1: Farnell & Anor and Chanbua [2016] FCWA 17 – (The Baby Gammy Surrogacy Saga) | April 14, 2016

Court or Tribunal: Family Court of Western Australia
Catchwords: Assisted Reproduction, Biological Father, Biological Mother, Birth Mother, Child of a marriage, Evidence, Parentage, Parental, Parental Responsibility, Parental Rights, Perjury, Surrogacy
Judges:  Thackray CJ


Background: A baby with Down syndrome at the centre of an international surrogacy dispute was held by the Family Court of Western Australia not to have been abandoned in Thailand by his Australian parents. This case involved twin children, Gammy, and his sister, Pipah, born in Thailand to a surrogate mother (“the surrogate”) using a Western Australian man’s sperm (“the father”) and an anonymous donor’s eggs. The father returned to Australia with Pipah, but not Gammy. It was claimed by the surrogate that the father had abandoned Gammy in Thailand because Gammy had Down Syndrome. The surrogate issued proceedings in Western Australia seeking the return to her of Pipah to live with her. The father opposed the Application and wanted Pipah to stay living with him. The father had previous conv 
 
  [Legal Issue]With whom a child lives – The applicants entered into surrogacy arrangement with the respondent birth mother – Twins born in Thailand as a result – The girl was brought to Western Australia to live with the applicants, while the boy remained in Thailand with the birth mother – The applicants seek an order for the girl to continue living with them – The birth mother seeks an order for the girl to live with her in Thailand – The male applicant is a convicted sex offender but expert evidence indicates that there is a low risk of him abusing the girl – This risk must be weighed against the high risk of harm to the girl if she is removed from her current home   [Court Orders]Orders for the girl to live with the applicants and for them to have parental responsibility – No orders requiring the applicants to allow the birth mother to spend time with or communicate with the girl – Applicants required to send some of the girl's schoolwork to the birth mother – Formal findings made that the applicants did not abandon the boy and did not try to access his trust fund.     


[  ] Download Decision

2: Janssen & Janssen [2016] FamCA 345 | January 1, 2016

Court or Tribunal: Family Court of Australia
Catchwords: Discretion to Admit Evidence, Evidence, Recorded conversations
Judges:  McClelland J


Background: This is a case where the applicant mother secretly recorded the respondent father making threats of violence against the children. Counsel for the Applicant mother sought to tender these voice recordings and transcripts of these conversations, made without the father's consent, to the hearing. The recordings and transcript were only provided to the father's legal representatives less than a week prior to the commencement of the hearing. This did not comply with the pre-trial directions for the filing of evidence.  
 
  [Legal Issue]The Court found that the audio recordings fall within the exception contained in sub-section 7(3)(b) of the Surveillance Devices Act 2007 (NSW), as the recordings were reasonably necessary to protect the lawful interests of the mother. The Court also exercised its discretion to admit the audio recordings and transcripts into evidence. A certificate was issued to the mother pursuant to section 128 of the Evidence Act 1995 (Cth).   [Court Orders]The bulk of the audio recordings and the transcript of the audio recordings between the parties were accepted as evidence in the proceedings.     


[  ] Download Decision

3: Huffman & Gorman [2015] FamCA 317 | April 29, 2015

Court or Tribunal: Family Court of Australia
Catchwords: Allegations of Child Abuse, Emotional Abuse, Entrenched Parental Conflict, False Allegations of Child Abuse, Meaningful Relationship, Parental Disorders, Property, Psychological Disorders, Recorded conversations, Risk of Psychological Harm, Unacceptable Risk, Unsubstantiated Allegations, With whom a child lives with
Judges:  Hannam J


Background: The mother is 42 and the father is 43 years old. The parties commenced a relationship in 1999 when they were in their late twenties. The case involves competing claims of domestic violence and property dispute. In relation to parenting matters there are three significant factual disputes. First, the father contends that he was the victim of serious systematic violence perpetrated by the mother for most the relationship. The mother contends that it was the father who was violent towards her and that if she also engaged in violence, it was in response to the father’s antagonism. Second, the mother contends that the father and his (second) wife Mrs H abused the children after separation, which is denied by the father. Finally, it is central to the father and the ICL’s ca 
 
  [Legal Issue]No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests. The ICL’s proposal is based to a large extent upon the recommendations of Dr K. In his report Dr K was of the view that the children should live with their father and he should have sole parental responsibility for them. He then said: After a significant period of time to allow the children to develop security and connection in their father’s home, it would be ideal for the children to maintain some time spent with the m   [Court Orders]The children shall live with their father, Mr Huffman (“the father” or “the husband”). The father shall have sole parental responsibility for the children. The children shall spend no time with their mother, Ms Gorman (“the mother” or “the wife”), for a period of 12 months from the date of these orders. Thereafter, the children shall spend supervised time with their mother each second month, at a supervised contact centre. The father shall do all acts and things neces     


[  ] Download Decision

4: Corby & Corby [2015] FCCA 1099 | April 7, 2015

Court or Tribunal: Federal Circuit Court of Australia
Catchwords: Evidence, Recorded conversations
Judges:  Judge Sexton


Background: Corby and Corby regarded the use of four non-consensual audio recordings between the parties as evidence in a custody hearing. The applicant, the mother in the estranged partnership, contended that the respondent was sexually coercive, intimidating and physically violent during their relationship.  
 
