Terms of FLAST RSSFri, 31 Dec 2021 02:35:27 GMTFamily Law Act 1975 (Cth), ss 4AA, 44, 79, 90RD - provides that a  person is in a de facto relationship with another person if the persons are not legally married to each other and the persons are not related by family.  Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.    Crick & Bennett [2018] FamCAFC 68 - provided for the proper construction to be applied to section 4AA of the Act.    Marriage of Jacenko [1986] FamCA 25; (1986) 11 Fam LR 341 - where the Full Court stated that the general principle is that the Court proceeds on the evidence of the Applicant, which should be accepted unless it is inherently unbelievable or contradictory. Crowley & Pappas [2013] FamCA 783 - provided that a de facto relationship does not need to be akin to a marriage although the nature of the association involved in a marriage relationship may be instructive.  Dahl & Hamblin [2011] FamCAFC 202 - relied upon in holding that the two brief separations (during which they remained living at B Street, Town C) does not prevent the conclusion that the parties were in a de facto relationship. Jonah & White [2011] FamCA 221 - provided that the key to that definition [de facto relationship] is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, 'living together' as a couple on a genuine domestic basis”.  Jones & Dunkel [1959] HCA 8; (1959) 101 CLR 298 - relied upon by the counsel for the Respondent in submitting that the Court should draw an adverse inference about the evidence that the Applicant’s brother would have given as to the nature of the relationship between the Applicant and Respondent at various times.   Tomson & MacLaren [2021] FamCA 620 - where the fact finding required is somewhat complicated when the parties have different perceptions and their perceptions may be motivate... Read more

]]>Fri, 31 Dec 2021 02:35:27 GMTAldridge & Keaton (2009) FLC 93-421; [2009] FamCAFC 229 - affirmed that, in child-related proceedings, the parents of the subject children do not enjoy superiority over any other person who is keenly interested in the children’s welfare, though the status of parenthood does require careful consideration in the application of s 60CC of the Act because some factors pertain only to parents.    Valentine & Lacerra & Anor (2013) FLC 93-539; [2013] FamCAFC 53 - held that deciding that the respondents were entitled to make that decision as an incident of their parental responsibility for the children and strongly implied the legitimacy of their decision need not be scrutinised, much less countermanded improperly elevated the importance of the respondents’ parental authority over, and their responsibility for, the children in a way which was inconsistent with the law.   Bonner & Chandler [2021] FedCFamC1A 81 (8 December 2021) Although the dismissal order is not a parenting order, it still relates to a “child welfare matter” and so is not a “prescribed judgment” for which leave to appeal is required.  ... Read more

]]>Thu, 23 Dec 2021 08:00:43 GMTCDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 - provides that the proper exercise of discretion in parenting cases may be broad, “[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require”.  Malcolm & Monroe and Anor (2011) FLC 93-460; [2011] FamCAFC 16 - provides that the determination of issues regarding children whether on an interim basis or at a final hearing is by reference to the best interests principle. Digests Foys & Laidler [2021] FedCFamC2F 364 (12 November 2021)  - where according to Counsel for the father, the order made by the Judicial Registrar that the parties and the children attend appointments for the preparation of the Child Impact Report (“CIR”) were contrary to the best interests of the children, as it would implicate the children having to be again interviewed by a Court Child Expert.   

]]>Fri, 03 Dec 2021 00:08:40 GMTSalah & Salah (2016) FLC 93-713; [2016] FamCAFC 100 - provides that the denial of serious allegations of risk to children does not mean that in interim proceedings, a court can thereafter ignore them.TF & JF [2005] FamCA 394 -  where Her Honour having found that the evidence in the case “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...”, then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. George & Nichols [2016] FamCA 519 - where the Court discusses the issue of unacceptable risk.  M v M [1988] FLC 91-979 - the High Court held that “the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk ... (and) to achieve a proper balance, the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of abuse.”B and B [1993] FamCA 143; (1993) FLC 92-357 - the Full Court of the Family Court of Australia said that where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access. Stott & Holgar and Anor [2017] FamCAFC 152 - an eminent former judge said that the unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case.  Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.   N and S and the Separate Representative [1995] FamCA 139... Read more

]]>Thu, 02 Dec 2021 05:23:11 GMTHeath & Hemming (No. 2) [2011] FamCA 749 - where the Honourable Justice Kent opined that the Full Court in Sigley approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child.  McCall & Clark [2009] FamCAFC 92 - dealt with the benefit to the child of having a meaningful relationship. Sigley v Evor [2011] FamCAFC 22; (2011) 44 Fam LR 439 - concluded that the preferred interpretation of “benefit to the child of having a meaningful relationship” in s 60CC(2)(a) is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, Orders can be framed to ensure the particular child has a meaningful relationship with both parents (referred to by the Full Court as “the prospective approach”).  Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 - provided that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. M v S [2006] FamCA 1408; (2008) 37 Fam LR 32 - Dessau J made comments in relation to a long-distance and meaningful relationship and how it is inevitably different from a relationship where people live closer together with regular face-to-face contact.  Digests Collins & Monroe [2021] FedCFamC1A 75 (6 December 2021) - where weighing up of those matters and risks as against the benefits to the child of pursuing a meaningful relationship with the mother within a structure that ameliorated those risks, if that was possible, was the very basis for the decision that any time spent between the child and his mother was required to be supervised by a professional agency. ... Read more

]]>Thu, 02 Dec 2021 05:23:06 GMTBarrett & Barrett and Anor [2017] FamCAFC 4 - observed that a parent who consumes cannabis and has the responsibility of looking after children, whether or not the children are asleep when the cannabis is consumed, is placing children at risk given the parents diminished ability to respond to medical or other emergencies such as a fire, that could arise with their children. Jones v Dunkel [1959] HCA 8; 101 CLR 298 - the Court is entitled to make an adverse presumption or inference on basis of a parties failure to comply with drug testing Orders. T and N [2003] FamCA 1129; (2003) FLC 93-172 - where it was observed that if a drug-using parent cannot be free and alert from substance abuse, they cannot properly care for young children who would rely upon them to have their needs met.   

