Family Law

CRAIG NICOL

EDITOR, THE FAMILY LAW BOOK

craig@thefamilylawbook.com.au

KELEIGH ROBINSON

CO-EDITOR, THE FAMILY LAW BOOK

keleigh@thefamilylawbook.com.au

Family law judgments

Children

Parental capacity not always impacted where concerns held as to a child’s safety in the other parent’s care

In Keane [2021] FamCAFC 1 (18 January 2021) the Full Court (Alstergren CJ, McClelland DCJ & Benjamin J) dismissed an appeal from orders made for the care of a 4 year old, where Judge McEvoy found that the father had committed acts of domestic violence towards the mother.

Judge McEvoy ordered that the father spend supervised time with the child, which was to then increase to unsupervised time.

The mother appealed, arguing that the Court had misapplied “the Re Andrews principle” (that the mother’s caregiving capacity would be discernibly impaired by an order that the child have time with the father).

The Full Court said (from [75]):

“ … [A]uthorities applying ‘the Re Andrews principle’ … [have] been expressed in a variety of ways ( … )

[80] Subsequent authorities … confirm that it is an error to assume that, in … every case where a parent is concerned about the safety of a child in the other parent’s care, the court will infer that there is an unacceptable risk that the concerned parent’s parenting capacity will be adversely impacted. ( … )

[81] … [T]he Full Court in Marra [ed. full citation: Marra & Marra (Unreported, Full Court of the Family Court, Fogarty, Baker & Butler JJ, 8 September 1993)] held that not only is it necessary for the court to determine whether a parent has a genuine concern about the welfare of the child in the care of the other parent but it is also necessary to determine whether the concerned parent’s parenting capacity will be ‘discernibly impaired’. ( … )

[111] … [A]side from stating that she would be very distressed by such orders, no evidence was placed before the primary judge to assist his Honour in making an assessment of the level of that distress. … [H]is Honour found that the mother would seek appropriate therapy if necessary. … [T]hose findings were … open … on the … evidence … ”

Interim order compelling parties to pay mortgage outgoings set aside – Proximity of the parties’ mediation irrelevant

In Fei & Woong [2021] FamCAFC 2 (22 January 2021) Kent J (sitting in the appellate jurisdiction of the Family Court of Australia) allowed an appeal from an interim order made after counsel for the wife made an application for the husband to meet all mortgage payments.

The wife relied upon the husband’s income of $12 396 per week as against the wife’s income of $200 per week. Counsel for the husband contended each party had capital. The court ordered each party to be equally responsible for all mortgage payments, noting that would entail only “two to three mortgage payments” before mediation.

The wife appealed. Kent J said (from [58]):

“ … [T]he … judge’s reasons … support the wife’s argument that his Honour was guided by irrelevant considerations. … [H] is Honour … highlight[ed] each party’s financial situations in six paragraphs … [T]hereafter … is the only reference in his Honour’s reasons which could be … a consideration of the balance of convenience. ( … )

[60] … [H]is Honour was focussed more on … settlement than the consideration of the application on its merits. That view is fortified by his Honour’s reference to there only being an approximate two to three mortgage payments before the mediation, which … when coupled with the … implication of his Honour’s reasons that the parties ought reach settlement at … mediation, highlights his Honour’s error. ( … )

[63] It was the … judge’s obligation to consider the relevant law and … take into account only those considerations relevant to its proper exercise. It is not relevant … whether the … judge considered the parties should reach settlement at … mediation ( … )

[66] … [T]he wife sought to engage the jurisdiction of the court to grant injunctive relief to preserve capital … . The court was obliged to apply the applicable principles to that application. … The … judge made a … mandatory injunction which order could only be founded upon the power … under s114. … [T]he authorities do not support any proposition … that it is legitimate to impose an injunction for the … purpose of exerting … pressure … to compromise the party’s … claim.” Wife appointed co-director of corporate trustees to neutralise debate as to disclosure

In Hui & Bai [2021] FamCA 6 (20 January 2021) Hartnett J allowed a wife’s interim application to be made co-director of entities, of which the husband was sole director, which owned commercial buildings in its capacity as trustee. One building was worth $45m, encumbered by a $17m mortgage; the wife also being party to a $46.5m personal guarantee to the ANZ bank.

The husband had been sole director of the companies for 13 years. The wife sought to be made a co-director as she alleged the husband had not made full and frank disclosure and she contended the husband had entered into dealings without prior notice, which impacted upon her claim.

The Court said (from [44]):

“ … [T]he respondent would be afforded necessary transparency if she were to be appointed as a co-director of the entities … the respondent will be able to have input into commercial decisions made by the applicant solely, or in conjunction with (the property manager) … that may directly impact the value to be attributed to the entities. The Court notes that the evidence before it … is that the appointment of the respondent as a co-director will have no adverse impact on the credit and guarantee structure of the existing facilities….

