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Latest Notable Cases samplesTHE FAMILY LAW BOOK 10 Anniversary

This is a sample (posted 20 March 2019) of "latest notable cases", which is posted monthly with live links for members at the Members' Home Page under Members' Practice News. Also available at our Members' Home Page (along with our E-Book, our up-to-the-minute family law and child support practice news, our online forms and precedents and our free legal help line) is our online members' Archive of all our back issue indexed case notes (assembled by topic and with live links to AustLII), useful papers and client brochures.

Our E-Book offers links to all the AustLII-published cases we cite, links to forms and precedents and a word/phrase search function (also available at our archive once you have chosen your topic).

Children – Pregnant mother’s movement interstate incorrectly regarded by judge as a relocation case – Interim coercive order for fleeing mother to return and stay in a place where she had not been living was in error

In Mareet & Colbrooke [2019] FamCAFC 15 (7 February 2019) the mother left the father in September 2017 after a four month relationship, alleging violence on his part. The mother was pregnant with the parties’ child when moving from the Northern Territory (where the father then worked) to the “D Region” in Queensland via “Town F” in New South Wales for a short time where her family lived. She moved to Queensland alleging necessity due to stalking and harassment by the father. The child was born in Queensland. The mother signed a lease and moved her possessions there, also enrolling her four year old child from a former relationship in kindergarten there.

At first instance an unidentified judge of the FCC on the father’s application ordered the mother to return with the child (a “very young baby” ([1])) to the “H Region” in NSW; that she not leave there until further order and that the child spend time with the father there at a supervised contact centre. The mother appealed to the Full Court.

Ainslie-Wallace J (with whom Ryan and Aldridge JJ agreed) said (from [14]):

“While it is undisputed that the Family Law Act … provides the power to enjoin a party to relocate (or not relocate), such an injunction should rarely be made (see Sampson & Hartnett (No 10) [[2007] FamCA 1365 at [58]] … ). The making of such an injunction [Ed – referred to in Sampson as a coercive order] can be avoided if the court gives adequate consideration to alternate forms of access to children …

[15] Her Honour regarded the issue before her as a ‘relocation case’ and clearly proceeded on that basis, saying at one point: ‘unless the child – such a young child who’s totally dependent on his mother comes back to an area that the mother was in subsequent to her relocation to the D Region in Queensland, to facilitate the father establishing a relationship with his son …’ Clearly however, the child’s residence was never in the H Region in New South Wales. The mother moved to the D Region in Queensland while pregnant in March 2018 and later in 2018 gave birth to the child in Town C. Properly considered, the father’s application was that the child be brought to the H Region in New South Wales so that he … could make a relationship with the child. Her Honour’s characterisation of the issue led her to make significant errors of law.

[16] In particular, her Honour gave no consideration to making orders that the father travel to the D Region in Queensland to see the child. Nor did she turn her mind to the interests of the mother’s older child who had been enrolled at pre-school in the D Region in Queensland. Instead, her Honour took the view that the mother should be compelled to return.

[17] This order, that is, one directly affected the mother’s right of freedom of movement, in the circumstances of this case was wrong at law. Secondly, her Honour’s ancillary order which bound the mother to the H Region of New South Wales from which she could not leave is patently erroneous.

[18] I point out that her Honour’s order which required the mother to break her lease, pay the penalties associated with that and the other financial implications of being forced to move was, in her Honour’s words ‘only until further order’ … That is, her Honour’s order took no account of the financial and other burden on the mother consequent on the move which might, in her Honour’s view, only be short term”.

The appeal was allowed and the case remitted for rehearing by another judge.


NOTE – A further 6 cases are summarised for members this month at our Members' Home Page under "latest notable cases" under the following headings:

Property – Husband imprisoned for contempt of an order for discovery – Full Court sets sentence aside on appeal – Failure to comply with order was a contravention under Part XIIIA of the Family Law Act, not a flagrant challenge to the court’s authority under Part XIIIB

Financial agreements – Rectification – Full Court finds no error in rectification of “pre-nuptial agreement” which was not expressed to be made under s 90B (and which was said to be governed by “the laws in the State of Victoria”)

Property – Wife loses appeal against finding that husband owed his father $145,000 – A text message by her offering to return money to the father was not inadmissible under s 131 of the Evidence Act 1995 (Cth) – Exemption from privilege applied under s 131(2)(g) because court was likely to be misled if the communication were not adduced

Declaration of validity of marriage – Family Court of Western Australia declares marriage valid despite the celebrant pastor not being the holder of a current wedding licence – Belief in celebrant’s authority and intention to lawfully marry pursuant to s 48(3) of the Marriage Act

Property – De facto partners reconciled 6 years after separation, married then separated again – Initial contributions by both parties although wife made business losses – Weight to be given to periods of cohabitation and separation must include consideration of their duration – Wife’s care of children

Financial agreements – Section 90B agreement did not prevent wife’s spousal maintenance claim as it did not comply with s 90E, nor could a maintenance bar be inferred – Order made for interim periodic maintenance – No basis for lump sum maintenance, interim costs or interim property order