Never doubt a small group of committed citizens can change the world. Indeed, it's the only thing that ever has.
HOW FLAST WORKS

With discussions on legal issues in social media there is always a risk that the other party will find out that you have posted and asked a question about your case and use that against you.

With FLAST we discourage discussion of a members personal case publicly, instead we do regular case studies of cases coming out of the Family Court and provide an environment for Lawyers to engage in discussions about those Court digests and members who have family law related issues the ability to interact with lawyers directly either through public discusion, private messaging or our recommended method is anonymously until you find the lawyer you would like to help you.

FLAST provides for social media discussions of legal issues where legal professionals and those with legal experiences can discuss legal issues in a safe environment without giving legal advice but still providing valuable legal information.

STEP 1 : Register with FLAST.

STEP 2 : Create a Profile and/or an anonymous profile if you wish the discussion to remain private while you interact.

STEP 3 : Post your question in the Discussion area or comment on posts and news.

STEP 4 : We notify our members who are legal professionals or members with relevant experiences and share the issue across our network of social media sites that cover legal issues.

STEP 5 : You can safely interact with your anonymous profile.

STEP 6 : You can make contact directly with Organisations and Professionals on FLAST and you can make that decision based on what you see in their profile, how they interact in the forum, any reviews that they may have received.  You can also purchase services directly from the Legal Professionals and Organisations through FLAST which gives you the added piece of mind that they will provide the highest possible level of service to you.

Join FLAST as a subscribed member for added services.

CLICK HERE TO JOIN

New Discussions
The ICL has required me to undergo monthly urine drug testing based only on that I admitted smoking …
  •  · 
  •  · 
  •  · Cameron McKenzie Seek that the costs of the testing us shared by both parties. Ensure the testing st…
Is anyone able to assist me by knowing of case Judgements names for the below? Alternatively  furthe…
Sorry for this post being very disjointed..  The mother is a bit lost / overwhelmed getting the rele…
  •  · 
  •  · 
  •  · Cameron McKenzie There is often a significant amount of common sense in these matters before chargin…
If someone is not party to a FLC proceeding (neither applicant nor respondent) but is named in an af…
  •  · 
  •  · 
  •  · ...and that ladies and gentlemen of Flast is why I am such a big fan of Elisabeth HA.She volunteers …
Can my ex-wife be estopped from denying an agreement exists? I entered into a Private Property Agree…
  •  · 
  •  · 
  •  · Elisabeth HA So what is she going to do? It sounds like it’s all been done. If she files an applicat…
Following final orders of consent for custody (50/50) and schooling, my estranged wife agreed to all…
  •  · 
  •  · 
  •  · Thanks Elisabeth (and everyone else). The Stat Dec is a declaration of fact. I agree which is why th…
New Organizations
Latest Posts (Gallery View)

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.

If you have an interest in Digital Courts, Family Law, or just like hearing lawyers and judges talk you cannot go past the latest 28 minute episode from the ABC's Law Report about Covid-19 and how the Family court initiated it's "COVID-19 List" and worked out in under a week

It's also available as a podcast on all platforms! Why are you still here? Go listen!!!

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.

YAGIN & HARSTAD

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 1149

 

The parents, who make serious allegations against the other about family violence, drugs and alcohol, and mental health, want the Court to make an urgent interim decision about which parent the children should live with, and what time the children should spend with the other parent.

FACTS:

The parties separated in 2019.  Even after separation, the tumultuous relationship between them continued, with the focal point being arguments about Mr. Harstad’s (the Father) time with the two children.   He took the children away from Ms. Yagin (the Mother) and moved them back in with him, where he currently resides.  The Mother commenced proceedings in January 2020.

The primary judge made Interim Orders that the children live with the Mother, and spend time with the Father.  However, the Mother ceased allowing the Father to spend time with the children from about 9 February 2020.  The Interim Hearing in this matter was held on 4 May 2020.

At the Interim Hearing, the Mother proposed that the Children continued to live with her, but spend time with their father each alternative weekend for two hours at the E supervised contact Centre in Town D.  The Father, supported by the Independent Children’s Lawyer, proposed that pending further order he have sole parental responsibility, the children live with him and spend supervised time with their mother.

ISSUE:

Between the parties, with who would the children’s is at least risk of harm?

HELD:

For purposes of the Interim Judgment, the Court has tentatively formed the view that the Orders that it will make are in the children's best interests.[1] Wherever the children are living, there is a risk of harm to them.  The Court decided where the least risk for the children until an expert assessment is obtained, and there can be a more rigorous assessment of the evidence at the Final Hearing.

The Court had concluded that there is less risk for the children in their Father's care and many ways that there would be a higher risk to these children remaining in their Mother's care. The children will be physically and emotionally safe in their Father's care. This is particularly the case if he continues to live with his sister in her family home. The Court had concluded that the risk to the children deriving from their Mother's mental health is greater than if they were cared for by their Father.

The Mother appeared to have had a long history of volatility and mental health issues, which predated her relationship with the Father in this case.

She had a long history of depression, previous traumatic events and abuse, and suicide attempts.  She declined to participate in counseling, which the Court considers her willingness to engage in services to assist her, an issue.  Her aggression, which may or may not be related to her mental health issues, was well documented.   By way of a summary of the evidence, a strong impression was formed that the Mother struggled with her mental health in 2019 and that at times it was acute.  The history of the Mother's mental health raised serious concerns about the risk of the Mother relapsing in the Court's mind. She had the care of six children. Despite the Mother's trenchant criticism of the Father, he was at least present to assist with the care of the children.

In these challenging circumstances, the Father's proposal provided a greater chance of safety for the two younger children, at least pending further investigation. This safety will be enhanced by requiring him to continue to reside with his sister for the time being.  The Father and Independent Children's Lawyer proposed that the children spend time with their Mother for up to 3 hours each week supervised by a contact provider in the Suburb M region of New South Wales at days and times nominated by that provider. As an alternative, the proposed orders contemplate supervision by the maternal grandmother and maternal grandfather. From the Court's perspective, and subject to the supervisors providing an appropriate undertaking, the Court believed this is a suitable alternative.

 

  1. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.[2]

 

[1] Part VII of the Family Law Act 1975 (Cth).

[2] MRR v GR [2010] HCA 4.

This fact sheet explains how Family Tax Benefit (FTB) works when the care of children is shared, most frequently in the event of divorce or separation. It also explains how to deal with problems that can arise, particularly when two carers do not agree on the “percentage of care” that should apply.

Overview

When two separated parents (or in fact any adult – like a grandparent) are sharing the care of a child, FTB can be split according to the percentage of time the child is in each adult’s care:

If an adult has at least 35% care of the child, the FTB payment can be shared;
If an adult has less than 35% of the care, they will not get a share of the FTB. However if they do have at least 14% of the care, they may be eligible for the rent assistance component and other benefits that normally attach to FTB;
If an adult has less than 14% of the care, they cannot receive any family assistance for the child.

Assessment period

The assessment period for working out the percentage of care starts from the day care starts or changes, and runs until there is another change in care.

A care period of 12 months will generally be used when the arrangements are ongoing. Generally for a 12 month period, the 35% minimum care rule is satisfied where a person cares for the child for at least 128 days in that year.
Pattern of care

To work out how FTB is to be shared, a “pattern of care” must be established to work out what percentage of time each adult cares for the child. This percentage is then applied when calculating the rate of Family Tax Benefit A and B that each adult can receive. The table below summarises the percentage of FTB that will be paid. If “number of nights” is not an accurate reflection of the pattern of care, in some cases, care can be expressed in hours and converted into days to establish a pattern of care.

