Family Law Case Notes

CRAIG NICOL AND KELEIGH ROBINSON, THE FAMILY LAW BOOK

CHILDREN – FATHER UNSUCCESSFULLY APPEALS ORDER AUTHORISING MOTHER TO VACCINATE CHILD AGAINST COVID-19

In Dacombe & Paddison [2021] FedCFamC1A 103 (23 December, 2021) Austin J (sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia) summarily dismissed a father’s appeal against a consent order, which authorised the mother to arrange vaccinations of the parties’ daughter.

The Court said (from [8]):

“An appeal may be summarily dismissed if the appellant has no reasonable prospect of successfully prosecuting it (s 46(2)) [ed. Of the Federal Circuit and Family Court of Australia Act 2021 (Cth)], even if it is not hopeless or bound to fail (s 46(3)) ( … ) [10] The father’s fi rst contention – that he did not consent to the order – is false. … [11] While it was the legal practitioners who confi rmed the parties’ agreement, the father did not demur when the primary judge was informed of the compromise. … [12] When the primary judge sought to formulate an order to properly refl ect the parties’ agreement, the father even helped with the drafting ( … ) [14] [The father] … only disagreed with any form of government-imposed immunisation or treatment for the child, but the appealed order did not deal with any form of immunisation or treatment mandated by government because the parties agreed the child should be immunised ( … ) [16] … Ground 1 of the father’s appeal depends entirely upon his false contention that he did not consent to the appealed order. He did and now he cannot appeal the order on merit in the teeth of such consent. … [17] … [Section] 51(xxiiiA) of the Constitution enables the parliament to make laws about the provision of medical and dental services (but not so as to authorize any form of civil conscription) ( … ) [21] … [T]he Constitutional impediment only affects the validity of federal legislation which enables the civil conscription of medical and dental services, upon which fi eld the Family Law Act does not play. An order made under the … Act which ensures a child’s receipt of … medical treatment is not caught by the prohibition ( … )”

PROPERTY – APPLICANT’S EQUITABLE TRUST CLAIM FAILS AS PURCHASES WERE GIFTS – RESPONDENT’S CLAIM FAILS AS THERE WAS NO DE FACTO RELATIONSHIP

In H, AW v K, S [2021] SASC 128 (11 November, 2021) Bochner J of the Supreme Court of South Australia dismissed all applications after a four year relationship between a dual citizen of Australia and the USA (the applicant) and a single mother who lived in Adelaide (the respondent).

The applicant sought a declaration that the respondent’s vehicle and bank balances were held on trust for him ([4]).

The respondent argued the dealings were gifts and [she] sought a declaration that the parties were in a de facto relationship.

The Court said (from [52]):

“The applicant agreed that [his] … communication [to the respondent] amounted to representations that he would provide for her … He denied … that the provision of fi nancial support … or … any other gifts to her would be unconditional. ( … ) [59] … [T]he parties did not acquire any assets together … The respondent never visited the applicant’s house …, nor was she invited to do so. ( … ) [151] The applicant came to Adelaide [where the Respondent lived] between fi ve and nine times each year during the relationship. The length of the visits varied, from less than twenty-four hours, to seven days ( … ) [193] … I consider that the parties’ relationship was not that of a couple living together on a genuine domestic basis. The evidence does not demonstrate ‘the merger of two individual lives into life as a couple’ … [I]t demonstrates two individuals living their separate lives and coming together seven or eight times each year for some shared time. It my view it is the time that was shared, rather than the lives.”

As to the trust claim, the Court said (from [214]):

“ … [T]his evidence leads me to the conclusion that the moneys given to the respondent … were a gift. … [A]ny statements made by the applicant that the moneys should be used for rent, clothes and other expenses were no more than indicative of his motive … They did not serve to impress the funds with a trust.”

