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Recent Family Law Judgments - Equal Shared Parental Responsibility 1. Maynard & Bullen [2008] FMCAfam 1312 (9 December 2008) 2. Baker & Parker-Lesley [2008] FamCA 1002 (11 November 2008) Catchwords: FAMILY LAW - CHILDREN - parental responsibility - best interests of the child - whether the presumption of equal shared parental responsibility is rebutted pursuant to s 61DA(4) - not in the best interests of the child for the parties to have equal shared parental responsibility - mother to have sole parental responsibility FAMILY LAW - CHILDREN - orders made for mother to provide father with information regarding child's health and schooling Date Delivered: 11 November 2008 Before: Dawe J Legislation Cited: Family Law Act 1975 (Cth) ss 60B, 60CC & 61DA Cases Cited: Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 3. Arman & Arman [2008] FamCA 923 (31 October 2008) Catchwords: FAMILY LAW - CHILDREN - Parenting orders - best interests of the child - Impact of a family violence order where party consent with a denial of liability - rebuttal of presumption of equal shared parental responsibility FAMILY LAW - PROPERTY - Contributions - Add-back where evidence vague and money received subsequent to separation - Just and equitable division. Date Delivered: 31 October 2008 Before: Cronin J Legislation Cited: Crimes (Family Violence) Act 1987 (Vic) Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Cases Cited: Godfrey & Sanders (2007) 208 FLR 287 Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 Mazorski & Albright (2008) 37 Fam LR 518 Pierce v Pierce (1999) FLC 92-844 Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 4. Loddington & Derringford (No. 2) [2008] FamCA 925 (31 October 2008) Catchwords: FAMILY LAW - CHILDREN - Best interests - Inability of parties to communicate - Rebuttal of equal Shared Parental Responsibility - examination of what is parental responsibility -Meaningful Relationship Date Delivered: 31 October 2008 Before: Cronin J Legislation Cited: Family Law Act 1975 (Cth) Cases Cited: Fork & Thomas (1993) FLC 92-372 Godfrey & Sanders (2007) 208 FLR 287 Goode and Goode (2006) FLC 93-286; (2007) 36 Fam LR 422 H and H (2003) FLC 93-168 M and K [2007] FMCAFam 26 Mazorski & Albright (2008) 37 Fam LR 518 Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 5. Heat & Barton [2008] FamCA 1014 (29 October 2008) Catchwords: FAMILY LAW - CHILD - rebuttal of presumption of equal shared parental responsibility - best interests of the child - child health considerations - air travel Date Delivered: 29 October 2008 Before: Rose J Legislation Cited: Family Law Act 1975 (Cth) ss 60CC, 61DA(4), 60CA Cases Cited: Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 6. Wunscher & Licha [2008] FamCAFC 155 (23 October 2008) Catchwords: FAMILY LAW - APPEAL - From decision of Family Court Judge - CHILDREN - The central question for the trial Judge was the time the child is to spend with each of her parents and who should have parental responsibility for her - Child had lived with the mother and spent irregular time with her father - Previous orders were made for the child to spend continuing time with her father - In earlier proceedings the mother alleged sexual abuse of the child by the father - In the proceedings which are appealed against, the trial Judge ordered that child live with the father and that he have sole parental responsibility for her - The mother was restrained from contacting or communicating with the child save as to when, in his discretion, the father arranged for time to be spent by the child with her mother and whether or not it was to be supervised - Mother appealed all orders - Basic challenge on appeal goes to the allocation of parental responsibility, the residential arrangements and absence of provision for the mother to spend time with the child - The appeal challenges the order that the mother bear the costs of any supervision and an order providing for the arrest of the mother without warrant, should she remove the child from the father's possession - The mother seeks equal shared parental responsibility, with the child living with her and spending time with the father Date Delivered: 23 October 2008 7. Runcorn & Raine [2008] FamCA 837 (16 October 2008) Catchwords: FAMILY LAW - CHILDREN - With whom children live - Discussion of the practical application of s 60CC objects and principles - where the mother makes allegations of risk of physical harm from father and father makes allegations of risk of psychological harm from mother - where the parties have no ability to communicate or co-operate - where concerns exist as to the mental health of the