Annual report [1997-98] - Family Court of Australia

The Family Court of Australia – annual report 1997-98
Launceston to complete her studies and sought an order for the children to reside with her.
The trial judge found both parents capable of caring for the children but found the wife’s
move to be motivated by self-interest and made orders that the children reside with the husband.
The Full Court allowed the wife’s appeal, finding that the trial judge erred in taking
the wife’s move into account as a negative aspect, as it was necessary if she was to complete
her studies. The Full Court held that where a residence dispute is finely balanced, the happiness
of the children in one household as compared to the other becomes a significant, almost
determinant, factor in deciding where a child should live. As there was clear evidence that
the children were suffering distress in the husband’s care which the husband had been unable
to alleviate, the Full Court concluded that this was a case where the discretion of the trial
judge could be substituted and orders were made for the children to reside with the wife.
Contact – supervision required – unacceptable risk that father might harm children
In Av A(1998) FLC 92-800, the wife had sustained horrific injuries as a result of an assault
upon her in the former matrimonial home which appeared to be an attempt to kill her. The
wife could not recall the assault but believed the husband was the perpetrator. There were
a number of objective facts which supported the wife’s belief but by the time the husband’s
application for unsupervised contact came before the trial judge, the police had not charged
anyone with the offence. The trial judge held that it was not for the Family Court to investigate
criminal activity, even where such activity may have bearing upon the issues the
court is called upon to decide and made orders for the husband to have unsupervised contact
after an initial period of supervised contact. On appeal, the Full Court held that the
proper approach was to determine whether the evidence was such as to establish that there
would be an unacceptable risk to the children if they were to have unsupervised contact
with the husband. The Full Court concluded that there was such a risk and made orders that
the husband have supervised contact.
Adding new grounds to a notice of appeal
In Bradley v Weber (1997) FLC 92-770, the Full Court held that amendments to a Notice
of Appeal, even those that radically alter the nature of the appeal, can be made as of right,
providing they are made within the time limits imposed by the Family Law Rules and
proper notice is given of the proposed amendment. In this case, the wife’s original Notice
of Appeal sought only to appeal orders dismissing her application for spousal maintenance.
Her amended Notice of Appeal filed a week before the appeal was due to be heard sought
to appeal against orders in relation to alteration of property interests in addition to the
orders for spousal maintenance. As the wife had complied with the prescribed time limits
and had given proper notice of the proposed amendment, the court found she was entitled
to proceed with her amended Notice of Appeal.
Specific issues orders and s112AD
In Vlug v Poulos (1997) FLC 92-778, the husband sought to have the wife dealt with for
breaching an order appointing the parties joint guardians of the children of the marriage
after the wife allegedly christened the children without reference to the husband and
changed the schooling arrangements for the elder child. The trial judge found that a joint
guardianship order which became a specific issues order as a result of the introduction of
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