FAMILY LAW CASE NOTES Craig Nicol and Keleigh Robinson Accredited family law specialists Editor and co-editor of The Family Law Book
Children – Parental capacity not always impacted where concerns held as to a child’s safety in the other parent’s care In Keane [2021] FamCAFC 1 (18 January 2021) the Full Court (Alstergren CJ, McClelland DCJ & Benjamin J) dismissed an appeal from orders made for the care of a 4 year old, where Judge McEvoy found that the father had committed acts of domestic violence towards the mother. Judge McEvoy ordered that the father spend supervised time with the child, which was to then increase to unsupervised time. The mother appealed, arguing that the Court had misapplied “the Re Andrews principle” (that the mother’s caregiving capacity would be discernibly impaired by an order that the child have time with the father). The Full Court said (from [75]):
“ … [A]uthorities applying ‘the Re Andrews principle’ … [have] been expressed in a variety of ways ( … ) [80] Subsequent authorities … confirm that it is an error to assume that, in … every case where a parent is concerned about the safety of a child in the other parent’s care, the court will infer that there is an unacceptable risk that the concerned parent’s parenting capacity will be adversely impacted. ( … ) [81] … [T]he Full Court in Marra [ed. full citation: Marra & Marra (Unreported, Full Court of the Family Court, Fogarty, Baker & Butler JJ, 8 September 1993)] held that not only is it necessary 54 | BRIEF APRIL 2021
for the court to determine whether a parent has a genuine concern about the welfare of the child in the care of the other parent but it is also necessary to determine whether the concerned parent’s parenting capacity will be ‘discernibly impaired’. ( … ) [111] … [A]side from stating that she would be very distressed by such orders, no evidence was placed before the primary judge to assist his Honour in making an assessment of the level of that distress. … [H]is Honour found that the mother would seek appropriate therapy if necessary. … [T]hose findings were … open … on the … evidence … ”
Property – Interim order compelling parties to pay mortgage outgoings set aside – Proximity of the parties’ mediation irrelevant In Fei & Woong [2021] FamCAFC 2 (22 January 2021) Kent J (sitting in the appellate jurisdiction of the Family Court of Australia) allowed an appeal from an interim order made after counsel for the wife made an application for the husband to meet all mortgage payments. The wife relied upon the husband’s income of $12,396 per week as against the wife’s income of $200 per week. Counsel for the husband contended each party had capital. The court ordered each party to be equally responsible for all mortgage payments, noting that would entail only “two to three mortgage payments” before mediation. The wife appealed. Kent J said (from [58]):
“ … [T]he … judge’s reasons … support the wife’s argument that his Honour was guided by irrelevant considerations. … [H] is Honour … highlight[ed] each party’s financial situations in six paragraphs … [T]hereafter … is the only reference in his Honour’s reasons which could be … a consideration of the balance of convenience. ( … ) [60] … [H]is Honour was focussed more on … settlement than the consideration of the application on its merits. That view is fortified by his Honour’s reference to there only being an approximate two to three mortgage payments before the mediation, which … when coupled with the … implication of his Honour’s reasons that the parties ought reach settlement at … mediation, highlights his Honour’s error. ( … ) [63] It was the … judge’s obligation to consider the relevant law and … take into account only those considerations relevant to its proper exercise. It is not relevant … whether the … judge considered the parties should reach settlement at … mediation ( … ) [66] … [T]he wife sought to engage the jurisdiction of the court to grant injunctive relief to preserve capital … . The court was obliged to apply the applicable principles to that application. … The … judge made a … mandatory injunction which order could only be founded upon the power … under s 114. … [T]he authorities do not support any proposition … that it is legitimate to impose an injunction for the … purpose of exerting … pressure … to compromise the party’s … claim.”
