s trajectory indicates behavior leading to the juvenile justice system. The eldest child does not want to live with her father and is rebellious and combative towards her parents.  

The father supported Dr B’s recommendation saying that the children need some time apart and some respite from the existing conflict in the family home. On the other hand, the mother doubted the accuracy of Dr B’s report, contending that the report was inaccurate, that Dr B was not impartial, and that the report did not reflect what was happening in the children’s and the parents’ lives. The mother said Dr B did not address in her report the mother’s concerns about family violence and the source of the children’s trauma. The mother sought an order for sole parental responsibility.

The ICL supported the recommendations made by Dr B, stating that removing the youngest child from the presence of the eldest child reduces any risk from the aggressive behavior of the eldest child.  

ISSUE:

Whether or not the Court should grant the interim parental order separating the children from each other based on the findings of Dr B and recommendation of the ICL.

HELD:

The Court proposed to fix this proceeding for trial as a matter of urgency and for all issues to be tested at trial. The ICL will advance the interests of the children separately from the representation of the parents.

The Court did not make orders as proposed by Dr B, and the ICL as doing so would orchestrate undue chaos in the children’s lives. The status quo must prevail. All orders presently remain in force until the trial.

The present COVID-19 pandemic is creating its complications for this family. The Court recognized the burden under which the mother is laboring and how the father, by sheer dint of his distance from the mother and the children, is removed from the day-to-day burden under which the mother is operating. The Court ordered that any uncooperative attitude must stop at once in the interests of getting this case on for trial and doing what must be done to achieve that end.

HEATLEY & HEATLEY

FAMILY COURT OF AUSTRALIA

[2020] FamCA 592

 

This case is an interim application that concerns two children, X aged four years and Y aged nineteen months. 

FACTS:

During the parties’ relationship, they lived in Brisbane. They separated on 3 February 2020 when Mr. Heatley (the father) took up employment in Sydney, and Ms. Heatley (the mother) and the children remained in Brisbane.

The father instituted the proceedings seeking orders which would require the mother to return the children to Sydney, that the children live with and spend time with him, initially not overnight for a short period but then graduating to an equal time arrangement.  The father alleged that the mother was suffering from mental health problems during their relationship.  The mother had lived with some mental health instability. The father’s case that his geographical proximity to the children, and being in contact with them almost daily, has been an essential part of their protection and care arrangements.

On the other hand, the mother wished to remain in Brisbane and sought orders that the children live with her.  Also, she sought that the father has time with them on any weekend in Brisbane and by audiovisual communication. She submitted that she was concerned about leaving her friends and supports in Brisbane, where she had lived for 11 years. She alleged that she agreed to move to Sydney because, with the sale of their house in Brisbane, she had nowhere to live; she felt pressured by the father and believed his promises of financial support until she could find work. Finally, the mother submitted that she learned that the father was living with his new partner and her children, and she was not willing to allow the children to spend overnight time with the father and his new partner.  

The mother also sought an order transferring the proceedings to the Federal Circuit Court in Brisbane.  If the Court were to determine that the children should live in Sydney, the parties agreed that the mother would live in Sydney with them. They also agreed that if the children were to return to Sydney, the proceedings would remain in Sydney, and if the children were to stay in Brisbane, the proceedings should be transferred to Brisbane.

ISSUE:

Whether or not the Court should grant the father’s application for an order that the mother and the children move to Sydney.

HELD:

It is agreed that the children have a close and loving relationship with both of their parents. It is also an accepted fact that the mother has always been and continues to be their primary carer.

The legislation requires that the Court prioritize the maintenance of a meaningful relationship between the children and the father, not an optimum one. The fact that the father’s relationship with the children, even though he moved to Sydney, remained meaningful, suggests that it can be maintained.

The fact that the children have maintained a loving and close relationship with their father, despite being separated from him, indicates the mother’s parenting ability and understanding of his importance in their lives and willingness to ensure that the relationship flourishes.

The Court did not see any need to protect the children from any risk of harm arising from the disputed allegations about the mother’s mental health.  The fact that the father’s application is for the children to continue to live with the mother, although in Sydney, would appear to carry a concession that she has the better capacity to provide for their needs.

Based on the above premise, the Court ordered that the children remain living with the mother in Brisbane.  As a consequence, the matter will be transferred to Brisbane.

 

#BestInterestsOfTheChild

  • ANONYMOUS  This may interest you.

    0 0 0 0 0 0
    • Cameron McKenzie Relocation matters are always difficult and turn on the best interests of the child(ren) when considering the competing proposals. Irrespective of the delinquent party failing to abide by orders and unilaterally relocating or simply relocating in absence of orders, these matters are almost always decided in favour of the primary carer unless the wishes of the child(ren) prevail. This is basic premise of Bondelmonte.
      Without reading the decision it appears colourful to assume just because the father sought orders in the initially that the children live with the mother affirms that the mother is the better care provider, especially when the father was ultimately seeking an equal care arrangement. This raises the risk of both parties seeking to be the primary carer which may ultimately result in the court concluding that co-parenting is impossible and the court consequently making a non contact order against one parent. As opposed to a less adversarial approach and working towards transitioning into becoming an equal care provider and perhaps the primary care provider, particularly if the issue of a parent’s mental health (support by expert opinion) poses an unacceptable risk or affects their capacity to parent.
      The concern is that cases like these incentivise parties to achieve tactical advantage by unilaterally relocating. This also applies to protection orders made without merit or being used to displace parenting orders. Personally the party seeking to relocate should not be allowed to relocate without the permission of the court.
      The father now has the additional burden of travelling to Brisbane to attend to the matter and find new representation and also bear the costs associated with the new representation re-familiarising with the matter.

      0 0 0 0 0 0
      This is a subscribed member area, you can't 'Comments Post' until you join FLAST.

      CHAMBERLIN & FALLOW

      FAMILY COURT OF AUSTRALIA

      [2020] FamCA 555

       

      This case is an application for the reopening of parenting proceedings.

      FACTS:

      Ms Chamberlin (the mother) and Mr Fallow (the father) are the parents of X, who was born in 2013 and is presently seven years of age. On 11 May 2015 the parties consented to final parenting orders which provided for a gradual increase in time with the father such that the child commenced to live with each parent in a week-about arrangement in January 2019.

      On 18 October 2019, the mother filed an Initiating Application seeking to discharge certain orders made by consent on 11 May 2015 and to reduce the child's time with the father to five nights per fortnight. She also sought orders to the effect that each party has the first option to care for the child, in the event that the other is unable to do so personally for twelve or more hours.

      The mother deposed that the child's behavior has "changed" for the worse, such that his best interests require a reduction to five nights per fortnight with the father.  The mother contends also that a poor co-parenting relationship and problematic communication between the parties necessitates a reduction in the child's time with the father. She now complains that the father will not allow her unlimited contact with the child, while in her care, and that he has blocked all but limited email communication between the parties.

      The father contended, in essence, that he observes none of the behavioral difficulties which the mother alleges that the child displays while in his care. The father maintained that the notes of the mother's psychologist demonstrate that she has a lengthy history of mental health symptoms and that there may be problems in her current relationship. The father maintained that difficulties within the mother's household provide no valid basis for depriving the child of the benefit of alternate weeks in his care. The father sought a dismissal of the mother's application, on the basis of the principles enunciated in Rice and Asplund [1978] FamCAFC 128; (1979) FLC 90-725 (“Rice & Asplund”). The father contended that there has been no change in circumstances sufficient to warrant a reopening of the parenting proceedings.

