Family Law Case Notes By Rob Glade-Wright

Family law case notes

KELEIGH ROBINSON, THE FAMILY LAW BOOK

Property – Consent orders obtained based on false information for the purpose of defeating creditors, in most circumstances, justifi es an order varying or setting aside the order under s 79A of the Act

In Cantrell & North and Anor [2020] FamCAFC 175 (23 July 2020) the Full Court (Ryan, Aldridge & Austin JJ) dismissed an appeal where a couple had entered into consent orders and transferred the former matrimonial home to the wife; and where the Supreme Court of New South Wales declared that the transfer was void against a creditor of the husband pursuant to s 37A of the Conveyancing Act 1919 (NSW), setting the order aside pursuant to s 79A. [T]he creditor was owed $381,000 plus interest, primarily made up of costs orders made against the husband.…. In their application, the couple “wrongly and misleadingly answered ‘No’” as to whether there were any creditors entitled to become a party to the case.

The wife said that the Supreme Court erred in setting the orders aside as it had not considered whether substantially different orders would have been made, had there been proper disclosure.

The Full Court said (from [58]):

“ … [W]e do not accept that where there has been a failure to disclose to the Court the existence of a signifi cant creditor who was entitled to join the proceedings, the Court must proceed to consider what fi nal property settlement orders would have been made under s 79 … of the Act assuming proper disclosure. ( … ) [59] … [W]here consent orders have been obtained from the Court on the basis of false information for the purpose of defeating creditors, in most circumstances, this will be suffi cient to justify an order varying or setting aside the order under s 79A of the Act. ( … ) [83] The fi nal [s 79A(1)(a)] step may involve a comparison between the orders that were made and those that were likely to be made, absent any relevant default, but that is not the only means by which a Court could be satisfi ed that it was just to vary or set aside the orders. A denial of procedural fairness … is … suffi cient to be able to justify such a course without such comparison ( … ).”

Property – Court’s power to set aside orders pursuant to s 90SN is not fettered by common law considerations

In Hadwick & Scadden [2020] FamCAFC 168 (16 July 2020) the Full Court (Aldridge, Watts & Tree JJ) dismissed with costs an appeal where after consent orders had been made, the de facto wife (“respondent”) sought that the orders be set aside pursuant to s 90SN of the Act on the ground of non-disclosure; the de facto husband (“appellant”) seeking that her application be summarily dismissed pursuant to s 45A(4) of the Act.

The appellant argued that “the doctrine of res judicata applies to preclude the respondent from ever raising the issue of the adequacy of … disclosure again” and that the Anshun principle applied.

The Full Court said (from [23]):

“ … [R]es judicata and the principle in Anshun are common law doctrines … which have no application to the statutory rights provided by s 90SN of the Act. (…) [24] The sets of circumstances in s 90SN(1) of the Act which can justify the setting aside of the otherwise fi nal property settlement orders extend beyond the common law entitlements to have a judgment set aside for fraud or misrepresentation … There is no reason to read s 90SN(1)(a) … other than in accordance with its terms which make it plain that it is not fettered by the common law considerations of res judicata, issue estoppel or the principle in Anshun. ( … ) [26] The fact that a party could have obtained full disclosure but decided not to do so before entering into consent orders is not therefore a bar to relief under this section. … [T]he applicant’s claim that the respondent is estopped from pursuing proceedings pursuant to s 90SN of the Act is misconceived. ( … ) [36] … [T]he judicial controversy in the two proceedings is quite different. In proceedings under s 90SM of the Act, the controversy is the identifi cation and proper distribution of the parties’ property. A claim under s 90SN(1) of the Act, raises the controversy as to whether there has been a miscarriage of justice such that earlier orders should be set aside.”

Children – Single expert witness’s professional obligations to the court do not constrain that expert from giving evidence under subpoena in criminal proceedings

In Joplin & Parkins [2020] FamCA 403 (26 June 2020) Cleary J dismissed a father’s application to have a single expert (“Dr Z”) released from his obligation to the Court to not use or disclose the contents of his report, the factual underpinnings of his report, and any information obtained in preparing the report. The release was to aid Dr Z’s compliance with a District Court subpoena to give evidence, where the father had been charged with sexual assault of a 15 year old.

The Court said (from [35]):

“Dr Z apparently expressed his concern about compromising his ability to perform as a single expert if he gave evidence in the criminal trial. ( … ) [37] ( … ) His concern was that he may be in breach of the law. ( … ) [46] ( … ) This Court cannot dictate matters of practice and procedure in another Court. ( … ) [56] A single expert has obligations to the Court which appoints him/her. [57] By accepting the appointment of the FCC Dr Z accepted that his duty to the Court was guided by the Federal Court Practice Direction Guidelines including that he be an impartial witness. [58] Within the context of the parenting proceedings … an expert witness is not and cannot be an advocate for a party. ( … )

[61] … [I]n a criminal trial, the role of Dr Z …, would not be that of a single expert … but as a witness called to give evidence on matters considered relevant by the party calling such evidence. ( … ) [65] Dr Z has remained an impartial witness by requiring his service with a subpoena to compel his evidence. [66] He is not constrained by his professional obligations arising from his work in the FCC and this Court from answering questions put to him as a witness in the criminal trial.”

Children – Contravention – Parents in COVID-19 List directed to obtain updated medical report – Mother had reasonable excuse not to comply with order until release of the updated medical report, but not afterwards

In Pandell & Walburg (No. 2) [2020] FCCA 1853 (13 July 2020) Chief Judge Alstergren heard confl icting medical evidence as to a 4 year old’s risk of contracting COVID-19, the mother withholding the child from time with the father in breach of interim parenting orders.

The mother relied on a medical certifi cate from a general practitioner that identifi ed the child as “a person at risk of severe disease if he contracts COVID-19” and recommended that the child “socially distance … [including] staying home with … [his] primary carer and not … [attend] visits with his Father” ([19]).

Listed on an urgent basis in the Court’s COVID-19 List, the Court directed that an updated medical report be obtained from a paediatric clinic, which said the child’s condition was “not currently considered ‘high-risk’ for severe COVID-19 related illness”, that “attending school is safe and that family members and contacts should comply with government implement social distancing recommendations” ([27]).

The Court said (from [32]):

“Whilst the initial medical evidence provided … was somewhat vague and required further clarifi cation …, the medical advice provided to the mother was that, as a result of a pre-existing health concern, the child was at greater risk of suffering an adverse reaction to a possible COVID-19 infection. [I] fi nd that the mother, at that stage, had a reasonable basis for not allowing the child to spend time with the father. … [I] fi nd that the mother has a reasonable excuse for contravening the interim orders up until 5 June 2020. ( … ) [35] From 5 June 2020 or when the updated report came to the mother’s attention, … there was no reasonable basis for the mother believing that it was necessary to withhold the child from the father, after that date, on health grounds. The mother therefore lacked a reasonable excuse for so withholding the child after 5 June 2020. ( … ) [40] Extensive periods of make-up time with the father would be diffi cult for the child in this matter, who is 4 years old. However, … it is appropriate that some make-up time should be provided, but not to the extent sought by the father.”

In addition to compensatory time over 4 weeks, the Court extended the father’s time pursuant to the existing interim orders by two hours on a Sunday. B

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