Hoskins & Hoskins [2017] FCCA 1125

Published date: 18 May 2018

FAMILY LAW – Property – long marriage – litigation guardian for applicant – applicant’s inheritance – contributions of parties – monies from applicant’s father – applicant’s abuse of drugs and alcohol over years – lengthy period since separation – s.75(2) considerations equal – orders just and equitable.

Plater & Plater [2017] FCCA 1447

Published date: 18 May 2018

FAMILY LAW – Parenting – interim hearing – whether mother should be permitted to relocate with the children on interim basis – where alternative is not in children’s best interests – evidence of family consultant – position of Independent Children’s Lawyer – interim relocation allowed.

Whitney & Belanger [2017] FCCA 582

Published date: 17 May 2018

FAMILY LAW – Parenting – interim orders – final order made in October 2008 – child now almost 13 years old and showing resistance towards spending time with father – time ceased in December 2016 – orders made for time to recommence.

Jabbar & Gade (No.9) [2017] FCCA 3403

Published date: 17 May 2018

FAMILY LAW – Applications for contempt & contravention – respondent father found to have no case to answer in respect of the contempts – applications dismissed – applicant mother then elects to withdraw contravention applications.

Jabbar & Gade (No.10) [2017] FCCA 3404

Published date: 17 May 2018

FAMILY LAW – COSTS – Mother ordered to pay costs arising out of unsuccessful applications for contempt and contravention.

Gade & Jabbar (No.11) [2018] FCCA 1056

Published date: 17 May 2018

FAMILY LAW – Parenting – children aged 12 and 6 – proposal and cross-proposal for the children to live with one parent and spend no time with the other – where the expert who prepared a report is of the view that the mother has a personality disorder and poses a considerable risk of harm to the children both psychologically and possibly physically – where the expert recommended that the children live with the father and spend no time with and have very limited communication with the mother until they were 18 – where all of the evidence supports the validity of that opinion – orders made for the father to have sole parental responsibility for the children and for the children to live with the father and spend no time with and have no communication with the mother.

EVIDENCE – Where the mother is fixated on whether two video recordings which depict her threatening the father and the children and assaulting one of the children and two text messages in which she threatened to harm the children and herself and destroy property should be admitted into evidence – where the mother maintains that the text messages and the videos should not be admitted into evidence because the father has never made the phone on which he took the videos and on which he received the text messages available for forensic examination – where the father wiped the videos off his phone after transferring them to his computer and wiped the phone of all messages when he gave the phone to his mother for her use – where the mother was convicted in the Local Court of offences arising out of the content of the videos and text messages but where the District Court overturned the convictions on appeal – where the District Court accepted that copies of the messages and videos were admissible and the decision to overturn the mother’s convictions rested on other issues – where copies of the videos and text messages are admissible in this court pursuant to the Commonwealth Evidence Act – where the father’s failure to produce his mobile telephone for examination does not on the totality of the evidence cause this court to doubt that the mother sent the messages and that she and the children are depicted in the videos.

PROPERTY – Small pool – where the mother removed $132,000.00 from the parties’ joint account shortly after separation and failed to properly account for what had happened to it – where the mother claimed that two flats she acquired in India during the marriage should not be included in the pool because she had gifted them to the children – where it is appropriate to include the flats and the $132,000.00 in the pool – father seeks to retain all assets in Australia including all of the superannuation he acquired during the parties 13 year relationship– where the father will have the primary care of the children but where he is a high income earner – outcome proposed by the father not just and equitable – order made for the father to retain all the non-superannuation assets in Australia bar a motor vehicle and subject to a payment to the mother and where the court intends to make a splitting order upon the mother providing evidence that the Trustee of the father’s fund has been accorded procedural fairness.

COSTS – Order for the mother to pay certain fixed costs to the father and the Independent Children’s Lawyer contemporaneously with her receiving the property settlement payment from the father – costs applications otherwise adjourned to a future date for further consideration.

Baulkham & Lester [2017] FCCA 2311

Published date: 17 May 2018

FAMILY LAW – Parenting – no dispute over live with – dispute over – whether child should spend any time with father – child strongly resistant  – entrenched attitude – impact on child’s mental and psychological health – position of Independent Children’s Lawyer – whether mother should have sole parental responsibility – final orders in child’s best interests.

Dennis v Commonwealth Bank of Australia [2018] FCCA 1159

Published date: 16 May 2018

CONSUMER LAW – Application for summary dismissal – no prospects of success – application dismissed – costs.