Shared Care and FTB

WHO DECIDES WHAT THE PERCENTAGE OF CARE IS?

Centrelink’s Family Assistance Office or the Child Support Agency make a determination about the pattern of care that each relevant carer provides for a Family Tax Benefit child, and then informs the other agency automatically.

This pattern of care then gets converted into a percentage rate that decides how the FTB is split.

If both adults agree on the actual pattern of care for the child, the agreed pattern of care is used.

If both adults disagree, Centrelink must decide what the actual pattern of care is, on the basis of available evidence, even if a formal care arrangement exists according to court orders.

Each adult will be asked to provide additional evidence to support what they say in order for the Family Assistance Office to make a decision.

If you do not agree with the percentage of care that Centrelink or the Child Support Agency decide you have, you have the right to appeal.

An assessment by Centrelink or the Child Support Agency is binding for both agencies. If the decision is made by Centrelink, you can appeal to an Authorised Review Officer in Centrelink. If the decision is made by the Child Support Agency, you can lodge an appeal with the Child Support Agency or to an Authorised Review Officer in Centrelink.

If that doesn’t work, you have the right to appeal to the Social Security Appeals Tribunal.

HOW CAN I PROVE MY PERCENTAGE OF CARE?

When there’s a disagreement between yourself and another carer as to percentage of care, each person has the opportunity to provide verification. You could try to get evidence which might support what you say, such as:

  • any records of agreement between you and the other carer (a written agreement, an email);
  • a family law order or parenting plan;
  • confirmation of play group, kindergarten or school enrolment;
  • proof of attendance or membership of local organisations or activities;
  • receipts for things you paid for while caring for the child;
  • statements of close family friends or relatives who can confirm your percentage of care;
  • confirmation from any professionals who know your situation (a doctor, a family law solicitor, a teacher, a police officer);
  • proof of travel arrangements at contact times (rail or airline tickets); or
  • records from a government agency (like the Child Support Agency) who might be able to confirm current or previous patterns of care.

A decision maker will usually speak to you, speak to the other carer, look at any evidence submitted, and then make up their own mind about what percentage of care to apply in your case.

WHO CAN HELP ME WITH THIS?

Welfare Rights Centres often can’t act for you against another carer. This is because we don’t want to be “conflicted out” of helping as many people as we can with their problems with Centrelink. You could contact your local Legal Aid Child Support specialist service to see if they could help you. Centrelink’s Family Assistance Office and the Child Support Agency can each make a determination about the pattern of car and this decision is then applicable to the other agency automatically. Legal Aid Child Support Service in NSW can be reached on 96339916 (Sydney) or 1800 451 784 (regional).

SHARED CARE DEBTS

Problems can arise when one person receives FTB by instalments based on a certain percentage, but then another person claims FTB later (eg at the end of the year) and claims to have a higher percentage of care than Centrelink had applied.

For example, Susie receives instalments of 100% of FTB through the financial year on the basis that she has care of her son Tom 70% of the time. However at the end of the financial year, her ex-partner Jason lodges a claim for FTB stating that he has 35% care of Tom.

If Centrelink assesses the care and decides Jason did have 35% of the care, Susie will incur a debt:

  • If Susie disagrees with Centrelink’s decision about the percentage of care, she may appeal to an Authorised Review Officer to argue the decision was wrong;
  • If she agrees with the decision, she might still have grounds to have the debt waived if it was caused by Centrelink error or if she has special circumstances.

If you disagree with a debt raised on the basis of the percentage of care you had of a child over a past period, you have the right to appeal. You can present your case to a decision maker and ask them to make a decision that you had a different percentage of care. The same sorts of evidence referred to under “how can I prove my percentage of care” on page 2 would be relevant to your appeal.

If you agree with the percentage of care basis for the debt, but would like the debt waived in view of your special circumstances and in view of the fact you did not realize you were being overpaid at the time, you have the right to ask that the debt be waived (meaning it does not have to be paid back). See our factsheet “Debts” for more information about this.

SHARED CARE AND OTHER PAYMENTS

Parenting Payment (for children under eight if you’re single) can’t be shared because it is paid to the principal carer, and only one person at a time can be the principal carer of a child. Where the care of a child is shared a decision has to be made as to who qualifies as principal carer. Where one person provides the majority of care they will generally be determined to be the principal carer, even if that person has not claimed Parenting Payment. Where the care is shared equally (eg, 50:50 or where there is less than a 10% difference in the level of care), Centrelink’s policy is to grant Parenting Payment to the parent who:

–     claimed Parenting Payment, if the other parent does not claim; or

–     is most in need of the payment.

In determining need, Centrelink looks at:

–     whether one of the parents already qualifies for Parenting Payment for another child;

–     any other income or assets of the parents; and

–     whether one parent has already been receiving Parenting Payment for the child.

Child Care Benefit and Rebate are paid to the person liable to pay the child care fees.

APPEAL RIGHTS

If you think a Centrelink decision is wrong, you have the right to appealAppealing is easy and free. To appeal simply tell Centrelink that you are not happy with their decision and that you would like to appeal to an Authorised Review Officer (ARO).

You can appeal to an ARO at any time. However for an FTB past period decision, your appeal needs to be lodged within 52 weeks from the date of the decision, or by 30 June for the financial year after the one you are appealing about – whichever date is the later one. To claim FTB for a past period, you need to lodge your claim within 12 months of the relevant financial year you are claiming for. There is no time limit to ask to waive a family assistance payment debt. Different time limits may apply to appealing decisions through the Child Support Agency.

If you think the ARO decision is wrong you have further appeal rights, and time limits apply. For more information see our factsheet “Appeals – how to appeal against a Centrelink decision”.


Footnotes:

Post shared via Jacob Romano from Family Law Express

MADAR & MCCORMACK

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 1152

 

This case involves parenting orders made prior the issuance of the State Emergency Management Plan.  The Court decides whether or not the parenting orders it made has to be changed to coincide with the Emergency Management (Gatherings No 2)(COVID 19) Direction 2020 SA.

FACTS:

The Court made parenting orders by consent which provided for the parties’ child, X, to spend time with Mr. Madar (Father) on certain occasions subject to a proviso such are to be supervised by the maternal grandfather in the home of the maternal grandparents, and to be in accordance with s 3(1)(b) of the Emergency Management (Gatherings No 2)(COVID 19) Direction 2020 SA (‘the Direction’).”  No submissions were heard on the operation or meanings of the Direction as the orders were made by consent.  After the hearing and after the father had spent time with the child pursuant to the orders, it became apparent that the parties were in dispute as to the meaning of the order in light of the terms of the Direction. In particular, the parties could not agree whether the terms of the order and/or the Direction meant that the father would be required to maintain a distance of 1.5 meters from the child during the period of his time subject to the orders. The child is about 16 months old.

ISSUE:

Whether or not the Court should change the parenting orders made in the light of the Direction.

HELD:

After giving regard to the operation of the Direction and the EM Act, the Court concluded that no order is necessary to change the existing parenting orders.