  [Legal Issue]The question before Sexton J was whether the applicant had a lawful interest under section 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW).137 Her Honour decided that the applicant had a lawful interest in protecting herself from intimidation, harassment and sexual coercion.138 Moreover, the recordings were reasonably necessary because, similarly to R v Coutts, it may not have been a realistic option to report her predicament to the police139 and the recordings were important evidence as they demonstrated the difference between the public and private ‘faces’ of the respondent.140 Further, and similarly to other cases, Sexton J observed that even if she had been unable to find that the mother had a lawful interest in ma   [Court Orders](1) The audio recordings between the parties made by the Mother on 25 March, 24 June and 8 July 2012 be marked Exhibit 4. (2) The Mother’s solicitor email the audio recordings (admitted and marked Exhibit 4) to the Father's new solicitor by the close of business on Tuesday 21 April 2015. (3) The Mother’s solicitor save the audio recordings onto a USB flashdrive and present the flashdrive to the Exhibits counter at the Sydney Registry by no later than 4.00p.m on Friday 24 April 2015.     


[  ] Download Decision

5: Helbig & Rowe [2015] FamCA 146 | March 9, 2015

Court or Tribunal: Family Court of Australia
Catchwords: Allegations of Child Abuse, Child Abuse, Complaint against ICL, Emotional Abuse, False Allegations of Child Abuse, Falsified Documents, Risk of Psychological Harm, Sole Parental Responsibility, Unacceptable Risk, Unsubstantiated Allegations
Judges:  Rees J


Background: The parents separated in January 2009 when the children were three and eight weeks old, respectively. The mother moved away from the matrimonial home with the children, who lived with her. This case has a signification history of litigation since then, culminating into these proceedings. In this case, the mother has made serious allegations of child sexual abuse by the father against a child of the marriage. As a result she has requested that the children live with her and that any time that the children spend with the father be supervised. After investigation, the allegations were deemed to be 'false'. The family report went so far as to recommend that the children be 'immediately' removed from the mother's care because of her unrepentant beliefs that the father was a paedophile  
 
  [Legal Issue]This case hinged on whether the allegations made by the mother that the father had sexually abused the child or children of the marriage were reliable and plausible to the extent that they would raise the issue of "unacceptable risk". The family courts responsibility is not to determine whether child sexual abuse did or did not occur, unlike the criminal courts. However when faced with an allegation of child sexual abuse, it refers to the standard of proof of "unacceptable risk".    [Court Orders]-That X (“X”) born ... 2005 and Y (“Y”) born ... 2008 (“the children”) live with their father, Mr Rowe (“the father”). -That the father have sole parental responsibility for the children. -That the father inform Ms Helbig (“the mother”) in writing (including by email or text message) as soon as practical of any specialist medical appointments for either of the children with any medical consultant. -That the father do all acts and things to ensure that the mother is provide     


[  ] Download Decision

6: Thornton & Thornton [2015] FamCA 92 | February 23, 2015

Court or Tribunal: Family Court of Australia
Catchwords: Allegations of Child Abuse, False Allegations of Child Abuse, Recorded conversations, Unacceptable Risk, Unsubstantiated Allegations
Judges:  Murphy J


Background: The parents of two girls, aged 10 and 6, engaged in failed financial negotiations after separation. Soon after these negotiations, the mother raised allegations of child sexual abuse by the father against their two female children. The children were medically examined but were found to have no physical indications of sexual abuse. The children were also found to have made inconsistent statements to police, family members and carers. The children also made conflicting statements as to their desire to see their father.  
 
  [Legal Issue]Where the mother alleges that the father had engaged in sexual misconduct against their two female children – Where relevant rules of evidence are excluded pursuant to s 69ZT of the Act – Where expertise need not be established as a result – Where the trial judge holds that the appropriate qualifications, training or experience of an expert is a significant factor in the attribution of weight. Where the evidence is insufficient to establish the risk as unacceptable.    [Court Orders]The mother has been handed sole parental responsibility for the girls. The father will be allowed to spend unsupervised time with the girls, aged 10 and 6, for up to half of each school holiday period, but the mother will make all major decisions about the girls. The Judge explained that the Sole Parental Responsibility Orders were to avoid conflict between the parents.      


