FAMILY LAW CASE NOTES
Family Law Case Notes ROB GLADE-WRIGHT, THE FAMILY LAW BOOK CHILDREN – UNILATERAL RELOCATION BY MOTHER (WHICH DID NOT PREVENT HER FROM ADHERING TO INTERIM ORDER FOR FATHER’S CONTACT) ALLOWED ON APPEAL
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n Franklyn [2019] FamCAFC 256 (23 December, 2019) the Full Court (Watts, Austin & Rees JJ) allowed the mother’s appeal against an interim order of the Federal Circuit Court that the appellant, who had unilaterally relocated with the parties’ four year old child from central west NSW to south eastern Queensland, return with the child enabling the child to spend five hours each Saturday with the father. Upon separation the child had little or no contact with the father for seven months due to the mother’s concealment of her address and a family violence order obtained by her. That order was ultimately discharged ([9]). On the father’s application an interim order was made with his consent to his having two hours a fortnight with the child at a contact centre. Four months later the father filed an application for variation of that interim order, at the hearing of which the mother disclosed that she had already relocated with the child ([11]). After a two month adjournment the father (and ICL) sought an order that the mother return to NSW, he to have unsupervised time, and that if the mother failed to relocate, the child live with him. The Full Court said ([28]-[29]): “While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF … U v U … ). Parents enjoy as much freedom to live where they please as is compatible with their obligations
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pertaining to the children … Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests … When the mother relocated with the children from central west NSW to south eastern Queensland, she did so in the knowledge she would still need to adhere to the interim parenting orders made in May 2018 requiring her to present the children to the father at a contact centre in Town H, NSW once every fortnight. ( … )”
PROPERTY – COURT’S FAILURE TO COMPLY WITH GUIDELINES FOR LITIGANTS IN PERSON DOES NOT NECESSARILY ESTABLISH ERROR In Laremore & Speidell [2019] FamCAFC 215 (19 November, 2019) the Full Court (Ainslie-Wallace, Ryan & Tree JJ) dismissed with costs fixed at $16,426 Mr Laremore’s appeal against a property and maintenance order made by the Federal Circuit Court on the ground that he was not given a fair trial. Represented until the eve of trial, the appellant appeared at the trial in person but appealed contending that the Court had not followed Re F: Litigants in Person Guidelines [2001] FamCA 348. He complained that the Court had not explained that, if not challenged by crossexamination, a single expert’s testimony might be more readily accepted than if he had challenged it; and that in the context of the … case for … maintenance, the judge failed to explain sections 90SE and 90SF … to him.
The Full Court said (from [11]): “A failure to comply with the Re F guidelines does not automatically establish error. … [T]he guidelines are only informative of the overarching obligation upon a … judge to conduct the hearing in a way which affords each party a fair trial, and … to provide a self-represented litigant with the opportunity to fairly present their case. … [T]hat opportunity may require such a litigant to be apprised of information … for them to make informed choices … whether to call evidence, cross-examine … or make submissions … Error will only be established if the failure to provide such information … meant that, in the … circumstances of the case, a fair trial did not ensue. However a new trial will not be ordered if it can be shown that the … judge’s decision was inevitable despite the procedural irregularity, in that it could have had no bearing on the outcome. ( … ) [19] We cannot see how [expert] Ms B’s evidence could have been materially undermined even if the appropriate explanation about cross-examination … had been given. ( … ) [22] … [T]he appellant was … represented until the … eve of trial. It is … inconceivable that his solicitors had not explained the law relating to … maintenance … prior to … termination of their retainer ( … )”
CHILDREN – GRANTING OF OVERSEAS RELOCATION SET ASIDE ON APPEAL In Soulos & Sorbo [2019] FamCAFC 231 (3 December, 2019) the Full Court
