FAMILY LAW CASE NOTES The Court said (from [61]):
at a time.
“… [I]n our view the application of the principles articulated in Kennon does not fall within the same rubric as the approach applied in the cases relied upon by the wife, which are claims in tort.
(…)
[62] In 1975 the Act deliberately set out to exclude conduct from the assessment of financial adjustment between the parties. The Family Court in Kennon carved out an exception to that general proposition by acknowledging the effect that family violence in particular and conduct more generally might have upon the making of contributions by a party. Given that the acknowledgement is made in respect of contributions, the consideration of a Kennon claim axiomatically happens at the second step although the ongoing effects of family violence maybe a relevant prospective consideration at the third step. [63] … [T]here is no warrant in s 75(2)(b) to discount the outcome of the analysis under s 79(4)(a)–(c) of the Act based on a Kennon argument. Nor in our view does s 75(2)(o) or s 79(2) create scope for the approach suggested by the wife. [64] … [W]e find the primary judge did not err in failing to quarantine the 7.5 per cent the wife achieved as a result of her Kennon argument …” The wife’s appeal was dismissed and no order was made as to costs.
Children – Interim return of children to mother after her unilateral relocation – Paucity of evidence of father’s work hours indicative of the children being in primary care of paternal grandparents In Leandra & Randles [2021] FedCFamC1A 51 (5 November 2021), Ainslie-Wallace J heard a mother’s appeal against interim parenting orders providing for 6 and 3 year old children to live with the father in Town.
[46] The mother’s evidence was that since the children have lived with the father they have in fact lived with their paternal grandparents … (…) [50] … The sum total of the father’s evidence about his hours of work is … opaque at best … The father’s failure to … give detailed evidence on this issue is inexplicable …” The Court concluded (from [80]): “I am thus of the view that these children’s best interests are served by their being returned to their mother’s care pending the final hearing. … I am conscious that it will necessarily involve another move for these two very little children whose residence has already changed twice … However … I am of the view that a return to the primary care of the mother will best serve the children’s best interests as opposed to stability in their present living arrangement. [81] … [G]iven the paucity of evidence of the father’s working hours and the arrangements made for the children in his absence, it seems likely that children are more likely than not spending substantial time in their grandparents care … [82] … I will order that within seven days of the date of these orders, the children be returned to the mother’s care…”
Children – Maternal aunt considered inappropriate as mother’s litigation guardian, despite her existing appointment as mother’s guardian by SACAT In Remington [2021] FedCFamC2F 99 (27 September 2021), Judge Kari heard an application for the appointment of a litigation guardian for the mother in parenting proceedings in respect of an 11 month old child “X”.
As to the father’s availability to care for the children, the Court said (from [38]):
The 27 year old mother had been diagnosed with a number of cognitive impairments and was the subject of state guardianship and administration orders appointing the maternal grandmother and the maternal aunt as guardians and limited administrators of the mother. There had been numerous police interventions involving the mother’s behaviour towards the maternal grandmother and aunt.
“… There was no challenge to the mother’s account of the father’s working pattern before they separated, that is, he would be away a week or perhaps more
The maternal grandmother sought orders providing for X to live with her and for her to have sole parental responsibility. The presumed father
The mother had unilaterally relocated with the children to Suburb F, two and a half hours away. Judge Terry ordered that the children return to live with the father. As the appeal was allowed by consent, the parties asked the Court to determine the interim parenting arrangements.
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was not party to the proceedings and his whereabouts were unknown. The maternal aunt (“Ms E”) initially participated in the proceedings as the “legal guardian” of the mother. After reviewing the report prepared by the State Welfare authority, Judge Kari said (from [53]): “… I am satisfied: (a) That the mother does not understand the nature of these proceedings nor the possible consequences of these proceedings; and (b) That the mother is not capable of adequately conducting, or giving adequate instructions for the conduct of these proceedings. (…) [57] The issue however is that … the maternal aunt appears to have an interest in the litigation that is adverse to that of the mother … I have come to this conclusion for two reasons, firstly because Ms E has advised the court … that she supports the application of the maternal grandmother. Secondly, as a consequence of the … report from the Department for Child Protection … which makes it clear that Ms E and the maternal grandmother work together to manage the competing obligations that they have towards the mother and the care of the child. [58] It is for all of these reasons that I do not consider it appropriate that the maternal aunt, Ms E be appointed as the litigation guardian of the mother. (…) [62] … [T]he administration order that has been made relates specifically to the conduct of legal proceedings, being a personal injury claim … [63] While the orders made by SACAT would entitle either the maternal grandmother or the maternal aunt, Ms E to be appointed as the mother’s litigation guardian … it is my firm view that either of those persons are inappropriate given their conflicting interests.”
