FAMILY LAW CASE NOTES
Family Law Case Notes CRAIG NICHOL & KELEIGH ROBINSON, THE FAMILY LAW BOOK
CHILDREN – CONTRAVENTION – MOTHER’S “TIT-FOR-TAT” WITHHOLDING OF CHILD TO MAKE-UP FOR FATHER’S EARLIER NONCOMPLIANCE IS NOT A “REASONABLE EXCUSE”
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n Bircher [2022] FedCFamC1A 59 (11 May, 2022) the Full Court (Aldridge, Bennett & Howard JJ) considered a decision where the mother had contravened parenting orders in relation to a 13 year old child “C”. The mother argued that the father had withheld the child during her holiday time, such that she was entitled to make up time. The Full Court said (from [25]): “Whether the father’s retention of C for the first week of the … school holidays was appropriate is attended with some doubt ( … ) [26] … In Childers and Leslie [2008] FamCAFC 5, Warnick J confirmed that the circumstances described in s 70NAE(1) of the Act are not the only circumstances in which reasonable excuse may be found. However, even if the father contravened … that lack of compliance … does not entitle the mother … to over-hold C … It is not for one party to take these matters into their own hands and engage in selfhelp. [27] It is conceivable that a reasonable excuse may involve a reasonable belief … concerning the effect of the other party’s failure to comply … However … we are not persuaded that it was open to the mother to over-hold C and then claim that time as compensation for a previous wrongdoing … To accept such an argument would lose sight of the fact that parenting orders regulate the actions of parents for the benefit, protection and
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security of children. … [T]he father’s actions deprived C of the company of her brothers and spending the first week of school holidays in the mother’s household … [T]he consequence of the mother’s action was to replicate that situation in relation to the first week of the holiday period to which the father was entitled … Superficially, it was a tit-for-tat exercise as between the parents. In substance … the disruption and deprivation was doubled for C … On a more general level, self-help is not open to citizens when they believe another citizen has breached a court order or legal rule: the remedy always lies in an application to the courts …” The appeal was dismissed.
CHILDREN – UNILATERAL RELOCATION ALLOWED WHERE CHILD’S CONNECTION WITH HER ABORIGINAL CULTURE BEST MAINTAINED BY LIVING WITH MOTHER In Pascoe & Larsen [2022] FedCFamC1A 64 (13 May, 2022) McClelland DCJ heard a father’s appeal from an interim decision dismissing an application for the return of the mother and child after the mother unilaterally relocated from City A to City B. The mother and child were Aboriginal and the trial judge concluded that the connection to the child’s culture was best maintained by the child living with the mother ([15]). McClelland DCJ said (at [30]-[31]): “ … [H]is Honour states that it is important for the child to live with her mother ‘in order to maintain and promote her connection with her Aboriginal culture’ … His Honour’s consideration of that issue was entirely consistent with his
obligation pursuant to s 60CC(3)(h) of the Act. [His Honour] … also took into consideration the [mother’s] evidence that part of the child rearing practice of the D Nation is that traditions are passed on from mother to daughter …” McClelland DCJ continued (from [57]): “… [I]t was entirely proper and, indeed, consistent with his Honour’s obligation … to have regard to the child’s right to enjoy her Aboriginal culture ‘with other people who share that culture.’ It was unnecessary for the primary judge to make findings in respect to the depth and richness of the culture of the D Nation and how that culture is passed from generation to generation. … (…) [64] … [W]hat his Honour [found] was that the fact that the child is Aboriginal was a factor that he considered as favouring orders being made for the child to live primarily with the [mother] … [65] Having made that decision, his Honour then proceeded to determine whether he should make orders requiring the child to be returned … in circumstances where it would detrimentally impact upon the [mother] in terms of her employment and her new relationship. Having regard to those matters … his Honour rejected the [father’s] submission that orders should be made that resulted in that detrimental impact upon the [mother].” The appeal was dismissed and orders made for submissions as to costs.
PROPERTY – HUSBAND’S RIGHTS UNDER FOUR DISCRETIONARY TRUSTS “PROPERTY” – RIGHT
