Family Law Case Notes By Keleigh Robinson

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

In 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 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

authorising treatment pursuant to s 67ZC of the Act … ; d) If a parent or … guardian does not consent to an adolescent’s treatment for gender dysphoria, a medical practitioner … should not administer treatment to an adolescent … without court authorisation. (…) [38] In circumstances where there is a dispute about diagnosis, consent or the nature of treatment, an application to the court is mandatory (see Re Jamie [2013] FamCAFC 110 (‘Re Jamie’)(…). [59] In this case, there is dispute about treatment and the form it should take. Whilst … what was said in Re Jamie was strictly obiter dicta, it was well considered … I conclude that I should follow the conclusions of Bryant CJ in Re Jamie …, in respect of the approach to be taken when treatment is disputed. Given there is a dispute about what form treatment should take, this court should determine that dispute pursuant to s 67ZC …. [T] he court should have regard to the best interests of the child as the paramount consideration and give significant weight to Imogen’s views ….”

CHILDREN – RISK ASSESSMENT AT INTERIM HEARING – MOTHER COULD NOT COPE WITH COST OF PROFESSIONAL SUPERVISION

In Canfeld & Falkins [2020] FCCA 2570 (9 September, 2020) Judge Altobelli heard a parenting case in which a primary issue was the choice of supervisor for the mother’s time with the children.

The three children of the relationship (aged 16, 11 and 8) lived with the father and spent time with their mother on a supervised basis. The mother sought that her time be supervised by “Mr L”. The independent children’s lawyer (ICL) supported this position. The father sought a professional supervisor.

The Court said (from [20]):

“(…) ‘[67] In Deiter & Deiter [2011] FamCAFC 82, … the Full Court suggested that s 60K (now s 67ZBB) … signalled a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously. In an ideal world, these allegations could be dealt with at a discreet issues hearing, or an expedited final hearing. In reality, in a registry of this court where almost all of the cases involve allegations of family violence, neglect, abuse, drugs or alcohol and mental health, neither a discreet issues hearing, nor expedition is possible. (…) [70] The Full Court in Enmore & Smoothe [2014] FamCAFC 131 at [39] explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurred. However, that is not to suggest that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse.’”

The Court continued (from [23]): “For present purposes the real issue is under what circumstances should the children spend time with their mother. From the Court’s perspective, a way of looking at this issue is to ask this question: what risk of harm to the children cannot be addressed by supervision by Mr L that could be addressed by supervision by a professional supervised contact service? (…) [31] In terms of supervised time … there are practical issues that cannot be ignored. The Court accepts the mother’s case that continuing to pay for private professional supervision is not sustainable. The Court appreciates that private nonprofessional supervision such as Mr L means that there is no professional objective person and no written report. (…) It is ultimately a balancing exercise and one which the Court believes can be achieved by using Mr L.”

The Court made orders for the mother to spend time with the children, supervised by Mr L. B

MEMBERS ON THE MOVE

Commercial & Legal are delighted to announce the recent appointment of Mark Henderson, Partner, to its Property & Projects team.

Mark joins the Commercial & Legal team with more than 15 years’ prior experience in property and general commercial law at some prominent SA law firms and the UK.

Mark’s experience will not only add to the strength and depth of the firms Property and Projects practice, but will provide a higher level of support to Principal Partner, Elias Farah and his team.

How efficient and just is the process for contempt for disobedience of a judgment?

LAUREN FLETCHER, HONOURS STUDENT, ADELAIDE LAW SCHOOL

After failing to resolve your dispute through any number of alternative dispute resolution attempts, multiple interlocutory hearings, and a trial, you have finally got it: a judgment or order in your favour. And then someone breaches it. You would want that person to comply with the judgment or order with minimal time and expense on your part — that would be just and efficient for you. However, there are other interests involved. Civil contempt comes in many forms, but I will only look at disobedience of a judgment or order made in civil proceedings.1 Contempt is the process by which the court coerces a person to comply with a judgment or order and/or to remedy a breach.2 Two of the objects of the Uniform Civil Rules 2020 (‘UCR’) are justice and efficiency.3 Is the current civil contempt process in the Supreme Court of South Australia just and efficient? If justice and efficiency are at odds, or if justice and efficiency mean different things to different people, is the Court’s balancing correct? Four aspects of the civil contempt process will be examined through the lens of justice and efficiency: the quasi-criminal nature of the proceedings; the two-stage process; the applicant’s ability to waive the proceedings; and the judge’s discretion to dispense with the service requirements. Some aspects of the process promote both justice and efficiency for everyone involved. However, this is not always the case. Due to the quasi-criminal nature and the seriousness of civil contempt, when the two objectives or different interests are in conflict, I believe justice for the accused should be the primary interest considered when determining what the rules should be.