[  ] Download Decision

7: Mitchell & Mitchell [2014] FCCA 2526 | November 14, 2014

Court or Tribunal: Federal Circuit Court of Australia
Catchwords: Child Abuse, Emotional Abuse, failure to call witness and Jones & Dunkel inference, Hostile Parental Behaviour, Interim Parenting Orders, Jones & Dunkel inference, Meaningful Relationship, Obstruction of Contact with Child, Parental Alienation, Risk of Psychological Harm, Sole Parental Responsibility, Supervised contact with Child, Unacceptable Risk, With whom a child lives with, With whom a child spends time with
Judges:  Harman JHenderson J


Background: Since separation, the three children lived primarily with their father [Mr Mitchell]. In these proceedings, Mr Mitchell has conceded that he has denied the children their right to a meaningful relationship with their mother, accepted by Mr Mitchell to be a caring and loving relationship, as well as exposing the children to his significant rage and repeated derogatory comments towards his ex-wife and her lesbian partner, while also exposing the children to discussions of adult issues, (such as the mother’s sexuality), which for children of these ages is entirely unnecessary and inappropriate. 
 
  [Legal Issue]These proceedings primarily hinged on the definition of "abuse" and "family violence", and whether the exposure of the children to the father's rage towards his ex-wife, and specifically the repeated derogatory comments towards his ex-wife and her lesbian partner, constitutes child abuse and/or family violence. The evidentiary standard of "Unacceptable Risk" was used to determine whether the risk of future abuse was significant enough to warrant measures.    [Court Orders]The children’s mother [Ms Mitchell] shall have sole parental responsibility of the three children. The three children shall live with their mother. The children’s father [Mr Mitchell] shall spend time with the children from 11am Saturday until 5pm Sunday each alternate weekend.     


[  ] Download Decision

8: Huffman & Gorman (No. 2) [2014] FamCA 1077 | October 13, 2014

Court or Tribunal: Family Court of Australia
Catchwords: Allegations of Child Abuse, Discretion to Admit Evidence, Emotional Abuse, Recorded conversations
Judges:  Hannam J


Background: The mother is 42 years old and the father is 43 years old. The parties commenced a relationship in 1999 when they were in their late twenties. The case involves competing claims of domestic violence and alleged child abuse. To support his case, the father has submitted transcripts of recorded conversations between himself and the mother. These recordings were made covertly, without the knowledge of the mother.  
 
  [Legal Issue]At issue is the admissibility of transcripts of covertly recorded conversations made by the father, alleged to have captured various unguarded conversations between the mother and the father. The mother objected to the admission of the transcripts of audio recordings on the basis that the evidence was unlawfully obtained and was inadmissible. Both the father and the Independent Children’s Lawyer sought to have the evidence admitted and argued that even if it were prima facie inadmissible the court should exercise its discretion to admit it.   [Court Orders]The evidence, which refers to transcripts of recorded conversations in the father's affidavit in paragraphs 25, 128 to 150 and 235 filed on 23 September 2014, is admissible.      


[  ] Download Decision

9: Flacks & Chatburn [2014] FamCA 428 | June 23, 2014

Court or Tribunal: Family Court of Australia
Catchwords: Emotional Abuse, Enmeshment, False Allegations of Child Abuse, Hearsay, Meaningful Relationship, Obstruction of Contact with Child, Parental Alienation, Parental Alienation, Risk of Psychological Harm, Supervised contact with Child, Unsubstantiated Allegations
Judges:  Austin J


Background: For three years after separation, children aged 15, 12 and 10 years had at the mother’s insistence spent time with the father only at the mother’s house. The mother then severed all of the children’s interaction with the father for a period and recommenced access only if the father was supervised. The mother proposed that the father be eliminated or excluded from the children’s lives. The father contended the mother had exerted so much pressure upon the children they were induced to reject him and to resist any interaction with him (alienation). The mother contended that she supported the children’s relationships with the father and their individual rejection of him and that the children’s resistance to interacting with the father was due to their own adverse experiences wi 
 
  [Legal Issue]The judge gave little weight to a recommendation by a psychologist who treated the youngest child’s anxiety, that visits by the youngest child with the father should be postponed until the child has built appropriate coping skills to manage his anxiety. The judge preferred the opinion of the family consultant over the opinion of the treating psychologist for reasons including: (a) the psychologist had made only a superficial appraisal of the youngest child’s situation, and (b) documents containing hearsay of the treating psychologist’s opinions were tendered in evidence rather than an affidavit, denying the father the opportunity to test the evidence by cross-examining the psychologist directly (expert evidence unsatisfactory). The family consultant recommended a change of reside   [Court Orders]The judge found that if the two youngest children remained living with the mother then their relationships with the father would likely be destroyed. The judge ordered that the two younger children live with the father. The judge ordered a graduated approach where there was a temporary suspension of interaction between children and mother, followed by temporary period of supervision of the children’s time with the mother, leading to substantial and significant time with the mother.     


[  ] Download Decision

10: Gaines & Gaines [2013] FMCAfam 108 | February 8, 2013

Court or Tribunal: Family Law Division of the Federal Magistrates Court of Australia
Catchwords: Application to set aside family report, Evidence, Family Report Alleged Bias
Judges:  O’Sullivan FM


Background:  
 
  [Legal Issue]   [Court Orders]The appointment of Dr X as a Court appointed Family Consultant be discharged. That both of Dr X’s family reports be sealed but remain on the court file and not be disclosed without further order.      


[  ] Download Decision