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

More documents

Recommendations

Info

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 45
The Family Court of Australia – annual report 1997-98 the Family Law Reform Act 1996, could not be the subject of a contravention application under s112AD of the Family Law Act. On appeal, the Full Court held that a specific issues order for joint long-term responsibility is capable of being the subject of a contravention application under s112AD of the Family Law Act. The Court also discussed the procedure to be followed in hearing a s112AD application. Child support In Strauss (1998) FLC 92-797, the husband had sought a credit for payments made to the wife and to third parties before any child support liability had been registered. The Full Court upheld the finding by the trial judge that sections 71 and 71A of the Child Support (Registration and Collection) Act 1988apply only to payments made to a payee or to a third party in respect of a maintenance liability which is registered when the payments are made. In Rocca v Corelli (1998) FLC 92-794, an issue arose as to whether a child living in the household of a liable parent was a ‘relevant dependant child’where the liable parent was not the ‘sole or principal provider of ongoing daily care’but shared the care of the child with some other person. The trial judge held that the expression “the sole or principal provider of ongoing daily care” in the definition of “relevant dependant child” needs to be read as applying to “the sole or a principal provider of ongoing daily care” so as to give effect to the intention of Parliament, namely, that the exempted income amount of a liable parent be calculated having regard to other commitments that that liable parent has to support children other than those the subject of the application. The trial judge found that to not make allowance for the support provided by a liable parent to children living in his or her household where the care of the children was shared with some other person would be manifestly absurd. In Bertuch v Lynch (1998) 92-796, the trial judge discussed in detail the status of child support agreements which have not been accepted under the Child Support (Assessment) Act 1989 and registered under the Child Support (Registration and Collection) Act 1988. Specific consideration was given by the trial judge to the enforceability and variability of an unregistered and unaccepted child support agreement. Surrogacy In Re Evelyn (1998) FLC 92-807, the trial judge made orders that a child born as a result of a surrogacy arrangement reside with the biological mother, her husband and their three children. The biological mother had been inseminated with sperm from the biological father and following the birth, the child had resided with the biological father, his wife and their adopted son for approximately a year. Central to the decision of the trial judge were his findings that the biological mother was better able to deal with the complex problems that would confront the child, that the biological mother would suffer extreme grief as a result of the loss of the child and that there were greater advantages to the child in growing up with her biological siblings as compared to her adopted brother. An application by the biological father to admit fresh evidence from an American psychologist who had practised in the area of surrogate parenting for 15 years was refused by the Full Court, the Court finding that with due diligence, the evidence would have been available at trial. While indicating that members of the Full Court may not have accepted the expert evidence as readily as the trial 46
Page 2: FAMILY COURT of AUSTRALIA Family Co
Page 5 and 6: The Family Court of Australia - ann
Page 49: The Family Court of Australia - ann
Page 75 and 76: TheFamilyCourt of Australia - annua
Page 101 and 102:
The Family Court of Australia- annu
Page 103 and 104:
The Family Court of Australia - ann
Page 105 and 106:
Page 107 and 108:
Page 109 and 110:
Page 111 and 112:
Page 113 and 114:
Page 115 and 116:
Page 117 and 118:
Page 119 and 120:
Page 121 and 122:
Page 123 and 124:
The Famil yCour to fAustra lia -ann
Page 125 and 126:
TheFamilyCourtofAustralia-annualrep
Page 127 and 128:
Page 129 and 130:
Page 131 and 132:
Page 133 and 134:
Page 135 and 136:
Page 137 and 138:
Page 139 and 140:
Page 141 and 142:
Page 143:
show all

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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?