Federal Circuit Court of Australia
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.
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.
Court or Tribunal: Federal Circuit Court of Australia
Catchwords: Post-Nuptial Agreement, Pre-Nuptial Agreement
Judges: Judge Demack
Background: The parties met over the internet in early to mid-2006. She was a 36 year old, born and living overseas with limited English skills. She was previously divorced, had no children and no assets of substance. He was a 67 year old, was a property developer and worth approximately $18 to $24 million. He was divorced from his first wife, with whom he had three children, now all in adulthood. Having met on a dating website in early to mid-2006, the parties then commenced speaking with each other on the telephone. They spoke in English and in (language omitted). The applicant agreed that the deceased said to her: “I will come to (country omitted) and we will see if we like each other. If I like you I will marry you but you will have to sign paper. My money is for my children.”
[Legal Issue]Both agreements were set-aside by the Court because the Court agreed that Ms Thorne signed the agreements because she was under duress.
The Court found that Ms Thorne had no negotiating power at all. She fully understood the deceased's position, that she either sign or there would be no marriage.
The husband did not negotiate on the terms of the agreement. He did not offer to negotiate. He did not create any opportunities to negotiate. The agreement, as it was, was to be signed or there would be no wedding. Without the wedding, there is no evidence to suggest that there would be any further relationship.
Ms Thorne understood that if the relationship ended, she would have nothing. No job, no visa, no home, no place, no community. The consequences of the relationship being at an en
[Court Orders]The wife has been wholly successful in this hearing.
The Court has found that both binding financial agreements, including the one prior to the wedding and the one after the wedding, being 26 September 2007 and 20 November 2007 respectively, are not binding upon the parties. Thus are are null and void.
As such, both agreements have been set-aside and will not be followed as to the distribution of the estate of Mr Kennedy.
The Court has set a new date to determine how much Ms Thorne can
Catchwords: Post-Nuptial Agreement, Pre-Nuptial Agreement
Judges: Judge Demack
Background: The parties met over the internet in early to mid-2006. She was a 36 year old, born and living overseas with limited English skills. She was previously divorced, had no children and no assets of substance. He was a 67 year old, was a property developer and worth approximately $18 to $24 million. He was divorced from his first wife, with whom he had three children, now all in adulthood. Having met on a dating website in early to mid-2006, the parties then commenced speaking with each other on the telephone. They spoke in English and in (language omitted). The applicant agreed that the deceased said to her: “I will come to (country omitted) and we will see if we like each other. If I like you I will marry you but you will have to sign paper. My money is for my children.”
[Legal Issue]Both agreements were set-aside by the Court because the Court agreed that Ms Thorne signed the agreements because she was under duress.
The Court found that Ms Thorne had no negotiating power at all. She fully understood the deceased's position, that she either sign or there would be no marriage.
The husband did not negotiate on the terms of the agreement. He did not offer to negotiate. He did not create any opportunities to negotiate. The agreement, as it was, was to be signed or there would be no wedding. Without the wedding, there is no evidence to suggest that there would be any further relationship.
Ms Thorne understood that if the relationship ended, she would have nothing. No job, no visa, no home, no place, no community. The consequences of the relationship being at an en
[Court Orders]The wife has been wholly successful in this hearing.
The Court has found that both binding financial agreements, including the one prior to the wedding and the one after the wedding, being 26 September 2007 and 20 November 2007 respectively, are not binding upon the parties. Thus are are null and void.
As such, both agreements have been set-aside and will not be followed as to the distribution of the estate of Mr Kennedy.
The Court has set a new date to determine how much Ms Thorne can
Court or Tribunal: Federal Circuit Court of Australia
Catchwords: Contravention, Obstruction of Contact with Child, Parenting Orders
Judges: Scarlett J
Background: This is an application to deal with the Respondent Mother for contravention of a parenting order, which was one of a series of orders made on 17th December 2013 after a Defendant Hearing. The order provided that the Father would spend time with the child [X] on the Father’s birthday for a period of a number of hours on [date omitted] 2014. That time did not take place. The Mother, with the benefit of legal advice, has conceded that contravention and no reasonable excuse has been established, although I have heard submissions in mitigation from the Mother’s solicitor.