      ISSUE:

      Whether or not a reopening of the parenting proceedings as sought by the mother is warranted.

      HELD:

      The mother submits as basis of the application that the communication between the parties has deteriorated since the orders of 11 May 2015, that the child does not cope with the current arrangements, and that the father has a ‘poor attitude’ to the mother.

      Communication between the parties is problematic.  The father’s evidence showed that the parties had a volatile relationship.  The Court is in view that the father took reasonable steps to limit the mother's excessive communications with him and she must accept most of the blame for the current situation.  Further, the mother adduced no independent evidence of the alleged behavioral difficulties of the child while he is in her care. It might reasonably be expected that her live-in partner has witnessed some of these behaviors but he gave no evidence in support of her case.

      The mental health problems of the mother were known to both parties at the time of the consent orders.   The notes of the mother's psychologist provide a strong indication that a psychological difficulty inhibits her capacity to allow the child to share his time between his parents. The father's evidence as to the mother's behavior, which has at times disrupted the child's enjoyment of time with him, provides a similar indication.  Accordingly, the mental health issues of the mother do not constitute a change of circumstances since May 2015.

      The Court dismissed the Initiating Application filed by the mother.  The mother bears the onus of establishing a change in circumstances sufficient to warrant a re-litigation of the parenting issue and the Court is satisfied that the mother failed to discharge her onus to establish a change in circumstances sufficient to warrant a re-litigation of parenting issues. Also, a re-litigation of parenting issues would be likely to cause stress to the child. He would be interviewed by a Family Consultant and would almost certainly become aware that there is a prospect of a change in his living arrangements.

      MARTYN & MARTYN

      FAMILY COURT OF AUSTRALIA

      [2020] FamCA 526

       

      This case is an Application for orders to set aside the binding child support agreement and to extinguish arrears of child support.

      FACTS:

      Mr. Martyn (the father) filed an Initiating Application seeking an order setting aside the binding child support agreement between Ms. Martyn (the mother) and him under s136 of the Child Support (Assessment) Act 1989 (Cth) (the CSA Act). In addition to the order sought in the Application filed 13 January 2020, the father sought an order extinguishing the arrears owing as a result of the reduced amount of child support paid since September 2016.

      The father filed the Application as the business he owns and operates, which, as a result of the current COVID-19 pandemic, have been made significantly worse by the limitations on international commerce. The father submits that the abrupt closure of international commerce resulted in the loss of 90% of his business, which, as previously noted, manufactures and supplies products to international organisations. The counsel for the father contends that the father would face hardship as a result of the exceptional circumstances effectuated by the COVID-19 pandemic because of his incapacity to afford the child support payments payable according to the Agreement dated 16 August 2012 and submits that the father is unable to meet his obligation under the Agreement to pay approximately $1,550 per month, and has failed to do so since September 2016. The counsel for the father also argued that, in the event that the Court was not satisfied that the Agreement should be set aside, the Court would, nonetheless, suspend the Agreement. 

      ISSUES:

      Whether the Court should set aside or suspend the Agreement for a closed period of time.

      Whether or not the Court should extinguish the arrears of child support in the period before the date of the orders.

      HELD:

      The power for this Court to set aside a binding child support agreement is conferred by s 136(2)(d) of the CSA Act which states If a party has applied under subsection (1), the Court may set aside the Agreement in accordance with the Application if the Court is satisfied, in the case of a binding child support agreement, that because of exceptional circumstances, relating to a party to the Agreement or a child in respect of whom the Agreement is made, that have arisen since the Agreement was made, the applicant or the child will suffer hardship if the Agreement is not set aside.  

      Also, in Venson & Venson (No 2) [2010] FamCA 963 (“Venson (No 2)”), it was held that the decrease in the profitability of the applicant’s company did warrant the child support agreement being set aside for a closed period of time. 

      The Court declines to exercise a discretion to suspend rather than set aside the Agreement because there is an understandable absence of evidence as to the likely duration and impact of the COVID-19 pandemic on international commerce. In other words, it is not possible to determine, based on the evidence before the Court, whether it is likely that the father’s business would recover to the extent that he is capable of satisfying the obligation imposed upon him according to the Agreement after any period of suspension. Further, the father’s evidence satisfies the Court that the father does not have access to a property or an alternative financial resource, other than his business, such that it would enable him to meet the obligation prescribed in the Agreement. For these reasons, the Court made an order terminating the Agreement.

      However, the Court declines to make the second order sought by the father extinguishing his liability to pay the arrears of child support, according to the Agreement, in the period before the date of these orders. To relieve the father of his obligation to pay arrears of child support according to the Agreement would require the Court to make an order terminating the Agreement as of the date of the Orders made in respect of the Agreement, which is a date considerably earlier than the date that the Court has determined that exceptional circumstances exist justifying the termination of the Agreement. It is contrary to s 136(2)(d) of the CSA Act which provides that in the case of a binding child support agreement, that because of exceptional circumstances, relating to a party to the Agreement or a child in respect of whom the Agreement is made, that have arisen since the Agreement was made, the applicant or the child will suffer hardship if the agreement is not set aside.

      MUSCAT & MUSCAT

      FAMILY COURT OF AUSTRALIA

      [2020] FamCA 572

       

      FACTS:

      Mr Muscat (the father) and Ms Muscat (the mother) are the parents of X who was born in 2013 and Y who was born in 2017 (the children).  The parents separated on 26 September 2019. After separation, the children remained living with the mother.  However, the children want to spend time with the father.

      The parties filed competing applications that were heard and orders were made by the Senior Registrar.  The father seeks for the review of the orders made by the Senior Registrar for time with the children.  The father seeks graduated orders for time with the children, supervised by the paternal grandmother, for a further four weeks and then to unsupervised time.  He also seeks video call access on Tuesday and Thursday and specifies that the mother not be present in the room during the calls.  On the other hand, the mother seeks to maintain the arrangements put in place by the Senior Registrar.

      In the proceedings, the parties allege that the other have been violent.   The father also alleges that the mother has inappropriately disciplined the children. The mother alleges that the father uses or has used illicit drugs.  Further the mother raises the issue of the father’s mental health in the context of an asserted suicide threat. However, there are a number of facts that are not in dispute.  The father was charged and was found guilty of assaulting the mother and of assaulting X. He was fined and sentenced to perform community service.

      ISSUE:

      Whether or not the Court should grant the father’s application even though there were allegations of family violence, mental health, and use of illicit drugs.

      HELD:

      The primary considerations in determining the appropriate parenting arrangements for the children are the benefit to the child of having a meaningful relationship with both of the child's parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

      It was held in a case that when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.[1]

      The Court is required to consider the importance of the children having a relationship with their father that is significant, important and of consequence, while balancing that requirement against the need to protect the children, one of whom has been the victim of an assault resulting in the father’s being convicted of a criminal charge.  Thus, the Court considers that an arrangement whereby the children spend one day each week in the care of their father, supervised by the paternal grandmother, achieves that balance. In addition, the children will have video call access to the father on Tuesdays and Thursdays at 6.30pm.

       

      “...even if the move results in a diminution of the quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”[2]

       

       

      [1] Brown J, Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518.

