Craig Nicol & Keleigh Robinson Family law judgments

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

Mother’s “fixed” but unfounded allegations of sexual abuse by father were damaging to the children

In Syms [2021] FamCAFC 38 (26 March 2021) the Full Court (Aldridge, Watts & Austin JJ) heard an appeal where a mother unsuccessfully argued that her 3 children were at unacceptable risk of sexual abuse by their father, the Court finding that the mother’s fixed but unfounded views posed an unacceptable risk of emotional harm and that the children live with the father.

The mother’s time was to be supervised after a four month moratorium. Such supervision was to continue at the discretion of the father.

The Full Court said (from [93]):

“… [H]er Honour was not satisfied that the children were describing actual events of abuse. …

[94] … [I]t was found that the allegations … [by the children to the mother] ‘began a course of action akin to a mission to establish that the children had been sexually abused by the father’ (at [170]). ( … ) [106] The single expert … considered that the probability of the father being a sexual abuser was ‘fairly low down the list’. There is no reason whatsoever to consider that her Honour did not have regard to … the entirety of the single expert’s evidence.”

As to the risk posed to the children by the mother, the Full Court said (at [116]): “… [T]he most relevant time for considering whether the mother posed a risk of emotional harm ... due to her fixed belief that they had been sexually abused … was at the hearing before the primary judge. …”

As to the father’s discretion to determine when supervision would cease, the Full Court said (at [140]):

“We do not accept that the order is … for permanent supervision. The primary judge expected that the father would act reasonably, but if he did not, the mother could return to Court to … lift the supervision requirement. In doing so, she would not be bound by the rule in Rice and Asplund [1978] FamCA 84 because the primary judge expressly envisaged such an application. …”

The mother lost her appeal and was ordered to pay costs.

“Wholesale injunction” restraining wife from continuing all proceedings in Singapore set aside

In Obannon & Scarffe [2021] FamCAFC 33 (10 March 2021) the Full Court (Kent, Watts & Austin JJ) heard the wife’s appeal from an order that restrained her from continuing all proceedings in the Family Justice Courts in Singapore.

After restating Voth v Manildra Flour Mills Pty Ltd [1990] HCA 5 and Henry [1996] HCA 51 (at 592–593), the Full Court said (from [106]):

“The primary judge erred in principle … by ignoring or overlooking that the parties had resolved that the Singapore proceedings would continue with respect to [divorce, spousal maintenance, parenting issues and child support] …

[107] The authorities make clear that it is not the requirement to strictly compare the two forums … to decide which is the more appropriate forum. Here, the primary judge … appears to consider the central issue to be a direct comparison of the two countries’ family law procedures. ( … )

[110] One legitimate purpose of comparing the law in each jurisdiction is to identify the existence of any juridical advantage to a party. … However it is not a legitimate purpose of such a comparison for a trial judge to thereby assess the comparative merits of the manner in which a case is determined as between the local and foreign tribunal. In this case the primary judge appears to give emphasis to his conclusions about the merits of Australian law in the manner in which property cases are determined, as compared to Singapore, rather than confining the consideration to one of effective dealing with the dispute arising from the breakdown of the parties’ marriage involving divorce, parenting issues, spousal maintenance and child support. We consider that to be an error ( … )

[112] … [I]it is clear from the authorities that the test of whether the same controversy is before each Court is not one that requires complete satisfaction that every aspect of the litigation is identical.”

PROPERTY

Bankruptcy – Just and equitable settlement identifiable without husband’s participation or disclosure

In Hicks & Trustee of the Bankrupt Estate of Hicks [2021] FamCAFC 19 (18 February 2021) the Full Court (Ryan, Aldridge & Kent JJ) heard an appeal by a trustee in bankruptcy from property adjustment orders made by Loughnan J in the absence of the husband.

The orders were such that the husband received $651 747, being the amount required to satisfy the husband’s proven debts in bankruptcy.

Addressing the justice and equity of the orders, the Full Court said (from [58]):

“ … [H]is Honour considered Commissioner of Taxation & Worsnop and Anor [2009] FamCAFC 4 and … other [Full Court] decisions … in expressing the conclusion that the creditors, represented by the trustee, do not have priority over the wife ( … )

[89] … [F]ailure by parties to provide credible evidence relating to aspects of their financial affairs does not entitle the Court to dismiss applications or to relieve the Court of the responsibility of applying the provisions of the Act …

[90] In this case the primary judge recorded that the husband … had elected not to take part [in the proceedings] … and his Honour was satisfied that … it was appropriate to make orders on an undefended basis as against the husband ( … )

[116] ... [T]he primary judge was plainly cognisant of the … cases as to the approach to attributing responsibility as between married parties for acquired debts in the s79 process. It bears some emphasis that … [the] authorities identified guidelines for the exercise of the s79 discretion, and not binding principles constraining that exercise. ( … )

[119] … [I]t was within the ambit of a legitimate exercise of s79 discretion for the primary judge to deal with the husband’s debts in the manner in which his Honour did. …”

The Full Court dismissed the trustee’s appeal but no order was made as to costs.

