Each year the Federal Circuit Court and the Family Court of Australia express opinions and even change their minds on how key decisions are made about family law issues before the court. How the Judges interpret the Family Law Act with these new or changes positions is called “common law” and it can be just as powerful as the legislation.

 Our resident legal eagle Elroy has been attending courts all over the country (no airfares needed as he already has wings) to bring you this update on some of the major decisions relating to children this year. In our follow up he report on major decisions relating to property and spousal maintenance.
Over to you Elroy…

Hey Eaglets, here are the big things in Fed circuit and Family court that the Judges made decisions that broke new ground in 2019.
 Now listen I had to sit through hours of court boredom without one squawk to get these little gems so I hopes ya enjoy them!
Off we go…

JUNE 2019

Taking time to make the best decision!
Court grants adjournment of trial for 12 months to permit assessment of children’s time with father away from “artificial environment” of contact centre –
Judge Harman considered an application by the parents of children of 7 and 4 years (supported by the ICL) to adjourn a two day trial and make interim, instead of final parenting orders, despite the fact that the case had been before the Court for three years.
 As I say – finality is good but justice is better!

JULY 2019

When you ain’t daddy
Husband discovered that he was not child’s biological father after separation when child was 13 months of age – His “friendly relationship” (which child enjoyed) allowed to continue despite mother’s strong opposition – Order for husband to spend four hours with the child every six weeks.
Now that’s a dad with commitment!

Overseas travel
Suspension of interim injunction against overseas travel and of watch list order was erroneous as the parties’ subsequent final consent order had the effect of discharging all interim orders – Leave to travel overseas would require fresh proceedings as consent order was silent as to overseas travel

Camera Recordings
Mother’s secretly taken video recordings of interaction with father at hand overs were admissible as mother had a lawful interest in her personal safety – Her secretly taken audio recordings of private conversations between father and the children held to be inadmissible

In Coulter & Coulter, Judge Heffernan heard the father’s application to exclude video recordings made secretly by the mother of his attendance at her home for hand overs and two audio recordings of conversations between him and the children, taken via a KIK messenger app on the children’s iPods. 
Threshold hearing on Rice & Asplund – Mother’s evidence of improvement in her mental health failed to justify reconsideration of a parenting order which had turned not on whether or not the mother had a mental illness, but on a finding that her fixed beliefs posed a risk of harm to the child.

When granny is crook

Interim order permitting relocation with children from Melbourne to Sydney to enable mother to be with terminally ill maternal grandmother.

Paying child support…from when?
Declaration of paternity under s 106A of the Child Support (Assessment) Act granted to mother four years after refusal of her application for child support assessment – Judged erred by leaving commencement of liability to the child support registrar – Act provides that such a declaration operates retrospectively to when the assessment application was made

In Calafiore & Netia the Full Court (Judges Kent, Tree & Hogan) considered a case where the parties’ only child was born after separation. The mother had lodged an application for child support assessment in May 2013 but the father was not named on the birth certificate. He disputed paternity so the child support registrar refused the mother’s application.

Watch lists
Judge erred by restraining international travel and placing children’s names on airport watch list without considering relevant matters as set out by the Full Court in Line & Line [1996].

Relocation without consent?

Unilateral relocation of mother to a town 2 and a half hours’ drive away – Review of registrar’s refusal to exempt father’s filing of a family dispute resolution certificate on the ground of urgency – No evidence of a genuine attempt to resolve dispute – Discussion of when a unilateral relocation is “urgent” for the purpose of s 60I(9).

Daddy didn’t get a 60i certificate – oops!
Father applied for parenting order without complying with s 60I (family dispute resolution) – No exception applicable under subsection (9) – On appeal by mother the FCC’s orders including order for parties to attend conference with family consultant pursuant to s 11F were set aside – Father’s application dismissed

In Ellwood & Ravenhill [2019] FamCAFC 153 (6 September 2019) Kent J (sitting in the appellate jurisdiction of the Family Court of Australia) heard the mother’s appeal from orders made on the application of the father in respect of the parties’ daughter (17) and son (nearly 16). In her response, the mother applied for dismissal of application as s 60I had not been complied with, arguing that the Court lacked jurisdiction.`

Fighting limited supervised time
Father diagnosed with delusional disorder by court-appointed single expert – Leave granted for father to adduce evidence from adversarial expert – Father’s wish to adduce other expert evidence to counter evidence that would otherwise lead to his having limited supervised time or no time with the children amounted to a “special reason” for leave pursuant to FLR 15.49(2)(c)

A history of parental conflict
Father’s contravention application was met by mother’s application for variation of parenting order – Adjournment of contravention application for 16 weeks – “Widely held view” that contravention applications must be heard before any other proceedings has not applied since introduction of Division 13A of Part VII –
Best interests of children paramount – and don’t we know it!

In Maddax & Danner [2019] Judge Murphy J (sitting in the appellate jurisdiction of the Family Court of Australia) heard the father’s appeal against Judge Turner’s adjournment of his contravention application where a family report was ordered in respect of the parties’ child now aged nine, the mother having cross-applied for variation of a parenting order made in 2016.

So that’s a wrap for parenting eaglets.
I’ll be feathering my nest and serving up the highlights of the property fights next week but till then this eagle has landed!

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Written by The Legal Eagle