Eastell & Eastell [2018] FCCA 608

Published date: 16 May 2018

FAMILY LAW – Parenting – father seeking an order which will permit him to spend time with his daughter aged 9 – where two years ago the father pleaded guilty to filming his 14 year old step-daughter through the bathroom window – where the father has spent no time with his daughter since September 2015 – where the father appeared at trial to be postulating that he may not have committed the offence at all and that perhaps the mother had manoeuvred him into pleading guilty to something he did not do – where the father maintained that in any event he was not a paedophile and that his daughter would be at no risk of harm in his care – where it was the mother’s case that the child would be at unacceptable risk of harm in the father’s care – mother seeking a no-time order – where the court is satisfied that the child would be at unacceptable risk of harm in the father’s unsupervised care upon reaching puberty – where for a number of reasons, including the impact on the mother of an order for time, the lack of benefit to the child in starting unsupervised if it will either cease or become supervised in the future, and the difficulties inherent in an order for long term supervised time the preferred order is for no time and no communication.

Donaldson & Sorrell [2017] FCCA 2488

Published date: 16 May 2018

FAMILY LAW – Parenting – dispute over parenting orders – children live with mother – what time children should spend with father – chronic inability to communicate and co-operate – evidence of family report writer – position of Independent Children’s Lawyer – final orders in children’s best interests.

Witmore & Clements [2018] FCCA 481

Published date: 15 May 2018

FAMILY LAW – Contested children’s matter – father self represented – four children – father engages in intimidating and abusive conduct towards the mother – applies pressure to children to express certain views – father engages in direct serious denigration of the mother to the children – involves the children in his plans for future litigation – father undermining the children’s relationship with the mother – children to live with the mother – father’s time restricted – no phone calls other than supervised.

Vollans & Diete [2017] FCCA 3331

Published date: 15 May 2018

FAMILY LAW – Property – assessment of contributions – father has PTSD after (employment omitted) in (countries omitted) – whether (employer omitted) payments are income – substantial contributions by father – 8% adjustment in favour of mother.

Pitney & Nilsen [2018] FCCA 751

Published date: 15 May 2018

FAMILY LAW – De facto property proceedings – leave to commence proceedings out of time.

Pagan & Beattie & Anor (No.3) [2018] FCCA 606

Published date: 15 May 2018

PRACTICE AND PROCEDURE – Costs – whether circumstances justifying a costs order – applicant in a case wholly unsuccessful – costs order made.

Jabot & Kristensen [2018] FCCA 639

Published date: 15 May 2018

FAMILY LAW – Parenting – 4 year old child – mother wishes to relocate with child from Sydney to (omitted) – father opposed to relocation – where child is to live and what time he is to spend with the non-resident parent.

Halstead & Lees & Anor [2018] FCCA 425

Published date: 14 May 2018

FAMILY LAW – Interim arrangements for parenting of two children aged 4 & 2 – interim application for property settlement – father seeks to spend time with children at rehabilitation centre – father severely injured in altercation with another person at the children’s home – father charged with serious criminal offences – application by paternal grandmother to spend time with the children – family violence – have children been exposed to family violence – nature of interim hearing – matter to be considered on interim property application – presumption of equal shared parental responsibility – best interests.

Goodwin & Goodwin [2018] FCCA 385

Published date: 14 May 2018

FAMILY LAW – Property proceedings – case concerns farming family – application for adjournment in anticipation of amendment of claim and joinder of parties – proceedings on foot since August 2016 – competing applications fixed for trial on 22 & 23 February 2018 – trial dates allocated in early 2017 – after filing of trial affidavits wife applies to adjourn trial and join husband’s parents as parties – wife further seeks to file amended application alleging existence of constructive trust in respect of farming lands owned by husband’s parents – wife alleges she acted in response to representations made by husband’s parents in respect of transfer of farming land to her and the husband on the retirement of the parents – application for adjournment made fourteen days prior to date scheduled for trial – husband opposes application – balance of prejudice – case management principles – matters to be considered – matters relating to transfer of proceedings to Family Court.

Bond v Child Support Registrar & Anor [2018] FCCA 422

Published date: 14 May 2018

CHILD SUPPORT – Application seeking judicial review of child support decision of the Administrative Appeals Tribunal – question of law – departure order made on basis of financial resource attributable to one parent – financial resource consists of monies paid to parent by his father – sum characterised as a loan by payee and not financial resource – legal error – allegation of breach of principles of natural justice – procedural unfairness – no legal error found – appeal dismissed.

Vickary & Winch [2018] FCCA 8

Published date: 11 May 2018

FAMILY LAW – Application to change accommodation and school arrangements for children aged 13 & 12 – final orders made in December of 2015 – application of the rule in Rice & Asplund – application made on an interim basis – nature of interim hearing – distance involved comparatively small – is case to be considered as a relocation matter – parties have a poor and mistrustful relationship – allegations of sexual abuse previously made but not resolved – equal shared parental responsibility – which school should children attend – assessment of risk – is risk of abuse unacceptable for court to countenance – matters to be considered – best interests.