CHILDREN

Hague Abduction Convention – Father found to have consented to mother’s wrongful overseas removal of child

In Commissioner of Police for State Central Authority of South Australia & Garnett [2021] FamCA 86 (3 March 2021) Williams J heard an application by the Central Authority of South Australia for the return of a 10 year old child to the UK pursuant to the Family Law (Child Abduction Convention) Regulations 1986.

The mother had removed the child from the UK but said that when the father found her packing suitcases, she informed him she wished to return to Australia, whereupon the father handed the mother the Australian passports for herself and the child and assisted her with her bags into a taxi. The mother and the child travelled to Australia that day.

Williams J found that X was habitually resident in the UK and that the father was exercising rights of custody at the time of removal ([80]). After citing Wenceslas & DirectorGeneral, Department of Community Services [2007] FamCA 398 Williams J said (from [87]):

“ … Consent has to arise before the act of removal or retention ( … )

[104] The father’s own evidence suggests … that he was acutely aware that the mother intended to leave the UK with X … and that notwithstanding the mother’s repeated intention of travelling to Australia with X, he handed her the passports which would enable her to do so. … … I do not accept that handing over passports … does not amount to consent for X to leave the country. …

[105] … It is not a situation where the father was advised by the mother for the first time in the heat of the moment … that the mother wished to end the relationship and return to Australia.

[106] The father’s … own evidence supports the contention that he knew implicitly and unambiguously that the mother intended to fly with the children and that is why she required the passports. ( … )

[109] I am satisfied that the conduct of the father, in handing the child’s passport to the mother, when he knew she intended to travel to Australia with the child, is clear and cogent evidence of the father’s real and unequivocal consent to X departing the UK and travelling to Australia.” Williams J exercised her discretion not to return X to the UK and dismissed the application of the State Central Authority.

FINANCIAL AGREEMENTS

That the wife was advised against signing the BFA, but did so anyway, may be an “indicium of undue influence” as held in Thorne v Kennedy [2021] FamCAFC 9

In Beroni & Corelli [2021] FamCAFC 9 (10 February 2021) the Full Court (Strickland, Aldridge & Kent JJ) dismissed with costs the husband’s appeal from Tree J’s decision in Corelli & Beroni [2019] FamCA 911 where a hairdresser’s testimony corroborated the wife’s case that she was not proficient in English when she signed a Part VIIIAB financial agreement, the Court setting it aside for unconscionability and undue influence.

The agreement was signed a few months before the wife was granted a spouse visa. While the agreement and advice provided to the wife was in English, the Court accepted that the wife did not understand the nature of what she signed; the content of the agreement; nor the advice provided to her, despite the wife having not called evidence from her then solicitor.

The Full Court said (from [31]):

“It is the husband’s contention that … in circumstances where the wife’s solicitor advised her

against signing the BFA …, the wife acted on her own free will. ( … )

[35] ( … ) Given the 30 minute duration of the meeting along with the wife’s lack of proficiency in English, any explanation given to the wife would have been wholly inadequate for her to understand the advantages and disadvantages of signing the BFA.

[36] ( … ) [T]hat the wife was advised against signing the BFA, but did so anyway, may be an ‘indicium of undue influence’ as was held to be the case by the plurality in Thorne v Kennedy [ed. full citation: Thorne v Kennedy [2021] FamCAFC 9] ( … )

[64] … [I]t is one thing for the wife to have had an understanding of the effect of the BFA not radically different from its actual effect … but it is a very different thing for a person to have sufficient knowledge and understanding adequately to protect their own interests ( … ) No error in trial judge’s order that applicant’s barrister and solicitor pay respondent’s costs where property case improperly pursued

In Beamish & Coburn (Deceased) [2021] FamCAFC 20 (22 February 2021) the Full Court (Aldridge, Austin & Tree JJ) dismissed with costs an appeal in a case where a live in carer had sought a declaration as to the existence of a de facto relationship and property orders.

The Court found that there was no evidence of the breakdown of a de facto relationship. The applicant’s barrister and solicitor appealed the order that they be jointly and severally liable for the respondent’s costs, fixed at $100 000.

