Tuesday, September 6, 2011

Recent Family Law Cases - September 2011

Children – Surrogacy 
In Dudley and Anor & Chedi [2011] Fam CA 502 Watts J granted parenting orders to a Qld couple, who brought three babies back from Thailand under a commercial surrogacy arrangement, being “persons concerned with the care, welfare and development of the children” under s 65C(c). Watts J cited State laws authorising altruistic surrogacy, but making commercial surrogacy illegal, and directed that a copy of his reasons be sent to the DPP Qld for possible prosecution. See Lowe & Barry [2011] FamCA 625 (altruistic surrogacy).


(From the Editors of The Family Law Book)

Super pension – Life expectancy
In Winn [2011] FamCA 501 the husband’s interest in his super pension was valued under the FL (Super) Regs at $774,265, applying the Australian Life Tables expectation that the husband (57) would live to 80. Johnston J found that that assumption was not supported by the medical evidence, reassessing the pension’s value at $382,534.


(From the Editors of The Family Law Book)

Taped family consultant interview
In Hazan & Elias [2011] FamCA 376 Watts J excluded the husband’s recording of his interview with the family consultant, disagreeing that s 11C (FLA) (communications with family consultants admissible) ousted s 138 of the Evidence Act (EA) (evidence illegally or improperly obtained). Referring to the "golden rule" of statutory construction that “the grammatical and ordinary sense of the words is to be adhered to unless that would lead to … absurdity … or inconsistency with the rest of the [statute]”, Watts J “read s 11C FLA down so that it is subject to … the normal evidentiary provisions [of] s 69ZT(1) FLA … [and s] 56(2), s 138 and s 135 EA”.


(From the Editors of The Family Law Book)

Registrar’s refusal to abridge time not reviewable
In Zeller & Whitby [2011] FMCAfam 431 Altobelli FM held that he had no power to review a Registrar’s refusal to abridge time under s 104 of the FM Act as the refusal was not an exercise of power under s 102(2) or s 103(1).


(From the Editors of The Family Law Book)

“Haystack” of an affidavit struck out
In Symes & Glover [2011] FMCAfam 735 Halligan FM struck out an affidavit counsel said could be reduced from 130 pages to 20, saying:

“ … it is an abuse of process … oppressive … vexatious … It casts a ridiculous burden upon the Court to try and deal with a document of that magnitude where so much of its content should never have been included. ( … ) To … find any specific piece of evidence in that particular haystack, even with an index to the annexures … is almost impossible.”
 
(From the Editors of The Family Law Book)

Contempt of court – Relevant law and procedure
In A bank & Coleiro & Anor [2011] FamCAFC 157 Harman FM charged the husband with and convicted him of contempt of court (s 112AP) over the disappearance of $200,000. The ensuing sentence of imprisonment was not executed. The joinder of the bank was set aside by the Full Court (Bryant CJ, Finn and Strickland JJ). Bryant CJ also held “that his Honour failed to comply in almost all respects with the [FMCR] and … the … authorities” as to how contempt in the face of the court is to be dealt with.




(From the Editors of The Family Law Book)

Children – Judge’s reliance on newspaper editorial
In Herridge & Handerson and Ors [2011] FamCAFC 156 the Full Court (Coleman, May and Crisford JJ) set aside a parenting order made by Cohen J who cited a newspaper editor’s opinion as to the overuse of Ritalin, saying:

“ … where there was unchallenged admissible expert opinion evidence that the child B exhibited a ‘degree of ADHD’, it was not open to the trial Judge, without reference to admissible evidence which was before him, to speculate as to whether or not ADHD existed or was exhibited by the child B. His Honour’s personal opinions, whatever their basis, were no substitute for evidence.”


(From the Editors of The Family Law Book)

Order to produce counselling documents set aside
In UnitingCare – Unifam Counselling & Mediation & Harkiss and Anor [2011] FamCAFC 159 Coleman J set aside Altobelli FM’s order that Unifam produce counselling documents under subpoena by the father, saying:

“ ... the learned Federal Magistrate effectively concluded that ‘may’ [disclose upon consent] in s 10D(3) [FLA] meant ‘must’, and that, the parties’ consent to disclosure having been given, Unifam had no discretion to disclose or not disclose ... ” 


(From the Editors of The Family Law Book)

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