Family Law Case Notes By Craig Nicol & Keleigh Robinson

Family Law Case Notes

CRAIG NICOL AND KELEIGH ROBINSON, THE FAMILY LAW BOOK

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 four 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 … confi rm 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 fi ndings were … open … on the … evidence … ”

PROPERTY – 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 fi nancial 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 fortifi ed 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 s 114. … [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.”

PROPERTY – WIFE APPOINTED CODIRECTOR 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 $45 million, encumbered by a $17 million mortgage; the wife also being party to a $46.5 million 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 s 135 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.”

Craig Nicol is the editor of The Family Law Book and Keleigh Robinson, co-editor. They are accredited (in Qld and Vic respectively) as specialists in family law. B