Family Law Case Notes

Craig Nicol and Keleigh Robinson Accredited family law specialists Editor and co-editor of The Family Law Book

Property – Equal assessment of contributions failed to give recognition to husband’s inheritance which made up 30 per cent of the pool

In Roverati [2021] FamCAFC 89 (11 June 2021) the Full Court (Strickland, Ryan and Austin JJ) considered a 33 year marriage that produced two children. In 2003, the wife received an inheritance of about $50,000 ([18]), which was put in a trust and had not generated income. In 2006, the husband received an inheritance, worth at least $404,619, that generated rental income. The net pool was $1,317,405 ([60]). Allowing the appeal, Strickland and Ryan JJ said (from [27]): “The … husband’s complaint …[is] that ... his Honour implicitly concluded that both inheritances were similar in nature, and … his Honour erred by giving no or insufficient weight to the [husband’s] inheritance ( ... ) [32] … [T]he husband’s inheritance was … at least … $404,619.64, whereas the wife’s … approximately $50,000. … [T] he husband’s financial contribution … was significantly more than the wife’s, … without taking into account the income subsequently derived therefrom, and the increases in the value of the assets … [33] … [T]he assessment of contributions is not a mathematical or accounting exercise, … it is an holistic undertaking with all … contributions … being taken into account (Dickons & Dickons [2012] FamCAFC 154 ... ) … [34] … [I]t is not apparent from his Honour’s treatment of the respective contributions … culminating in a finding of equality, how the contributions of the wife informed that outcome, such that the … financial contributions of the husband … did not result in a weighting in his favour. ( ... ) [39] ... There is no recognition that approximately 30 per centum of the asset pool … was derived from the husband’s inheritance, and his Honour’s failure … cannot be masked by suggesting that his Honour … applied the requisite holistic approach in assessing contributions ( … ) [58] … [G]iven the significant financial contribution by the husband of his inheritance, … the respective contributions of the parties should be assessed at 55 per centum/45 per centum in the husband’s favour.”

Property – Interim order for conditional sale of property in which husband only owned a 5 per cent interest in error

In Lin & Ruan [2021] FamCAFC 90 (9 June 2021) the Full Court (Ainslie-Wallace, Watts & Austin JJ) allowed an appeal from a series of interim orders, the first requiring the husband to pay mortgage outgoings for a property he owned with the wife (suburb “B”), and subsequent interim orders that in the absence of his rectifying mortgage arrears, another property, (suburb “C”) be sold. The husband owned a 5 per cent interest in the suburb C property; while his mother owned a 95 per cent share. The wife joined the husband’s mother as a party, as she argued that the husband’s mother owned her interest in the property upon trust for the husband. The Full Court said (from [25]): “… [S]ince the husband had failed to … comply with the order and the mortgage repayments on the Suburb B property were in arrears, his Honour turned to consider what ‘machinery provisions’ were necessary to ensure the mortgage repayments were met … [26] … [W]ithout any further … explanation …, the primary judge concluded: 35 ... [I]t would be appropriate to make … orders for the sale of the [Suburb C property] to use at least [the husband’s] 5% legal entitlement in that property, to pay the outstanding mortgage costs. ( … ) [28] … [T]he [husband’s mother] bore no separate obligation to financially support the wife … and so, if the orders for the conditional sale of the Suburb C property were only being made to ensure rectification of the husband’s personal default … then no more than his own five per cent stake in the Suburb C property should have been the subject of such garnishment. … [29] Even if the primary judge concluded that the appropriation of the appellant’s property to cover the husband’s individual liability was justified, it was obligatory to identify the source of power to make the orders and to satisfy himself that the preconditions for its exercise were fulfilled. That was not done. ( … )”

Children – Parties’ contravention applications should not have been heard together