[Legal Issue]Children – parenting orders – contravention of parenting orders – orders – where mother has previously contravened parenting orders – whether make up time should be allowed – whether injunction should be ordered against the mother in respect of the child’s school.
[Court Orders]The Respondent Mother did on 24 May 2014 without reasonable excuse contravene Order (5)(e) made on 17 December 2013 in that she failed to allow the Father to spend time with the child [X].
In respect of the above contravention the Mother is required to enter into a bond under the provisions of section 70NEC of the Family Law Act 1975 without surety or security for a period of eighteen (18) months on the condition that she abide by all current parenting Orders.
By way of make-up time the Ap
Catchwords: Contravention, Obstruction of Contact with Child, Parenting Orders
Judges: Scarlett J
Background: This is an application to deal with the Respondent Mother for contravention of a parenting order, which was one of a series of orders made on 17th December 2013 after a Defendant Hearing. The order provided that the Father would spend time with the child [X] on the Father’s birthday for a period of a number of hours on [date omitted] 2014. That time did not take place. The Mother, with the benefit of legal advice, has conceded that contravention and no reasonable excuse has been established, although I have heard submissions in mitigation from the Mother’s solicitor.
[Legal Issue]Children – parenting orders – contravention of parenting orders – orders – where mother has previously contravened parenting orders – whether make up time should be allowed – whether injunction should be ordered against the mother in respect of the child’s school.
[Court Orders]The Respondent Mother did on 24 May 2014 without reasonable excuse contravene Order (5)(e) made on 17 December 2013 in that she failed to allow the Father to spend time with the child [X].
In respect of the above contravention the Mother is required to enter into a bond under the provisions of section 70NEC of the Family Law Act 1975 without surety or security for a period of eighteen (18) months on the condition that she abide by all current parenting Orders.
By way of make-up time the Ap
Court or Tribunal: Federal Circuit Court of Australia
Catchwords: Briginshaw test, Contributions, De Facto Relationship, De Facto Relationships, Meaningful Relationship, Proceedings to Alter Property Interests, Property, Substantial Relationship
Judges: Judge Brewster
Background: The case involved a sex worker who made a claim for a property order against a former client turned partner of 8 years. The applicant alleged that she lived in a de facto relationship with the respondent from 2003 until 2011. The parties met in 1999 when the applicant “was employed as a sex worker and the respondent was one of her clients”, their relationship evolving to a point where the “applicant began to involve the respondent with her family” and from “2000 onwards the sexual relationship between the parties ceased to be a commercial one”
[Legal Issue]The Court ultimately found that whilst the parties did have a relationship that exceeded “friendship”, it was not enough to constitute a de-facto relationship. There was no financial interdependence or children of the relationship and the applicant did not give up sex work for the respondent. In any event, the Court held that on the facts, it would not be just and equitable to make orders altering the party’s property interests.
Parties to a supposed de-facto relationship must evidence more than a mere sexual relationship. The Court will consider the totality of the relationship including amongst others, living arrangements and financial interdependence to establish the existence of a de-facto relationship.
[Court Orders]The Court found that the couple were not in a de facto relationship and as such the claim for property fails.
