Children

FAMILY LAW - APPEAL – From decision of Family Court Judge – CHILDREN – With whom a child spends time – Consent orders – Contravention – The mother alleged 33  contraventions of the parenting orders – Mother also sought that she be granted leave to reopen virtually all parenting issues that had been resolved by consent – Trial Judge heard nine of the alleged contraventions and dismissed them – The mother then consented to the dismissal of the balance of the allegations – Trial Judge dismissed the mother’s application for leave to reopen parenting issues – Mother appealed – Whether the mother suffered procedural unfairness – Whether the trial Judge erred in accepting into evidence a letter and whether he placed undue reliance on it – Whether, in refusing leave to re-open parenting issues, the trial Judge placed reliance on his recollections of evidence of a psychiatrist and social worker who had prepared reports in earlier litigation – Whether the trial Judge erred by not receiving into evidence contact centre notes – Whether the trial Judge did not have proper regard to the mother’s claims that she had been under duress when signing the consent orders – No error in the trial Judge’s treatment of the applications – Appeal dismissed

FAMILY LAW - APPEAL – Application to adduce further evidence – application allowed

FAMILY LAW - APPEAL – From decision of Federal Magistrate – CHILDREN – Orders – Child to spend time with father – Contravention – Whether the mother had a reasonable excuse – The mother argued that she had a reasonable excuse because the child was ill and that it was the wish of the child to be cared for at home by the mother – On appeal, contended that the Federal Magistrate should not have found the mother’s excuse made out because the mother’s evidence did not meet the terms of s 70NAE(5) – Onus of proving reasonable excuse lay upon the mother – Evidence about the child’s health was not expressly addressed in terms of whether it constituted “reasonable grounds” for a belief that contravention was necessary to protect the child’s health – Discussion about the application of s 70NAE(5) – Failure of the Federal Magistrate to apply s 70NAE(5) – Test of “reasonableness” in relation to “reasonable excuse” under s 70NAE – Whether an inference can be drawn from events ex post facto to the contravention, if those events are relevant

FAMILY LAW - APPEAL FROM DECISION OF FEDERAL MAGISTRATE – CHILDREN - SCHOOLING – Where the parties had entered into consent orders which noted that they had agreed their child should attend a primary school which was “central to both parents’ residences” – Before the Federal Magistrate the mother sought orders that the child attend a particular primary school and the father sought that the child attend a different primary school – Federal Magistrate ordered that the child attend the primary school nominated by the father on the basis that it was central to both parties’ residences and would lead to less travelling for the father, and therefore less expense being incurred by him from transporting the child to and from school – Appeal allowed on the basis that the Federal Magistrate erred in the calculation of the costs that would be incurred by the father transporting the child to and from the two schools – Order amended to be interim rather than final – Issue of primary schooling arrangements to be re-considered at a final hearing of the matter before the Federal Magistrate.

FAMILY LAW - APPEAL – CHILDREN - Child related proceedings – Whether the Federal Magistrate erred in the exercise of discretion –Where the Federal Magistrate ordered a gradual regime of shared care leading to an equal shared care arrangement - Whether Federal Magistrate erred in failing to consider how orders would affect the mother’s earning capacity – Where the mother’s evidence was that she had flexible work hours – Whether Federal Magistrate inappropriately made findings based on the Family Report – Whether Family Report flawed because of report writer’s methodology – Federal Magistrate’s findings available on totality of evidence – No challenge made to Family Report at trial – Challenge not open on appeal - Whether inappropriate weight was given to matters favouring the father’s parenting capacity – Whether Federal Magistrate properly considered s 60CC factors - Where the Federal Magistrate appropriately considered relevant factors under s 60CC before determining the periods of time which the child should spend with each parent – No error found – Appeal dismissed.

FAMILY LAW - APPEAL – HAGUE CONVENTION – Where the Full Court had allowed an appeal against, and set aside, declarations and orders made by the trial Judge – The effect of the Full Court orders was that the child should return to the United Kingdom with her mother pursuant to the Family Law (Child Abduction Convention) Regulations 1986 – The Full Court had made directions for submissions to be filed by the parties (in either agreed or separate form) in relation to the machinery orders required to provide for the return of the mother and child to the United Kingdom – Separate draft orders and supporting submissions were subsequently received from the parties – Where the mother is now in an advanced state of pregnancy and seeks to remain in Australia for the birth of her child and for the following two months to permit immunisation of the infant – Proposed machinery orders set out by the Full Court in the reasons for judgment – Order made that each party file and serve on the other side brief submissions indicating their agreement or otherwise with those proposed orders.