CHILDREN – HAGUE CHILD ABDUCTION CONVENTION – ORDER FOR PRODUCTION OF SOLICITOR’S FILE SET ASIDE, GIVEN ITS IRRELEVANCE TO HABITUAL RESIDENCE

Berman & Harper JJ) allowed an appeal from a decision of Williams J, where a mother had travelled to Germany with the parties’ daughter for a holiday, but then communicated to the father that she would not return to Australia and unsuccessfully sought parenting orders in a German Court.

The German Court applied the Hague Convention on the Civil Aspects of International Child Abduction and found that the daughter was habitually resident in Australia and that Australian courts had exclusive jurisdiction. The father then successfully applied for orders for the return of the child, for which the father engaged a German lawyer.

Before the child’s return, the father issued parenting proceedings in Australia, where the Court scheduled a discrete hearing as to whether the Court had jurisdiction pursuant to s 111CD of the Act.

In those proceedings, the mother contended that the father had waived privilege to his German solicitors’ file, whereas Williams J ordered that it be produced. The father appealed, to which the Full Court said (from [23]):

“The application of ss 111CD(1)(a), 111CD(1)(b) or 111CD(1)(f) depends upon whether or not the child is habitually resident in either Australia or Germany ( … ) [25] Given the singular contentious issue affecting the exercise of Australian jurisdiction was the identification of the child’s place of habitual residence, it begged the question of how the file of the father’s German lawyer could be relevant ( … ) [32] As an entirely factual question, the determination of the child’s place of habitual residence could not conceivably be materially influenced by any communication between the father and his German lawyer concerning the prior German proceedings. ( … ) [34] Regardless of whether the father waived his legal professional privilege by his conduct, which is another issue by which the parties were distracted, there was no need to compel his surrender of the confidentiality he reposed in the lawyer/client communications.”

PROPERTY – CONTRIBUTIONS ASSESSMENT OF 65 PER CENT IN FAVOUR OF THE WIFE CONTAINED ERROR AS TRAILING COMMISSIONS REMAINED A JOINT CONTRIBUTION

In Candle & Falkner [2021] FedCFamC1A 102 (23 December, 2021), the Full Court (McClelland DCJ, Berman & Harper JJ) allowed an appeal from a decision of Foster J in a case involving a 13 year marriage where the parties established and operated a residential home lending business (C Pty Ltd). After litigation, in 2010 the husband received a payout from a third party on the condition that he resign as director, after which the wife was sole director and conducted operations of the company.

The Court assessed the wife’s contributions at 65 per cent, finding that from 2010 onwards, the wife had “overwhelmingly contributed to the evolution of the current asset pool through her ongoing management of C Pty Ltd” ([38]). The husband appealed. The Full Court said (from [82]):

“We are … persuaded that the primary judge failed to take account of relevant contributions of the husband. [83] It was common ground that C Pty Ltd was a joint enterprise of the parties from inception until March 2010, when the husband ceased to be a director. … [T]he business of C Pty Ltd produced an income stream for the benefit of the parties from trailing commissions, which continued for an average of five to six years. It followed that some trailing commissions continued past 2010, and thus some of the income produced by C Pty Ltd post-2010 must be seen as the result of the parties’ joint efforts in the business before 2010 ( … ) [90] The husband argued that the ultimate result of 65 per cent to the wife could only be justified by ignoring the husband’s contributions to the business of C Pty Ltd … after December 2010 ( … ) [92] … [H]is Honour assessed contributions by reference to his detailed findings about the course of contributions … The problem is that nowhere in those paragraphs is there any mention of specific contributions by the husband to C Pty Ltd … after 2010. Consequently, we are unable to conclude his Honour took those contributions into account, despite, or even because of, the reference to [the husband’s] ‹minimal contributions’ in … the reasons. … [93] Once it is accepted that the primary judge failed to take account of contributions by the husband to C Pty Ltd … even if more modest than those of the wife, the percentage assessment of 65 per cent in favour of the wife is unsafe and cannot stand.” B