Prohibited gathering, as adopted in the order, requires the parties to ensure that during the father’s time with the child, which for the purposes of the order, would involve a gathering of ten or less people, the total number of persons present does not exceed one person per four square meters.  This means that the parties have agreed that the number of persons who can be present during the father’s time will necessarily be determined by the size of the room or venue in which the time takes place. It does not impose any requirement to observe the social distancing principles as defined in the Direction.  On the basis of the order alone, the father would not be precluded from physical contact with the child subject to the ‘density requirement’ being observed.

The Direction does not expressly create any exemption in complying with the directions at cls 4(1) – (6) [1] for parties in the same family (whether living together or split) or persons in the same household.   Persons usually living in a household of 10 or more would still be required to use their best endeavors to comply with the social distancing principles because of the broad wording of cl 4(4). Direction cl 4(6) does not provide such an exemption. It simply says that if 10 or more people usually reside in the same premises they may continue to do so.

Can people, whether part of a family or otherwise, who normally reside in the same place, be regarded in any meaningful sense as ‘gathering’ in any way? The Court viewed this question answerable by the terms of the Directions themselves.  They refer to ‘allowing’, ‘organizing’ and ‘attending’ a prohibited gathering. This suggests something other than the usual exigencies of family life.

Further, the terms of cl 4(4) are qualified by the words ‘best endeavors’ and ‘having regard to all of the circumstances’. It does mean that it is recognized in the Direction that the ability to comply with the social distancing principles will depend on the prevailing circumstances.

“The father’s very limited time with the child cannot be regarded as time with a child who lives between split households. The Direction is cast in broad terms, does not attempt to identify all permutations of social interaction, and within its’ terms and that of the offence created by s 28 of the EM Act, there is considerable latitude, no doubt deliberately so. The omission of any reference to what I have referred to above as normal family interaction also appears quite deliberate. I am satisfied that the order can be complied with by observing the density principle and am unable to see why contact between a parent and a child would necessarily be caught by the terms of the Direction. For the same reasons, it would appear that the maternal grandfather is most unlikely to be at risk of failing to comply with the Direction by permitting the father to have physical contact with the child pursuant to the order.” [2]

 

 

 

 

 

[1] 4–Direction

(1) A person who owns, controls, or operates a place in the State of South Australia must not allow a prohibited gathering to occur at the place.

(2) A person must not organize a prohibited gathering at a place in the State of South Australia.

(3) A person must not attend a prohibited gathering at a place in the State of South Australia.

(4) A person who is present at a gathering (whether or not a prohibited gathering) must use their best endeavours to comply with the social distancing principles (having regard to the all the circumstances).

(5) Despite paragraph (i) of the definition of prohibited gathering, a person who is present in a court or tribunal building must comply with a reasonable direction of a sheriff's officer given for the purposes of implementing the density requirement and the social distancing principles.

(6) Nothing in this clause is to be taken to prevent more than 10 persons who ordinarily reside in premises from residing together in those premises.

[2] Heffernan, J, Madar & McCormack [2020] FCCA 1152 (13 May 2020), 23.

The adversarial common law system in Australia, by its very definition, often delivers results that are far from what was expected, even to impartial third parties.

The counter-balance to this uncertainty is the hierarchical layers of Courts, providing avenues for appeals.

Sometimes however issues arise in family law proceedings in Australia with regard to the performance of the judicial officer or the Independent Children’s Lawyer, which cannot wait for the sometimes long-winded appeals process, and require immediate action or remedy.

This paper will consider the procedure for removing a judge and an Independent Children’s Lawyer (ICL) from proceedings.

As the procedure for removing a judge varies considerably from removing an ICL, I will deal with them on a separate basis.

Removing a judge from proceedings

In certain cases a party to litigation might conclude that a judge is not fit to preside over proceedings and should be removed. The grounds for removing a judge from proceedings, however, are narrow and restrictive. A judge can only be disqualified from a matter on the grounds of bias.

Governing Principle

The principles of natural justice require that a decision maker, ie. a judge or a magistrate, must approach a matter with an open mind that is free from pre-judgment or prejudice. In other words, the decision maker must be free from bias.

A party who suspects that a judge or a magistrate is biased may seek an application to have the decision maker removed from the proceedings.

Types of Bias

There are two types of bias, actual bias and apprehended bias. Actual bias is available only if a party can prove that the decision maker’s minds is closed and will not be swayed by the evidence in hand. On the other hand, apprehended bias (also known as apparent bias) only requires a finding that a fair minded and reasonably well informed observer might conclude that the decision-maker did not approach the issue with an open mind.

Most cases concern apparent bias, as opposed to actual bias. This is partly because apparent bias is much easier to prove as it does not require an applicant to establish the actual state of mind or attitude of decision-makers.The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”1 affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. ]

If a party reasonably suspects that the judge or magistrate’s impartiality is affected his actual or apparent bias, then the party can apply to have the judge removed on this ground.

Instances of Bias

It is not always easy to know when the judge or magistrate should be disqualified on the grounds of bias. Case law offers some helpful guidance to parties:

  1. The fact that the judge, or a close family member, holds shares in a litigant party is normally not a ground for disqualification, unless the value or income stream of the shares could be affected by the outcome of the litigation2:
  2. The fact that the judge has a direct pecuniary interest in the proceedings is a ground for disqualification3:
  3. The fact that the trial judge has expressed views in previous decisions, or in extra-judicial publications in relation to the kind of litigation before the court, which may have questioned an existing line of authority is not normally a reason for disqualification unless those views suggest that the judge could not hear the case with an “open mind”.4 1 All ER 65. ]
  4. The fact that the judge is related to a party, or to one of the party’s legal representatives- including an intimate relationship, at least where that legal representative is actually involved in the litigation, will normally be a ground for disqualification 5:
  5. Where the judge was married to a party, or to one of the party’s legal representative, and that relationship has subsequently broken down. What is a reasonable period of disqualification following the end of the relationship will depend on the facts of the case;

How to make an application

A party can make an application for disqualification without filing a formal motion.6 2 NSWLR 740; Bainton v Rajski (1992) 29 NSWLR 539. ]

Traditionally, the question of disqualification has been dealt with in an informal way before the judge against whom objection is, or might be, taken. A party can seek to have the judge disqualified by drawing the issue to the attention of the registrar with appropriate adjustments being made to the listing of the matter7. In such cases, the issue may be resolved without the need for it to be ventilated in open court.

If a party is unable to resolve the matter informally, then the party should file an application seeking the disqualification of the judge (also known as recusal application). Generally an application should be made as soon as reasonably practicable after the party seeking disqualification becomes aware of the relevant facts.

It should be noted that there is no uniform procedure for raising the issue; nor a uniform method for informing the court as to the facts supporting a request for disqualification in circumstances where that might be regarded as necessary. The matter is essentially unregulated and judges have increasingly invited the parties to make submissions, taken evidence and delivered reasons.8

Waiver

It is important for a timely objection to be made by a party if it is considered that there is a serious question as to whether the judge should withdraw. By failing to make a timely objection, the litigant may be held to have waived any objection to the judge hearing and determining the matter.

As waiver may be implied, where a party is making an informal or oral application, it important for an objection to be recorded on the transcript, or noted by the judge if transcript is not taken.

Tender of Evidence

In certain circumstances evidence has been permitted of the existence of a potentially disqualifying interest held by the trial judge in the subject matter of the proceedings. In Clenae Pty Ltd v ANZ9 VSCA 35. ], for example, affidavit material was tendered on the appeal to show the existence of the trial judge’s shareholding in the respondent company.

Who hears the Application?

It is well established that the judge assigned to hear the matter will decide whether he or she ought to disqualify him or herself on the grounds of bias.

