Family Law Case Notes

CRAIG NICHOL & KELEIGH ROBINSON, THE FAMILY LAW BOOK

CHILDREN – CONTRAVENTION – MOTHER’S “TIT-FOR-TAT” WITHHOLDING OF CHILD TO MAKE-UP FOR FATHER’S EARLIER NONCOMPLIANCE IS NOT A “REASONABLE EXCUSE”

In Bircher [2022] FedCFamC1A 59 (11 May, 2022) the Full Court (Aldridge, Bennett & Howard JJ) considered a decision where the mother had contravened parenting orders in relation to a 13 year old child “C”.

The mother argued that the father had withheld the child during her holiday time, such that she was entitled to make up time.

The Full Court said (from [25]):

“Whether the father’s retention of C for the fi rst week of the … school holidays was appropriate is attended with some doubt ( … ) [26] … In Childers and Leslie [2008] FamCAFC 5, Warnick J confi rmed that the circumstances described in s 70NAE(1) of the Act are not the only circumstances in which reasonable excuse may be found. However, even if the father contravened … that lack of compliance … does not entitle the mother … to over-hold C … It is not for one party to take these matters into their own hands and engage in selfhelp. [27] It is conceivable that a reasonable excuse may involve a reasonable belief … concerning the effect of the other party’s failure to comply … However … we are not persuaded that it was open to the mother to over-hold C and then claim that time as compensation for a previous wrongdoing … To accept such an argument would lose sight of the fact that parenting orders regulate the actions of parents for the benefi t, protection and security of children. … [T]he father’s actions deprived C of the company of her brothers and spending the fi rst week of school holidays in the mother’s household … [T]he consequence of the mother’s action was to replicate that situation in relation to the fi rst week of the holiday period to which the father was entitled … Superfi cially, it was a tit-for-tat exercise as between the parents. In substance … the disruption and deprivation was doubled for C … On a more general level, self-help is not open to citizens when they believe another citizen has breached a court order or legal rule: the remedy always lies in an application to the courts …”

The appeal was dismissed.

CHILDREN – UNILATERAL RELOCATION ALLOWED WHERE CHILD’S CONNECTION WITH HER ABORIGINAL CULTURE BEST MAINTAINED BY LIVING WITH MOTHER

In Pascoe & Larsen [2022] FedCFamC1A 64 (13 May, 2022) McClelland DCJ heard a father’s appeal from an interim decision dismissing an application for the return of the mother and child after the mother unilaterally relocated from City A to City B.

The mother and child were Aboriginal and the trial judge concluded that the connection to the child’s culture was best maintained by the child living with the mother ([15]).

McClelland DCJ said (at [30]-[31]):

“ … [H]is Honour states that it is important for the child to live with her mother ‘in order to maintain and promote her connection with her Aboriginal culture’ … His Honour’s consideration of that issue was entirely consistent with his obligation pursuant to s 60CC(3)(h) of the Act. [His Honour] … also took into consideration the [mother’s] evidence that part of the child rearing practice of the D Nation is that traditions are passed on from mother to daughter …”

McClelland DCJ continued (from [57]):

“… [I]t was entirely proper and, indeed, consistent with his Honour’s obligation … to have regard to the child’s right to enjoy her Aboriginal culture ‘with other people who share that culture.’ It was unnecessary for the primary judge to make fi ndings in respect to the depth and richness of the culture of the D Nation and how that culture is passed from generation to generation. … ( … ) [64] … [W]hat his Honour [found] was that the fact that the child is Aboriginal was a factor that he considered as favouring orders being made for the child to live primarily with the [mother] … [65] Having made that decision, his Honour then proceeded to determine whether he should make orders requiring the child to be returned … in circumstances where it would detrimentally impact upon the [mother] in terms of her employment and her new relationship. Having regard to those matters … his Honour rejected the [father’s] submission that orders should be made that resulted in that detrimental impact upon the [mother].”

The appeal was dismissed and orders made for submissions as to costs.