      [2] Kay J, Godfrey & Sanders [2007] FamCA 102; [2007] 208 FLR 287.

      WEN & JONG
      FEDERAL CIRCUIT COURT OF AUSTRALIA
      [2020] FCCA 749

       

      This case concerns an interim application for parenting orders.

      FACTS:

      Mr. Wen (father) filed an urgent application to have X and Y (children), who are currently living with Ms. Jong (mother), live with him. The essence of the father’s case is that the threatened suicide attempt and the knife incident, which demonstrates the mother’s poor mental health. The father alleged that the mother, due to poor mental health and inability to control herself, poses a risk to the children. The father also sought urgent change of supervision.

      The mother, although she admitted that she had had some issues, said that these arose particularly in and as a consequence of the husband’s conduct in the relationship and also, to some extent, to her alcohol use, which she said she has reduced. Further, she stated that the children are not at risk in her care.

      ISSUE:

      Whether or not the Court should grant the father’s urgent interim application for change of the children’s residence and supervision.

      HELD:

      The father said that because of the risk the mother poses and the potentially dramatic consequences of the risk, the children should forthwith live with him and that the mother should spend either no time with the children or supervised time On the other hand, the mother’s primary position is that there is no sufficient evidence of risk to the children to justify the Court taking the dramatic act of moving the children urgently and the Court should wait for a report from Dr. A.


      Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. However, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested.

      The Court cannot avoid the responsibility to make a decision about the children’s safety, and accordingly to its assessment of the risk, its likelihood and the severity of potential catastrophic risks to the children. The Court made Orders that are a necessary but temporary measure only until all the evidence can be tested, evaluated and weighed at a final hearing. Hence, the Court granted the father’s application for interim change of residence of the children and supervised time with the mother.

       

      #BestInterestsOfTheChild

      This contract is referred to as a Cohabitation or more accurately a Binding Financial Agreement (BFA).

      Cohabitation Agreements are made between people who are living together or intending to live together but not intending to get married.

      Couples intending to get married should define their relationship with a Prenuptial Agreement under section 90B of the family law act.

      Your Cohabitation agreement becomes a legal expression of your intent as de facto partners – you can define how you intend to divide your assets and maintain any children you may have.

      Download File

      Disclaimer
      The following sample legal document is provided by Family Law Express for informational purposes only. It is intended to be used as a guide prior to consultation with a solicitor or other legal professionals familiar with your specific legal requirements and circumstances.

      Family Law Express does not provide legal advice and we stress that this sample legal document is not a substitute on its own for consultation with a solicitor and/or other legal professional. If you intend to legally rely on a sample legal document acquired via the Sample Legal Document module on Family Law Express, you should seek expert legal advice from a suitably qualified legal expert to ensure that the document meets all legal requirements for your state or other jurisdiction.

      BALSOM & HAGERMAN

      FEDERAL CIRCUIT COURT OF AUSTRALIA

      [2020] FCCA 1820

       

      This is an interim application seeking the sale of the former matrimonial home of the parties

      FACTS:

      Mr. Balsom (the husband) filed an interim application seeking the sale of the former matrimonial home of the parties, which is in the sole name of Ms. Hagerman (the wife).  The property secures two mortgages or two sets of borrowings: one for $133,000, which seems to be a conventional home mortgage, and further borrowings of about $51,000, which were business borrowings related to the wife’s business, which has ceased trading in recent months.

      The wife vacated the property on separation, leaving the husband as the occupier. The mortgages have not been paid since about October 2019, and there are presently arrears in excess of $9,000 in the mortgage or mortgages. 

      The husband is a disability pensioner paid $425 a week. He has no capacity to bring the arrears up to date, nor does he have an incapacity to borrow to pay out the wife.  The wife’s financial position is difficult.  She has breast cancer diagnosis.  She has no money and is living with friends.  For her, it is urgent to obtain some money.  The wife wants the property listed for sale within 14 days.  The husband seeks a delay of four months before he is required to vacate the property and provide vacant possession.

      ISSUE:

      When should the property be listed for sale?

      When shall the husband be required to vacate the property after a contract of sale is signed?

      HELD:

      Court decided, first, when the property should be listed for sale, and second, when the husband shall be required to vacate the property after a contract of sale is signed.  

      Parties agreed to appoint an agent immediately. The applicant husband sought that the property be not listed for two calendar months.  The wife said that the property should be listed for sale as soon as possible, but within 14 days, and the husband should depart from the property on the signing of the contract.  

      The minimum period ought to be about a month for the husband to vacate the property. If there is an immediate contract or if a contract is signed immediately, to the Court’s view, the earliest vacant possession would be required within one month or 30 days.  However, it is highly unlikely that a property in the rural area in Darwin at the moment, with the depressed property market, would be sold within the minimum time, in other words, immediately on listing. There is likely to be a built-in delay before a contract is signed.

      The Court proposed to make orders for the property to be listed for sale within 14 days, but in relation to where the wife seeks the immediate departure of the husband from the property on the signing of that contract, it proposed to give the husband 14 days from the signing of the contract to remove his personal effects, household contents, etc.

       

      MENCO & MENCO

      FAMILY COURT OF AUSTRALIA

      [2020] FamCA 279

       

      This case is an application for the declaration of nullity of marriage.

      FACTS:

      Mr. Menco (the applicant) filed an Initiating Application on 23 January 2020 seeking a declaration of nullity in relation to his marriage to the respondent, Ms Menco (the respondent) on the basis that on the date of their marriage, the applicant was married to another person.

      The applicant entered into a marriage with Ms. B Menco in City C, United States of America in March 1997.  There is one child of that marriage.  The applicant separated from Ms. B Menco in about June 2004.  The applicant stated that following the separation, he received documents from Ms. B Menco, which he understood to be divorce papers.  He signed those documents with the understanding that as a result of his execution of those documents, he had been divorced from Ms. B Menco in 2004.

      The applicant lived in Country F, where he commenced his relationship with the respondent.  They were married in Australia in 2015, knowing that the applicant was already divorced from Ms. B Menco. However, the applicant learned, while in the process of seeking a visa in Australia, that the divorce that he originally signed some years ago had only been entered and filed in the Court in the United States in 2016.  Hence, at the time the applicant married the respondent, he was already married to another person.

      ISSUE:  

      Whether or not the application seeking for a decree of nullity of marriage should be granted.

      HELD:

      Section 51 of the Family Law Act 1975 (Cth) (the Act) provides that an application for a decree of nullity of marriage shall be based on the ground that the marriage is void.  A marriage is void when … (a) either of the parties is, at the time of the marriage, lawfully married to some other person. [1]

      The Court is satisfied that the marriage between the applicant and the respondent is void  as at the time of the marriage between the parties, solemnized in 2015, the applicant was married to Ms. B Menco.  The marriage was not dissolved until 2016.  Hence, the Court, finding that the marriage between the applicant and the respondent is void, pronounced a decree of nullity of their marriage.

       

       

      [1] S 23B of the Marriage Act 1961 (Cth).

      MAGOLAN & CAFFERY

      FEDERAL CIRCUIT COURT OF AUSTRALIA

      [2020] FCCA 1445

       

      This is a case with involves a five-year old child who alleged sexual abuse committed by the father.

      FACTS:

      X (the child) made disclosures Ms. Magolan (the mother) that Mr. Caffery (the father) asked her to touch his penis.  The matter was investigated by Territory Families, who found insufficient evidence to substantiate abuse.  It recommended for the father to organize someone within his family network to supervise future time with the child.

