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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?

Any advice, guidance or recommendations greatly appreciated.

Thank you in advanced

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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?


Grateful for any advice. 

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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 ?


                  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).

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  • 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.
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    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........

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    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.

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    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

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    • 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.

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      • 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.

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        • 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. 

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          MAEDA & BEAULIEU (No.3)


          [2020] FCCA 217


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


          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.


          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?


          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.


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          [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.


          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.


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


          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.

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          MCAVOY & BACKERT


          [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.


          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. 


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


          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).

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          HELMER & CASTAIN


          [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.


          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. 


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


          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).

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          HIBBERT & SEKI


          [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.


          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.


          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?


          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).

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          ABBEY & SEYMOUR


          [2020] FCCA 112


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


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


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


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

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

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

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


          [1] Sect 60CA Family Law Act 1975.

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          OWEN & OWEN


          [2020] FamCA 90


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


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


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


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

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

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

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


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


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

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          HIRSCH & HIRSCH (No.2)


          [2020] FCCA 18


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


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


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


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

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

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


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


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

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          [2020] FamCAFC 28


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


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

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


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


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

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

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



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

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

          [3] Ibid (2).

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

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

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

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          Naparus & Frankham


          [2020] FamCAFC 32 (18 February 2020)


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


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

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

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


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


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

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

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

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


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

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

          [3] Ibid at (208).

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

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

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          GABALIS & AKULA


          [2020] FCCA 71


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


          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.  


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


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

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

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

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


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


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

          [2] Ibid at (107).

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          SAYER & CABELLO


          [2020] FCCA 104


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


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

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



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

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

          Equal shared parental responsibility

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

          Equal shared time or substantial and significant time

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


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

          Credit cards/personal loans/taxation debts at separation

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


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

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          PALMA & MURPHEY


          [2020] FCCA 120


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


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


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


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

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

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


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


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

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

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

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          CHAU & CAO (NO. 2)


          [2019] FamCAFC 254


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


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

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


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


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


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


          [1] EA 31 of 2019.

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

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

          [4] Ibid at (161).

          [5] Ibid at (162).

          [6] Ibid at (167).

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

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


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

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


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


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

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

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

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


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


          [1] FAMILY LAW ACT 1975 - SECT 60CC

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          MOLKENS & ANSELL


          [2020] FCCA 37


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


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


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


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

                           (2)  The primary considerations are:

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

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

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

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

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


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


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

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

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          SOTTO & HENSLEY


          [2020] FCCA 32


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


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


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


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

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

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


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


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

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

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

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


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

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