Leyton & Jacks [2018] FCCA 163

Published date: 11 May 2018

FAMILY LAW – Children aged 13 & 9 – final orders made in respect of parenting arrangements in 2011 – orders envisaged parties engaging in mediation to resolve future schooling arrangements for children – parties conferred with equal shared parental responsibility for children – children live with each parent on a substantial and significant time basis – parties unable to agree on which secondary school older child should attend following unsuccessful process of mediation – parties have long standing communication issues – father wishes to enrol children at fee paying private school with religious affiliations – mother objects to children attending religious school – mother advocates government funded school – both schools are equally accessible to the parties – parties disagree as to which school is likely to provide a superior level of education – financial issues – child support implications – best interest.

Martin & Floyd (No.2) [2018] FCCA 362

Published date: 11 May 2018

FAMILY LAW – Application for orders in respect of child aged ten years – proceedings between child’s father and maternal grandfather – child’s mother not formally involved in proceedings – earlier proceedings finalised following a three day trail in April 2012 – child ordered to live with maternal grandfather – outcome of proceedings subsequently subject to unsuccessful appeal in the Full Court – parties have difficult relationship – outcome of earlier proceedings remains controversial given placement of child in care of a non-parent – father sought to re-open proceeding after hiatus of four years – application of the rule in Rice & Asplund sought to be agitated by maternal grandfather at early stage – application refused and family report ordered – parties’ competing applications fixed for final hearing following receipt of family report –application for costs following withdrawal of application for final orders – notice filed approximately three months prior to final hearing – is it just to make orders – matters for consideration under section 117(2A) – any other relevant matter.

Osram & Osram [2018] FCCA 164

Published date: 11 May 2018

FAMILY LAW – Interim hearing concerning children aged 12 & 11 – high conflict – independent children’s lawyer appointed – role of ICL – nature of interim hearing – assessment of section 60CC factors – assessment of risk – consideration of parental unilateral action – which school should children attend prior to final hearing.

Sedgley & Irvine [2016] FCCA 2902

Published date: 09 May 2018

FAMILY LAW – Property proceedings – family violence – contributions – disclosure – Kennon claim.

FAMILY LAW – Parenting proceedings adjourned by consent as parties and children are undergoing family therapy – small property pool – parties in poor financial circumstances.

Valmar & Whatley [2018] FCCA 1096

Published date: 09 May 2018

FAMILY LAW – Equal shared parental responsibility – allegations of family violence – father’s mental health – where unacceptable risk to the child – parental responsibility – mother to have sole parental responsibility in relation to health and education subject to consultation – overnight time.

Perrin & Perrin (No.2) [2018] FCCA 633

Published date: 09 May 2018

FAMILY LAW – Property orders.

McCluskey & McCluskey [2018] FCCA 714

Published date: 09 May 2018

FAMILY LAW – Application for review of Registrar’s listing decision – application determined in chambers and dismissed.

Malik & Sommer [2018] FCCA 444

Published date: 09 May 2018

FAMILY LAW– Parenting – final orders – one child, aged 7 years – whether mother and child be permitted to relocate to (omitted) – whether there was family violence throughout the relationship including post-separation and in the presence of the child – whether the father should be required to obtain a mental health assessment prior to overnight time commencing – whether the father should be required to enrol in an anger management course prior to overnight time commencing – whether the maternal grandmother poses a risk to the child as a result of her alleged alcohol abuse – best interests of child.

Fairs & Anor & Pettit & Anor (No.3) [2018] FCCA 1061

Published date: 09 May 2018

FAMILY LAW – Contempt Application – the Respondents alleged to have acted in contempt of Court orders – whether the Court is satisfied beyond a reasonable doubt that the Respondents acted in contempt – whether the Respondents communicated and/or had face-to-face contact with the eldest child of the First Applicant and the First Respondent in breach of Court orders – whether the Respondents conspired to procure the child away from the Applicants’ residence in breach of Court orders – whether the Respondents conspired to secrete the child interstate for the purpose of frustrating the execution of a recovery order – alternative application that the Respondents have contravened final orders in relation to the child.

HELD – The Respondents found beyond a reasonable doubt to have acted in contempt of Court in relation to charges 3, 5, 6 and 8 – charges 1, 2, 4 and 7 found not proven beyond a reasonable doubt – not necessary to consider the Applicants’ contravention application in the alternative.

Nadig & Iyar [2018] FCCA 709

Published date: 09 May 2018

FAMILY LAW – Application for final parenting orders – child almost 5 years – parties consent to order for equal shared parental responsibility – Court’s obligation to consider child spending equal time – Court’s obligation to consider child spending substantial and significant time – whether reasonably practicable and in the child’s best interests – father seeks an order for week about – mother seeks an order for the child to live primarily with her – child has developmental delay – issue regarding school holidays – mother seeks an order permitting her to travel to India with the child – father opposes international travel to India – order made for child to live with the mother and spend substantial and significant time with the father including school holiday time – child to remain on the Airport Watchlist until 2023.