Appeal

A judge or magistrate will not automatically step aside wherever an objection is made. In some cases, the judge or magistrate may refuse an application seeking disqualification. Where a matter is being brought in the Federal Circuit Court or the Magistrate Court of Western Australia, a party can appeal to the Family Law Court where an application for disqualification has been rejected by the primary judge or magistrate.10

However, when a judge of the Family Court, as opposed to a lower court, refuses to disqualify him or herself from the proceedings, then the question of whether that decision is appeal-able is a vexed issue. A refusal by a judge to disqualify him or herself can be relied upon as a ground of appeal in relation to the substantive judgment. Traditionally it has been held that no appeal lies from the rejection of a refusal application; Wentworth v Rogers.

However, the decision in Barakat v Goritsas (No 2) [2012] NSWCA 36 suggests that it will frequently be appropriate to grant leave to appeal where a recusal application has been rejected ‘assuming that the challenge is not patently untenable’.

In any case, a party may seek a writ of prohibition from the High Court against the judge in the Family Court.

Prohibition

Where the judge or a magistrate has refused to disqualify him or herself, a writ of prohibition can be sought against judges of federal courts and inferior courts including the Family Court of Australia.

Thus, in The Queen v Watson; Ex parte Armstrong11the High Court held that prohibition could lie against a judge of the Family Court of Australia prohibiting the judge from hearing an application for dissolution of marriage and ancillary relief where, in all of the circumstances, the parties or the public might reasonably have suspected that the judge was not impartial. The Court held that prohibition should issue on the ground that the parties or the public might reasonably suspect that the judge was not unprejudiced or impartial.

Removing an Independent Children’s Lawyer (ICL)

The procedure for removing an Independent Children’s Lawyer is different and simpler. Under regulation 8.02(1) of the Family Law Rules 2004, a party may apply for the appointment and removal of an independent children’s lawyer by filing an Application in a Case. This application can also be made orally.

The Court will only do this in very serious circumstances, which would include where there is evidence that the lawyer:

  1. -is acting against the child’s best interests
  2. -is not doing the job properly
  3. -is not making independent decisions, or
  4. -has a conflict of interest.12
 
  1. Johnson v Johnson (2000) 201 CLR 488 at [11 
  2. Dovade Pty Ltd v Westpac Banking Corporation and see Ebner v Official Trustee. 
  3. Dimes v Proprietors of Grand Junction Canal Pty (1852) 10 ER 301 and Dovade Pty Ltd v Westpac Banking Corporation.  
  4. Timmins v Gormley [2000 
  5. Smits v Roach (2006) 227 CLR 423. 
  6. Barton v Walker [1979 
  7. Melissa Perry, ‘Disqualification of Judges: Practice and Procedure’(2000) Discussion Paper, Australasian Institute of Judicial Administration Incorporated, p 9. 
  8. Ibid ix. 
  9. [1999 
  10. s 94AAA of the Family Law Act 1975. 
  11. R v Watson; Ex parte Armstrong (1976) 136 CLR 248.  
  12. Legal Aid Western Australia, ‘Independent Children’s Lawyer (ICL) in the Family Court. 

    Post Courtesy via Jacob Romano and Family law Express  http://www.familylawexpress.com.au/family-law-brief/legal-proceedings/legislation/family-law-act-1975-legislation/how-to-remove-a-judge-orand-an-icl-from-proceedings/2608/?fbclid=IwAR1q0A4Q1tecc9_o2lbkhahRxomncz-iYtADyxKAujJi1amfGfNiCnIox0U

WAINER & WAINER

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 1393

 

This case discusses procedural rules on the extension of time to inspect subpoenaed materials relating to the mental and physical health of the Respondent.  It also dealt with the Respondent’s argument that the subpoenaed documents covered beyond the scope of the medical issue raised by the Applicant.

FACTS:

Mr. Wainer (Applicant) commenced proceeding for parenting arrangements and property settlement between the parties.  In the parenting proceedings, he sought orders for the children to live with him and spend six nights a fortnight with Ms. Wainer (Respondent) during school terms as well as holiday and special event time.  He raised concerns as to the Respondent’s mental health problems.  He issued a subpoena to Dr. A, the Respondent’s GP, requesting all clinical notes, test results, referrals, medical records and any other correspondence relating to the treatment of the Respondent.

The Respondent, in response, sought parenting orders whereby the children live with the mother and spend six nights a fortnight with the father during school terms as well as holiday and special event time.  She denied the Applicant’s allegation that she attempted suicide or self-harming, and she stated that her on and off depression has never interfered with her life, work, and duties as mother to their children.  In her accompanying Notice of Risk, she raised concerns about the children being at risk from the Applicant due to his denigration and belittling her in the presence of children, leaving a sick child unattended and prohibiting the children from seeing her.

The Applicant lodged a Notice of Request to inspect the subpoenaed documents that Dr. A produced, which the Respondent objected on the ground that the subpoena was a fishing expedition going beyond the medical issue raised by the Applicant.  She filed an application for the revocation of the Applicant’s leave to inspect the medical records and for an extension of time for her to inspect the documents and to consider then filing a notice of objection to the inspection and copying of the medical records produced by Dr. A.  The Applicant sought for it to be dismissed and for costs.

ISSUE:

Whether or not the Court should grant the Respondent’s application for an extension of time to inspect subpoena materials from Dr. A and to object to the Applicant’s Notice of Request.

Whether or not the subpoena was a fishing expedition going beyond the issue raised.

HELD:

The Court, after considering the law, the evidence and the written submissions by the parties, denied the Respondent’s application for an extension of time to inspect the materials produced by Dr. A and to object to the Applicant’s Notice of Request.

The Court found that the Applicant had complied with the required legislation by correctly issuing the subpoena to Dr. A on 6 April 2020 (Rule 15A.02(1)(a)); obtaining a return date for the production of the subpoenaed documents from Dr. A for 27 April 2020 (Rule 15A.04(1)); serving a copy of the subpoena on the mother’s legal representatives at least ten days before the production date that being on the 9 April 2020 (Rule 15A.13(1)(b)); and filing a notice of request to inspect the subpoenaed documents in the approved form on 28 April 2020 (Rule 15A.13(1)(c)).

Moreover, there is no provision in the legislation to extend the time for the filing of a notice of objection to subpoena according to Rule 15A.14 (1) or filing an application requesting the inspection of produced documents filed according to Rule 15.14 (2). Although the Court has the discretion to “dispense with compliance or full compliance with any of the rules[1] at any time”, this is only to be utilized in the interest of justice. The Respondent failed to establish that it is in the interest of justice for the Applicant not to have access to the full medical records. The Respondent was aware of the subpoena, and she had ample opportunity to object to it or apply to inspect it. She filed the objection to subpoena and the application to inspect the medical records on 5 May 2020, several days out of time as the time limit imposed by Rule 15A.14 (1) and Rule 15A.14 (2) expired. Also, she had agreed to the Applicant having access to the medical records by giving her consent to the interim orders for inspection and copying by the father.

Finally, even as the father in these proceedings raised issues only as to mental health issues for the mother, physical and mental health issues are capable of being entwined. Production of documents as to mental health issues only may not provide an adequate picture of the mother’s overall health and how that may impact on her ability to care for the children.

 

 

[1] Rule 1.06 Federal Circuit Court Rules 2001.