FAMILY LAW – Children – equal shared parental responsibility – lives with – spends time with – four year old child having difficulty separating from mother – mother not heeding advice of staff of Contact Centre to leave quickly and make her goodbyes short.

FAMILY LAW - APPEAL – From decision of Federal Magistrate – CHILDREN – Consent orders were made that the children live with the mother and that the parties have equal shared parental responsibility for major long term issues – Children spending time with the father – Less than three months after the consent orders were made the father filed an application seeking major changes to them – Consideration by the Federal Magistrate of the rule in Rice and Asplund on the papers – Father’s application dismissed – Whether the Federal Magistrate failed to find that the alleged denial by the mother of a meaningful relationship to the father with the children and the mother’s alleged neglect of the children in relation to their medical conditions, constituted a significant change of circumstance – Whether Rice and Asplund in now “old law” because of the 2006 amendments to the legislation – Whether the Federal Magistrate failed to deal with the application on the merits and did not apply the paramountcy principle – Whether the Federal Magistrate erred in applying his discretion by considering the time that had elapsed since the consent orders as a relevant factor – Appeal dismissed

FAMILY LAW - APPEAL – From decision of Federal Magistrate – Interim orders – CHILDREN – With whom a child lives – Relocation – Whether the Federal Magistrate gave sufficient reasons for his decision – The challenge on appeal is to the cogency of the explanation for the result and to the adequacy of content, namely, whether there has been a failure to address relevant considerations under the legislation – Appeal allowed

FAMILY LAW – Children – relocation – parental responsibility – the father’s threats to mother’s partner – father’s use of coarse language about the mother – credit – conflict between parents causing stress to child – family violence – harm to child – communication by mobile telephone causing stress to child.

FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATES COURT – PARENTING – CONCLUSIONS – Not established that Federal Magistrate’s conclusions relating to safety of child when with mother’s new partner were not reasonably open to him. Australian Coal & Shale Employee’s Federation & The Commonwealth [1953] HCA 25; (1953) 94 CLR 621; House v The King [1936] HCA 40; (1936) 55 CLR 499; Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] HCA 3; (1999) 73 ALJR 306; 160 ALR 588 cited.

FAMILY LAW - CHILD ABDUCTION – HAGUE CONVENTION – HABITUAL RESIDENCE – whether the children were habitually resident in Australia at the time of their retention – whether the mother had a settled intention not to return to Israel with the children – discussion of Australian, New Zealand and English authorities on the term ‘habitual residence’ – appeal dismissed

FAMILY LAW - APPEAL – CHILDREN - RELOCATION – Where mother applied to relocate child’s to France to live with her – Whether error by the trial Judge in accepting and relying upon limited portions of the evidence of the mother’s treating psychologist – Where psychologist gave evidence that the mother could cope if the Court was to reconsider the issue of relocation when the child was aged ten, eleven or twelve – Where trial Judge accepted the psychologist’s contested diagnosis of the mother’s condition and prognosis – Trial Judge erred in accepting limited portions of the psychologist’s evidence.

FAMILY LAW - APPEAL – CHILDREN – CONSENT ORDERS – Where trial Judge made consent orders after 4 day hearing – Where mother appealed consent orders relating to children’s schooling – Whether mother’s consent to the orders was a real consent – Examination of transcript of trial in context – Where it was asserted mother’s consent was not a real consent but imposed on her by the trial Judge – Where mother was represented and personally signed the consent orders - Discussion of implied consent in Dobbs & Brayson (No 2) (2007) FLC 93-354 – No evidence of vitiation of mother’s consent.

FAMILY LAW - APPEAL – RELOCATION – Where the trial Judge ordered that the mother’s application to change the place of residence of the parties’ children from Sydney to rural Victoria be refused and that the mother be restrained from changing the children’s residence to any place more than 15km from the former family home in Sydney – The trial Judge also made orders for defined contact between the children and their father, including the introduction of Wednesday overnight contact – Whether the trial Judge had pre-judged the matter and raised a reasonable apprehension of bias – No merit found in these complaints – Restraint on the mother relocating to Victoria challenged on the basis that the trial Judge erred in asserting that the mother was required to provide adequate reasons for the proposed relocation and in failing to have regard to the economic impact on the mother if she was not permitted to move to Victoria – No merit found in these complaints – 15km restraint challenged on the basis that it had not been sought or explored at trial, that inadequate reasons had been given by his Honour for the restraint, that the restraint was contrary to other part of his Honour’s reasoning and that the restraint was not supported by the evidence – Order varied to restrain mother from changing the children’s place of residence to any area outside the Sydney metropolitan region – Wednesday overnight contact order challenged on the basis that the order was only sought by the father during final submissions and on the basis of inadequacy of reasons – Order varied to make it an interim order.