Family law: June 2015

Children – appeal – injunction – weight to be given to child being settled

In Banks [2015] FamCAFC 36 (12 March 2015) the Full Court (Thackray, Murphy & Kent JJ) allowed the mother’s appeal against an interim parenting order. The parents married in Australia and travelled to Thailand, where the child was born. They moved between Thailand and Australia but when the father returned to Australia, the mother and child did not. The mother returned to Australia without the child to work for weeks at a time without the father’s knowledge. The father was granted an ex parte injunction that the mother deliver the child to the father and be restrained from leaving Australia.

It was also ordered at first instance that the child live with the mother in Australia (an order ‘neither party sought’ and ‘the primary judge did not give notice of her intention to make such an order’). The father’s solicitor conceded the mother ‘had not been afforded natural justice’ and the appeal should succeed. Citing Goode [2006] FamCA 1346, the Full Court reviewed the agreed facts that the father had no contact with the child, save via Skype, for two years; the mother had been the primary carer and was an appropriate carer; the child was born in Thailand and lived there for much of his life; and the child’s special needs.

The mother claimed the court allowed Family Law Act 1975 (Cth) s 60CC(2)(a) (relationship with father) to outweigh the impact on the child of being required to leave the settled environment in which he had been living. The Court said (at [66]) that ‘[s]ignificant weight must be placed on the fact that the child appears to be well settled … [being] of special importance because of his developmental delay’. The injunctions were discharged and orders made that the father spend time with the child in Thailand and via Skype.