Family Law Case Notes

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FAMILY LAW CASE NOTES

CHRIS NICHOL & KELEIGH ROBINSON

PROPERTY – FULL COURT SETS ASIDE PROPERTY ORDER IN SHORT, CHILDLESS DE FACTO RELATIONSHIP

In Grunseth & Wighton [2022] FedCFamC1A 132 (26 August, 2022) the Full Court (Alstergren CJ, Aldridge & Brasch JJ) allowed a de facto wife’s appeal in a case involving a childless de facto relationship that lasted for “just under three years”.

The parties purchased a property (the B town property), the de facto wife contributing 70% of the purchase price and the husband 30%. The parties registered the B town property 70:30 in favour of the wife ([5]).

The de facto husband paid $160,000 to the de facto wife. The parties agreed that the intention of the payment was such that the B town property would be registered 50:50 between them.

As fi rst instance, the Court ordered a division of 52.5% to the de facto husband and 47.5% to the de facto wife. The Full Court said (from [37]):

“ … [W]e cannot reconcile the ultimate determination … with the … fact that the [de facto wife] … contributed over 52.5 per cent of the … assets and with assets to which the [de facto husband] … made no contribution to at all. … ( … ) [74] … [T]here is much to be said for the proposition that the parties should … receive the property owned by them … particularly so when the ownership of the B Town property was … structured … to refl ect the parties’ contributions ... ( … ) [76] … The … payment of $160,000 … was paid by the [de facto husband] … to gain an increased share of the B Town property … [A]n allowance must be made in [his] … favour for at least that sum. ( … ) [88] … [T]he order will provide for the sale of the … property and the division of the proceeds 70 per cent to the [de facto wife] … and 30 per cent to the [de facto husband] … [and] for the payment of $160,000 by the [de facto wife] … to the [de facto husband] … ” PROPERTY – COURT ERRED BY MAKING ENFORCEMENT ORDERS THAT SUBSTANTIVELY VARIED THE PARTIES’ RIGHTS PURSUANT TO A REGISTERED ARBITRAL AWARD

In Lasso & Malaka [2022] FedCFamC1A 130 (23 August, 2022) the Full Court (Austin, Tree & Williams JJ) allowed a husband’s appeal from orders of Wilson J in respect of an arbitral award that was registered pursuant to s 13H of the Act.

The award provided for the husband to transfer his interest in the home to the wife; and within 90 days the wife refi nance a mortgage on an investment property. If the wife was unable to refi nance within 90 days, the husband had opportunity to pay the wife $325,000 and retain the property.

The wife obtained fi nance approval and provided notice to her lawyer, but not the husband. On the expiration of the 90 day period, the husband paid $325,000 to the wife and said the property vested in him.

The wife filed an application for enforcement.

At first instance, the Court found that the “award should be given effect but in accordance with new dates” ([23]), ordering the wife to return the $325,000 to the husband; and that the husband transfer the property.

The Full Court said (from [30]):

“Counsel for the [wife] submitted, subject to … exceptions, once perfected … an order finalising a proceeding is beyond recall (Gamser v Nominal Defendant [1977] HCA 7 … There is no reason why the same conclusion should not apply to an arbitral award … [31] Exceptions to the principle … include matters where the orders sought to be varied are consequential or machinery orders … ( … ) [40] … The [first instance] … orders … substantially varied the terms of the decree … ( … ) [42] It was incumbent on the … judge to raise with the parties the orders he proposed to make … The failure … to do so is a denial of procedural fairness. ( … ) [60] Not only did the … judge fail to identify the source of power he … exercised to make the … orders, the orders could not have been made pursuant to s 13K or s 105 of the Act, nor … the general power … ”

CHILDREN – COVID-19 – RISKS OF 9 YEAR OLD BEING VACCINATED OR REMAINING UNVACCINATED FAVORED NEITHER PARTY’S CASE – ANTICIPATED SOCIAL AND INDIRECT BENEFITS OF VACCINATION

In McGowan & Brennan [2022] FedCFamC2F 1082 (17 August, 2022), Judge Eldershaw determined that a 9 year old child (X) should be vaccinated against COVID-19, where the father sought orders permitting vaccination and the mother sought restraints against vaccination.

The mother relied on adversarial expert Dr B, whose evidence included a conclusion that “there is a statistically or virtually nil risk of serious COVID-19 in general affecting children aged 5 to 11 years … ” ([60]).

The father sought to rely on recommendations of the Australian Technical Advisory Group on Immunisation (ATAGI).

The Court said (from [56]):

“ … [T]he existence of the health advice is common knowledge. … [T]he purpose upon which the father relies on the advice pertains to the accuracy or correctness of its substance. The substance of the advice is that of an opinion. ( … ) [59] That said; a. There is no dispute that the advice of ATAGI and government health advisors is admissible in the proceedings; b. Pursuant to s 183 of the Evidence Act, I can infer that the documents that have been prepared by … persons who are appropriately qualified … c. … [I]t is not necessarily essential, that the information from ATAGI be before the Court through an expert witness; and d. This matter concerns an evaluation of risk to a child, for which as much information as possible would assist me in making a decision. … ( … ) [92] Dr B cites no benefit to X in obtaining the vaccine … [93] ATAGI cites benefits of the vaccine which include the corollary of avoiding the risk of the disease and other wider social and/or indirect benefits. [98] …[T]he risks to X from receiving … and … of not receiving the vaccine, favour neither party’s case, a point of contrast can be identified by reference to the anticipated social and/or indirect benefit to X in being vaccinated. … It is in his best interests that he … avail himself of it. ( … )”

EVIDENCE – TRIAL JUDGE’S ENFORCEMENT OF DIRECTION FOR SINGLE, CONSOLIDATED AFFIDAVIT MATERIAL PROCEDURALLY UNFAIR WHERE SUBSEQUENT DIRECTION PERMITTED RELIANCE ON MULTIPLE AFFIDAVITS

appellate jurisdiction of the Federal Circuit and Family Court of Australia) allowed an appeal from a decision of Judge Young in a property case.

After the trial dates were vacated trial directions were made on 6 November, 2020 that included an order that the parties file consolidated affidavits of evidence in chief and that no party was permitted to rely on more than one consolidated affidavit ([27]).

Those directions scheduled a trial that was also vacated. Trial directions were made on 7 September, 2021 which permitted the parties to rely on all affidavits previously filed in the proceedings.

When the trial commenced, the primary judge insisted on compliance with the 2020 directions, notwithstanding that the husband’s case outline sought to rely on 11 affidavits; and the wife’s outline sought to rely on 13 ([33]).

Tree J said (from [35]):

“ … [T]he trial proceeded with each party only being permitted to rely on one affidavit of evidence-in-chief, together with [an] … ‘updating’ affidavit … ( … ) [37] Procedural fairness requires each party to be given an adequate opportunity to be heard, and to present their cases (Kioa v West [1985] HCA 81 … ). ( … ) [39] … [T]he … 2021 orders specifically permitted the parties to rely upon more than just one consolidated affidavit. … [40] … [B]etween 7 September and 24 November 2021, all parties believed, and prepared their cases on the … basis, that they could rely upon all past affidavits, yet [at trial] … that was turned on its head, and … a significant restriction on the material they could rely upon was imposed upon them. That was procedurally unfair. … ( … ) [45] … Whilst the … judge understandably recoiled in a degree of horror at the sheer volume of material which that order permitted to be relied upon, … that is no answer to the unfairness which the peremptory withdrawal of the right to rely on that material gave rise to.” B