SEAGER & CAGNON

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 1479

 

FACTS:

The parties were married, and they separated in 2015.  They have two children, X and Y, who live primarily with Ms. Seager (the Applicant).  She commenced property settlement proceedings in 2017; however, they have not meaningfully progressed because she has made complaints about the lack of candour of Mr. Cagnon (the Respondent) and discovery regarding his financial affairs and arrangements with Ms. A, whom he described as his “House Mate.”

Due to the complaints the Applicant made about the Respondent’s inadequate discovery, specific orders directed to discovery by the Respondent were made.  In the orders, notations were contained that in the event that the Respondent does not comply with the orders and/or his obligations to discovery, the Applicant may choose to file either an Application in a Case and/or issue any relevant subpoena.  The Respondent only complied by filing an updated Financial Statement and a Trial Affidavit.  The Applicant maintained her compliant with respect to Respondent’s incomplete disclosure, including but not limited to matters related to superannuation. 

Applicant issued a subpoena to the National Australia Bank for the production of bank statements by Ms. A, who, thereafter, filed a Notice of Objection to the inspection and copying of records that relate to her personal and separate accounts on the basis of relevance, confidentiality, and fishing.  The Applicant argued that the documents she sought from the National Australia Bank have direct relevance to the proceedings as they will either prove or disprove the Respondent’s assertions as to the financial arrangements he has in place with Ms. A.

ISSUE:

Whether or not the production and inspection of Ms. A's personal and separate bank accounts are relevant and fishing.

HELD:

In Trade Practices Commission v Arnotts Limited (No 2)[1], it was held that documents are relevant if they could throw light on the issues in the main case.  In another case, the Court referred to it as "having a sufficient apparent connection to justify their production or inspection."

On the other hand, fishing was discussed in Martin & Martin and Anor (No 2).[2]  The Court in the said case stated that fishing could be argued where the pursuit of information is random, unguided, and the pursuer has no case but seeks to build one.  In this case, fishing cannot be raised as the Applicant was not merely in pursuit of random and unguided information, and the case has already been established.

The Court agreed with The Applicant's submission that Ms. A's bank statements are relevant because they are connected to the main issue in dispute in the property settlement proceedings between the Respondent and her.  Further, it is satisfied that the subpoena's breadth is appropriate given the conflicting information that the Respondent has given concerning his financial affairs generally and that which he and Ms. A have given concerning the financial arrangements that exist between them.  Having the statements would be the only way for the Court to understand the financial arrangement between the Respondent and Ms.A.  For this, the Court dismissed Ms. A's objection and made orders for the inspection and copying of the documents produced by the National Bank of Australia.

 

The question of what is relevant takes on significance. The objective must be to assist the parties and the court in the determination of the issues in dispute. [3]

 

[1] Beaumont J, Trade Practices Commission v Arnotts Limited (No 2) (1989) FCA 248; (1989) 21 FCR 306.

[2] Cronin J, Martin & Martin and Anor (No 2) [2014] FamCA 232.

[3] Cronin J, Papadopoulos & Papadopoulos (No.2) [2007] FamCA 1683.

  • Cameron McKenzie This matter showed four issues.

    Firstly the misconduct of a party (Failure of full and frank financial disclosure)

    Secondly that the issue was in contention, connected to proceedings and required illumination.

    Thirdly the scope and nature of the information sought was not so broad to be considered fishing.
    (Thus the requirement to be careful as to the exact material being sought and upon what grounds)

    Fourthly that if the material protected by privilege or confidentiality that the interests of justice will prevail over such privacy.

    It must also be mentioned that confidential material such as medical records can be subpoenaed and held in the registry as confidential and only available under certain circumstances.

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

    REECE & SEABROOK

    FEDERAL CIRCUIT COURT OF AUSTRALIA

    [2020] FCCA 1588

     

    The case involves parenting proceedings in which the father sought orders for the parties’ 15-year old child to live with him.  The mother sought a summary dismissal of the application in accordance with the principles in Rice and Asplund[1].

    FACTS:

    In this case, the parties are divorced and have an only child, X, who was born in 2005.  As alleged by Ms. Seabrook (mother and respondent), their separation was due to Mr. Reece's (father and applicant) violence towards her.   X lives with his mother and spends time with his father, according to a final consent order issued on 10 August 2009.

    On 12 November 2013, the mother filed an application seeking permission to relocate with the child to Canberra.  The father resisted the application.  Final orders were made by consent on 18 March 2014, which permitted the mother to relocate with the child to Canberra. The orders provided for the parents to have equal shared parental responsibility and for the child to spend time with his father, effectively, every second weekend, during school term, alternating between Melbourne and Canberra and half of all school holidays.

    The father then applied for X to live with him on the reason for X's repeated requests to live with him.  On the other hand, the mother alleged that any statement X made about living with his father was likely the result of pressure from his father rather than reflecting the child's true feelings.  The matter was not resolved; hence, the mother sought the summary dismissal of the proceedings.

    ISSUE:

    Whether or not, based on the principles set out in Rice and Asplund, the father’s application should be granted.

    HELD:

    The application was dismissed in accordance with the principles set out in Rice and Asplund, which applies when, after final parenting orders have been made, a court exercising family law jurisdiction is asked to entertain further parenting proceedings.  The principles were “founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children.” [2]

    The requirements in the two-step process to be followed in determining whether re-litigation is warranted was set.  There was a requirement:

    1. for a prima facie case of changed circumstances to have been established; and
    2. for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on hearing. [3]

    In this case, the Court was satisfied that X's age and his expression of some desire to live with his father represent a significant change of circumstances, which satisfied the first of the two-stage process.  However, it was not satisfied that further litigation required to change the arrangements is warranted. The child's views must be weighed in light of the evidence of other matters relevant to his well-being, including the evidence of the father's violence. All of these matters would need to be explored in a final hearing which cannot occur for approximately 12 months, at which time the child will be halfway through Year 11. The hearing is likely to be an unwelcome distraction from the child's studies and not likely to serve his best interests.

     

     

    In setting out the principles, Evatt CJ stated that,The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and material on which that order was based. It should not lightly entertain any application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that...there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material... These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case. [4]

     

     

    [1] Rice and Asplund [1978] FamCAFC 128; [1979] FLC 90-725.

    [2] Bryant CJ, Flynn and Cronin JJ, Marsden v Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1.

    [3] Ibid.

    [4] In the marriage of Rice and Asplund [1978] FamCAFC 128; (1979) FLC 90-725, pages 78-905–78,906.

    Malie029
     added a post 

    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).

    SHEE & HALE

    FAMILY COURT OF AUSTRALIA

    [2020] FamCAFC 140

     

    This is an appeal for an extension of time to file a Notice of Appeal against the order of the primary judge on the ground that there was no sufficient evidence to justify an extension of time in the light of the lengthy delay.

    FACTS:

    Applicant sought a declaration pursuant to s 90RD of the Family Law Act (1975) (Cth) (“the Act”) that she and Mr. Hale (Respondent) were in a de facto relationship from March 2010 to August 2016. The Respondent contended that the de facto relationship between them spanned only from March 2007 to March 2010, after which the parties maintained a friendship and a working relationship but that no genuine domestic relationship reformed. In his order, the primary judge declared that the parties had been in a de facto relationship from March 2007 to March 2010. He also ordered that the matter be listed for a case management hearing to determine then whether leave should be granted for the applicant to file an application for property division outside the time permitted by the Act.


