Family Law

Parsons and ANOR & MASSON

From the Family Court of Australia:

FAMILY LAW – APPEAL – CHILDREN – Relocation – Two children born as a result of artificial conception procedures – Where the first appellant is the biological and birth mother of both children, the second appellant is a parent of the youngest child by operation of s 60H of the Family Law Act 1975 (Cth) (“the federal Act”) and the respondent is the biological father of the eldest child – Where the primary judge found the respondent is a “legal parent” of the eldest child, allowed him extensive time with both children and restrained the appellants from relocating – Where the primary judge only applied the federal Act – In a case heard in federal jurisdiction it is mandatory for s 79 of the Judiciary Act 1903 (Cth) to be applied – Rizeq v Western Australia (2017) 91 ALJR 707 and Northern Territory of Australia v GPAO (1999) 196 CLR 553 considered – No constitutional reason why s 79 of the Judiciary Act 1903 (Cth) ought not apply to “pick up” the Status of Children Act 1996 (NSW) (“the State Act”) – Held s 60H of the federal Act does not “otherwise provide” within the meaning of s 79 of the Judiciary Act – Section 14 of the State Act must therefore be applied – The respondent is presumed not to be the father of the eldest child – Section 60H of the federal Act does not enlarge the category of persons entitled to the status of “parent” as there can only be two parents for the purposes of the federal Act – Held primary judge erred in finding the respondent is a “legal parent” of the eldest child – Appeal allowed – Matter remitted – Costs certificates issued.

Michelle McMahon represented the first and second appellants.

Reasons for Judgement can be found here.

Wickham & Arnett [2018] FCCA 80

From the Federal Circuit Court of Australia:

FAMILY LAW – Parenting – Twins aged 7 – one twin currently spending three hours per fortnight with the father; the other refusing to do so – father seeking orders for the children to spend time with him each alternate weekend and for half of the school holidays – mother seeking a no time order – where the mother alleges that the father perpetrated severe coercive and controlling family violence during and after the parties relationship which included hitting and pushing her, grabbing her by the throat, spitting on her, verbally abusing and threatening to kill her, damaging property, and taking or threatening to take the children in order to coerce her into agreeing to his demands including a demand to drop an ADVO application – where the mother agreed to the father spending time with the children for three years after the final separation but ended time soon after the children told her that the father had assaulted his current partner – where the father denies assaulting his current partner – where the father made some limited admissions about being violent to the mother but otherwise denied the mother’s allegations – where the father blamed his behaviour on the mother allegedly having mental health issues – where the court accepts the mother’s evidence and considers that there is an unacceptable risk of the children being exposed to family violence in the father’s unsupervised care - Independent Children’s Lawyer agreeing but proposing an order for long term supervised time – no benefit to the children in such an order – order made that the children spend no time with and have no communication with the father.

Michelle McMahon appeared for the Independent Children's Lawyer.

Bates & Arthur and Anor [2017] FamCAFC 73 (26 April 2017)

From the Family Court of Australia:

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO INTERVENE – Application in an appeal by the father seeking leave to intervene in an appeal – Where the Court is satisfied that allowing the application would not cause any injustice to the applicant – Where in the circumstances, it is in the interests of justice that the application for leave to intervene be granted – Application to intervene granted.

Dr Christopher Ward SC appeared with Madeleine Bridgett for the First Respondent.

Hampton & Heath and Ors [2017] FamCA 132 (8 March 2017)

From the Family Court of Australia:

FAMILY LAW – CHILDREN – Best Interests of the children – Where there is a risk of harm to the children in the care of each parent – Where there are allegations of family violence – Where the first respondent father perpetrated family violence – Where there are concerns regarding the mental health of the first respondent father – Where there are concerns regarding the drug use of the parties – Where the second respondent father has been convicted of assaulting one of the children – Where each of the parties has a criminal record – Where the mother was abused as a child – Where the mother identifies as Aboriginal – Where there are concerns about the mother’s ability to cope with four children – Where the youngest child lives with the paternal uncle – Where the sibling relationships are significant – Where there are concerns about the capacity of each parent to meet the needs of the children – Where there is an unacceptable risk of harm to the children in the care of each parent – Where the children should have a connection to their Aboriginal heritage – Where the Department of Family and Community Services is to have sole parental responsibility for the children – Where the children spend time with the mother – Where the child spends time with the second respondent father – Where the children spend time with the first respondent father.

Dr Stephen Tully appeared for the First Respondent.

Department of Family & Community Services & Arthur [2017] FamCA 204 (24 January 2017)

From the Family Court of Australia:

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the substantive proceedings have been heard and orders made for the return of the child to New Zealand – Where the proceedings were adjourned in relation to the conditions of the child’s return – Where some conditions are agreed between the parties – Where there are financial and other difficulties in relation to a practicable and enforceable order for return – Orders made to give effect to the return order after conditions have been met including the provision of financial support by the father to the mother – Orders made to stay the return order until the mother’s appeal is finalised.

Madeleine Bridgett appeared for the respondent.

Department of Family and Community Services & Arthur [2016] FamCA 1119

From the Family Court of Australia:

FAMILY LAW – CHILD ABDUCTION – Hague convention application – Application by the Secretary of the Department of Family and Community Services for the return of a five year old child to New Zealand – Dispute over her country of habitual residence – Dispute over father having rights of custody – Dispute over father exercising rights of custody – Where the child was wrongfully removed from New Zealand by the mother – Where the father did not consent to the mother removing the child –– Where grave risk of physical or psychological harm or an intolerable situation is not established – Where it is not established that the return would be against the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms – Application for return granted – Adjournment for any conditions of return.

Madeleine Bridgett appeared for the respondent.