      ISSUE:

      Whether or not the case should be closed, as recommended by Territory Families.

      HELD:

      The allegation is serious and the child clearly identified the father.  However, the investigation has now been finalized.  There has been a recommendation that the case close.  However, the Court finds that the an allegation of sexual abuse is a serious one, which merits attention of a superior court.  The Court orders that the matter is transferred to the Family Court of Australia. 

       

       

      BAKEMA & BERGER

      FEDERAL CIRCUIT COURT OF AUSTRALIA

      [2020] FCCA 1467

       

      This is an application for urgent spousal maintenance. 

      FACTS:

      Ms. Bakema (the wife) filed for urgent #SpousalMaintenance due to the cessation of a business she operated, which both Mr. Berger (the husband) and her are the directors.  The business was closed recently and the wife, who does not really have any other formal qualifications, is effectively out of work.

      ISSUE:

      Whether or not the Court should order the husband to pay the wife spousal maintenance.

      HELD:

      The Court finds that there is a degree of need and urgency demonstrated.  The Court is satisfied that there is sufficient cash available to the parties if distributed to both parties on an equitable or equal basis.  This would resolve any need the wife has for urgent maintenance.  

      The parties have a joint asset which is the husband added to after separation.  This is in an account of the husband’s at the moment but there is no question that it is very significantly a joint asset, although perhaps not entirely joint, as the husband’s affidavit says he has added to it after separation. Nonetheless, it is, under the Family Law Act, a matrimonial property that is open or available for distribution according to orders of the Court.  The Court made orders that the husband pay the wife their Commonwealth Bank account.

      GREY & BROCKWELL

      FAMILY COURT OF AUSTRALIA

      [2020] FamCA 517

       

      In this case, the Court decides on the matters which remained in dispute between the parties.

      FACTS:

      Mr Grey (the father) and Ms Brockwell (the mother) commenced a relationship in November 2005 and separated on 29 October 2011. At that time X was five years of age, and Y had just turned two.  Final orders were made in the Federal Magistrates Court in Cairns, providing for the parties to share the care and responsibility for the children equally.  

      The mother had relationships that appeared to have involved family violence and sexualized conduct from her former partners.  After the said relationships, the children had the benefit of psychological counselling.  X complained that the mother has exposed them to the risk of sexual abuse and prioritized her relationship over her care of the children.  The children also narrated the mother's regular nudity within the home environment.  

      In 2019, interim orders were made which reduced the mother's time with the children, who after that resided primarily with the father.  However, the children's relationship with the mother has after that steadily deteriorated. X does not spend any time or communicates with the mother.  On the other hand, Y still spends one and a half hours to two and a half hours per week with the mother. However, he has demonstrated increasing reluctance to do so, in part, because he has become worried that the mother may seek to abduct him on those visits.  He has refused to travel with her in a car and insisted that they take place in public locations.

      The parties agreed that both children would live with their father.  They also decided that Y would continue to spend time with the mother each week and have some electronic communication with her as well.  The matters left in dispute were the time Y should spend with the mother and restriction upon the mother from driving with Y in her car.

      ISSUE:

      Whether Y should spend one and a half hours, or two and a half hours, each Friday after school with the mother, and whether during the time that Y spends with the mother, she should be restrained from driving with him in her car. 

      HELD:

      The Court found that order as to the extent of time which Y spends with the mother on a Friday evening should be two and a half hours is in the best interests of Y.  The critical issue is that the purpose of enabling Y's relationship with the mother to at least subsist at its present level, and perhaps improve. Inevitably, if the relationship is to improve, there will likely need to be activities engaged in between the mother and Y, which are of interest to him. Given that the parties agreed that Y's time with the mother should commence at 4.45 pm each Friday, those activities are necessarily going to be limited. However, if during the argument, by extending the time until 7.15 pm, it will allow the mother and Y to share an evening meal. 

      The father sought a restraint on the mother being able to drive Y anywhere during the time that he spends with her.  Y has developed a fear of driving with the mother, which is acknowledged by the mother herself. Y is troubled that the mother may, in effect, kidnap him and remove him from the father's care. The Court, however, is satisfied that there should be no order restraining the mother from driving with Y during the times that he is her care.  It found nothing in the evidence that provides any logical reason for Y thinking that, nor is there, in the evidence, any suggestion that the mother has ever intended to kidnap either of the children.

      Moreover, the Court found that to require the mother and Y to spend two and a half hours in one location on a Friday afternoon and early evening is unduly restrictive. The prohibition which the father seeks would restrain her from driving even a short distance from wherever she may be spending time with Y.  It would be unfortunate if any further progress were restricted by the prohibition of any activity whatsoever that involves motor vehicle travel.




      #SexualAbuse

      COTTEY & BACKE

      FEDERAL CIRCUIT COURT OF AUSTRALIA

      [2020] FCCA 1558

       

      This case is the determination of Mr. Cotty’s (the stepfather) urgent proposed order in relation to X (the child), born in 2012.

      FACTS:

      The child’s mother died in a motor vehicle related accident in 2019.  Thereafter, the child continued to live with the stepfather and E (step sibling), and spent time with the father each alternate weekend and half the school holiday as had been the arrangement for the past seven years.

      Mr. Backe (the father) asserted that after the mother’s death, he wanted the child to come and live with him, but the stepfather did not agree.  He agreed that the child could stay living with the stepfather for a while as he was persuaded that further disruption would not be good for the child at that time.  Through his solicitor, he agreed to continue the arrangement until such time as a report was prepared by a psychologist on the best way for the child to transition from living with the stepfather to living with the father and his partner.  However, psychologists they appointed advised them that they would not prepare a report on family law issues or in relation to where the child should live.

      After the child spent time with the father at the end of term 1, 2020 school holidays, the father told him that he was not sending the child back to live with the stepfather and E. The stepfather asserted that he and E have not seen the child since that time. 

      The stepfather filed an Application for recovery order wherein he proposed interim orders that the child be returned to him and live with him.  He made allegations that the child is exposed to family violence when spending time with the father in the past, which was disputed by the father.  Also, he contends that the child has a very important sibling relationship with E.  Finally, he contended that the father’s capacity to care for the child on a primary basis is untested.

      ISSUE:

      Whether or not the Court should grant the stepfather's application for recovery order.

      HELD:

      In making a parenting order in relation to a child, a court must regard the best interest of the child as the paramount consideration. [1]  The primary considerations are the benefit to the child of having a meaningful relationship with both the child’s parents; and 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 child, who has spent regular time with the father while being in the primary care of the mother and the stepfather, appears to have a meaningful relationship with the father, and it would appear that the child would benefit from a continuance of that relationship.  The Court opined that there is a real risk that the further and timely development of the child’s meaning relationship with the father may be adversely compromised should it make the stepfather’s proposed recovery order.

      Regarding the second consideration, the Court observed that there is no health professional evidence suggesting that there is a significant risk that the child will suffer psychological harm in not living with the stepfather and E.  The child has made new friends at school; the child has many close family members living in the town, and the father and his partner play with the child.   Further, the father does not wish to prevent the child from spending time with the stepfather.  The father proposed that the child spend an alternative weekend with the stepfather. 

      The Court found that it is in the best interests of the child that the child live with the father pending further order and spend time with the stepfather by agreement. 

