Tuesday, April 5, 2011

Family Law Cases : February 2011

Property – Husband allowed to stay in home

In Oswald & Malkin [2010] FMCAfam 1337 Scarlett FM resolved a dispute between parties each of whom sought a transfer of the home to themselves (the wife claiming that its single storey would suit her neck and back problems and relieve her “depression”, the husband wishing to continue living there) by allowing the husband to remain there and ordering the wife to transfer her interest in it to him. Scarlett FM at paras 73 and 86 concluded:

“What the wife has not done is to provide any medical or psychological evidence in support of her claim that returning to live in the property, admittedly in the absence of her husband, would assist her to deal with these [health] issues. ( … ) It is clear … that the husband has the ability to raise funds to pay the wife, as the property is unencumbered. Why, one asks rhetorically, should he have to move? ( … ) I am not persuaded that an order should be made requiring the sale of the property because neither party can agree who should live there. I do not see that to be just and equitable.”

“De facto relationship” – Parties merely dating – Summary dismissal

In Ricci & Jones [2010] FMCAfam 1425 the mother applied successfully for the summary dismissal of the father’s property application. The parties never lived together but did have a child. They dated for several months until the father ended their relationship when the mother became pregnant. Riley FM examined whether it could be said that the child was a “child of [a] de facto relationship” within the meaning of s 90SB(b) of the Family Law Act; s 4AA of the Act which defines a “de facto relationship”; and the authorities, in particular Moby & Schulter [2010] FamCA 748 (Mushin J), concluding:

“Taking all of the matters into account that are stipulated by s 4AA of the Act, it seems to me that there is no prospect at all that the relationship between the applicant and the respondent could be regarded as a de facto relationship.”
Children – Abandoned children refusing to see father
In Abood & Khouri [2010] FMCAfam 900 three young children had not spent any time with their father for four years and were currently refusing to spend any time with him, including supervised time. The husband (who had not paid child support in that period) claimed that the wife (who alleged serious violence on his part and that the children were at risk if they were to see him) had alienated the children from him. Finding that such a risk did not exist, Bender FM concluded:

“I intend to make orders that make provision for the parties and the children to engage in intensive therapeutic intervention, after 

which the children are to commence spending time with their father on a supervised basis once the therapeutic counsellor deems the children are ready for that step.”

Children – Child’s surname – Immunisation

In Redden & Mains [2010] FMCAfam 1338 Dunkley FM reviewed the evidence and authorities at paras 73-82 in relation to change of a child’s surname, ruling against the hyphenation of the child’s name sought by the father and at paras 83-122 reviewed the evidence, including differing medical evidence adduced by the parties, as to the implications for the child of being immunised, concluding that an order for immunisation should be made.

Children – Supervision – Type and frequency of drug testing

In Lendrum & Carriel [2010] FMCAfam 1322 Sexton FM at paras 32-43 reviewed the evidence of the mother’s history of drug abuse; medical opinion as to her prognosis including the likelihood of a relapse; and evidence from a forensic toxicologist as to the function and cost of and the procedure for hair follicle testing. Sexton FM found on the evidence that a relapse was highly likely and so made an order for the supervision of the mother’s time with the child. An order was also made that the mother submit to a timetable of urinalysis and hair follicle testing.

Children – Grandparents undermining maternal bond

In Faulk & Anor & Deitz [2010] FMCAfam 1285 Bender FM reduced the time a child spends with the paternal grandparents because of their actions in undermining the child’s relationship with the mother “in their belief that she does not properly care for their grandchild

Lawyers – Conflict of interest

In two recent cases lawyers were held to be in a conflict of interest and were ordered to cease to act – in Karapataki [2011] FMCAfam 6 (Walters FM) and Seidler [2010] FMCAfam 1394 (Willis FM).

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