]]>Thu, 02 Dec 2021 05:22:59 GMTAgambar & Agambar [2021] FedCFamC1A 1 - relied upon by the Court in rejecting some of the wife’s reasons for relocating, that outcome is not precluded merely because those reasons were unchallenged.  MRR v GR (2010) 240 CLR 461; [2010] HCA 4 - where the High Court said that each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.   F v F [2007] FMCAfam 831; (2008) 38 Fam LR 52 - set out a summary of relevant principles drawn from High Court and Full Court authorities in relation to relocation.P & P [2005] FamCA 1032; (2005) FLC 93-239 - the legislative pathway and basal principles to be applied where a party is seeking to relocate are helpfully reviewed by your Honour in this case.Sheldon & Weir (No.3) [2010] FamCA 1138 - provides for an abbreviated summary of relevant principles drawn from High Court and Full Court authorities in relation to relocation. Digest Damgard & Abrola [2020] FCCA 2194 (21  July 2020)  Father unilaterally withheld due to safety fears, orders for the child to be returned.... Read more

]]>Sat, 27 Nov 2021 23:56:19 GMTfunctus officio refers to whether a decision maker has discharged their duty.  Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic(1977) 17 ALR 219 - provides that the concept underlying the doctrine of functus officio has been described in terms equating to the statutory function as having been spent and that the issue is in reality a matter of statutory construction of the statute that confers the power in issue. R v Moodie; Ex parte Mithen(1977) 17 ALR 219 - where the doctrine of functus officio has been said to be preferable to the description or consequence of the performance of a function having regard to the statutory power or obligation to perform that function.

]]>Wed, 03 Nov 2021 22:16:19 GMTThe slip rule allows for an order to be amended if it contains an accidental “slip” such as a clerical error, mistake or omission. Examples include a party's name spelled incorrectly, or a typo in a date. Gould v Vaggelas (1985) 157 CLR 215 - provided that the purpose of the slip rule is to avoid injustice to litigants and that the jurisdiction to apply it should be exercised sparingly lest it puts at risk the public interest of the finality of litigation.  Hatton v Harris [1982] AC 547 - jurisprudence in respect of the concept “accidental slip or omission” is of considerable antiquity, emanating in the late 1800s in the Royal Court of Justice. L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590 - provided that the purpose of the slip rule is to avoid injustice to litigants and that the jurisdiction to apply it should be exercised sparingly lest it puts at risk the public interest of the finality of litigation. Storey & Keers Pty Ltd. v Johnstone (1987) 9 NSWLR 446 - held that an error in the judgment or order which is the product of a deliberate decision is not within the contemplation of the notion “accidental slip or omission”. Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 - where any “rectification” of an award begins by either party identifying a “minor mathematical or other mistake in the award”. Whitlock v Brew [1968] HCA 71; (1968) 118 CLR 445 - provides that a mistake or error will generally not be regarded as accidental if the amendment sought requires the exercise of an independent discretion. Wright & Rebane [2021] FedCFamC1F 154 (21 October 2021) - On behalf of the respondent, Mr Campton SC (as his Honour then was) submitted that the arbitrator was required to “make an award” at the end of the arbitration that is in accordance with Regulations 67P(2) and 67P(3) and which, in a single document, is supplied to persons prescribed in accordance with Regulation 67P... Read more

]]>Wed, 03 Nov 2021 22:16:11 GMTBannerman & Frank [2015] FCCA 3171 - held that the Registrar on a daily basis deals with applications for listings and is best placed to organise the Court’s affairs in a way best known to Court staff having regard to urgency considerations and the overall business of the Court.   Dyne & Dyne [2021] FedCFamC1F 96 -  provides that a review application in respect to a listing decision ‘has only one purpose which is to determine the appropriate hearing date for the pending interim parenting dispute. The order made by the Registrar fixing the hearing on 14 October 2021 is the solitary decision under review. Feiteiro & Feiteiro [2019] FamCA 647 -  noted that the review of a Registrar’s determination is an original hearing in the sense that error does not need to be established. Hearnes & Jellets[2020] FCCA 2722 - Judge Kirton QC was required to consider an application for review of a Registrar’s decision not dissimilar to the application before the Court presently.  Quong & Rush [2017] FCCA 1765 at [38]- [39]- observed that the nature of the matters before this Court is such that the Court must give priority to matters ‘involving children who are at risk of harm’. Lombardi & Rider [2021] FedCFamC2F 57 - where the FCFCOA Act directs the Court to apply the civil practice and procedure provisions ‘in a way that best promotes the overarching purpose’ which includes the following objectives: the just determination of all proceedings before the Court; the efficient use of the judicial and administrative resources available for the purposes of the Court; and the efficient disposal of the Court’s overall caseload. Myers & Myers [2011] FMCAfam 1104 - provided assistance in considering an application for review of a registrar’s decision to reject an application for urgency. Palmer & Palmer [2012] FMCAfam 522 - where for the matter to be listed ‘as soon as practicable’ was in fact a reviewable decision pursuant to s 256(1) of the FCFCOA... Read more

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