The Respondent’s exposure as a guarantor to a significant sum … also makes the need for transparency to be more pressing. …

[45] Full and frank disclosure is an ongoing obligation for each of the parties …. Significant disclosure has already been provided by the applicant to the respondent. ( … ) Now that the respondent’s position is enhanced by an order which shall see her appointed as a co-director of those of the parties’ entities …, the debate as to what constitutes proper disclosure , and claim that it has been inadequate, should no longer be an issue. In those instances where matters remain outstanding as between the parties, they are required to act in accordance with their ongoing obligations.”

Children

Mother’s evidence of violence between father and his ex-wife lacked probative value and admission would waste time

In England & Harrisson [2020] FamCA 1083 (18 December 2020) Altobelli J heard a parenting case where the mother sought to relocate from Sydney to New Zealand with the parties’ 2 year old child (“X”) on an interim and final basis.

Each parent alleged that the other had perpetrated controlling violence during the relationship in the presence of X. The mother filed an affidavit from the father’s ex-wife (“Ms B”) who lived in the USA. Ms B’s affidavit was 24 pages long and described a history of family violence perpetrated by the father “in quite meticulous detail” ([14]). The father sought that the affidavit be struck out and removed from the court record pursuant to s135 of the Evidence Act 1995 (Cth).

The Court said (from [15]):

“ … [I]t was … submitted that Ms B’s affidavit goes to the longitudinal nature of the father’s propensity for family violence and that his violent behaviours were not confined to the … short relationship between the parties ( … )

[16] The father’s opposition to the … affidavit focused on its lack of relevance, its unfair prejudice to him, as well as the inevitable consequences of having to extend fairness to him by presenting evidence in reply to the evidence of Ms B ( … )

[19] … [T]he mother seeks to use Ms B’s affidavit to establish the father’s tendency towards family violence in intimate relationships. ( … )

[20] The predictive value of evidence of behaviour in … similar situations such as intimate relationships allegedly characterised by violence can only be useful if it is incontrovertibly true that past behaviour is predictive of future behaviour. But that is not incontrovertibly true. ( … ) The Court’s impression of Ms B’s evidence is, therefore, that its probative value is low. ( … )

[26] … [T]he father has identified nine witnesses who he would need to call, in addition to this own evidence …. [H]e has foreshadowed that he may need to produce documentary evidence from Country F of up to 1000 pages … [T]he mother’s representative … had to accept that the mother could not constrain the father’s case in response to Ms B’s affidavit. ( … )

[31] … [T]he admission of Ms B’s evidence is therefore not permitted on the basis that it lacks probative value and its admission would cause or result in undue waste of time.”

Property

Contributions must be considered “holistically” and “weighed collectively”

In Benson & Drury [2020] FamCAFC 303 (7 December 2020) the Full Court (Strickland, Watts & Austin JJ) dismissed with costs an appeal by a de facto husband. The parties’ jointly submitted at trial that their contributions were equal save for two disputes: initial contributions; and the respondent’s claim that domestic violence had made her contributions significantly more arduous per Kennon [1997] FamCA 27 (“Kennon”).

Judge Kari declined to give greater weight to the appellant’s initial contributions, finding that to do so would ignore the contributions of both parties.

Her Honour found that the appellant perpetrated physical violence against the respondent concluding that the respondent’s “Kennon claim is made out. ( … ) I have assessed the adjustment at five per cent such that the division was 55:45 overall.” [20]

The Full Court said (from [34]):

“( … ) [T]he … judge found the parties’ overall contributions were equal … then went on to reason that the [respondent’s] … contributions warranted an ‘adjustment’ of an extra five per cent as her ‘Kennon claim’ was made out.

[35] The … question … is how a judge takes into account the contributions of one party, … made significantly more arduous by the conduct of the other … . The answer is … a holistic approach. The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties ( … )

[37] [T]he use of the short-hand descriptor of a ‘Kennon claim’ is … liable to induce error because the issue is not a stand-alone claim, but is rather integral to the entire process ( … )

[77] … [C]onsidering all of the evidence before the primary judge, including the evidence about the [appellant’s] … initial contribution of real property and the impact of family violence on the [respondent’s] … contributions, … an appropriate, just and equitable contributionbased division … is 55/45 per cent in the [respondent’s] … favour.”

Spousal maintenance

Court erred in allowing husband a “financial buffer” for “vicissitudes of life” when calculating interim spousal maintenance

In Simpkin [2020] FamCAFC 315 (17 December 2020) Ryan J, sitting in the appellate jurisdiction of the Family Court of Australia, allowed in part an appeal of interim orders where the wife was unable to work and the husband worked in a managerial position.

The husband was found to have a weekly excess of income of $1327. The Court ordered the husband to pay maintenance of $750 per week to allow him “some form of financial buffer” ([15]). The Court dismissed the wife’s application for an interim costs order ([13]).

