FAMILY LAW CASE NOTES
Family Law Case Notes ROB GLADE-WRIGHT, THE FAMILY LAW BOOK FINANCIAL AGREEMENTS – AGREEMENT “CAME INTO EFFECT” PURSUANT TO S 90UI UPON SEPARATION, NOT WHEN IT WAS SIGNED
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n Salvage & Fosse [2020] FamCAFC 144 (12 June, 2020) Tree J at first instance made an interim spousal maintenance order of $516.05 per week in favour of the respondent, notwithstanding that a Part VIIIAB financial agreement precluded the claim. The respondent sought that the agreement be set aside for unconscionable conduct or undue influence, arguing that a maintenance order could be made by virtue of s 90UI of the Act. Ryan & Aldridge JJ said ([43]): “ … Section 90UI(2) examines the circumstances of the applicant … ‘when the agreement came into effect’ and if at that time the applicant … is unable to support themselves in the manner described in that subsection, the exclusion … clause is rendered inoperative. This subsection requires that the … party’s circumstances are to be examined ‘taking into account the terms and effect of the agreement’. Reference to s 90UI(3) makes it clear that where the … agreement provides that the property or financial resources of a de facto spouse are to continue in the ownership of that party, that property or … resource is to be taken into account in determining the circumstances of the party. If the applicant’s circumstances were to be considered when the agreement was signed rather than on the breakdown of the relationship, this provision is otiose. The work it does is to ensure that the applicant’s circumstances include property and financial resources which the applicant already has (and will retain) are taken into account as well as any property or … resource that the applicant is to receive at the breakdown of the relationship. This lends strong support for the proposition that s 90UI is to be considered at the breakdown of the de facto relationship. Any disquiet is dispelled by asking how could the fact that when a party signs an agreement, which means that at some distant time the party will receive property,
mean that at that earlier point in time, the party is unable to support himself or herself without an income tested pension etc.? …[I]t could not.” Watts J in separate reasons ([145]) also held that the agreement came into effect at separation.
CHILDREN – CHILDREN HAD REFUSED TO SEE FATHER FOR 2 YEARS – ORDER ERRONEOUSLY MADE IN HOPE In Masih & El Saeid [2020] FamCAFC 152 (25 June, 2020) the Full Court (Ryan, Watts & Austin JJ) allowed the father’s appeal in a case where two children had spent equal time with the father pursuant to interim orders for five years, but then refused to see him at all for the next two years. The father alleged parental alienation. A single expert recommended that the father have sole parental responsibility and that the children live with him. Loughnan J ordered that the children live with the mother and that the father’s time with them increase incrementally over time. Watts & Austin JJ said (from [50]): “The central feature of the case was the children’s alienation from the appellant and what orders should be made in response thereto ... There is no reference in the reasons for judgment to the single expert’s evidence as to how the problem of the children’s alienation from the appellant should be best addressed. ( … ) [59] Given the uncontested findings of the primary judge to the effect that the children have meaningful relationships with the appellant and derive benefit from it ( … ) the respondent’s proposal offered little hope of any restoration of the children’s relationships with the appellant … the children would suffer significant harm if denied relationships with the appellant … and it is likely the respondent has not fully supported the children’s relationships with the appellant … the orders made by the primary judge appear to be an exercise in hope rather [than] the experience of compliance. ( … ) [62] Since the respondent had demonstrated her inability to implement
an ‘equal time’ residential arrangement for the children over the preceding period of about two years, the reasons for judgment provide no answer to the question of how she would be able to instead comply with orders requiring her to immediately restore the children’s visits with the appellant …” The case was remitted for re-hearing by another judge.
CHILDREN – REGISTRAR’S REFUSAL TO FILE INITIATING APPLICATION DUE TO NON-PROVISION OF A S 60I CERTIFICATE WAS IMPROPER In Valack [2020] FCCA 1354 (29 May, 2020) Judge Jarrett considered a case where an Initiating Application seeking both property and parenting orders had been lodged via the Court portal. No s 60I certificate was provided. The applicant contended that there had been abuse of a child or there had been family violence. The Registrar stated ([3]) “that pursuant to rule 2.06 of the Federal Circuit Court Rues 2001… the application has not been accepted” and that “The Registrar has not approved your request for the non-filing a current” s 60I certificate. The applicant sought a review of the Registrar’s decision pursuant to r 20.02 of the Federal Circuit Court Rules. The Court said (from [8]): “ … The work done by s 60I(7) is to proscribe a court from hearing an application for a Part VII order in relation to a child unless certain circumstances exist. ( … ) [T]he use of the phrases exercising jurisdiction and must not hear are more consistent with proceedings that are on foot, rather than proceedings that a party is attempting to initiate. Were it otherwise, the text of the section would be directed to the commencement of proceedings rather than the hearing of them. ( … ) [21] ( … ) In the absence of an extant application no occasion for the exercise of the power set out in s 60I(9) arises. The purported exercise by the Registrar to decide whether s 60I(7) did not apply in this case was improper.” After considering s 104(1) of the Federal Circuit Court Act, the Court said ([25]): September 2020 THE BULLETIN
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