    Applicant applied for an extension of time to file an appeal against the order. She explained that she was unrepresented and was unaware of the date of delivery of judgment to appeal against the order. Also, due to the COVID-19 pandemic, she was restricted from returning to Australia and could not find and retain legal representation about her appeal. Finally, she contended that her ability to give instructions had been affected by her limited English command.

    ISSUE:

    Whether or not the extension of time applied should be granted.

    HELD:

    In the case of Gallo v Dawson[1], the grant of an extension of time is not automatic.  The object of this rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice.

    The hearing of such an application, therefore, involves the exercise of discretion so as to enable the Court to do justice between the parties. In doing so, the Court will consider the history and conduct of the proceedings, their nature, the consequences for the parties of the grant or refusal of leave and the merits of the appeal. The Court will only exercise its discretion in favor of the applicant if it can be satisfied that strict compliance with the Rules[2] will work an injustice.

    The delay was extensive, nearly two months, and the Applicant’s evidence did not satisfactorily explain it. The Court did not accept the Applicant’s explanation of her limited communication skills since she has been able to practice in Australia's property industry for some 20 years. Besides, her daughter, whom she lived with and admitted as a solicitor, was an available and potentially helpful source of information. Also, the Applicant’s evidence as to investigating her right of appeal is vague. She did not say when she came to the view that she would like to pursue an appeal, when she started looking for lawyers, what steps she took to obtain legal assistance, and what, if any, difficulties she faced in getting assistance when she became informed of the time limit to file a Notice of Appeal and when she decided to bring the present application. Finally, the COVID-19 pandemic is not a complete explanation for the Applicant’s delay because the national emergency response plan to the virus was only activated on 27 February 2020. She gave no evidence to establish that the pandemic made things more difficult for her. 

    The Court considered the grounds for appeal raised by the Applicant. It found them not strong, and they did not satisfy that the appeal has sufficient prospects of success to justify an extension of time in the light of the lengthy delay. 

    Further, strict compliance with the Rules will not work injustice to the Applicant since her application was to appeal an evaluative finding as to whether or not the parties were in a de facto relationship for a particular period. There was no suggestion that the primary judge made an error as to the primary facts or in the appreciation of evidence. In the outset, the appeal faced some difficulties.

    Based on these, the Court dismissed the application for the appeal.

     

    The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties. [3]

     

    [1] Gallo v Dawson (1990) 93 ALR 479 (“Gallo”) at 480-481.

    [2] Family Law Rules 2004 (Cth).

    [3] Gallo v Dawson (1990) 93 ALR 479 (“Gallo”) at 480-481.

    Stay of Orders

    Notice of Appeal has been filed in the according appeals registry and served on each parties.  Now preparing an application to stay the orders pending appeal.

    Is this an Application in a Case accompanied by an affidavit?  What should the affidavit focus on?  What are the main precedents used when seeking a stay of orders?

     

    Recusal

     

    Has anyone had any success in having a Judge recused for apprehended and actual bias?  What was the process? Do you file an Application in a Case and file a supporting affidavit outlining the grounds in which you’re seeking to have the Judge recuse themselves? 

    What should / shouldn’t be included?

    Should you risk being held in breach of court orders by self-isolating with your children for 14 days and insisting the other party do the same? Could that 14 days be extended on reasonable belief it was necessary ?

    FAMILY LAW ACT 1975 - SECT 70NAE

                      4 (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 favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

                      5 (a)  the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was 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 and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).



    • Jacob Romano Although there are no determined cases yet, it may be possible for a parent who breaches orders to show that the circumstances relating to the coronavirus amounted to a reasonable excuse to breach the orders. This however will turn on the individual circumstances of the matter and what may be a reasonable excuse in one matter may not be such in another matter.
      0 0 0 0 0 0
      This is a subscribed member area, you can't 'Comments Post' until you join FLAST.

      My ex has declared Im a beneficiary to property and rental to which I'm not, in essence lowering his taxation in a desperate bid to lower or cease his child support. It has worked. However, it is a fraudulent and false taxation lodgement. I have managed to find an accountant who did my tax, as Im solely on centrelink benifits which prove that the ex's is fraudulent. What can be done in FCC proceedings? This is simply continued family violence in a financial abuse perspective. I have the two seperate issues.......Child Support is now wrong assesment ( but they only go on tax lodgement) and the financial abuse side. Claiming I have benefited when I havent. I want to bring it to the Judges attention, It is already in Affidavit, I want JUSTICE and I want him ACCOUNTABLE. :( ATO are dragging their feet ........for years........

      This isn't a family law court question.  My friend has recently built in a small country town estate.  She has been having problems with her neighbours since building commenced.  More recently the neighbour is taking her dog to the back of my friends house to make her dog bark and then films my friends dog barking.  The land the lady is on is not her land and is not public land.  There are several vacant blocks on the other side of this neighbour that she could take her dog to however she refuses.  She will not speak with my girlfriend and even engaged a solicitor in relation to the dividing fence rather than speak with my friend, what had made several attempts to have amicable discussions with her in regards to it.  

      What avenues does she have?  It doesn't fall under peace and good behaviour.

      Long story short...... property assets in dispute in FCC were transferred to ex's mother. Ex's Mother passed away. Ex is Executor of Estate. I put caveat on estate because of property transfers. Exs brother (also executor) put on a "caveat warning" to which i have 14 days to respond....... In Supreme Court. What is my next step? how do i present or appear in supreme court? Do i need to write an affidavit explaining why i want a hold on caveat? If so, what forms please? can i request an injunction in FCC for halt in grant of probate because of this? How do I apply "Harmon Undertaking" to my case if i want to produce affidavit evidence to Supreme Court to prove my ex is real owner and its in dispute in FCC? or vice versa. Thankyou

      • Cameron McKenzie I don’t usually deal with real property law, however, this is my understanding from NSW law that may assist but should not be relied upon. So please correct me if incorrect.
        The issue of a lapsing notice (under section 74J(1) of the Real Property Act 1900) seeks to remove caveats on title. The caveator then commences proceedings to extend the caveat.
        An application to extend a caveat should be made pursuant to section 74K of the Real Property Act. The application should be commenced in the Supreme Court by summons (not statement of claim) and with a supporting affidavit.
        This action seeks the court to issue an interlocutory injunction restraining the executor from dealing with the land pending the substantive trial of the caveator's claim.

        The court will need to be satisfied of two things, which should be detailed in the accompanying affidavit.

        Firstly there is there a serious question to be tried? This is not difficult to discharge. Essentially the caveator will need to show that it does have a prima facie claim and more precisely, a proprietary interest in the land.

        Secondly, does the balance of convenience favour the caveat being extended? This will largely depend on the facts of the case, however courts will often hold that the balance of convenience favours extending the caveat.

        Because of its urgent nature, you will need to file your application with the duty judge of the Supreme Court, not simply in the court registry. Accordingly, when your documents are ready, you should contact the associate to the duty judge and advise them of the urgent application and ask for a time to appear before the duty judge. Give as much warning as possible.

        Initially, you should write to the other party’s solicitor advising that you will not allow the caveat to lapse. You should then try to reach agreement in respect of the caveat. You could offer that you will allow the caveat to lapse and the sale to proceed on the basis that the amount of $X is paid into court from the sale proceeds. This letter is advantageous as it indicates compliance with the practice notes, indication of an attempt to reach agreement before making the application for extension and may be valuable when determining costs.

        Filing should be undertaken within 14 days of receiving the lapsing notice.