In Dobbs [2021] FamCAFC 78 (21 May 2021) the Full Court (Alstergren CJ, Strickland & Austin JJ) allowed a husband’s appeal from an order made pursuant to s 70NEB(1)(d) made after each party had brought contravention applications, alleging that both property and parenting orders had been contravened. The Full Court said (from [23]): “ … [I]t was quite unclear what particular applications were the subject of attention by the … judge at any one point in time. … [T] he conduct of the proceedings in that way was procedurally unfair for two fundamental reasons. [24] … [T]he … procedure prescribed for hearing contravention applications (r 21.08 … Family Law Rules 2004 (Cth) (‘the Rules’)) is … different from the usual procedure for hearing other forms of civil application. If there is to be a departure from that procedure, it must be done so as not to cause injustice or prejudice to the respondent (Caballes & Tallant [2014] FamCAFC 112 …). … [T]he husband was defending the wife’s contravention applications and, … he enjoyed an entitlement to remain mute until the closure of the evidence offered in support of the alleged contraventions, which right he could not be forced to relinquish. He could not be expected to lead evidence about the need for further orders to facilitate implementation of the final property orders when he was … defending an allegation of his contravention of those … orders. [25] … An applicant who prosecutes a contravention application carries the burden of adducing evidence to prove the alleged contravention. … [N]either party could concurrently carry the burden of proof and reserve their right to silence. [26] The procedure adopted by the primary judge for hearing and determining the wife’s contravention applications bore no similarity at all to that prescribed by r 21.08 of the Rules ( … ) [29] ( … ) [T]he husband was improperly converted from applicant to respondent when the evidence filed in support of the contraventions alleged by the wife had not

yet been either formally adduced or tested in cross-examination. ( … ) [33] Given the denial of procedural fairness, … the … judge fell into appealable error.”

Children – Order that routine notionally continue through holidays interpreted so that first week of school was ‘Week 2’ of cycle

In Nagel & Clay [2021] FamCA 358 (2 June 2021) Harper J heard two parents’ opposing views as to the interpretation of a parenting order made by consent. The order related to the resumption of time following school holidays, specifically that at the commencement of school term, the fortnightly routine resume “as if the children had been living with the parties” in accordance with the fortnightly routine “during the duration of the school holidays”. After citing Langford & Coleman [1992] FamCA 68, the Court said (from [7]): “The decision in Langford is consistent with authority … to the extent that it denies interpretation of court orders by reference to the parties’ subjective intentions. ( …) [9] In Apoda & Apoda [2013] FamCA 265 at [35] - [41] Le Poer Trench J concluded that in construing final consent orders the Court should undertake a three step process, namely, determining whether there is ambiguity, identify surrounding circumstances, other than the subjective intentions of the parties … and reach a conclusion in relation to construction. ( … ) [15] … [T]he father construed Order 10 to mean that the question of which week in the two cycle is applicable at the commencement of Term 2, 2021 is determined by reference to the alternating weeks which would have been notionally applicable as if Order 10(a) and (b) had been operating during the … school holidays, and, for the purposes of calculating the relevant dates, as a continuation of the fortnightly cycle initiated by Order 9 on the specified dates in October 2020.( … ) [23] It is clear … that the opening words of Order 10 ‘From the commencement of school in Term 2 ...’ mean only that there will be inserted into the existing fortnightly cycle from the commencement of Term 2 … the additional Tuesday night with the father. They do not mean the fortnightly cycle is reset to commence with Week 1 to coincide with the commencement of Term 2 ( … ) [30] The mother also argued that the parties could not have intended that Order 10 would operate so that in the week commencing Term 2, 2021 the children would have spent the second half of the immediately preceding school holidays with the father, then return for only one night with the mother before returning again to the father’s care …. Even on the mother’s construction, such an outcome would be possible [and] would be entirely contingent on the dates on which the school holidays fell. … ”

Property – Mutual assumptions and consensual agreements may inform whether it is just and equitable to make a property order