       

       

       

      [1] Sect 60CA, Family Law Act 1975.

      [2] Ibid. Section 60CC(2).

      • Cameron McKenzie Under the FLA, 65K What happens when parenting order that deals with whom a child lives with does not make provision in relation to death of parent with whom child lives

        (1) This section applies if:
        (a) a parenting order is in force that provides that a child is to live with one of the child‘s parents; and
        (b) that parent dies; and
        (c) the parenting order does not provide for what is to happen on that parent‘s death.

        (2) The surviving parent cannot require the child to live with him or her.

        (3) The surviving parent, or another person (subject to section 65C), may apply for a parenting order that deals with the person or persons with whom the child is to live.

        (4) In an application under subsection (3) by a person who does not, at the time of the application, have any parental responsibility for the child, any person who, at that time, has any parental responsibility for the child is entitled to be a party to the proceedings.


        Newton & Whiteman [2013] FCCA 754 at [150] & [151], apply 65K in the situation where the maternal grandmother challenges the father and seeks the child reside with her. Child’s best interests under Goode v Goode [2006] FamCA 1346, were considered and the issue of relocation: AMS v AIF (1999) 199 CLR 160. The grandmother was unsuccessful, and orders made for the child to reside with the father and have regular contact with maternal grandmother.

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        BARNES & WELLSTED

        FAMILY COURT OF AUSTRALIA

        [2020] FamCA 253

         

        This is a case wherein the husband seeks orders that would allow the sale of the matrimonial home where the wife, who is ill, and the children presently live.

        FACTS:

        Mr. Barnes (the husband) filed an amended initiating application for orders that would allow the urgent sale of the parties’ matrimonial home at B Street, Suburb C where Ms Wellsted (the wife) and the children are presently residing.  The Application is due to the husband’s forecast inability to continue meeting the mortgage payments.  The husband is unable to meet the $5,000 per month mortgage repayments even at the reduced rate into the future.   There was no evidence that the husband asked for an extension of the reduced mortgage installments payments.

        The wife, who had been the subject of radiotherapy treatment, agreed that the property must be sold but had concerns regarding the timing of the sale.  The wife preferred to have the property sold only when the current pandemic restrictions are lifted and the market recovers.

        ISSUE:

        Whether or not the husband’s urgent Application should be granted given the wife’s condition.

        HELD:

        In this case, the Court believes that the grant of the relief sought by the husband would severely prejudice the wife. There is no suggestion that she has alternative accommodation if the property were to be sold. The wife’s ill health imposes self-evident limitations on her ability to search for and obtain alternative accommodation if the property were sold. There was no basis for imposing such onerous terms on the wife to make the order sought by the husband, especially given the impending conciliation conference, the likelihood of an extension of the hardship relief terms being granted, and the need for the husband to ask.

        Further, the Court opined that with the severely depressed market, it would be foolhardy to say nothing of non-commerciality for the property to be auctioned in the current environment. Since the case is to be listed for conciliation in a little over a month, the parties can give more measured and mature consideration to the proposal for the disposition of the real property.

        Under the current regime, the husband enjoys the reduced mortgage installment payment requirements of $5000 per month, which will expire in the next few days with no certainty into the foreseeable future that the current restrictions that have been imposed at a Federal and State level will be relaxed in any way. In all probability, the husband will be granted an extension of the terms of his reduced mortgage installment payments of $5000 per month, but he has not asked for an extension. When compared to the wife’s circumstances, the balance of convenience favors her without a doubt. She is raising children in the former matrimonial home.

        The Court urged the parties’ counsels to cooperate, especially in these extremely tumultuous circumstances, to work out a way forward in the best interests of their clients. 

        BADRICK & GERSAM

        FAMILY COURT OF AUSTRALIA

        [2020] FamCAFC 164

         

        FACTS:

        Mr. Badrick (the father) filed an Application in an Appeal seeking for the expedition of his appeal against certain interim parenting orders made between Ms. Gersam (the mother) and him.  The parenting orders relate to their son, Z (the child). 

        As a background, the parties were at no point in a relationship with each other.  They have their respective partners.  The father met the child on 26 January 2018.  On 28 June 2018 the father commenced proceedings in the Federal Circuit Court of Australia seeking orders for the child to live with him.  The parties entered into consent orders for the child to live with the mother and spend time with the father from 3.00 pm Friday until 4.00 pm Sunday, on each alternate weekend and on special occasions.  However, in about June 2019, the mother experienced a decline in her mental health and had difficulties with housing which impacted on her parenting capacity. As a result and by agreement, the parties changed the arrangements so that the child would live with the father and spend time with the mother.

        On 1 May 2020, the child spent time with the mother, but the mother retained the child. On 12 May 2020, the father filed an Initiating Application in the Federal Circuit Court for interim and final parenting orders. Among other things, he sought a recovery order for the mother to return the child to him and for the matter to be listed on an urgent basis. 

        On 15 May 2020, orders were made that provide for the child to live with the parents on a week-about arrangement and for the mother to provide the father with a list of medical professionals that she has attended upon since 2017.  On the following time they were before the primary judge, the father’s counsel sought for the orders to be varied on the basis that the evidence filed by the mother raised concerns about the effect of her mental health on her parenting capacity. Further, the mother’s representative informed the Court that the mother’s partner had been charged with family violence related offences against his former partner. But the primary judge refused to vary the orders and the proceedings were adjourned for further mention on 4 September 2020.  Thus, the father filed an application for expedition.  The mother opposed the expedition only because she has applied for a grant of legal aid and is worried that an expedited hearing could mean that she has insufficient time to deal with that issue and arrange representation.

        ISSUE:

        Whether or not the application for expedition filed by the father should be granted.

        HELD:

        The father asserts that he was denied procedural fairness by reason of not being heard in relation to the parenting orders. The father asserts that the primary judge made findings contrary to the weight of evidence concerning risk to the child in the mother’s care; made errors of law and; failed to give adequate reasons in making the orders under appeal.  The Court found that there are matters of substance raised in the Amended Notice of Appeal and it is with merit.

        The Family Law Rules[1] provides that the court must consider whether a case should be given priority to the possible detriment of other cases. One potentially relevant factor to consider is whether the applicant has acted reasonably and without delay in the conduct of the case.[2]  The father has lodged his appeal in a timely manner, along with his application for expedition. This subsection weighs in favor of an order for expedition.

        Another factor which requires consideration is prejudice to the respondent. The mother has not filed any documents in this application to support or oppose expedition; however, she is worried that an expedited hearing could mean that she has insufficient time to deal with that issue and arrange representation. An expedited hearing would place the mother and legal aid authority under some time pressure which weighs against a hearing being listed in a few weeks. The Court is not persuaded that this should stand in the way of expedition.

        Finally, a factor to be considered concerns whether there is a relevant circumstance in which the case should be given priority to the detriment of other cases.[3] The father focuses on the hardship to the child caused by the continuation of interim orders. The submissions made counsel for the father focus on the impact of the living arrangements on the child who at a very young age has experienced significant change. An expedited appeal is said to have the effect of reducing the consequential emotional and psychological trauma on the child. On balance, it is the matters that go to the welfare of a young child and the substantial change in his living arrangements which tip the balance in favor of expedition.

         

         

        [1] Rule 12.10A.

        [2] Ibid., subpara (a).

        [3] Ibid., subpara (d).