THE LEGAL FRAMEWORK

The UCR set out the process for all civil contempts.4 Once a judgment or order takes effect, a person who has notice of it but does not comply will be in contempt of court.5 Contempt proceedings can only commence if the person allegedly in contempt (the accused)6 was served the judgment or order personally.7 Civil contempt initiated by a party is a twostage process. First, the party attempting to enforce the judgment or order (the applicant) must file an interlocutory application setting out the details of the alleged contempt.8 The Court will charge the accused with contempt if it ‘is satisfied that there are reasonable grounds to suspect that the accused committed the alleged contempt’.9 This threshold is said to be met if the evidence provided, if accepted, would prove the contempt.10 The second stage is either an admission of guilt or a hearing.11 Civil contempt must be proved beyond reasonable doubt.12 If the accused admitted guilt or is found guilty, then the Court will hear submissions as to penalty.13 The Court may issue a fine,14 a term of imprisonment,15 or may suspend a penalty contingent on an undertaking.16 Neither the fine nor prison sentence are subject to an upper limit.17

The process in the Supreme Court Civil Rules 2006 (SCCR 2006)18 and the Supreme Court Civil Rules 198719 are the same for the issues discussed here unless otherwise indicated. While justice and efficiency are both objects of the UCR, 20 they were framed as opposing objectives in the SCCR 2006. 21 While the two can certainly be in opposition, I agree with the new rules that they are not inherently in conflict. This is reflected by the maxim ‘justice delayed is justice denied’.22 But, when these issues do come into conflict, whose interests should be weighed?

A PRIVATE MATTER?

Both the applicant and the accused have an interest in contempt proceedings being conducted in a just manner: the applicant wants the judgment or order that was made in their favour enforced, and the accused wants their defence to the charge heard. Whatever the result, both sides also want the process to be efficient. However, should public interest also be a factor? There are two categories of contempt: criminal and civil. One of the main points of distinction between the two is the public/private divide. Criminal contempt is brought for the benefit of the public to ensure the proper administration of justice.23 Conversely, the focus of civil contempt is private, ensuring that a party can have a judgment or order enforced for their benefit.24 However, civil contempt still affirms and defends the court’s authority and so the public still may have an interest.25 Ensuring the proper administration of justice and maintaining the court’s authority are factors that are considered in many civil contempt cases.26 Further, the notion of civil contempt as a private matter is even stranger considering the Director of Public Prosecutions (DPP) has the power to commence civil contempt proceedings.27 The DPP was given this power as part of their responsibility to maintain the administration of justice.28 These factors inexorably lead to the conclusion that civil contempt is, at least partially, an issue of public concern. Hence, when analysing whether a process is just and efficient, the public’s interests may also have to be considered.

QUASI-CRIMINAL

Civil contempt has long been considered quasi-criminal.29 Over time, this label has become more apt since many of the old distinctions between criminal and civil contempt, such as a punitive versus coercive purpose,30 have become less clear and have been criticised.31 The civil contempt process reflects that hybrid classification. The principle in Dietrich v The Queen, that if the accused cannot afford a lawyer a judge should grant an adjournment, postponement, or stay until legal representation is available,32 does not apply to civil contempt cases.33 Evidence can be given by oral testimony and the tender of documents, but it is primarily given by affidavit.34 The rules of evidence apply, but they can be waived by the

accused.35 This system is quite efficient, as many of the hallmarks of a criminal trial are burdensome. However, that burden has been imposed for a reason: to ensure justice is done. It is strange that many of the safeguards of the criminal system are removed from civil contempt proceedings considering that it can carry such severe penalties.36 This system is just and efficient for the applicant, since it reduces the amount of time and money needed to bring a case for contempt, but the benefit and the curse of civil contempt is how serious it is. In a civil matter, the stakes are lower, and so suing a person who does not have legal representation is acceptable. However, since the Court can imprison the accused and issue unlimited fines, I believe that justice for the accused should win firmly over justice and efficiency for the applicant. But, these streamlined processes are not necessarily unjust. Some accused may weigh efficiency over justice while others may believe the streamlined process is just. Hence, the principle in Dietrich v The Queen should apply to civil contempt proceedings, but the accused can choose not to exercise that right. The accused should be able to choose whether or not evidence can be given by affidavit and should retain the right to waive the rules of evidence. Civil contempt proceedings should be efficient, but they should not force the accused to give up the hallmarks of criminal justice.