Catchwords: Briginshaw test, Contributions, De Facto Relationship, De Facto Relationships, Meaningful Relationship, Proceedings to Alter Property Interests, Property, Substantial Relationship
Judges: Judge Brewster
Background: The case involved a sex worker who made a claim for a property order against a former client turned partner of 8 years. The applicant alleged that she lived in a de facto relationship with the respondent from 2003 until 2011. The parties met in 1999 when the applicant “was employed as a sex worker and the respondent was one of her clients”, their relationship evolving to a point where the “applicant began to involve the respondent with her family” and from “2000 onwards the sexual relationship between the parties ceased to be a commercial one”
[Legal Issue]The Court ultimately found that whilst the parties did have a relationship that exceeded “friendship”, it was not enough to constitute a de-facto relationship. There was no financial interdependence or children of the relationship and the applicant did not give up sex work for the respondent. In any event, the Court held that on the facts, it would not be just and equitable to make orders altering the party’s property interests.
Parties to a supposed de-facto relationship must evidence more than a mere sexual relationship. The Court will consider the totality of the relationship including amongst others, living arrangements and financial interdependence to establish the existence of a de-facto relationship.
[Court Orders]The Court found that the couple were not in a de facto relationship and as such the claim for property fails.
Court or Tribunal: Federal Circuit Court of Australia
Catchwords: Emotional Abuse, Equal Shared Parental Responsibility, Meaningful Relationship, Obstruction of Contact with Child, Parental Alienation, Parenting Orders, Risk of Psychological Harm, Sole Parental Responsibility, Substantial and Significant Time, Unacceptable Risk, With whom a child spends time with
Judges: Bender J
Background: The parents separated in 2007 after five years together. The child had lived with the mother since her parents separated when she was 13 months old. Since the separation, the mother engaged in an unrelenting campaign to undermine the child’s relationship with her father, causing the child significant distress. The mother interfered with her daughter’s court-ordered parenting time with her father, often resulting in the child not seeing her father for months at a time.
[Legal Issue]These proceedings primarily hinged on Section 60CC (2)(a), where the court is required to consider the benefit to the child of having a meaningful relationship with both of the child’s parents. This section was particularly relevant given that the mother prevented and was likely to continue preventing the child to have a meaningful relation with her father.
[Court Orders]The child, who had lived with her mother since her parents separated when she was 13 months old, shall live with father and spend time with the mother.
The father shall have sole parental responsibility in relation to health and education, and otherwise the parties to have equal shared parental responsibility.
Catchwords: Emotional Abuse, Equal Shared Parental Responsibility, Meaningful Relationship, Obstruction of Contact with Child, Parental Alienation, Parenting Orders, Risk of Psychological Harm, Sole Parental Responsibility, Substantial and Significant Time, Unacceptable Risk, With whom a child spends time with
Judges: Bender J
Background: The parents separated in 2007 after five years together. The child had lived with the mother since her parents separated when she was 13 months old. Since the separation, the mother engaged in an unrelenting campaign to undermine the child’s relationship with her father, causing the child significant distress. The mother interfered with her daughter’s court-ordered parenting time with her father, often resulting in the child not seeing her father for months at a time.
[Legal Issue]These proceedings primarily hinged on Section 60CC (2)(a), where the court is required to consider the benefit to the child of having a meaningful relationship with both of the child’s parents. This section was particularly relevant given that the mother prevented and was likely to continue preventing the child to have a meaningful relation with her father.
[Court Orders]The child, who had lived with her mother since her parents separated when she was 13 months old, shall live with father and spend time with the mother.
The father shall have sole parental responsibility in relation to health and education, and otherwise the parties to have equal shared parental responsibility.
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.
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.
Court or Tribunal: Federal Circuit Court of Australia
Catchwords: De Facto Relationships, Meaningful Relationship, Same Sex Relationship, Substantial Relationship
Judges: Coker J
Background: The parties agreed that they knew each other from early 2005 and that, at times, they lived together throughout that period and shared sexual relations, but they disagreed as to the nature of their relationship. The applicant’s position was that their relationship was to the exclusion of all others and that it was one of a genuine domestic relationship. The respondent, on the other hand, described the relationship as one of “friends with benefits” and did not concede that there was ever a de facto relationship between the parties.