        CARRINGTON & GUNBY

        FAMILY COURT OF AUSTRALIA

        [2020] FamCAFC 117

         

        FACTS:

        Mr. Carrington (the father) appeals from a finding made by a judge of the Family Court of Australia that he contravened parenting orders by failing to return B (the child) to Ms. Gunby (the mother) on 30 June 2019.   The final parenting orders provides that the mother and the father were to have equal shared parental responsibility for the child who was to live with the mother. Relevantly, the child was to spend time with the father each alternate weekend from 6.00 pm on Friday until 6.00 pm on Sunday. 

        On Sunday, 30 June 2019, the father failed to return the child at 6:00 p.m. to his mother.  The father’s case was that he had a reasonable excuse for not complying with the obligation to return the child to the mother because the child was at an unacceptable risk of harm in the mother’s care. The father alleged that the mother’s partner had assaulted the child by throwing him onto the kitchen floor and had verbally assaulted and belittled the child. 

        The father asserts that the primary judge erred in finding that the father has not presented evidence at all which would enable the Court to find that the father has breached the order but has a reasonable excuse for doing so.

        ISSUE:

        Did the father demonstrate that he had a reasonable excuse for retaining the child?

        HELD:

        The father accepted that he had not returned the child as was required by the orders, thus, he bore the burden of establishing that he had a reasonable excuse for doing so. A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favor the order was made if (a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and (b) the period during which, because of the contravention, the child did not live with the person in whose favor the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).[1]

        He (the father) is obliged under the Act to ameliorate the risk in the sense that the compliance or the non-compliance with the order is available to him, but only for so long as is necessary. The mother acted in a timely fashion in bringing her application for contravention. The father has had ample opportunity to consider how he should go forward with the matter. Whether it is a matter of application to vary, or whether he should garner the evidence necessary to support the allegation that he makes and the basis upon which he says the child is at risk, it is open to him to maintain the defense of reasonable excuse.[2]

        The primary judge found that there was no evidence as to a risk of harm to the child that reasonably justified the continued retention of the child until the time of the hearing, or that the father believed, on reasonable grounds, that there was such a risk.  The father has not presented evidence at all which would enable the Court to find that the father has breached the order but has a reasonable excuse for doing so.  The father did not present evidence supporting risk he has been presented. It is also not supported by any application seeking to suspend and/or vary the order. It is not a matter where the Court is able to simply accept that the father’s assertion that the child is at risk, which satisfies on the balance of probabilities the establishment of evidence that the child is at risk in the mother’s home.

        The Court, finding that no error by the primary judge has been identified, dismissed the appeal.

         

         

        [1] S 70NFA(3) of the Family Law Act 1975 (Cth).

        [2] Carrington & Gunby [2020] FamCAFC 117 (15 May 2020), para. 42(31).

        HOLLANDS & HOLLANDS

        FAMILY COURT OF AUSTRALIA

        [2020] FamCA 397

         

        These are proceedings in relation to the parenting application filed by Ms. Hollands (the mother) for orders providing for sole parental responsibility, residence and the power to change the child’s name in respect of X (the child).

        FACTS:

        The parties commenced a relationship and married in about 1997. They separated in April 2019, and, relevantly, later in 2019, the mother was subjected to a terrible violent attack by the father in her home. That also involved an attack upon the one of the parties’ elder children and took place at a time when the child was at the home.

        ISSUE:

        Whether or not granting sole parental authority to the mother would be in the best interest of the child.

        HELD:

        It is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. However, this 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 either 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 family violence. [1] The section also provides that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

        In making a parenting order is prospective and involves the Courts looking at the prospective risks to a child, looking at the relationship between the child and the father, and looking at the risk to the child in the particular circumstances. In the case, there has been no challenge to the mother’s parenting of the child, and the evidence, including the conviction of the father and the circumstances and the nature of the comments on passing sentence made by the judge, causes regard and concerns about the father’s interaction with this child and with the family into the future.

        The Court was satisfied that given the circumstance, that it is reasonable to make orders to make the mother have sole parental responsibility, the child to continue to reside with the mother, and the mother to have permission to change the child’s surname.

         

        [1] Section 61DA(1) of the Family Law Act of 1975 (the Act).

        JARDEN & EASTWOOD

        FAMILY COURT OF AUSTRALIA

        [2020] FamCA 211

         

        This case is an application for interim orders filed by the Applicant, who was the biological mother’s former lesbian partner, who sought for time to spend with the child.

        FACTS:

        Ms Jarden (the Applicant) filed an Initiating Application wherein she identified herself as the Applicant mother of X (the child), conceived by an artificial conception procedure and born on 2019.  Ms. Eastwood (the Respondent), the Applicant’s former lesbian partner, is the biological mother of the child.  

        When the parties met, the Applicant was married.  However, their relationship can be described as an intimate, affectionate, playful and loving one. The parties got engaged in June 2018.  The Applicant then thought of getting a divorce after their engagement. 

        The Respondent had long standing desire to have a child even before the parties met.   After an IVF cycle in August 2018, the Respondent conceived the subject child.  Both women were very much involved in the arrangements of the conception of the child, then celebration of his birth. However, sometime after the child was born, their relationship ended.  The Respondent realized that she had been in a controlling and manipulative relationship what she did not wish to raise the child in. 

        The Applicant sought for interim orders to be made for time on a regular basis including at special times.  On the other hand, the Respondent submitted that the Applicant does not have standing but in the event the Court finds that she does, and then that the Court should make no parenting orders until all issues in dispute have been heard and determined.  The Respondent also challenged the Applicant’s fitness, due to mental illness, to care for the child.

        ISSUE:

        Whether or not the Applicant is an “intended parent” and whether or not she had standing to bring the application.

        HELD:

        It is compelling evidence of the Applicant’s commitment, interest and concern in the child and an expectation at least on her part, that she would be responsible together with the Respondent for parenting the child.  The evidence supports a finding that both women were very much involved in the arrangements of the conception of the child, then celebration of his birth.    The Court found that the Applicant is a person with a concern for the welfare, care or development of the subject child pursuant to s 65C(c) of the Family Law Act 1975 (Cth).[1]   She, therefore, has the standing to make an application for parenting orders. As yet, there has been no determination whether the Applicant is a parent of the child or any allocation of parental responsibility. 

        By law, the Respondent, who is a parent of the child, has all the duties, powers, responsibilities or authority which, by law, all parents have in relation to children. An order for time for the Applicant does not alter the parental responsibilities of the Respondent.  A parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person, duties, powers, responsibilities or authority in relation to a child.  A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent, if any, expressly provided for in the order or necessary to give effect to the order. 

        On deciding on the matter of the interim order sought by the Applicant, the consideration is a balance between the need to restore or create a relationship between the Applicant and the child against the possibility that she takes a significant role in his life and the need to protect the child from distress through the building up of a loving relationship with the Applicant only to have that relationship terminated depending on the outcome of the trial.  The Court found that a short period of time weekly, one hour on the first two occasions and thereafter blocks of two hours, will introduce the child to the Applicant and maintain through short enjoyable encounters, an affectionate link with her but one that would not devastate the child if he lost it.

        Finally, the Court observed the very high level of animosity and distress between the parties.  The Court finds that the parties should consider engaging with professional help to understand the perspective of the other party, focus on the needs of the child, and negotiate a way forward until the matter has been heard and determined.  Orders were made providing for time at a contact centre which on current indications, is still operative, but in the event that it is not or becomes unavailable then the parties will be required to organize private supervision arrangements.

