Family Law Case Notes

CRAIG NICOL AND KELEIGH ROBINSON, THE FAMILY LAW BOOK

PROPERTY – SYSTEMATIC AND CONTINUING BREACHES OF PROPERTY ORDERS WARRANTED IMPRISONMENT FOR THREE YEARS AND TEN MONTHS

In Campbell & Louis (Sentencing) [2021] FCWA 64 (15 April, 2021) Moncrieff J considered the sentence of a de facto husband who had contravened injunctions on 14 occasions.

The Court said (from [16]):

“The respondent’s regard for the orders … has been limited only to his attempts at obfuscation by the use of descriptors for transactions that … suggested that his actions were not undertaken in disobedience of the orders. ( … ) [18] He has utilised for his own benefit funds from the superannuation fund. He has utilised for his own benefit … the property of his mother … in breach of an injunction … ( … ) [20] He has utilised his undoubted skill as an accountant and auditor … with a seemingly complete disregard for the impact [of] his actions … [21] He has shown no remorse and seeks to excuse his conduct … [22] … [T]he charges individually are not of significance but they form part of a collective pattern of behaviour, the focus of which can only have been to remove from the asset pool property …”

The Court concluded (from [54]):

“These are serious prolonged and sustained breaches of orders … Whilst I agree that imprisonment should be viewed as a last resort, I hold the view that it is the only appropriate penalty in the circumstances … [55] … I am satisfied that an immediate custodial sentence should be imposed … [56] In other words a total served term of imprisonment of three years and 10 months … [57] … [T]he key to an early release rests in the hands of the respondent who may apply to be released upon the purging of his contempt and upon demonstrating that he has complied with all previous orders … requiring the production of accounts or information… Further, that he disclose the location of funds withdrawn … or account for their expenditure …”

The Court also ordered costs fixed at $62,707.

COSTS – PROVISION OF A LAWYER THROUGH THE FAMILY VIOLENCE AND CROSS-EXAMINATION OF PARTIES SCHEME IS NOT LEGAL AID, SUCH THAT THE RECIPIENT IS STILL EXPOSED TO THE COSTS OF AN ICL

In Legal Aid ACT & Westwell [2021] FamCAFC 50 (15 April, 2021) the Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) heard Legal Aid ACT’s appeal from Gill J’s refusal to make an order for costs in favour of the independent children lawyer (ICL).

The mother discontinued parenting proceedings but a costs order was not made, as her lawyer was provided under the Family Violence and Cross-examination of Parties Scheme, which the Court said was “legal aid in respect of the proceedings”. The Full Court said (from [22]):

“Section 117(4) … applies when … a party ‘has received legal aid in respect of the proceedings’, which operates to shield that party from being ordered to pay the costs of the [ICL]. ( … ) [24] … An [ICL] is appointed because the Court has found it is in the best interests of the child … Those best interests are not determined with regard to the financial disadvantage of the parties, but rather by looking at how the best interests of the children might best be advanced. The ability of the parties to pay for that representation … does not bear on that question. … ( … ) [27] It follows that ‘legal aid’ as it appears in s 117(4) should be given the same meaning as in s 117(2A)(b) – namely, a formal grant of aid from a recognised legal aid agency. ( … ) [40] We are therefore satisfied … the reference to ‘legal aid’ in s 117(4) does not include a reference to the provision of funding of a lawyer under s 102NA where that funding is from a legal aid body. [41] … [I]t would be a bizarre outcome if a person who receives legal assistance … under the Scheme brings with it an immunity against the costs of the [ICL] to the alleged perpetrator of family violence, but the other party … remains liable to pay them. Such an outcome is not consistent with the Act as a whole, with its many provisions dealing with family violence or s 102NA itself. … ”

PROPERTY – TRUST FOR SALE SOUGHT BY WIFE – DISMISSAL OF WIFE’S APPLICATION TO RESTRAIN HUSBAND FROM MAKING A VENDOR BID

In Field & Kingston (No. 3) [2021] FamCA 167 (25 March, 2021) Wilson J heard a wife’s application for her appointment as trustee for sale of a property registered in the husband’s name. She also sought an order restraining him from making a vendor’s bid.

The wife feared that the husband would agree to unfavourable terms and that he would submit an unrealistically high vendor bid to thwart the sale.

Dismissing the wife’s application, Wilson J said (from [16]):

“ … [T]he auction contract … contain[s] express provisions for the making of a vendor bid. … [17] I am unable to find a contractual basis upon which … the husband is enjoined from making a vendor bid. … In debate with [the wife’s lawyer] I … raised with him the test propounded in Blueseas Investments Pty Ltd & Mitchell [1999] FamCA 745; which … restates the conventional learning on the grant of an injunction namely, that the applicant must demonstrate … the existence of a serious issue to be tried and that the balance of convenience favours the granting of the injunction. I am not persuaded that the applicant has demonstrated anything remotely approximating such an entitlement and on that basis alone, aside from the express provisions of the contract, I rule against the wife … [18] In all I am not persuaded that it is proper to appoint the wife as the trustee for the sale. [19] … [O]n behalf of the husband [counsel submitted that] … a trustee must not put … itself in a position where there might be a conflict between duty and interest. Self-evidently, the risk of the emergence of such a conflict would arise (or I apprehend that there is a substantial risk to that effect) if the wife were appointed as a trustee because there is a substantial risk that she might agree to any price that is obtained at the auction. In those circumstances I am not persuaded that the wife is entitled to the orders that she seeks.”

CHILD SUPPORT – SECTION 90UD FINANCIAL AGREEMENT WAS NOT A BINDING CHILD SUPPORT AGREEMENT

In Piper & Talbot & Anor [2021] FCCA 511 (18 March, 2021) Judge Bender heard a father’s appeal from a decision of the Administrative Appeals Tribunal as to whether a financial agreement made pursuant to s 90UD of the Act was also a child support agreement.

The parties made the financial agreement in April, 2015 following the breakdown of their relationship, which the mother registered with the Child Support Registrar in May, 2018.

The Court said (from [53]):

“… s 84(5) of the [Child Support] Assessment Act states that the same document can be both a Child Support Agreement and a parenting plan, a Child Support Agreement and a Maintenance Agreement or Financial Agreement under the Family Law Act or a Child Support Agreement and a Part VIII AB Financial Agreement. Given my finding that the principles of law and equity are applicable to Binding Child Support Agreements, it will be necessary for the parties to have intended that the component of their joint document which relates to child support be a Binding Child Support Agreement … ( … ) [165] … [I]t was incumbent upon the Tribunal … to look at the agreement as a whole, including the recitals, to satisfy itself that the legal advice given not only related to … Part VIII AB of the Family Law Act, but also related to … Part 6 of the Assessment Act as the parties’ rights and the advantages and disadvantages of the agreement are clearly very different depending upon which agreement the advice is being given for. [166] Whilst there is no statutory requirement … that a binding child support agreement specifically state that it is made pursuant to Part 6 of the Assessment Act … the Tribunal had an obligation … to read the agreement as a whole to determine if on its face the Tribunal could be satisfied the advice given was the effects of the document as both a financial agreement under the Family Law Act and a binding child support agreement under the Assessment Act.”

The Court upheld all grounds of appeal and made a declaration that the s 90UD financial agreement was not a binding child support agreement. B

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