[Legal Issue]De facto property – threshold consideration of whether a de facto relationship exists so as to afford jurisdiction – factors to be considered – influence and significance of financial considerations when little else is agreed.
[Court Orders]The relationship was not found to be de facto in nature. Mr Regan’s application was dismissed and it was held that the Court could not make orders altering the parties’ property ownership.
Catchwords: De Facto Relationships, Meaningful Relationship, Same Sex Relationship, Substantial Relationship
Judges: Coker J
Background: The parties agreed that they knew each other from early 2005 and that, at times, they lived together throughout that period and shared sexual relations, but they disagreed as to the nature of their relationship. The applicant’s position was that their relationship was to the exclusion of all others and that it was one of a genuine domestic relationship. The respondent, on the other hand, described the relationship as one of “friends with benefits” and did not concede that there was ever a de facto relationship between the parties.
[Legal Issue]De facto property – threshold consideration of whether a de facto relationship exists so as to afford jurisdiction – factors to be considered – influence and significance of financial considerations when little else is agreed.
[Court Orders]The relationship was not found to be de facto in nature. Mr Regan’s application was dismissed and it was held that the Court could not make orders altering the parties’ property ownership.
Court or Tribunal: Federal Circuit Court of Australia
Catchwords: Enmeshment, Hostile Parental Behaviour, Sole Parental Responsibility
Judges: Scarlett J
Background: The parents were together for two years until they separated in 2001, when their daughter was only eight months old. The father has remarried. Relations between the pair have been so strained that they have only communicated by email and they have been arguing about which high school she should attend. They have been battling in the courts since 2003, when the Family Court made orders dealing with their daughter’s surname, where she should live and how much contact each parent should have. In 2007 the Family Court ordered the parents should have equal shared custody of their child but she should live primarily with her mother.
[Legal Issue]The Judge observed that even after eleven years since the separation, the Mother appears to have “maintained the rage” against the Father for his actions in leaving the relationship.
As evidenced from her affidavits, her emails to the Father and her oral submission to the Court, the mother sees all of the Father’s actions as being directed against her personally. Her evidence does not suggest that she is able to separate herself and her feelings from the child and the child's needs to have a relationship with her father.
Whilst the Mother claims that the Father is oppositional and exhibits passive-aggressive behaviour, the Father’s evidence suggests otherwise. The email conversation of 29th June 2012 are illustrative of the Father’s claim that he is acting in a manner cond
[Court Orders]Judge Scarlett made interim orders on June 18 that she should live with her father. He said the father should have sole responsibility for making decisions about “major long-term issues” concerning the child’s welfare.
Catchwords: Enmeshment, Hostile Parental Behaviour, Sole Parental Responsibility
Judges: Scarlett J
Background: The parents were together for two years until they separated in 2001, when their daughter was only eight months old. The father has remarried. Relations between the pair have been so strained that they have only communicated by email and they have been arguing about which high school she should attend. They have been battling in the courts since 2003, when the Family Court made orders dealing with their daughter’s surname, where she should live and how much contact each parent should have. In 2007 the Family Court ordered the parents should have equal shared custody of their child but she should live primarily with her mother.
[Legal Issue]The Judge observed that even after eleven years since the separation, the Mother appears to have “maintained the rage” against the Father for his actions in leaving the relationship.
As evidenced from her affidavits, her emails to the Father and her oral submission to the Court, the mother sees all of the Father’s actions as being directed against her personally. Her evidence does not suggest that she is able to separate herself and her feelings from the child and the child's needs to have a relationship with her father.
Whilst the Mother claims that the Father is oppositional and exhibits passive-aggressive behaviour, the Father’s evidence suggests otherwise. The email conversation of 29th June 2012 are illustrative of the Father’s claim that he is acting in a manner cond
[Court Orders]Judge Scarlett made interim orders on June 18 that she should live with her father. He said the father should have sole responsibility for making decisions about “major long-term issues” concerning the child’s welfare.