        Due to the urgency, orders should be sought on short notice. A caveator applying for an extension will normally be required to give an undertaking to the court as to damages: see Rule 25.8 of the Uniform Civil Procedure Rules 2005.

        0 0 0 0 0 0
        • For any orders extending a caveat to be effective, not only must they be entered forthwith with the court, but they must be lodged with the Register General's office – Land & Property Information.

          From a family law perspective
          With family law property proceedings there is a duty of ongoing full and frank financial disclosure. It must be considered that post separation windfalls from inheritances or lottery wins can be excluded or taken into consideration in under s79 of the Family Law Act, particularly 79(4)(a) – (c) (s79 is for married, s90SM for de facto)

          It is arguable that you do not have a direct caveatable interest in the estate of the Ex’s mother which includes the real property. But rather the proceeds from the execution of the will to the benefit to your ex, and impact upon financial resources.

          I would strongly suggest seeking professional legal advice on this issue.

          0 0 0 0 0 0
          • Can of worms....... ex ran our business post separation without me (shut me out completely). Im a director. he ran it under another 2 different abns. Same business, clients, assets, suppliers, employees. This is what is called, my friends "PHOENIX TRADING". when i found it, he'd change the abn. the 3rd abn was put under his mothers name.........Thats where I believe i have claim, as well as the transfer of our marital assets to her. This is all in my  affidavits in FCC. This is all very confusing for me. and with 4 full folders of evidence, I have no money to pay a lawyer to catch up and read, and then risk to double up on everything thats been done already in the past 4 yrs. Lets add 2 false taxation lodgements by him, sighting me as beneficiary to this property that was in his mothers name that he was claiming off his tax for 10 years.........

            Thankyou so much for taking the time to respond Cameron. I will read and re read your comment to find some direction in this crazy court journey im on. 

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

            MAEDA & BEAULIEU (No.3)

            FEDERAL CIRCUIT COURT OF AUSTRALIA

            [2020] FCCA 217

             

            In this case, the Court decides for the best interests of the child, who alleged that his mother assaulted him.

            Facts:

            Mr. Maeda (the father and applicant) applied a variation of the existing orders so that X (the child) should spend equal time with each party.  The application arose out of the child's disclosures to the family report writer that Ms. Beaulieu (the mother and respondent) repeatedly smacked him on the bottom, face, or head. 

            The mother, who had been undergoing treatment for some mental health, denies that she has struck the child.  She alleged that the child was coached by the father to make false allegations against her.  She, on the other hand, claimed that the father maintained a sexual relationship with her when she was below the age of 17, which the father denied.  She offers the allegation as a reason why she withheld the child from the father in breach of orders since December of 2019.

            Issue:

            Is it in the best interest of the child to vary the existing orders, particularly on the orders concerning the time the child spends with each party?

            Held:

            According to the family report writer, the child may be at risk of harm in his mother's care as a result of excessive corporal punishment amounting to assault.  The family report writer's assessment of the mother's mental health exacerbated the concern of the child's welfare.  In addition, the family report writer also assessed the mother as self-focused rather than child-focused and had doubts about the mother's attunement to the child's needs.

            In considering the family report writer's findings, the Court found that there was a need for some variation in the existing orders to ensure no unacceptable risk of harm to the child while living with his mother.  The Court made orders for the child to spend regular time along the lines of the existing agreement, and some further time with the father.

             

            The Court was satisfied with the evidence that there were grave concerns about the welfare of the child in the mother's care, given that the child alleged that he was "smacked" by his mother and that the mother violated the existing orders by withholding the child.  The Court finds that it is in the best interest of the child to spend more time with the father to ensure that there will be no unacceptable risk of harm to the child.

             

            WARNETT & AMERSON

            FAMILY COURT OF AUSTRALIA

            [2020] FamCAFC 24

             

            The case is about a father who sought an order that the Court provide the transcript of the proceedings before the primary judge at its own expense.

            Facts:

            Mr. Warnett (father and applicant) and Ms. Amerson (mother and respondent) are the parties in a proceeding concerning their 9-year-old daughter (child).  The primary judge in the said proceeding made a final parenting order, which the father has appealed against, that provided for the child to live with the mother and spend limited time with the father.  The father then sought an order for the Court to provide, at its expense, a copy of the transcript of the hearing before the primary judge to facilitate the prosecution of his appeal.   The Court is not funded to provide transcripts to the litigants.  However, the primary judge obtained and gave the transcripts of the cross-examination of the single expert and the closing submissions of each of the parties to the litigants.   The Court will consider providing the rest of the transcript of the proceedings before the primary judge if the interests of justice so require.

            Issue:

            Should the application for an order to provide a copy of the transcripts of the hearing at the Court's expense be granted?

            Held:

            The Court is not satisfied that this is a case where the interests of justice require the Court to provide the transcript to the father at its own expense.

            The Court considered some relevant factors set out by the Full Court of the Family Court of Australia in the Sampson & Harnett[1] case that are relevant to the application filed by the father. 

            1. Whether the case is a financial or parenting case;
            2. Whether the whole transcript or part thereof is necessary for the determination of the appeal or part of the appeal;
            3. The likely cost of the relevant transcript and whether the applicant can afford all or part of the cost of the transcript;
            4. The proportionality of the cost of the transcript to the appellant's anticipated costs in relation to the whole appeal, including the preparation of the appeal book(s);
            5. The prima facie merits of the appeal;
            6. Whether the question of providing a transcript can be left to the Full Court hearing the appeal; and
            7. Any other relevant facts or circumstances.

            The Court is more likely to provide the transcript in a parenting case, but even so, careful consideration of the grounds of appeal is required.[2]   Further, the estimated cost of the complete transcript of the proceedings before the primary judge is $9,500, and the Court is satisfied that the father does not have the means to purchase it.  Moreover, the father had two counsel appear for him on this application. However, as they both informed the Court that they would not be charging the father at any time concerning this application, nothing can be drawn from their engagement.  Additionally, the lack of a complete transcript of the proceedings would not significantly fetter most of the grounds in the father's appeals.  The grounds that dealt with the weight given to the single expert's evidence would be able to advance with the transcript provided by the Court.

            Also, the father submitted that this was an exceptional case that justified the Court providing the transcript because a. single expert did not accept that sexual abuse had occurred, b. the primary judge did not identify the future risk of harm to the child, c. the orders for the child to spend limited supervised time with the father will destroy their relationship, and d. the father has been made the scapegoat for the child's troubling behavior.

            The primary judge found that there was an unacceptable risk of sexual abuse of the nature described by the child and that even if that were not the case, unsupervised time would carry the risk of future disclosures by the child resulting in further interviews and investigations which would not be in the child's best interests.  Further, the primary judge devised the orders to preserve, as best as could be done, the meaningful relationship between the child and the father.

            Given the above premise, the Court denied the application filed by the father.  However, the father was permitted to provide such portions of the transcript as he can obtain. 

            The Court is more likely to provide the transcript in a parenting case, but even so, careful consideration of the grounds of appeal is required.[3]  In this case, the Court found that the most of the grounds of the father’s appeal are not affected by the lack of transcripts of the proceeding.  Further, the father’s reasons why providing the transcripts is justified are not compelling since the primary judge found that there was an unacceptable risk of sexual abuse and the orders made by the primary judge to preserve the meaningful relationship between the child and the father.  

             

            [1] Sampson & Hartnett (2013) FLC 93-542 at 87,171).