PROPERTY – HUSBAND’S RIGHTS UNDER FOUR DISCRETIONARY TRUSTS “PROPERTY” – RIGHT

TO DUE CONSIDERATION AND DUE ADMINISTRATION CAPABLE OF VALUATION

In Woodcock (No 2) [2022] FedCFamC1F 173 (30 March, 2022) Wilson J heard a wife’s application for determination of a preliminary issue: whether the husband’s interests in a collection of discretionary trusts was “property” and capable of valuation.

The husband argued that his interests under the trusts amounted to no more than rights with respect to due administration and consideration of the relevant trusts and such rights were incapable of valuation ([2]).

Wilson J said (from [73]):

“ … [It] seems to me that according to existing statements of principle of the High Court, the equitable choses in action of due consideration and due administration under a discretionary trust … are in fact and in law ‘property’ within the meaning of s 4 and s 79 of the Act. I say that for several reasons. In each of the four trusts, the husband retained power permissibly exercised over a certain thing … He held what certain of the authorities describe as a ‘bundle of rights’. The husband enjoys a position of considerable influence … and historically the husband has received distributions of approximately $15 million. He also has the ability to block. To my way of thinking the husband enjoys a legally endorsed concentration of power over things or resources … “ ( … ) [112] … [I]n my view, not only should the debate in this litigation about whether the husband’s rights are property be fully ventilated at trial but the value of those rights should also be fully ventilated at trial. I am not willing to hold at this interlocutory juncture in this litigation that [the husband’s expert valuer] … is necessarily correct when he asserts that the husband’s rights cannot be valued … [I] n my view, the husband’s contention that no arguable case can be advanced about the ability to value the husband’s equitable choses in action have not been made out, at least not on this application. The case, and that issue in particular, must go to trial.”

His Honour determined that the husband’s interests under the trusts were property as defined in s 4(1) of the Act and were capable of valuation.

PROPERTY – JURISDICTION OF FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) TO HEAR CASES COMMENCED IN THE FAMILY COURT OF AUSTRALIA PRIOR TO 1 SEPTEMBER 2021 – INTENTION OF PARLIAMENT READILY INFERRED FROM REFORM LEGISLATION AS A WHOLE

In Nevins & Urwin [2022] FedCFamC1A 57 (6 May, 2022) the Full Court (Alstergren CJ, McClelland DCJ, Austin, Bennett & Cleary JJ) considered whether the Federal Circuit and Family Court of Australia (Division 1) had original jurisdiction to hear and determine proceedings that were pending in the Family Court of Australia (“FCoA”) before 1 September, 2021 (“a legacy case”).

After considering the transition provisions, the Full Court said (from [32]):

“ … Parliament’s intention that Division 1 would retain original jurisdiction to finalise legacy cases is readily inferred from the context of the reform legislation when viewed as a whole, in the manner urged by the High Court. ( … ) [38] … [T]he Explanatory Memorandum published to explain the Transition Bill stated this in the General Outline: 5. For the avoidance of doubt, any first-instance proceedings on foot in the Family Court ... as at the date of commencement of the FCFC Act would be heard in the FCFC (Division 1) ... This arrangement appropriately reflects the continuation of the Family Court as the FCFC (Division 1) ... under the FCFC Bill. [39] It is well accepted that statutes should not be interpreted as withdrawing or limiting the conferral of jurisdiction upon courts unless the implication to do so is clear and unmistakeable … No such clear and unmistakeable implication is evident here. ( … ) [40] The primary judge observed … that, unlike the express transition provisions for appeals pending before the FCoA, the reform legislation contains no counterpart express transition provision for pending proceedings within the original jurisdiction of the FCoA. That may be so, but it is no proper basis for imputing an illogical intention to oust the original jurisdiction of Division 1 in legacy cases. The transition provisions especially for appeals were desirable, if not essential, because of the abolition of the Appeal Division of the FCoA.”

The Full Court concluded that Division 1 of the Federal Circuit and Family Court had original jurisdiction to hear and determine legacy cases. B August 2022 THE BULLETIN 39