Family Law Case Notes

KELEIGH ROBINSON, THE FAMILY LAW BOOK

PROPERTY – LEAVE GRANTED TO ADDUCE EVIDENCE FROM AN ADVERSARIAL EXPERT – COURT ERRED BY CONSIDERING $11 MILLION DIFFERENCE BETWEEN VALUATIONS IN ISOLATION

In Neales [2022] FedCFamC1A 41 (28 March, 2022) the Full Court (Aldridge, Tree and Schonell JJ) considered a husband’s application for leave to adduce evidence from an adversarial expert.

The single expert, Mr B, had valued real properties at between $33.835 million and $34.190 million; whereas the husband’s expert, Mr D, had valued the properties at $22.465 million.

The Full Court said (from [25]):

“The primary judge concluded that contrary to the submissions of the husband, there was not a substantial body of contrary opinion, but rather an alternate opinion. ( … ) [27] … The primary judge observed that to permit another expert just because of a divergence in value, even if substantial, was inconsistent with the purpose of the [Rules] … ( … ) [41] The husband argued … that the following matters, which taken collectively, satisfied as another special reason: (1) that [each expert] … adopted alternative methodologies … ; (2) that matters were known to Mr D that were not known to the single expert. ( … ) (3) that … [if] the significant difference in value of over $11 million … arises as a result of a difference in methodology and information, it warrants consideration as another special reason; and

(4) … [I]t is the husband who will be left with the consequences of the findings as to value … [42] … We are satisfied that the primary judge did not consider these matters in aggregate … but rather confined his consideration to the issue of differences in value. In doing so, the primary judge fell into error.”

The Full Court granted leave for the husband to rely on his adversarial expert and costs certificates were ordered.

CHILDREN – SERIOUS CONTEMPT WARRANTS SIX MONTH IMPRISONMENT – LIBERTY TO PURGE CONTEMPT BY DISCLOSING WHEREABOUTS OF CHILD

In The Marshal of the Federal Circuit and Family Court of Australia & Trach [2022] FedCFamC1F 22 (25 January, 2022) Gill J sentenced a mother for contempt, where she failed to provide information about the whereabouts of her son, after she handed him to a friend.

In breach of a recovery order, the mother said that she could not locate him.

Gill J said (from [8]):

“In sentencing [the mother] I accept that to find facts … that are adverse to her I must find facts beyond reasonable doubt. I accept further that where there are matters that are … positive for [her] then they need only be found on the balance of probabilities … She has demonstrated that she suffers from some cognitive difficulties … [S]he is vulnerable to being used by others … [I]t has not been shown that the offending conduct is connected to … that vulnerability … [9] … [T]here are a number of … matters that I am to take into account, which include … personal characteristics … remorse, the seriousness of the contempt, whether she has purged the contempt, the effects of the contempt, issues involving retribution, personal deterrence and general deterrence … [O]f particular importance is the enforcement of orders, punishment, … deterrence and the vindication of the Court’s authority … ( … ) [15] … [T]he seriousness of the contempt calls for a custodial disposition … I consider that [the mother] ought to be given the option to purge her contempt and if she provides … the information that she has about X’s whereabouts then she may be released … It is not adequate to suspend the term … Suspension is typically … on terms that a person enter into security or an agreement … to be of good behaviour. Where [the mother] has not disclosed the information that she holds about X … she is not of good behaviour … ( … ) [17] The circumstances of this case and the purposes of sentencing for contempt will be sufficiently met by a term of six months, on terms that permit [the mother] to relist the matter … to disclose the information about X’s whereabouts …”

PROPERTY – TREATMENT OF INITIAL CONTRIBUTIONS IN FOUR YEAR RELATIONSHIP – SPECIFIC AND GENERALISED ALLEGATIONS OF FAMILY VIOLENCE HAD A SIGNIFICANT ADVERSE EFFECT UPON CONTRIBUTIONS

In Ferman & Lapham [2022] FedCFamC2F 415 (5 April, 2022) Judge Kearney considered property adjustment

applications after a four year de facto relationship, where each party had children of previous relationships.

The de facto husband’s initial contribution was $895,000 and the de facto wife’s $21,000 (including superannuation) to an asset pool of $2,814,132, with all but $10,763 of the pool owned by the de facto husband.

Judge Kearney said (from [183]):

“The Court must treat the de facto husband’s superior initial contributions as one of those myriad of contributions to this relationship rather than weighing the myriad of contributions during the relationship against his initial contributions … ( … ) [189] … [C]ircumstances which weigh against the de facto husband’s contribution [to the de facto wife’s children of a previous relationship] are the short duration of the relationship and his large absences from the … home in the first half of the de facto relationship (due to his work commitments …) … ( … ) [236] There is no doubt that the de facto husband has engaged in serious family violence, including but not necessarily limited to, engaging in physical violence upon her and [her child] (for which he has been convicted), behaving in a threatening manner towards her, repeatedly making offensive, abusive and derogatory comments about her and [her child], damaging property in the presence of her and [her child] and breaching (on more than one occasion) an existing ADVO. ( … ) [239] I conclude that the de facto wife’s many and varied contributions … took place in a context of fear and suffering caused by the de facto husband’s conduct. A qualitative assessment of those contributions leads inevitably to a conclusion that they were rendered significantly more arduous by circumstances of the de facto husband’s making and meaning that her contributions were adversely affected by her having to bear the burden. …”

After assessing contributions as 90:10 in favour of the de facto husband, the Court made a s90SF(3) adjustment of 5% in favour of the de facto wife ([272]), such that there was an 85:15 division overall.

CHILDREN – COSTS – FATHER FAILS IN APPLICATION FOR INDEMNITY COSTS WHERE THE MOTHER’S MENTAL HEALTH DIFFICULTIES WERE CENTRAL TO HER CONDUCT DURING THE LITIGATION

In Earle [2022] FedCFamC1F 16 (21 January, 2022) Hannam J heard a father’s application for indemnity costs after parenting proceedings culminated in orders for the parties’ two children to live with the father, with supervised maternal time.

A single expert concluded that the mother exhibited symptoms of schizophrenia ([11]).

After considering s117(2)(A) factors, Hannam J said (from [47]):

“It is the father’s contention … that the mother conducted the proceedings in a manner that caused him to incur significant and unnecessary expense. ( … ) [61] … I accept the father’s submission that the mother’s conduct … generally contributed to delay and difficulty in reaching a conclusion to the proceedings, which may well have resulted in costs being thrown away. However … this conduct must be viewed in the context of the mother’s mental health difficulties and the impact these difficulties had on her overall functioning. … [62] The father further argues that a costs order should be made against the mother given she was wholly unsuccessful … [T]he father attaches considerable weight to the mother continuing to press for final orders … contrary to the opinions and recommendations of the courtappointed expert and the final orders ultimately made … ( … ) [67] … However, this must be balanced together with all of the other relevant factors including … the mother’s mental health difficulties … ( … ) [77] … I accepted at the final hearing that the mother’s mental health difficulties … had been evolving over time. … [78] … I accepted the opinion of the expert that the mother did not have any insight into her psychotic symptoms or the effect that they were having on her functioning. I also accepted that the mother’s observed disorganised and unusual behaviour had been present to some extent throughout the entirety of the proceedings. In circumstances where these features of the mother’s functioning and behaviour are central to the father’s contentions about her conduct, I do not consider it just to attach significant weight to this matter … ”

The Court concluded that each party bear their own costs, with the mother to reimburse the father for her share of the expert’s costs. B