mother - where the children need stability and consistency in parenting - where the mother failed to volunteer information of her pregnancy at trial and failed to consider the impact of household composition for the children -where the mother is dismissive of the father's role in the children's life - where the father doesn't appear on the birth certificate and the mother does not call the children by the father's name - Finding that a significant relationship between mother and children will cause psychological harm for the children - order the children live with the father - order the formal registration of the father on birth certificate - parties to make submissions as to what orders should be made for time spent between mother and children FAMILY LAW - CHILDREN - Parental responsibility - meaning and definition of parental responsibility - where the presumption of equal shared parental responsibility is not in the children's best interests - discussion of the significance of making an order for sole parental responsibility - order the father have sole parental responsibility - order the father notify the mother of decisions relating to long term issues FAMILY LAW - CHILDREN - Allegations of bias and bribery made against report writers - there being no substance to any of the allegations - evidence of the report writers remains untainted by the allegations Date Delivered: 16 October 2008 Before: Murphy J Legislation Cited: Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA, 65AA, 65DAA, 65DAC, 65DAE, 68F and 69ZR Cases Cited: AIF v AMS (1999) 199 CLR 160 Mazorski v Albright (2007) 37 Fam LR 518 Neil v Nott (1994) 68 ALJR 509 Secretary, Department of Health and Community Services v. JWB & SMB (1992) 175 CLR 218 U v U (2002) 211 CLR 238 Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 8. Blinac & Manolo [2008] FamCA 932 (15 October 2008) Catchwords: FAMILY LAW - CHILDREN - rebuttal of presumption of equal shared parental responsibility - whether in child's best interests to live with father - unacceptable risk of child abuse - role of the intervenor Date Delivered: 15 October 2008 Before: Rose J Legislation Cited: Family Law Act 1975 (Cth) Cases Cited: B and B, Family Law Reform Act 1995 (1997) FLC 92-755 M and M (1987-1989) 12 Fam LR 606 Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 9. Wickham & Wickham [2008] FMCAfam 1084 (3 October 2008) Catchwords: FAMILY LAW - Parental responsibility - whether order should be made for equal shared parental responsibility where presumption inapplicable. Date Delivered: 3 October 2008 Before: Wilson FM Legislation Cited: Family Law Act 1975 (Cth), ss.4, 60B, 60CC, 61B, 61C, 61DA, 64B, 65D, 65DAC Cases Cited: Jurisdiction Federal Magistrates Court 10. Bond & Merlin [2008] FamCA 795 (24 September 2008) Catchwords: FAMILY LAW - CHILDREN - rebuttal of presumption of equal shared parental responsibility - the capacity of the parties to provide for the emotional needs of the youngest child - the weight to be given to various matters in determining the best interests of a child for the purpose of time to be spent with each party. Date Delivered: 24 September 2008 Before: Rose J Legislation Cited: Family Law Act 1975 (Cth) s 60CC(1), 60CC(2), 4(1)(c) Cases Cited: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 B and B, Family Law Reform Act 1995 (1997) FLC 92-755 Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 11. Chappell & Chappell [2008] FamCAFC 143 (15 September 2008) Catchwords: FAMILY LAW - CHILDREN - Parental responsibility - modified order for equal shared parental responsibility - where order made for a party to have the Date Delivered: 15 September 2008 Before: Warnick, Boland and Thackray JJ Legislation Cited: Acts Interpretation Act 1901, s 15AD Family Law Act 1975, s 4, s 26B(1A), s 37A(2A), s 60B, s 60CC, s 61B, s 61C, s 61D, s 61DA, s 64B, s 64D, s 65DAA, s 65DAC, s 65DAE, s 65G(1), s 65P(1), s 65X, s 67K, s 67Q, s 67T, s 68B, s 68M, s 69Z, s 79A(1AA), s 90K(2), s 92A(2)(bb), s 94AAA(1A), s 111B(4) Family Law Amendment (Shared Parental Responsibility) Act 2006 Cases Cited: Carpenter and Lunn [2008] FamCAFC 128 Goode and Goode (2006) FLC 93-286 Langford and Coleman (1993) FLC 92-346 Newlands and Newlands (2007) 37 Fam LR 103 Repatriation Commission v Nation (1995) 57 FCR 25 Yunghanns and Ors v Yunghanns and Ors; Yunghanns (1999) FLC 92-836 Jurisdiction Full Court of the Family Court (post-2008) 12. Hand & David [2008] FamCA 802 (15 September 2008) Catchwords: FAMILY LAW - CHILDREN - rebuttal of presumption of equal shared parental responsibility - periods of time to be spent with the father - place of change-over of the child from one parent to the