Lawson & Lawson [2018] FCCA 556

Published date: 09 May 2018

FAMILY LAW – Parenting – 3 children aged 10, 7 & 3 – where the father suffered significant injuries as a result of a motor vehicle accident –where the mother unilaterally relocated with the children – where opioid and cannabis use for pain management are conceded by the father – family violence – where no effective co-parenting relationship exists – where the children have a strong relationship with the father – best interests of the children.

FAMILY LAW – Property – where the husband received a payout that was a significant initial contribution to the former matrimonial home – where husband has become a bankrupt and company has gone into liquidation – self-managed superannuation fund – costs order.

Haslam & Haslam [2018] FCCA 734

Published date: 09 May 2018

FAMILY LAW – Property – long marriage – no children – unequal financial contributions – wife has greater earning capacity – 5% adjustment for s.75 (2) factors.

Somerville & Somerville [2017] FCCA 3040

Published date: 04 May 2018

FAMILY LAW – Practice and procedure – application for restraints to be imposed on father and moderator from posting on social media – where the father inappropriately posts information about finalised proceedings and the mother on a website – prima facie breach of s.121 of the Family Law Act 1975 (Cth) – where the father is restrained and injuncted from posting information about or photographs of the child or the mother on the internet – where the moderator of the website is restrained and injuncted from publishing information on the internet about the proceedings and the parties.

Pinkett & Pinkett [2018] FCCA 712

Published date: 04 May 2018

FAMILY LAW – Property – leave to file property proceedings out of time.

Forman & Petchey [2018] FCCA 535

Published date: 04 May 2018

FAMILY LAW – De facto relationship – challenge to jurisdiction – applicant asserting de facto relationship on 1 March 2009 and respondent denying  – evidence overwhelming – jurisdictional objection clearly not established – consideration of competing proposals about property division – applicant’s proposal clearly just and equitable in the unusual circumstances of the case.

Deere & Blight [2017] FCCA 3354

Published date: 04 May 2018

FAMILY LAW – Parenting – leave to re-open parenting proceedings – Rice & Asplund.

Upson & Upson [2017] FCCA 2395

Published date: 03 May 2018

FAMILY LAW – Property division – wife’s superior initial financial contribution and superior financial and homemaking and parenting contribution post separation and into the future – father has abandoned care of child to mother and pays minimal child support – matter listed for a one day hearing took 4 days to complete due entirely to husband’s failure to file material in a accordance with Court’s direction and provide full and frank disclosure of his financial dealings – indemnity costs order made – small pool.

George & Chisholm [2018] FCCA 1021

Published date: 03 May 2018

FAMILY LAW – Parenting – ex parte orders – unacceptable risk – difficulty in assessing risk by FACS redaction of notifiers.

Child Support Registrar & McIntyre [2017] FCCA 2384

Published date: 03 May 2018

CHILD SUPPORT – Leave to bring a Departure application.

Michaels & Reese [2018] FCCA 617

Published date: 02 May 2018

FAMILY LAW – Final parenting – best interests of children – orders made.

Foris & Samaras [2018] FCCA 655

Published date: 02 May 2018

FAMILY LAW – Parenting – final hearing – discrete issue – mother seeking to travel with the children to (country omitted) for a six month period.

Fitzgerald & Tafani [2018] FCCA 632

Published date: 02 May 2018

FAMILY LAW – Interim – parenting.

Sheffield & Tomlin (No.3) [2018] FCCA 614

Published date: 01 May 2018

FAMILY LAW – Parenting – interim hearing with respect to the mother’s time – whether or not that time should continue to be supervised – non-attendance by the mother – orders made in accordance with interim proposal of the Independent Children’s Lawyer and the father.

Bloom & Chesterman [2018] FCCA 680

Published date: 01 May 2018

FAMILY LAW – Parenting – dispute as to with whom two children aged 12 and 10 live – where mother not adequately facilitated time with father – where mother derogatory of father – where mother is dispelling her fears about father onto the children – where mother holds unshakeable view that she is right and father is wrong – where dynamics brought about by mother are putting children at risk of emotional harm – where if children remain with mother then relationship with father, stepmother, siblings and stepsiblings will deteriorate and cease – Held in children’s best interests to live with father, for there to be a moratorium where children do not see mother for a school term then alternate weekends, half school holidays and special event time with the mother.

Balson & Blick [2018] FCCA 473

Published date: 01 May 2018

FAMILY LAW – Parenting – family violence – best interests of the child – sole parental responsibility – child live with the mother – no orders as to time spent with the father.