         

         

        [1] Who may apply for a parenting order:

                           A parenting order in relation to a child may be applied for by:

                             (a)  either or both of the child's parents; or

                             (b)  the child; or

                                   (ba)  a grandparent of the child; or

                             (c)  any other person concerned with the care, welfare or development of the child.

        MELI & HUTCHESON

        FAMILY COURT OF AUSTRALIA

        [2020] FamCA 420

         

        FACTS:

        Ms. Meli (the mother) filed an Application for orders discharging the final parenting orders made 25 May 2016.  The final orders provided that the mother has sole parental responsibility for the child, that the child live with her and that leave be given for the mother to relocate the child’s residence to the United Kingdom.  Also, it provided for the arrangements for the father to see the child in 2017, 2018, 2019 and each year thereafter.

        In her Application, the mother sought for sole responsibility over the parties’ child.  Also, the mother sought for her to be the sole signatory on any European and/or Australian passport that is relevant to the child.  Finally, she sought orders allowing the child to determine the extent of the communication with Mr. Hutcheson (the father), who did not reply to the Initiating Application.

        Because of the father’s lack of engagement in the proceedings, the matter proceeded undefended. 

        ISSUE:

        Whether or not the mother’s proposal that the child be allowed to determine the extent of communication she will have with her father be allowed by the Court?

        HELD:

        The Court found that it is in the best interests of the child to live with the mother and spend time with the father as may be agreed between the parties.

        The mother sought relief from the final parenting order due to the father’s level and extent engagement with the mother gradually reduced.  The Court found that the father, for reasons that are not apparent on the documents and presumably are specific to his circumstances are, had chosen to disengage from the child. The communication between the parties is scant and the only method by which the mother is aware of the father’s activities is by reference to social media and in particular, the father’s Facebook posts. More relevantly though, the position was that the child was keen to maintain a relationship with her father but now she is either ambivalent at best or reluctant, at worst.  It arose from the father not engaging with the child and not taking up the opportunity that the orders provided to him.

        The Court considered the effect of supporting the child to have a meaningful relationship with her father.[1] The proposed orders sought that all communication between the child and the father be subject to the child’s wishes; however, the Court found that such order does not find favor in terms of a child who is nearly nine years of age.  The Court, instead, ordered for a retention of the existing order providing for the father to spend time with the child at such other times as may be agreed between the parties in writing by email, a method and manner by which the mother is able to be the gatekeeper as to what the future arrangements will be if she considers that it is appropriate to do so.

         

         

         

         

        [1] Section 60CC of the Family Law Act 1975 (Cth). 

        COLLINGWOOD & COLLINGWOOD

        [2020] FamCA 390

        FAMILY COURT OF AUSTRALIA

         

        In this case, the Father seeks face to face time with the children after the Mother unilaterally ceased the children's time with him. 

        FACTS:

        Parties are separated parents of three boys, B, C, and D (the children).    Mr. Collingwood (the Father) asserts that there has been a history, since the parents separated in November 2017, of Ms. Collingwood (the Mother) resisting his spending time with the children.  On 22 January 2019, orders were made for the children to spend time with the Father on three Saturdays out of four with the changeover to occur at the G Contact Centre (the Centre). Unfortunately, the Centre was unable to accommodate the family, and the contact did not start until 30 November 2019.

        After three supervised sessions, the family moved to facilitated changeovers.  The children were not presented for changeover.  The Mother did not respond to requests for meeting with the Centre. The Centre made multiple requests to the Mother for a meeting, but she refused.

        The Father filed an application seeking to vary the orders so that the changeover venue is at a McDonald's Family Restaurant. In the alternate, the Father proposes that he collect and return the children from their residence, remaining in the car at all times.  The Father sought the reinstatement of face to face time with the children.

        The Mother has not responded to the application.  The Mother, however, sent medical evidence showing that the children and she are in isolation. The matter proceeded as the Mother's email and annexures formed part of the evidence as the Mother failed to appear on schedule the hearing.  One of the annexures to the Mother's email was a letter from the children's general practitioner, Dr. H, dated 19 May 2020. It stated that all children have been unwell with recurrent viral illnesses and a recommendation for them to continue to self isolate while there are ongoing cases of COVID 19. 

        Having regard to the matters raised by the general practitioner, the Independent Children's Lawyer (ICL) did not support the reinstatement of face to face time as sought by the Father.  However, the ICL prepared a Minute of Orders providing for Zoom weekly contact.

        ISSUE:

        Whether or not the Court should reinstate face to face time between the Father and the children.

        HELD:

        To some extent, the detriment will be ameliorated by the video conferencing between the Father and the children.  Hence, the Court ordered the children to communicate with the Father each Saturday at 2 pm for up to half an hour by Zoom.  Further, the matter was relisted for further consideration of the resumption of fact to face time between the Father and the children in one month.

        While the Father's anxiety to resume face-to-face contact with the children is entirely understandable and appropriate, it is also fitting that the children's medical practitioner's advice is considered.  In the present circumstances, the children's physical health must take precedence over the benefit of their spend

        FERMIKIS & FERMIKIS

        FAMILY COURT OF AUSTRALIA

        [2020] FamCA 449

         

        This judgment concerns the parenting arrangements for the children of the relationship, X (17 years old), Y (10 years old), Z (6 years old), W (4 years old), and Q (almost 3 years old). The children were not provided to the Father despite orders for that to occur.  Also, the mother relocated with the children to Queensland without notice to the Father, the ICL, or the Court.  Each of the parties makes serious allegations about the risk of harm presented to the children by the other.

        FACTS:

        Before the acquittal of Mr. Fermikis (the Father) for the assaults upon Ms. Fermikis (the Mother), interim orders were made wherein the Mother  was restrained from changing the parties’ children’s place of residence from the ACT area and for the Father to call X and Y once a week and spend time with Z, W, and Q each alternate Friday from 10 am to 5 pm and each alternate Saturday from 10 am to Sunday 5 pm with the Father’s sister or an agreed person to be in substantial attendance during the Father’s time.

        The Mother failed on numerous occasions to provide the children.  She advised the Court on twice that she was not providing the children to the Father due to illnesses and to the Father’s failure to comply with his obligations pursuant to bail conditions, pursuant to the Domestic Violence Order, or pursuant to the orders of the Federal Circuit Court.  The Mother indicated that she would file an application to suspend the current orders.  The Mother filed a further affidavit in which she disclosed that she had removed the children to live with her in Queensland.  She had not informed the Court that she had done so on either of the previous two occasions that the matter was before the Court.

        The Father sought the children’s return to the ACT and for shared care. In the event the Mother does not return, he sought a recovery order and that all five children live with him full time. The Mother, on the other hand, sought to regularize her move with the children to Queensland and that there be limited supervised face to face time with the Father, funded by the Father.

        ISSUE: 

        Whether or not the Court should grant the Father’s application for the children to be returned to the ACT and to be under the parties’ shared care.

        HELD:

        Sec 60CC(2A) the Family Law Act[1] places a primacy upon the need to protect children from harm occasioned by being exposed to abuse, neglect or family violence. Despite the unpalatability of orders that appear to reward a parent who has flaunted the orders of the Court by removal of the children in the face of an injunction, the Mother remaining in Queensland with the children is the result that most significantly ameliorates the risks faced by the children.