            [2] Ibid.

            [3] Ibid.

            MCAVOY & BACKERT

            FEDERAL CIRCUIT COURT OF AUSTRALIA

            [2020] FCCA 19

             

            This case involves a parenting dispute about the best interest of the parties' child diagnosed with ADHD and has some related difficulties, including violent behavior towards his fellow students at school.

            Facts:

            Ms. McAvoy (mother and applicant) sought for the child to live with her and to spend time with Mr. Backert (father and respondent) from Friday to Sunday in one week and Wednesday to Thursday in the other.  It is the mother's position that it would be appropriate for the child to spend four nights per fortnight with the father. The arrangement would get the child in a routine in one house and then goes off to the other houses, and there would be a more settled regime for more of the time.  Further, the mother has concerns regarding the father's accommodation, cleanliness issues, and being disorganized.  She also opposed the presence of Ms. A (the paternal grandmother) and Mr. B (uncle) because of the prior's personality disorder and the latter's history of violence.  

            The father sought that X continues to live on a week-about arrangement that has been in place since 2017.  He asserted that there was a stable structure at both homes, which should not be changed, and that the week-about worked well.

            Ms. E, the Independent Children's Lawyer (ICL), supported an order for equal shared parental responsibility.  The ICL opined that the child would be more vulnerable with the father and recommended that the equal time regime cease because there would be more stability during the week. The child would be sufficiently focused to do well at school.   Further, the ICL supported the prohibition on the child being brought into the presence of the parental grandmother or paternal uncle. However, time with the paternal grandmother would be permitted if in a public place. 

            Issue:

            Which time arrangement would be in the best interest of the child?

            Held:

            The Court concluded that it is in the child's best interest that the week-about arrangements ceased and that the 10/4 arrangement sought by the ICL and the mother. 

            The father impressed the professionals of being less well attuned to the interest of the child.  Given that the father's various limitations and the child's difficulties with ADHD and its concomitant difficulties, it is in the Court's opinion that the father would willfully fail to care for the child.   Under section 60CC(2A)[1], this matter requires more significant consideration in determining the best interest of the child. 

            Both parents have some difficulties.  Based on the reports of experts, the mother has difficulties with speech, and the father has an intellectual disability.  However, the Court found, through evidence, that the mother is better able to cope with the child's particular problems and difficulties.  She would be able to give the child more routine in the regime for which she contended.  Also, the mother has greater maturity and more established life and routine, which are relevant given the child's ADHD and developmental difficulties.  She is well-attuned to the needs of the child than the father.

             

            The ICL recommended that the child should spend the majority of his time with the parent who is best equipped to look after him.  The Court found that the mother can better do this, given the father’s laxer approach to lifestyle and control.  Even though the equal time regime may not work, there is nothing that suggest that the child would not be able to continue to have a warm and loving relationship with the father in a ten-four arrangement.

             

            [1] Section 60CC(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).

            HELMER & CASTAIN

            FEDERAL CIRCUIT COURT OF AUSTRALIA

            [2020] FCCA 20

             

            This case is a parenting dispute about the best interests of the parties' son, who suffers from a developmental speech delay and is diagnosed as autistic in 2014.

            Facts:

            Ms. Castain (mother and respondent) sought from the Court to be permitted to relocate to Town B in Queensland with the parties' child, X, who has Autism Spectrum Disorder.  The child's autism meant that he could find it challenging to learn new information and understand verbal information.  He finds verbal communication difficult and needs assistance with emotion regulation, according to Ms. A (psychologist).  Therefore, he will thrive with structure and consistency in both home and school environments.  Mr. Helmer opposed the application for relocation made by the mother because the move will affect his relationship with X. 

            Issue:

            Whether or not the mother should be permitted to relocate as she desires to Town B in Queensland.

            Held:

            The Court held that the mother should not be permitted to move.

            The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration. [1] The Court is allowed to take account of matters that are relevant to determining the child's best interest.  The Court considered Ms. A's statement that there is a need for consistency of routine.  It is a fact that X has been in the routine of seeing his father regularly for a considerable period.  If the move is permitted, X will not see his father nearly as much and may well not see his extended paternal family at all.  It is not in X's best interest to find his relationship with his father damaged.  Further, relocating will involve a change of the X's school where he has friends and a measure of consistency in the one he is at present. 

             

            The welfare of a child remains the paramount consideration.  X, with his condition, needs consistency of routine.   Disrupting X's routine of being with his father will not be in his best interest.  Further, relocating would mean change of environment, including the people he is used to being with, like his friends.  Thus, permitting the mother to move, taking with her X, will not be in the best interest of X.

             

            [1] A & A: Relocation Approach [2000] FamCA 751 (1 August 2000).

            HIBBERT & SEKI

            FEDERAL CIRCUIT COURT OF AUSTRALIA

            [2020] FCCA 1

             

            One of the focus of the case is the risks to the child of being subjected or exposed to abuse, which is detrimental to the child’s best interests.

            Facts:

            Finals orders, made by consent that set our parenting arrangements for the parties’ child (X), provide that X live with Ms. Hibbert (Mother and Applicant) and spent time with Mr. Seki (Father and Respondent).  However, parenting issues arose in early May 2019 when X made some statements to the mother about the treatment she had received at the hands of Ms. A (the Father’s new girlfriend). As a result, the mother filed an Initiating Application seeking to vary the final orders on an interim and final basis.  The Father filed a Response seeing that the Application is dismissed, but also seeking extensive variations to the final orders.

            Issue:

            Is there a risk to X of being subjected or exposed to abuse by Ms. A while in her father’s care, combined with the father’s failure to keep X safe in those circumstances?

            Held:

            The task of the Court where risks are asserted is not necessarily to make a finding as to whether the actions and events asserted have actually happened or have definitely not happened, such a finding rarely being open to the Court on the evidence, but rather to assess whether the evidence establishes that there is a risk to the best interests of the child. If there is such a risk, to assess whether that risk is an acceptable risk or an unacceptable risk and if it is assessed that it is an unacceptable risk, to assess whether or not the risk can be mitigated by appropriate orders, and to decide what orders are proper in all the circumstances in the best interests of the child. [1]

            The risk to X’s welfare is asserted by the mother to be presented by Ms. A who is present during much, if not all the time, that X would spend with her father under the orders. That risk is said to be consequent upon Ms. A’s abuse of use of alcohol leading to her calling X an unpleasant name, slapping her on the bottom and giving her alcoholic drink.[2]  The asserted risks can be addressed by appropriate orders including injunctive orders binding the father in relation to X not being in the care of Ms. A, and the father being restrained from allowing X to engage in certain conduct with Ms. A.[3]   

            The Court found that the only risks to which X is to be protected is only represented by her interactions with Ms. A.  While the Court, on the interim basis, is not in a position to fully evaluate the evidence, orders should be put in place to address those risks.   Those risks are of such a nature, taken at their height, that appropriate orders can be made not only to mitigate but, if obeyed, to fully address those risks and remove any possibility of them having a detrimental effect on X’s best interests.   The Court made some injunctive orders pending final hearing addressing the risks to X’s welfare asserted by the mother and that have caused X to express concern in conversation with her father.[4]

             

             

            [1] Hibbert & Sekil [2020] FCCA 158 (31 January 2020) (72).

            [2] Ibid (74).

            [3] Ibid (81).

            [4] Ibid (109).

            Latest Products
            SSL Certificates