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Latest Notable Cases samples

This is a sample (posted 22 October 2018) 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.

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Children – After a final parenting order a new question between parents as to an aspect of parental responsibility does not involve the rule in Rice & Asplund – Court had jurisdiction and power to make orders as to child’s enrolment in an overseas exchange program

In Cameron & Brook [2018] FamCAFC 175 (13 September 2018) the parties had equal shared parental responsibility for their child K under a final parenting order made by consent when K was 11. When asked to sign an application for K’s selection in an overseas student exchange program in which her school participated the father refused. He also failed to attend family dispute resolution which the mother arranged as required by the order.

The mother’s application for an urgent interim order that the father sign the form, failing which she be granted sole parental responsibility for doing so (filed as part of an initiating application for a final order in the same terms) came before Judge Coates on the eve of selection interviews. The Court agreed with the father’s argument that the Court lacked jurisdiction and dismissed the application, whereupon the mother appealed (the appeal hearing coming on before the extended deadline for interviews of 18 September).

On appeal the Full Court (Strickland, Murphy & Kent JJ) said (from [25]):

“One of the principles underlying the objects of Part VII … is that ‘parents should agree about the future parenting of their children’ (s 60B(2)(d)). Section 65DAC(1)(b) … underscores the same by obliging parents who share parental responsibility (whether equally or not) to reach a decision about ‘major long-term issue[s]’ jointly and to consult and make a genuine effort to come to a joint decision about the relevant issue. The s 4 definition of ‘major long-term issues’ includes ‘changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent’ (subparagraph (e)).

[26] Plainly, however, neither s 60B nor s 65DAC … seek to limit the power of the Court to make parenting orders in the event that the desired agreement is not possible.

[27] Relevantly, jurisdiction is conferred on the Federal Circuit Court … in relation to matters arising under Part VII of the Act (which deals with children) (s 69H(4)). That Court is given powers in the exercise of the jurisdiction so granted. … The principal relevant power is the power to make parenting orders found in s 65D. …

[28] Section 64B(1) … defines ‘parenting order’ as an order that deals with any of the matters specified within s 64B(2). Important to the instant issues, a parenting order is defined in s 64B(1)(b) to include an order under Part VII ‘discharging, varying, suspending or reviving an order, or part of an order described in paragraph (a)’. Sub-paragraph (a) of that section defines a parenting order as ‘an order under [Part VII] (including an order until further order) dealing with a matter mentioned in subsection (2)’ (emphasis added).

[29] The matters in s 64B(2) include, relevantly, ‘the person or persons with whom a child is to live’; ‘the time a child is to spend with another person or other persons’; ‘the allocation of parental responsibility for a child” and ‘any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child’
(emphasis added).

[30] Section 65D(2) grants specific power to make a parenting order that ‘discharges, varies, suspends or revives some or all of an earlier parenting order’ (emphasis added).

[31] Thus, a judge of the Federal Circuit Court has both jurisdiction and power to make orders, including orders until further order, relating to any aspect of the ‘duties, powers, responsibilities and authority’ which parents have by law in relation to their children (s 61B of the Act).

[32] By reason of a consent final order made in 2015, K’s parents have, by law, equal shared ‘duties, powers, responsibilities and authority’ for K (and her siblings). If the Federal Circuit Court’s jurisdiction has been properly invoked (as it was here) the judge at first instance had power to make any order in respect of the same, including the power to, again relevantly, make an interim order varying any aspect of the existing order for equal shared parental responsibility. The equal shared authority to determine whether K could apply to live and study overseas … is an aspect of parental responsibility. Ultimately, the authority to determine whether K can participate in the relevant programme overseas, and can leave Australia in order to do so is, too, an aspect of parental responsibility.

[33] Those aspects of parental responsibility are the subject of an existing order. However there is a present dispute about those aspects arising some three years after those orders were made. The mother seeks to vary an aspect of the relevant order. The Court has both jurisdiction and power to determine that question if the parties cannot agree upon it for themselves.

[34] The effect of the submissions on behalf of the father both below and before this Court is that once an order for equal shared parental responsibility is made (query any order for parental responsibility) any disputes about major long-term issues is left to one party’s will suborning that of the other with no role for the Court. …

[35] The essence of the Court’s jurisdiction and the powers given to it within that jurisdiction is to avoid that very situation. Indeed it is obliged to do so by reason of its jurisdiction being properly invoked. … It is, of course, entirely desirable that parents should reach agreement about issues – all issues – affecting their children. … However when parents cannot or will not do that which they should, and which the Act obliges them to do, the Court’s powers are not excluded but, rather, enlivened, if its jurisdiction is properly invoked.

[36] In addition, and importantly, parenting orders (whether made by consent or otherwise) differ from orders made in the civil jurisdiction of other courts. It is well-recognised that although finality of litigation is desirable in all cases final orders made in relation to the parenting of children are not final in the same sense as orders made, for example, relating to property settlement. …

[37] We are not persuaded that the situation here is analogous to a case invoking the application of the ‘rule in Rice & Asplund’. … There is here no attempt to reagitate issues previously agitated or issues addressed and settled by the consent orders that were made three years previously. The instant application involves a new question relating to an aspect of parental responsibility … that was not at all in the contemplation of the parties at the time of the original consent orders.”

The appeal was allowed and an order made that the mother have sole parental responsibility for the enrolment. The father was also ordered to pay the mother’s costs fixed at $11,192 as he had made “erroneous contentions in respect of fundamental legal propositions” both at first instance and on appeal.


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 – Full Court sets aside judge’s decision that wife’s property application filed electronically at 7.40 pm where husband died at 11.00 pm should be deemed to have been filed that day despite FLR 24.05(2) – Application dismissed for want of jurisdiction

Divorce – Forum non conveniens – Party seeking to rely on foreign law bears onus of proving it – Absent expert evidence judge may not conduct own research into foreign law – Complete relief was available in India (where wife lived) but not in Australia

Children – Child sexual abuse allegation – Parenting trial settled after cross-examination of mother – Mother and her lawyer failed to comply with prior order for inspection of documents produced under subpoena – Her inspection of them during retrial prompted a concession that her allegation was mistaken – Parties who “believe their child” in truth believe their own interpretation of what a child says

Children – Failure to test mother’s assertions undermined evidence of psychiatrist called by mother – Found that mother misled her expert – Mother who absconded with children for 3 years sentenced to 18 months imprisonment for contempt of court – Her 74 year old mother imprisoned for 6 months (half suspended) for breach of location order

Property – 2011 super splitting order varied under s 79A(1)(b) – Failure by wife’s lawyer to serve order on trustee followed by husband’s inadvertent rollover of interest into another fund in 2012 made order impracticable – Discussion of when a super interest is “subject to a payment split” for purpose of Part 7A of the Superannuation Industry (Supervision) Regulations 1994

Children – Reversal of care – Mother’s application for discharge of final parenting order made at an undefended hearing in her absence dismissed – Prior failures to appear by her and no reasonable explanation of her failure to attend hearing – Inadequate evidence filed by her and no submissions made as to the family consultant’s concerns (about mother’s mental health and parenting capacity) which substantially informed the order