The Full Court said (from [14]):

“The initiating application … was signed by [the applicant] …. At line 27, a cross indicated that a date of final separation was ‘[n] ot applicable’ ( … )

[27] In her affidavit … [the applicant] … said:

... I believe [we] are still a couple but for the restrictions placed on me to visit him at his nursing home ( ... )

... [The deceased] did not voluntarily leave me but was forced to... [28] … [D]ifficulties emerge from this evidence.

[29] The first is whether the parties had … separated at all. This issue can arise when one party … is moved to a hospital or an aged care facility. This does not … mean there has been a separation or breakdown of the … relationship ( … )

[30] The second is identifying the date of the breakdown of the … relationship …

[31] … [T]he … judge found that the … practitioners were … negligent in failing to come to grips with these difficulties. … [T]he [barrister] … said that she considered withdrawing … but did not do so because the [solicitor] … threatened to sue her for negligence.( … )

[79] The … various forms of the initiating application filed by [the applicant] … failed to assert a breakdown of the relationship or identify a date that it occurred. … [T]he first three versions of the initiating application sought a declaration that the relationship had not ended. … [The applicant’s] … affidavit evidence was consistent with … no breakdown of the relationship.”

Father’s loss of confidence in family report writer insufficient to support his application to appoint a new expert

In Behrendt & Cadenet (No. 2) [2021] FamCA 19 (29 January 2021) Harper J dismissed a father’s interim application in a parenting case for the appointment of a new family report writer in respect of a 10 year old child, where the family report writer, Dr B, referred in an interim report to the mother’s allegation that she had in her possession a large amount of pornography downloaded by the father which, when appraised, might become a finding of paraphilia on the father’s part ([3]).

A USB stick of “about 500 professionally shot stack static images of young attractive women” and “pornographic digital movies” was provided to Dr B who recommended that reports be obtained from an IT expert (as to viewing patterns) and a paraphilia expert ([5]-[6]).

The Court said (from [16]):

“The father … argued that the USB materials have negligible probative value. …

[17] … [T]he father contended that the material Dr B had … seen may have contaminated his opinion … he may … have prejudged factual issues such as the ownership of the pornographic material and the nature of the father’s viewing patterns ( … )

[20] I reject the argument based on the assertion that the USB materials have negligible probative value. … [I]t is not possible or appropriate to attempt to form any view about the probative value of the USB materials at this point. ( … )

[21] … Although the father disavowed any reliance upon apprehended bias, it seems to me that that is … what lies behind his assertions of loss of confidence in Dr B. …

[22] … The … fact that [Dr B] … considered that further expert evidence was necessary demonstrates that he himself was not offering any opinion about the father’s habit of viewing material ( … )

[26] I accept the submission of Counsel for the mother that if loss of confidence alone was a broadly applicable criterion for discharge of a single expert, such discharges would be happening on a regular basis. ( … ) Husband appointed co-director of corporate trustee but failed in his application for removal of the wife as director

In Crawford [2021] FamCA 15 (29 January 2021) Berman J allowed a husband’s interim application to be made a director of G Pty Ltd, which was a corporate trustee of a family trust and owned land associated with the husband’s family’s business operations. The husband sought orders compelling the removal of the wife as director, arguing that the company required finance for the development of the real property it owned so as to sustain business operations, which would ordinarily be sourced from his father, but where his father had refused to assist financially so long as the wife participated in the business structure.

The wife consented to the appointment of the husband as co-director, but opposed her removal as director. The wife also sought that she be appointed as co-director of another corporate trustee, V Pty Ltd, which owned shares in the family business.

The Court said (from [48]):

“[The husband’s father] … considers that G Pty Ltd would not be able to obtain commercial finance whilst the wife remains in control [and further] … considers that the finance arrangements would in any event be unsuccessful

unless he was prepared to commit $1m in support of the finance application. He is not prepared to do so whilst the wife remains involved.

[51] There has not been evidence presented that would support the financial viability and implication for [the business] … and therefore the husband’s direct and indirect interest in same.

[52] There is potential merit in the position adopted by each of the parties. In the absence of evidence the Court has no ability to determine, whether if orders are made as sought by the husband, they will have the effect of preserving the value of the assets of the parties. [53] I do not ignore the potential for difficulty to be created … [difficulties for the business] in the absence of a suitable business venue development ( … )

[55] I accept that at this stage there is not sufficient evidence that would enable the Court to make an informed decision and on that basis whilst I consider there is merit in the husband becoming a co-director of G Pty Ltd, I am not prepared to order the wife’s removal as a director …”

The parties were directed to appoint the husband as codirector of G Pty Ltd and also directed to appoint the wife as co-director of V Pty Ltd.