other - at the request of all parties certain parenting orders made on the basis of submissions with reference to evidence without cross-examination Date Delivered: 15 September 2008 Before: Rose J Legislation Cited: Family Law Act 1975 (Cth) ss 60CA , 60CC, 61DA(1) and 61DA(2) Cases Cited: Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 13. Sohumba & Egan [2008] FamCA 778 (8 September 2008) Catchwords: FAMILY LAW - CHILDREN - Parenting - maternal aunt seeking parenting orders - central issue of alleged family violence and physical discipline in the father's household - the capacity of the father to meet the health and educational needs of the children - views expressed by the children as to with whom they wish to live - the nature of the relationship between the children and the parties - the willingness of each party to facilitate a close and continuing relationship between the children and the other party - whether equal shared parental responsibility is possible - need for the children to maintain link with their cultural heritage. Date Delivered: 8 September 2008 Before: Watts J Legislation Cited: Family Law Act 1975 (Cth) Cases Cited: Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 14. Laffer & Laffer [2008] FamCA 769 (3 September 2008) Catchwords: FAMILY LAW - CHILDREN - with whom a child lives and spends time - part-heard trial - where father discontinued applications and took no further part in proceedings - where extensive evidence already taken - both mother and child have mild intellectual disability and epilepsy - allegations of sexual abuse of child by father - consideration of s 60CC factors - need to protect child from possibility of abuse - child to live with mother - child to spend time with paternal grandmother as agreed and with father on occasions child with paternal grandmother - father's time with child to be supervised by paternal grandmother. FAMILY LAW - CHILD ABUSE - allegations of sexual abuse - discussion of standards of proof applicable to positive finding of sexual abuse and finding of unacceptable risk - where parts of evidence untested due to father's withdrawal from proceedings - unsafe to make a positive finding of unacceptable risk - preliminary finding justified on evidence. FAMILY LAW - CHILDREN - parental responsibility - where presumption of equal shared parental responsibility not appropriate - mother to have sole parental responsibility. FAMILY LAW - PRACTICE AND PROCEDURE - orders not to constitute basis for refusal of any future application on Rice and Asplund test - evidence heard during trial to constitute part of evidence in any future proceedings. Date Delivered: 3 September 2008 Before: Burr J Legislation Cited: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC & 65DAA Evidence Act 1995 (Cth) s 140 Cases Cited: Briginshaw and Briginshaw (1938) 60 CLR 336 M and M (1988) FLC 91-979 Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 15. Olds & Dunne [2008] FMCAfam 846 (25 August 2008) Catchwords: FAMILY LAW - Children - equal shared parental responsibility - father seeks time overnight with children - assault and sexual assault of mother - whether mother's fears are genuinely held - whether order for time overnight will effect mother's ability to parent children properly. Date Delivered: 25 August 2008 Before: Roberts FM Legislation Cited: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA Cases Cited: Jurisdiction Federal Magistrates Court 16. Carr & Vincent [2008] FMCAfam 888 (20 August 2008) Catchwords: FAMILY LAW - Children aged 6½ and 5½ - appropriate arrangements for children to spend time with father pending final hearing - father based in Japan but able to return to Australia regularly - presumption of equal shared parental responsibility - best interests - reasonable practicality - substantial and significant time - whether children should be provided with mobile phones for communication with father. Date Delivered: 20 August 2008 Before: Brown FM Legislation Cited: Family Law Act 1975, ss.60CA, 60CC, 61DA, 61DB, 65DAA Cases Cited: Jurisdiction Federal Magistrates Court 17. Roland & Atkins [2008] FamCA 857 (20 August 2008) Catchwords: FAMILY LAW - CHILDREN - WITH WHOM A CHILD LIVES - In October 2005 parties consented to final orders that provided for the children to live half time with each parent and change overs to occur weekly - This arrangement did not work as the parties have not established a reasonable level of communication and are not parenting cooperatively - Eight months after the final orders were the father filed an Application seeking to change the orders wanting to keep the week about arrangement but change the way it was implemented - Mother wants to change the arrangement so that the children live mainly with her and spend time with the father - Rule in Rice and Asplund - If the week about arrangement continues or the children live with the father it is more likely that the father's controlling behaviour will lead to further proceedings concerning the children - Ordered that the children live with the mother and spend time with the father each alternate weekend and half of school holidays FAMILY LAW - CHILDREN - PARENTAL RESPONSIBILITY - Presumption of equal shared parental responsibility - Father's controlling behaviour and the parents' poor communications and relationship dictate that it is contrary to the children's interests for the parties to have equal shared parental responsibility - It is in the children's best interests that the father have responsibility for day to day decisions when they are in his care and otherwise the mother have sole parental responsibility FAMILY LAW - CHILDREN - CHILD'S VIEWS - The children expressed a preference for a week about arrangement of equal shared care - Because of the children's exposure to the litigation and the competing proposals the children's expressed preferences are not free choices but a product of that exposure - Because of their ages the expressed preference does not involve any careful understanding or consideration by the children of all the short term and long term implications of the options - Little weight can be given to the children's expressed preferences for living arrangements FAMILY LAW - CHILD ABUSE - Emotional abuse - Father's behaviour that exposes the children to or involves them in controlling behaviour by him, his conflict with the mother and the step-father and the litigation is emotionally abusive Date Delivered: 20 August 2008 Before: Mullane J Legislation Cited: Family Law Act 1975 (Cth) Cases Cited: Freeman and Freeman (1987) FLC 91-857 Rice and Asplund (1979) FLC 90-725 Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 18. Smithers & West [2008] FamCA 772 (10 August 2008) Catchwords: FAMILY LAW - CHILDREN - With whom a child spends time - Mother lives in Newcastle and the father at F on the New South Wales north coast - Parties agree that the child should remain living with the mother -Whether there is an unacceptable risk of harm to the child if the child spends time with the father unsupervised - Ordered that the father spend unsupervised time with the child - Parental responsibility - Presumption of equal shared parental responsibility - Presumption of equal shared parental responsibility is rebutted but it is ordered that the mother and father have equal shared parental responsibility as the Court is satisfied that this is in the child's best interests Date Delivered: 10 August 2008 Before: Ryan J Legislation Cited: Family Law Act 1975 (Cth) Evidence Act 1995 (Cth) Cases Cited: A v A (1998) FLC 92-800 Briginshaw v Briginshaw (1938) 60 CLR 336 Goode and Goode (2006) FLC 93-286 H v W (1995) FLC 92-598 Johnson and Page (2007) FLC 93-344 M v M (1988) 166 CLR 69 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 R v R (Children's wishes) (2000) FLC 93-000 W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 19. Bergin & Grove [2008] FMCAfam 834 (6 August 2008) Catchwords: FAMILY LAW - Children aged 7 and 5 - arrangements for care pending final hearing - best interests - views of older child - allegations of family violence - overnight time - presumption of equal shared parental responsibility - practical considerations. Date Delivered: 6 August 2008 Before: Brown FM Legislation Cited: Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 65DAA Cases Cited: Jurisdiction Federal Magistrates Court 20. Pappas & Pappas [2008] FMCAfam 790 (1 August 2008) Catchwords: FAMILY LAW - Child aged five years - final arrangements for care - parties agree presumption of equal shared parental responsibility should apply - whether both reasonably practicable and in child's best interests for child to live with each of her parents for equal periods on week about basis - nature of parties' parenting relationship - capacity to communicate effectively - best interests. PROPERTY - Relationship and marriage of eight years - asset pool - assessment of contributions - whether asset by asset or global approach - weight to be given to gift by one party's parent - inheritance - s.75(2) factors - just and equitable. Date Delivered: 1 August 2008 Before: Brown FM Legislation Cited: Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 65DAA; 65DAC; 75(2), 79(4) Cases Cited: Jurisdiction Federal Magistrates Court | Fathers4Equality | this page has been most recently updated on 27 December 2008 | |