Posts of Sapphire Legal RSSMon, 15 Feb 2021 04:16:22 GMTLancefield & Lancefield (No 2) [2020] FamCAC 312 (22 December 2020).  This case concerned an appeal by the father after the court at first instance made orders for the children to live with the mother.  Prior to this, the father had been the primary carer of the parties 2 children since separation in 2017.  At the time of trial, the children were aged 11 and 9. At first instance, the Court found that the father was coercive and controlling which justified a change in residence. The Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) upheld the father’s appeal in part and remitted the matter to be reheard by a different judge. The facts of this matter revolve around an incident that occurred on 19 February 2018 when the family iPad was activated and via family sharing, the father was able to access the mother’s internet search history which included “how to tie a hangman’s noose”; “how to disappear without a trace”; “how to completely change your appearance”; and “how to disappear from your husband” ([31]). Upon seeing the mother’s search history, the father contacted the mother’s brother on the same day to raise his concerns and a welfare check by police took place. The mother had been previously hospitalised in respect of her mental health issues but had “capacity to provide for the children’s physical, educational and general emotional needs”([5]).  In April 2018, the parties entered into a parenting plan which provided for the children to live with the father and spend time with the mother, one weekend per month under supervision. The parties were unable to reach agreement about the children’s long-term arrangements and in June 2018 the mother initiated proceedings in the Federal Circuit Court. Interim orders were made by consent providing that the children live with the father, the parents have equal shared parental responsibility and during school term the children would spend 2 weekends with their mother unsupervised.  Time was also made for the child... Read more

]]>Mon, 15 Feb 2021 04:16:22 GMTCanfeld & Falkins [2020] FCCA 2570 (9 September 2020) This is a parenting case where the primary issue at interim hearing was the choice of supervisor for the mother's time with the children in circumstances where the continued cost of professional supervision was not sustainable.  Facts: The three children of the relationship (aged 16, 11 and 8) live with their father and spend time with their mother on a supervised basis.  The arrangement however was not working due to, inter alia, a lack of commitment by the parents and the cost of the supervision.  The mother sought for her time with the children to be supervised by "Mr L" instead, beginning with Sundays from 9am to 5pm and then progressing to a fortnightly basis from 9am Saturday to 5pm Sunday.  The independent children's lawyer (ICL) supported this position. The father proposed that the mother be granted no time but if time was to be given, then it is to be supervised by way of a professional supervisor.  Being an interim application, the Court was required to review authorities on the assessment of risk to children when dealing with interim matters. Unlike final hearings where the evidence can be tested, this is not possible when dealing with interim applications due to less time available.  The Court referred to some of the leading authorities about decision making in interim cases.  Issue's: Can the mother's time be supervised by a non-professional person when the continued cost of professional supervision is not maintainable? What is the appropriate way to deal with risk assessment at an interim hearing? Law: Family Law Act 1975s60B, s60CA, s60CC, s61DA, s65DAA Case Law:MRR v GR [2010] HCA 4, Good & Good [2006] FamCA 1346, Marvel & Marvel (No. 2) [2010] FamCAFC 101, Deiter & Deiter [2011] FamCAFC 82, Enmore & Smoothe [2014] FamCAFC 131  Findings: The Court made orders for the mother to spend time with the children to be supervised by Mr L.  In coming to this decision, Judge... Read more

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