FAMILY LAW CASE NOTES
Family Law Case Notes ROB GLADE-WRIGHT CHILDREN – HAGUE CHILD ABDUCTION CONVENTION – RETURN ORDER SET ASIDE
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n Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 (25 March, 2020) the Full Court (Ryan, Aldridge & Watts JJ) allowed the mother’s appeal from Ainslie-Wallace J’s order under the Family Law (Child Abduction) Regulations 1986 (Cth) to return to New Zealand (“NZ”) with her two children. The parties cohabited in NZ where the father had many convictions for assault and other offences for which he was imprisoned. He was violent towards the mother, was imprisoned again for assault and in 2012 for contravening a domestic violence order. Their first child was born in 2016 in Australia. The father was deported in 2017 to NZ where their second child was born. In 2019 the mother was granted orders for the children to live with her, whereupon she and the children returned to Australia. At the hearing of the father’s application for a return order, AinslieWallace J rejected the mother’s case that there was a grave risk that a return would expose the children to harm or place them in an intolerable situation pursuant to reg 16(3)(b). On appeal the Full Court set aside the return order. Ryan and Aldridge JJ (at [61]) adopted the dissenting judgment of Hale LJ in TB v JB (Abduction: grave risk of harm) [2001] 2 FLR 515: “44. … Primary carers who have fled from abuse and maltreatment should not be expected to go back to it … We are now more conscious of the effects of such treatment, not only on the immediate victims but also on the children who witness it … 57. But it cannot be the policy of the Convention that children should be returned to a country where … they are at grave risk of harm, unless they can be adequately protected from that harm. Usually, of course, it is reasonable to expect that the home country will be able to provide such protection. … 59. … [But it] would require more than
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a simple protection order in New Zealand to guard the children against the risks involved here … ”
PROPERTY – ORDER SET ASIDE FOR DENIAL OF PROCEDURAL FAIRNESS – UNWARRANTED JUDICIAL INTERVENTIONS In Finch [2020] FamCAFC 60 (20 March, 2020) the Full Court (Ryan, Aldridge & Tree JJ) allowed the wife’s appeal of a property order of the Federal Circuit Court. Her case was that excessive judicial intervention during the hearing denied her a fair trial. The Full Court agreed, at [14] eliciting from Galea v Galea (1990) 19 NSWLR 263 at 281-282 the following relevant legal principles: 1. T he test … is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. … 3. … whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and “into the perils of self-persuasion”. … 4. … It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion … The Full Court said ([24]-[25]): “ … [I]f one deducts the 35 minutes which the impugned interventions took from the length of the cross-examination of one hour and 59 minutes, there was a total of no more than 84 minutes of cross-examination, but it was interrupted by impugned interventions 45 times, thereby meaning that counsel, on average, was interrupted nearly every two minutes. … [25] … Counsel for the wife was significantly impeded in conducting his cross-examination … ” In setting the order aside and remitting the case for rehearing, the Full Court said (from [59]): “ … [W]e conclude that [the] frequent …
interventions were … wholly unwarranted, unduly personalised, demonstrated an unfortunate entry by the primary judge into the arena, and did not adequately undo the consequences of the very forceful initial expression of a ‘preliminary view’ by the primary judge. … [66] … There is a real danger that the trial was therefore unfair, and hence miscarried.”
CHILDREN – UNILATERALLY RELOCATING MOTHER WITH INFANT ORDERED TO RETURN – UNACCEPTABLE RISK OF HARM REJECTED In Tandy & Eastman [2020] FCCA 541 (19 February, 2020) Judge Young heard the father’s application for the return of a 20 month old child (“X”) who was removed from Darwin to City B by the mother. The mother moved to Darwin to live with the father in 2015. They married in 2017, X was born in 2018 and they separated in 2019. The mother was the child’s primary carer although the father deposed that after separation he was spending “two or three nights a week with the child and some … times on the weekend” (at [9]). The mother alleged family violence. Judge Young said (from [23]): “ … [T]he mother has also annexed … SMS conversations between her and the father [in which] some of the father’s language is boorish, immature and angry and might be interpreted as him reflecting his feelings about the parties’ relationship breakdown. However, the language was not threatening. [24] … I consider that the mother’s family violence claims are not particularly forceful or compelling. … [25] … While I accept that there have been unpleasant and distressing … verbal exchanges … I am not satisfied that there is any unacceptable risk of harm to the mother or to the child resulting from family violence.” In ordering the mother to return with the child to Darwin, Judge Young concluded (at [40]-[41]): “I do not propose to make time orders.