Ryan J said (from [16]):

“The reference to ‘the vicissitudes of life’ is to the [husband’s] … submission that the Court could not … proceed on the basis that he would continue to earn at his current level and … he could be made redundant.

[17] … [T]he primary judge failed to consider that if the [husband’s] … circumstances suffered the … setback, he could … apply for it to be varied or discharged. ( … ) [18] … [T]he primary judge should have determined that it was reasonable for the [husband] … to pay interim spousal maintenance in the sum of $1327 per week … ”

As to the wife’s application for an interim costs order, Ryan J said (from [23]):

“[C]ounsel for the [wife] … relied heavily on Zschokke [1996] FamCA 79 … where this Court identified factors relevant … :

1. a position of relative financial strength … of the respondent;

2. a capacity … of the respondent to meet his … litigation costs; and

3. an inability … of the applicant to meet … her litigation costs.

[24] … [T]he first two factors … were established …. However, … fatal to the application … the third … was not. … The [wife] … does not wish to access her superannuation … and her preference is to receive a share of the [husband’s] … savings. A … preference does not make the proposed order just and the question … is whether the … [wife] … is unable to meet her litigation costs ( … )”

The Court varied the interim order for maintenance from $750 to $1327 per week.

Belligerent grandfather’s time with child reduced from fortnightly to monthly on appeal by parents

In Sarti and Anor & Sarti (No. 3) [2020] FamCAFC 319 (17 December 2020) Ryan J, sitting in the appellate division of the Family Court of Australia, allowed the separated parents’ appeal from interim parenting orders made for a grandfather to spend time with his grandson each fortnight.

The parents had implemented a week-about arrangement for the child between them and a monthly arrangement for the grandfather. The father and the grandfather had a strained relationship; the grandfather foreshadowed court proceedings in “antagonistic” correspondence ([8]); and there was an incident between the mother and the grandfather at the child’s preschool which left the mother “very rattled”, “threatened, anxious and upset” ([7]).

The grandfather relied upon a report of a general practitioner as to his suffering from inoperable liver cancer which was such that he had three months to live. “ … [T]he grandfather has a track record of belligerent refusal to abide reasonable requests by the parents ( … )

[27] Had the … judge noticed … that the grandfather’s behaviour towards the parents … created tension between the parents, the finding … that the grandfather’s behaviour was unlikely to negatively impact on the child would not have been made. ( … )

[36] It is appropriate to give some weight to the parents’ decision to cease the child’s contact with the grandfather and their reasons for so doing. It was a carefully considered and reasonable exercise of their parental authority. [T]here is evidence which shows that the child enjoyed his time with his grandfather … . But for the fact of their pre-existing relationship, greatest weight would have been given to the parents’ decision on the issue. … [N]otwithstanding the risks arising from the effect … on the parental relationship, it is in the child’s best interests for him to resume his relationship with his grandfather. ( … )

[38] … Once every four weeks is an arrangement with which the child is familiar and the parties have shown they can manage. ( … )” Mistaken findings of coercive, controlling behaviour – Family consultant’s “impression” of child’s wishes required further consideration

In Lancefield (No. 2) [2020] FamCAFC 312 (22 December 2020) the Full Court (AinslieWallace, Ryan & Aldridge JJ) allowed in part an appeal where an order was made changing the residence of 11 and 9 year-old-children.

The mother had been hospitalised in respect of her mental health but had “capacity to provide for the children’s … needs” ([5]). The children resided with the father until trial.

An incident occurred in 2018 where the family iPad was activated and the father accessed the mother’s internet search history which included “how to tie a hangman’s noose” ([31]). The father contacted the mother’s brother about the searches and family sharing ceased. Judge B Smith found that the father had “continued to monitor and collect information” about the mother, which amounted to “family violence and/or controlling behaviour” of “critical importance … in considering where [the] children should primarily reside” ([48]).

The Full Court said (from [54]):

“ … [G]iven the mother’s history of threats of suicide, it was reasonable for the father to be concerned about what the

mother’s searches suggested about her mental health ( … )

[67] … [T]he gravamen … is that the conduct was coercive and controlling behaviour and amounted to family violence. … [T]he trial reasons which show how important the findings of ‘coercion or control’ were to the decision to remove the children from the father’s primary care. ( … )”

The eldest child expressed a desire for the parenting arrangements to stay as they were. Statements from the youngest child to the family consultant left the consultant with the ‘impression’ that that child preferred to live with his mother ([82]).

The Full Court said (from [83]):

“ … [G]iven the emphasis that was placed on the children’s views in the trial, it was important … to consider whether it was significant that one child had a clearly expressed view … compared to the Family Consultant’s impression about the younger child’s current unstated preference. ( … )

[85] The … judge had already decided that the mother’s case … which probably explains why … additional matters were not considered when deciding the weight attributed to the family consultant’s ‘impression’ of the younger child’s views … [H]is Honour’s decision to place greatest weight on those other factors, underpins the importance of the findings raised in relation to controlling behaviour …”

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