TWO-STAGE PROCESS

The two-stage process in civil contempt can in no way, shape, or form be considered efficient. The most recent contempt proceedings in the Supreme Court were the Maxilift cases:37 the breaches of the order occurred between January and June 2018;38 the applicant filed the interlocutory application on 19 November, 2018;39 Justice Nicholson charged the accused with contempt on 5 July, 2019,40 the accused pled guilty and was issued a fine on 28 January, 2020.41 The Temple cases provide an even more extreme demonstration of the process, with multiple defendants breaching different orders with a total of six cases.42 The first application was made on 1 June, 1998,43 and the last judgment was handed down on 1 February, 2001.44 In both, the time between the first application and the penalty being imposed was at least a year. The length of the civil contempt process shows how unjust and inefficient this system is for the applicant, especially if the time taken to get the judgment or order in the first place is considered as well.

However, this is another case where efficiency clashes with justice. The first stage mirrors committal proceedings for criminal cases,45 and acts as a safeguard for justice for the accused. Since civil contempt does not have a police prosecutor or the DPP deciding whether to pursue a case, this safeguard is crucial. Contempt is a serious charge and the first stage can prevent frivolous claims. In Lauro v Minter Ellison Lawyers [No 2], 46 Lauro accused Minter Ellison of contempt. Justice Hinton dismissed the application at the first stage on the basis that there was no evidence that Minter Ellison was in contempt of Court.47 Lauro appeared to have made the accusation incidentally to ‘separate but loosely connected proceedings’ and attempted to place the onus of investigation on the Court.48 It would hardly seem fair for Minster Ellison to be accused of a very serious offence that would have almost certainly failed because someone made an accusation seemingly on a whim. While this is the only South Australian case where the first stage failed due to the applicant not satisfying the threshold, I do not think that means this issue should be dismissed. Civil contempt cases are not very common, and the first stage could prevent some applicants from commencing a frivolous or vexatious claim in the first place, which further supports justice and efficiency. The gravity of the consequences and charge of contempt mean the accused’s interest in justice should take precedence. Lastly, the length of proceedings is an issue for all civil cases. There is nothing so unique about civil contempt to require modification to the court’s usual prioritisation of justice and ensuring all parties have their say over faster proceedings. As there is no external organisation to determine whether a charge of civil contempt should be brought and since civil contempt is so serious, the inefficient two-stage process should remain to ensure justice for the accused.

WAIVER

The applicant may waive proceedings for civil, but not criminal, contempt.49 If civil contempt is a private remedy, then the applicant should have this right. It would not be just or efficient to continue the process if the only person who would benefit from it no longer wants that benefit. It is analogous to how it is clearly just and efficient to allow a person to waive proceedings for any other private issue, like breach of contract or negligence. However, as argued above, civil contempt is partially public in nature. The right to waive conflicts with the public’s interest in ensuring the administration of justice; if maintaining the integrity of the court requires that its judgment or order be obeyed, then it should not matter whether or not the applicant wants it enforced.50 It is comparable to criminal proceedings going ahead even if the victim no longer wants the accused punished.51 Waiver would be just and efficient for the accused, regardless of its classification or category. The Law Reform Commission of Western Australia advocates for the abolition of waiver for civil contempt and instead argues that ‘waiver’ by the applicant should be a sentencing consideration like it is in other criminal prosecutions.52 Since civil contempt is only partially public, the interests of the applicant and the accused should not be curtailed to that extent. In the spirit of civil contempt’s quasi-criminal nature, I believe a fusion of criminal and civil waiver would be the most just and efficient. The applicant should have the right to waive proceedings. However, if it would be significantly against the public’s interest in maintaining the administration of justice for the proceedings to be waived, such as if the accused has previously been found guilty of contempt, then the Court should have the discretion to not allow the waiver. The interests of the applicant and the accused, as the parties directly involved in civil contempt, should be given primacy. However, if the public interest is strong enough, it may be necessary to prioritise their interest in justice.

SERVICE

Before contempt proceedings can commence, the judgment or order must be properly served.53 It is hardly just to punish a person for failing to comply with a judgment or order if they were not aware of it. However, the court has the discretion to dispense with this requirement as part of its general power to make orders in the interest of justice.54 There have been two South Australian cases where the applicant has sought to