In Oamra & Williams [2021] FamCAFC 117 (13 July 2021) the Full Court (Strickland, Watts & Sutherland JJ) dismissed with costs an appeal from a decision of O’Brien J in the Family Court of Western Australia. The wife argued that the parties “had voluntarily arranged their financial circumstances on the basis that they neither owned property in their joint names, nor operated a joint bank account, and that they contributed to household expenses in a very structured way based upon an agreed, predetermined budget” ([2]). Relying on Stanford [2012] HCA 52 (“Stanford”), she argued that the Court could not find that it was just and equitable to make a property order. The Full Court said (from [29]): “ … [T]he wife’s … position was both parties operated on … assumptions that each would keep their own property separate …, that the assumptions were both expressed and implied, but primarily implied because any knowledge either party had about what the other one was doing was incidental and not the subject of any discussion ( … ) [31] … [T]he wife … argue[d] that despite the finding … that there were no mutual expressed or implied assumptions to keep the parties’ finances … separate, the wife could rely upon her own unilateral assumptions ( … ) [34] The wife asserts that the primary judge … erroneously required that the assumptions be ‘mutual’ and that error contaminated his Honour’s conclusion as to whether it was ‘just and equitable’ to make an order. The wife argues that there is no warrant to read into the obiter dicta of the High Court in Stanford any requirement for mutuality in any stated or unstated assumptions that the parties would keep their finances entirely separate ( … ) [36] We do not accept the wife’s submission … [I]t [is] clear that the High Court was talking about mutual assumptions and mutual agreements. Axiomatically any agreement must be mutual. ( … )”

Child support – Section 106A application could be heard despite mother not living in reciprocating jurisdiction

In Secretary, Commonwealth Attorney General’s Department & Bashir [2021] FamCAFC 137 (30 July 2021) the Full Court (Strickland, Aldridge & Tree JJ) allowed an appeal from Judge Boyle’s dismissal of an application by the Attorney General’s Department for a declaration of parentage pursuant to s 106A of the Child Support (Assessment) Act 1989 (Cth) (“CSA Act”) brought on behalf of a USA based mother. The Full Court said (from [16]): “Pursuant to s 99(1) of the CSA Act, ‘[j] urisdiction is conferred on the... Federal Circuit Court of Australia [FCCA] ... in relation to matters arising under this Act’. ( … ) [17] … [T]he … relief sought under s 106A was a matter under the CSA Act, and thus the … judge did have jurisdiction ( … ) [22] … [W]hether the FCCA has power to make a declaration under s 106A(5) of the CSA Act turns on whether four requirements are met. [23] … [Section] 106A(1) must be engaged; namely … the Registrar refused to accept an application for administrative assessment … under s 30(2) … [24] … [T]he application must be for a declaration that a person be assessed in respect of the costs of the child … (s 106A(2)(a)) … [25] … [T]he application must be made within ‘the time prescribed … ’ (s 106A(3)). … [26] … [E]ither that the person should be assessed in respect of the costs of the child because the person is a parent of the child (s 106A(5)(a)), or … the Registrar should reconsider the application … because the person who was to be assessed … is a parent of the child (s 106A(5)(b)). ( … ) [32] … [T]he appellant contended … that the … judge misconstrued s 106A in finding that in … the requirements in s 25(d) had to be met; namely, that the [mother] be a resident of a reciprocating jurisdiction. [34] … [H]er Honour did wrongly determine that, before an order under s 106A could be made, the appellant had to establish that the requirements of s 25(d) were met. …”

Property – De facto thresholds – Family violence highly relevant as to whether couple living together on a genuine domestic basis

In Mayson & Wellard [2021] FamCAFC 115 (14 July 2021) the Full Court (Strickland, Ryan & Kent JJ) allowed a de facto wife’s appeal against a declaration that a de facto relationship existed for more than two years. She argued that while the parties lived under one roof until November 2015, separation occurred in late 2011 or early 2012. The Full Court said (from [30]): “ … [T]he onus was … on the [de facto husband] … to establish that there was a de facto relationship until 8 November 2015. … [H]er Honour … require[d] the [de facto wife]