Family Law Case Notes By Keleigh Robinson

Family law case notes

KELEIGH ROBINSON, THE FAMILY LAW BOOK

PROPERTY – HIGH COURT SETS ASIDE STAY ORDER – FULL COURT MISAPPLIED RES JUDICATA AND ANSHUN ESTOPPEL

In Clayton v Bant [2020] HCA 44 (2 December, 2020) the High Court (Keifel CJ, Bell, Gageler, Gordon & Edelman JJ) allowed with costs an appeal where the Full Court permanently stayed a wife’s application for property and spousal maintenance as she had failed to contest divorce proceedings in Dubai.

A citizen of the United Arab Emirates, the husband issued divorce proceedings in Dubai in 2014. The wife did not appear, such that a Dubai court granted the husband an “irrevocable fault based divorce” ([8]) and ordered the wife to repay an amount of an advanced dowry and costs.

The husband then sought a permanent stay of the wife’s property and spousal maintenance proceedings in the Family Court of Australia, arguing res judicata. Although unsuccessful at first instance, the Full Court stayed the proceedings, finding that the Dubai proceedings had determined the same cause of action and the wife’s failure to pursue her claim in Dubai meant she was estopped from pursing a spousal maintenance claim in the Family Court.

The majority of the High Court (Kiefel CJ, Bell and Gageler JJ) said (at [26]):

“Once it is appreciated that the rights in issue in the property settlement proceedings and in the spousal maintenance proceedings are the statutory rights of the wife to seek orders under ss 79(1) and 74(1) of the Act, it is apparent that the ruling made by the Dubai Court cannot give rise to a res judicata in the strict sense in which that term continues to be used in Australia. The rights created by ss 79(1) and 74(1) cannot ‘merge’ in any judicial orders other than final orders of a court having jurisdiction under the … The rights of the wife to seek orders under ss 79(1) and 74(1) continue to have separate existence unless and until the powers to make those orders are exercised on a final basis and thereby exhausted.”

COSTS – HUSBAND WINS APPEAL OF COSTS ORDER – WIFE’S SETTLEMENT OFFER DID NOT CONCLUDE ALL MATTERS IN ISSUE

October, 2020) Strickland J, sitting in the appellate jurisdiction of the Family Court of Australia, set aside an order that the husband pay the wife’s costs of $62,000.

The wife, sought an interim release for $40,000, a child support departure order and spousal maintenance of $600 per week; and sent a settlement offer to the husband titled “property matters” where she proposed a transfer and refinance of properties and a payment to her of $40,000.

At trial, the wife’s applications for child support and spousal maintenance were dismissed, but she was to receive a cash adjustment of $146,672, which primarily formed the basis of the subsequent costs order against the husband.

On appeal, the husband argued that the wife’s offer could not have been reasonably accepted by him at the time, particularly where the offer was silent as to the child support and spousal maintenance issues.

Strickland J said (from [33]):

“There is ample authority to the effect that an offer must be expressed ‘with precision’ and ‘in terms which are objectively capable of being clearly understood’ (Harris and Harris [1987] FamCA 7) ( … ) [40] The proceedings had only commenced on 26 October 2017, and the wife, both at that time, and when she filed her Amended Initiating Application at the same time as the offer … was unable to identify for the court the order for property settlement she was seeking. ( … ) [57] … I am reminded … of what the Full Court said in Pennisi [ed. full citation: Pennisi & Pennisi [1997] FamCA 39], namely, it is critical to consider the context in which an offer is made … And, as was said by the Full Court in Cross & Beaumont [2008] FamCAFC 68 … at [51] that context can be that ‘[i]f the recipient of the offer is demonstrably unable to comply with his or her obligations under the proposed settlement, it is difficult to see how the offer could be relied upon in support of an application for costs’.”

CHILDREN – SINGLE EXPERT – GENERAL CHILD AND FAMILY PSYCHIATRIST PREFERRED OVER SPECIALIST PERINATAL PSYCHIATRIST

2) [2020] FamCA 858 (14 October, 2020) McClelland DCJ considered a disagreement over the appointment of a single expert psychiatrist where the proceedings concerned the parties’ 19 month old daughter. Post-birth, the mother suffered an acute mental health episode which resulted in her attempting to take her own life and then while hospitalised, she sustained further injuries which resulted in her being confined to a wheelchair ([5]).

The mother contended that any mental health concerns had been treated and were in remission, the father contending that the mother’s behaviour pre- and post-birth presented concerns as to the mother’s parental capacity and posed an ongoing risk to the child.

Where the parties agreed that a single expert psychiatrist should be appointed, the Court was asked to determine whether such expert should be the specialist perinatal psychiatrist sought by the mother and maternal grandmother or any of the three general psychiatrists sought by the father and the paternal grandmother.

The Court said (from [26]): [26] Having regard to the … issues, it can be seen that the postnatal aspect of the mother’s mental health is but one aspect of many issues to be considered …. It may be that a psychiatrist with specialty in perinatal psychiatry may not necessarily have expertise in respect to other potential issues including, for instance, the posttraumatic consequences of the mother’s attempted suicide and ongoing injuries and disabilities. ( … ) [34] … I am of the view that the appointment of a single expert from among the list of names of the three qualified psychiatrists proposed by the father and paternal grandmother is the appropriate course of action to pursue in this matter. That is despite the fact that it is acknowledged that none of those three psychiatrists are specialists in perinatal psychiatry. … [I] am satisfied that they each have the required training, study and experience that qualifies them as having specialised knowledge on the issue of the mother’s mental health and to provide a prognosis in respect to that issue.” B February 2021 THE BULLETIN 33