Tuesday, May 10, 2011

Recent Family Court Decisions, May 2011

Children – Unilateral relocation – Need to protect children

In Deiter [2011] FamCAFC 82 a 24 year old mother of children aged 5, 3, and 1 unilaterally relocated after the father’s violence (witnessed by the children) leading to an interim domestic violence order and an assault charge being made against him. The mother appealed to the Full Court (Finn, Thackray and Strickland JJ) against the interim order of Kaeser AM of the Magistrates Court of WA that the mother return the children to Sydney from Perth and live there until the final hearing. The Full Court at para 55 said:

“No consideration appears to have been given to conducting a
discrete hearing to deal with the allegations of violence before determining the application for the return of the children or the secondary issue concerning the venue of the final hearing.” 

(From the Editors of The Family Law Book)

Children – Order against time with children set aside
In Maluka [2011] FamCAFC 72 the father appealed Benjamin J’s dismissal of his application for time with his children at a contact centre. The Full Court (Bryant CJ, Finn and Ryan JJ) said at para 49 that Benjamin J had “misunderstood the orders sought by the father and overlooked that [he] sought supervised, not unsupervised, time with the children”.

(From the Editors of The Family Law Book)

Children – Unilateral relocation before child’s birth
In Iris & Cohen [2011] FamCAFC 77 a mother unilaterally relocated from Townsville to Wagga Wagga before the birth of the child. At the interim hearing, Coker FM ordered her to return to Townsville with the (since born) child. The mother appealed. May J held that in refusing a stay pending appeal Coker FM had “failed to consider that this was not a case where the child was having a relationship with the father and was unilaterally moved away from a settled environment”; had “no evidence indicating that the mother was not properly caring for the child”; having called for an ICL, should have “waited for the expert report and made no order until the [ICL’s] first appearance”; and “[g]ave no real consideration to the mother’s application that the matter be heard in Wagga Wagga”.

(From the Editors of The Family Law Book)

Children – Special medical procedure – Gender identity disorder
In Re: Jamie (Special medical procedure) [2011] FamCA 248 a boy aged 10 years 10 months who acted and was treated as a girl was diagnosed by medical experts with gender identity disorder. Dessau J said at para 5:

“The medical practitioners were unequivocal as to the absolute urgency for Jamie to start … “stage one” treatment, to suppress male puberty. She currently has the pubescent development of a 14-year-old male, and it is rapidly progressing. The concern was that physiological developments, such as a deepening voice, would be irreversible unless treatment was started. For that reason, the hearing in this case was brought forward.”

(From the Editors of The Family Law Book)

Property – Request to answer specific questions disallowedIn Darbar & Batey and Anor [2011] FamCA 97 Rose J set aside a registrar’s order compelling a party to answer specific questions as the request was premature, the case not having been allocated to a first day before a judge as required by FLR 13.26.

(From the Editors of The Family Law Book)

Costs – Where a party was wholly unsuccessful
In Kearney & Dreyfus (Costs) [2011] FamCA 117 the father whose application for an order that a child attend a particular school was dismissed was ordered to pay the mother’s costs of $14,000. Ryan J at para 13 said:

“Senior counsel for the mother correctly pointed out this was a discrete issue in relation to which the Court was invited to decide between one of two options. In other words the limited nature of the dispute inevitably meant one party would be entirely successful and the other wholly unsuccessful [within the meaning of s 117(2A)(e)]. I agree.” 

(From the Editors of The Family Law Book)

Financial agreement – Made under wrong section – Rectification
In Ryan & Joyce [2011] FMCAfam 225 the applicant claimed he signed a financial agreement “to keep [his partner] happy”, knowing that it was not legally enforceable because, by the time he got around to signing it, the section under which the agreement was made (s 90B) was the wrong one (the parties having since married whereupon s 90C would apply). Neville FM said that the misdescription was “simply the result of ‘timing’” and that “such a ‘slip’ … should be rectified.”

See Otero [2010] FMCAfam 1022 where Hartnett FM severed a maintenance waiver for not complying with s 90E, but otherwise dismissed a wife’s application for an order setting aside a financial agreement that recited as nil the value of the parties’ company shareholding (which she transferred to the husband under the agreement) when its true value, according to evidence adduced by the wife in support of her application, was $1 million.

(From the Editors of The Family Law Book)

*Reprinted from www.thefamilylawbook.com.au

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