        Remaining in Queensland ameliorates the risks associated with neglect by the Mother, by virtue of the involvement of the Mother’s mother and stepfather. It also ameliorates the risks posed by the Father concerning sexual abuse and family violence. It does little to ameliorate the risk of abuse posed by the Mother about the potential involvement of the children in the concoction of sexual abuse allegations.

        Given the lack of time spent by X and Y with the Father, given that they have recently given evidence against him in respect of assaults upon the Mother, and given the tacit concession inferred from the Father’s position that there needs to be therapeutic reintroduction, it cannot be thought to be in their interests to be removed from the Mother to live with the Father if the Mother does not return to the ACT.

        The Court permitted the Mother to relocate the children’s residence to the grandparent’s residence in Queensland and discharged the orders that governed time with the Father, which was relisted for determination of interim arrangements for time with the Father.  

        It will be necessary to hear from the parties further with arrangements for the Father to spend time with children while remaining in Queensland.

         

         

        Remaining in Queensland ameliorates the risks associated with neglect by the Mother, by virtue of the involvement of the Mother’s mother and stepfather. It also ameliorates risks posed by the Father in relation to sexual abuse and family violence. It does little to ameliorate the risk of abuse posed by the Mother in relation to potential involvement of the children in concoction of sexual abuse allegations.

         

         

         

        [1] (2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2) (b).

        (2)  The primary considerations are:

        (a)  …      

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


        • Reechara Ann Noble The courts also listen to the children, especially the older ones, and in some cases the children can each individually get their own advocate, (legal representation) where they feel their parents are unable to help them, this occurs when a child is being ordered by the court to live with a parent they dont want to live with, no one knows all the details in such cases, i can only share info that helps the child be where they prefer, and courts take this info very seriously, as it is the child who lawyer up

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          • Shane Barnes unfortunately in my opinion the laws are to soft and not monitored closely
            I spent was roughly 2 years from the date a dvo was issued by her claims which where valid the bathroom door took a punch but claimed i beat her up with no marks or bruises , po
            lice acted like my friend but were not , i was apparently a risk to my son if that where the case answer this lets say I was a violent father I had mediation they were not supervised visits then the court orders were not supervised in my opinion for the safety and mental health of all concerned parties all should have to attend a qualified therapist that can pick out liars and manipulators for me i had a female judge still remember her words to the mother denying me access , who the hell do you think you are im giving you a 5min recess to think about this if you choose to deny the father access tge father gets full custodial rights it shouldn't have to get to a judge that can read people it should be picked up early for the children's welfare.

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            • Grame Thompson The statement by the 17 year old would have very.much swayed the courts decision against t he family and rightly so if t hey have given witness statements in potential and alleged criminal matters. (This is without the impracticality or even legal power of the Family Court ordering a 17yr old on where they can and cannot reside.. when it comes to any child over age of 15, the court making residence orders for them is basically useless if the child refuses them)

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              JAGO & JAGO

              FEDERAL CIRCUIT COURT OF AUSTRALIA

              [2020] FCCA 1064

               

              This case is a parenting proceeding under the Family Law Act 1975 (Cth) (‘the Act’) between the parties who are the great-uncle and the great-aunt of X, the child, who is the subject of the proceedings, regarding time spent, particularly overnight, with the great-uncle.

              FACTS:

              X was born in 2010 to parents who were habitual drug users at the time of her birth.  At the time of her birth, X was affected by withdrawal symptoms consequent upon her mother’s use of illegal drugs, and in particular, amphetamines.  Like her other siblings, X was taken into the care of the Department of Family and Community Services.  At three weeks of age, she was placed in the care of her great-aunt, Ms. Jago (the Respondent), and her great-uncle, Mr. Jago (the Applicant), who are separated couple.

              When X was nine months of age, a final order was made in the Children’s Court of New South Wales at Town K. The orders placed her under the parental responsibility of the Minister of the Department for 12 months and after that allocated parental responsibility to the Minister and the Respondent and the Applicant until she attains the age of 12 years, the Minister having responsibility for contact for X, and the Respondent and the Applicant having sole responsibility for all other aspects of her care.  The order provided that on the expiration of the parental responsibility order once X reached 12 years of age, the Respondent and the Applicant would have sole parental responsibility for all aspects of her care until she attains the age of 18 years.

              The parties have historical family violence and have previously used illicit substances.  No evidence of family violence towards or in the presence of the child was presented.  The Applicant only sought for the determination in interim proceedings concerning the time that should be spent between X and the Applicant.

              ISSUE:

              Whether or not order should be made allowing X to spend time overnight with the Applicant.

              HELD:

              Under the Family Law Act 1975 (Cth) (‘the Act’), the Court must regard the best interests of the child in making a parenting order.  It must always be the paramount consideration. [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.  In this matter, however, neither the presumption of equal shared parental responsibility nor equal time consideration [2] are relevant as neither of the parties to these proceedings is a parent of X. 

              On the other hand, section 60CC of the Act provides primary considerations which are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Section 60CC(2A) mandates that the Court must give greater weight to the consideration of protecting the child over the consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents.  In this matter, the first of the primary considerations does not apply in relation to the issue between the parties to the proceedings.  The Court, therefore, focused on the second of primary considerations, which is the need to protect X from physical or psychological harm from being subjected to, exposed to, abuse, neglect or family violence.

              Each of the parties had asserted that the other party presents a risk to the child. However, the Respondent only asserted that the risk presented to X in the care of the Applicant is only in relation to the latter’s application seeking that X spend time overnight with him starting immediately and on a graduating basis culminating in week-about care.  She asserted that X being away from her overnight with the Applicant would be a risk to X’s psychological welfare as it would cause her anxiety and distress as she has not been away from the aunt overnight during her life and still requires to co-sleep with the aunt and to be cuddled to sleep.  The Respondent has been her primary carer throughout her life. The Court found that at the present time there is a need to protect X from any risk of psychological harm that would be caused by requiring her to spend time overnight away from the aunt. More time between the Applicant and X is needed and more expert evidence is needed before an informed finding can be made as to when it would be appropriate for overnight time between X and the Applicant to begin.

              There is no doubt that X has a meaningful, close and loving relationship with each of the Respondent and the Applicant. Amidst the evidence presented in that throws up some questions about the capacity of each of the parties to provide for X’s, the Court did not find basis to choose between them and concluded that that it is in X’s best interest to remain living with the aunt as her primary carer on the interim basis and to have orders made that she spend time with the Applicant.  In addition to the above order, the Court ordered that the parties have equal shared parental responsibility for X.  

               

              “X is a vulnerable child who has had a troubled history from the time of her birth. She has been diagnosed by her pediatrician as suffering from ADHD, from ODD, and autism. The aunt has been her primary carer throughout her life. I find that at the present time there is a need to protect X from any risk of psychological harm that would be caused by requiring her to spend time overnight away from the aunt. This is not to say that should become the situation which will continue indefinitely, more time between the uncle and X is needed and more expert evidence is needed before an informed finding can be made as to when it would be appropriate for overnight time between X and the uncle to begin.[3]

               

               

              [1] Section 60CA, Family Law Act 1975 (Cth).

              [2] Section 65DAA.

              [3] Jago & Jago [2020] FCCA 1064 (18 May 2020), 109.

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