FAMILY LAW
Family Law Case Notes KELEIGH ROBINSON, THE FAMILY LAW BOOK
PROPERTY – TREATMENT OF DEED OF GIFT – MAJORITY OF HIGH COURT REAFFIRMS WIDE DISCRETION OF TRIAL JUDGE
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n Hsiao v Fazarri [2020] HCA 35 (14 October, 2020) the High Court (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) upheld the Full Court’s dismissal of a wife’s appeal against property orders. The parties’ relationship began in August, 2012. In 2014 the husband bought a property and gifted the wife a 10 per cent interest in it. In December, 2014, the husband, under pressure from the wife, signed a transfer of land giving the wife a further 40 per cent interest. The parties executed a deed of gift (“the deed”) which provided for the husband to pay a sum to the wife’s siblings in the event that she predeceased him while they remained joint tenants. The deed also provided that the payment should be taken into account if the parties separated or divorced ([21]). The parties married in August, 2016. The marriage lasted 23 days. Each party subsequently sought property adjustment orders. The wife did not appear at the hearing. Cronin J severed the joint tenancy and ordered the wife to transfer her interest in the property to the husband in exchange for $100,000, finding that the husband’s transfer was not a gift ([36]). The majority said ([53]): “His Honour is not to be taken to task for not making a close examination of the facts to determine whether the transfer of the 40 per cent interest was voidable by reason of vitiating factors… His Honour made no such finding. (…) The trial was the place to adduce such evidence and put such arguments as might favour a different finding as to the parties’ respective financial contributions…The trial was not some preliminary skirmish which the appellant was at liberty to choose not to participate in
34 THE BULLETIN December 2020
without consequence. Her right of appeal was a right to have the Full Court review whether the primary judge’s discretion … miscarried … It was not an opportunity for the appellant to make a case that she chose not to make at the trial. The Court is invested with a wide discretion… to make such order as it considers appropriate. … ”
APPEAL – CONSENT ORDERS CANNOT BE APPEALED ON THE MERITS – FATHER SOUGHT TO WITHDRAW HIS CONSENT In Melville (No. 3) [2020] FamCAFC 231 (18 September, 2020) Kent J, sitting in the appellate jurisdiction of the Family Court of Australia, dismissed with costs a father’s appeal from final orders made by consent on the sixth day of trial. The Court said (from [12]): “(… In Robinson & Willis [[1982] FamCA 16] Fogarty J observed: ‘ … [A]s a consent order is made as a consequence of the consent of the parties to the Court making that order and not of an adjudication by the Court, the order may not be challenged by an appeal which is directed to the correctness of that order … it cannot be appealed against on the merits. … ’ [33]… [T]he application of pressure upon a client to compromise litigation is recognised as a necessary and proper part of the function of legal representatives (…). [34] … [I]f a client under no legal disability has been so overborne by his legal representative that such representative has breached the duty which he owes to the client, then the client’s proper remedy lies elsewhere ( … ).” As to the father’s argument that he withdrew his consent by email to the Judge’s chambers after the orders were made but before they were entered, the Court said (from [71]): [71] (…)It would defy common sense and the practical realities of the demands
upon the already over-burdened FCC … to impose some additional requirement upon its Judges to monitor, after orders are made in Court, the potential operation of r 16.05(1) of the FCC Rules by reference to, not an application filed, but to informal communications that might be received … pending the entry of orders in the normal course. (…)”
CHILDREN – MEDICAL PROCEDURES – GENDER DYSPHORIA – ADOLESCENT FOUND TO BE GILLICK COMPETENT In Re: Imogen (No. 6) [2020] FamCA 761 (10 September, 2020) Watts J granted a father’s application for the court to authorise the commencement of stage 2 hormone treatment for his 16 year old daughter Imogen ([6]). The mother disputed the diagnosis by Imogen’s doctors that she was Gillick competent and opposed hormone therapy. The Court said (from [35]): “ … a) If a parent or a medical practitioner of an adolescent disputes: The Gillick competence of an adolescent; or A diagnosis of gender dysphoria; or Proposed treatment for gender dysphoria, an application to this Court is mandatory; b) …[O]nce an application is made, the court should make a finding about Gillick competence of an adolescent. If the only dispute is as to Gillick competence, the court should determine that dispute by way of a declaration, pursuant to s 34(1) of the Act … ; c) Notwithstanding a finding of Gillick competence, if there is a dispute about diagnosis or treatment, the court should: Determine the diagnosis; Determine whether treatment is appropriate … ; and Make an order authorising or not
