Property – Single expert occupational physician appointed to report on de facto wife’s medical condition and its impact on her prospects of employment

In Sloan & Bendon [2024] FedCFamC2F 76 (25 January 2024) Judge Taglieri heard a de facto wife’s application to appoint an occupational physician to provide single expert evidence as to the impact of the wife’s medical condition on her ability to re-enter the workforce.

The de facto husband said that a single expert report from such a practitioner was unnecessary, where the de facto wife’s treating neurologist (“Dr E”) had already provided a report that contained a diagnosis of the de facto wife, the likely progression of her illness and the severity of its symptoms ([10]).

The de facto husband also said that the Court “routinely and uncontroversially” makes “assessments of what adjustments should be made for a party’s future needs based on historical and present facts” such that a specific expert opinion was not needed ([11]).

The Court said (from [16]):

“Noting that during the course of the interim hearing both legal practitioners accepted that contributions and future needs will be in issue at the defended hearing, there is plainly a controversy about which the Court may require expert evidence.

[17] Although there is no dispute that the applicant suffers from a medical condition, the Court will likely hear factual evidence from her about how the condition impacts her day-to-day life and care of the children. However, because it is an agreed fact that the applicant did not work during the relationship and before or after her diagnosis in 2022, this evidence will be of a subjective and personal nature. Further, it will not address how the condition impacts on her ability to work as the applicant has not apparently worked or tried to work since the diagnosis.

[18] In these circumstances, the Court will need to make findings about whether the applicant has any capacity to work or earning capacity in the future because of the statutory considerations in s 90SF(3)(b). I consider that in discharging the task of making these findings, the Court will be greatly assisted by expert opinion about the likely symptoms of the condition and its impact on ability to work and earn an income.

[19] I do not accept the submission that …  Dr E’s report adequately addresses work capacity given the applicant’s medical condition. It is clear from the terms … that Dr E is primarily addressing diagnosis and prognosis in the context of potential deterioration in the applicant’s condition. He is not addressing the impact of the condition on the applicant’s capacity to undertake particular activities or, relevantly, work duties and employment. I consider this is made very clear by his answer to question five, being that he is ‘unable to comment’ on ‘[h]ow [Ms Sloan]’s condition is likely to impact on her capacity.’

[20] While I may be able to make inferences about work capacity and future earning capacity based on the applicant’s own subjective factual evidence, it is preferrable that the findings be made on the basis of probative expert opinion and not left to inference.

( … )

[25] Dr B is an occupational physician. It is not suggested by the respondent that he is not suitably qualified, but rather that a neurologist is most qualified … I disagree. If the issue were one of diagnosis then the respondent’s submission would likely have merit, but there is no dispute about the applicant’s diagnosis. The issue is confined to the effect of the symptoms on the applicant’s ability to work and earning capacity.

( … )

[28] I am persuaded that Dr B is an expert in occupational capacity assessments for a wide range of diagnosed conditions. He meets the requirements for the appointment as an expert pursuant to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 … and Dasreef v Hawchar [2011] HCA 21 … I am also satisfied he is available for appointment and will produce a report before the final hearing.”

Dr B was appointed as single expert to assess the de facto wife and report as to concerns that included her “likely or possible employment … now and in the foreseeable future” and “recommendations … [as to] her potential re-entry to the workforce”.

Children – Single expert in her Child Impact Report relied on a family violence screening tool that indicated a “very high risk of lethality” in the “serious threat” category – Interim orders for supervised time upheld upon review, notwithstanding expressed wishes of 13 year old child to live with her father

In Harendra & Veda (No 3) [2024] FedCFamC2F 27 (19 January 2024), Judge Turnbull considered a father’s application for a review of interim orders made by a Senior Judicial Registrar for supervised paternal time of 13 and 10 year old children (“X” and “Y”).

Each parent alleged that the other had engaged in family violence. The father had been charged with domestic violence offences that were progressing to trial.

Previous care arrangements for the children included interim orders for supervised time, followed by interim orders for equal time. The mother became ill and was hospitalised for a period, during which the children lived with the father. After the mother’s discharge, the father retained the children, which led to further contested applications and the parties obtaining a Child Impact Report from single expert “Ms E” in readiness for an interim hearing.

Ms E applied a “PPP screening tool” (to assess risk of family violence by reference to potency, pattern and primary perpetrator) (“PPP”) as part of her report. Ms E said that a PPP screen was “one of many family violence screening tools available for professionals to use, including the Family Law DOORS (detection of overall risk screen)” ([16]).

The screen results said that “a lethality assessment was warranted”, that there was “a very high risk of lethality” and that “[t]he mother and children are assessed as being at significant risk of harm” ([18]).

Considering the husband’s case on review, the Court said (from [25]):

“Towards the end of the hearing, [counsel for the father] … informed the court that the Father had received a number of messages from X that afternoon expressing a desire to be with him — with the messages tendered as Exhibit ‘F1’ …

( … )

[27] … [Counsel for the father] referred to five (5) instances when the children have run away from the Mother’s household since the Orders were made … [and submitted] that the children are acting on their desire to live with or spend significant time with the Father. As such, it is destabilising and contrary to their interests to ignore the children’s views.

( … )

[32] [Counsel for the father] … drew particular attention to Ms E’s use of the PPP Screening test as the foundation of her opinion that the Father poses a ‘serious threat’ and that the Mother and children are at ‘significant risk of harm.’ He submits that her use of this test and her conclusions are flawed.

[33] He argues that it is unknown whether PPP is a peer reviewed and a widely accepted assessment tool that should apply across the board where there are allegations of family violence. Further, there is no evidence that Ms E has the expertise to utilise PPP or interpret its results, and she did not cross-check her results with other assessment tools to ensure the results are not skewed. Consequently, he submits, Ms E’s opinion must not be accepted — even at this interim stage of the proceedings.

[34] In essence, [counsel for the father] … submits that there is no reliable evidence to support the proposition that the children are at an unacceptable risk in the Father’s unsupervised care. The evidence in fact establishes that the children have thrived in the Father’s care, confirmed by the children’s clear views that they want to live with or spend significant time with him. As such, he argues, the children should, at a minimum, spend regular unsupervised time with him, with ideally X living with him and Y continuing in a shared time arrangement.

( … )

[44] [Counsel for the mother submitted that] … Ms E has significant experience working with families impacted by family violence — including as a Family Consultant with this Court. Consequently, the Court must give her considered and detailed report significant weight at this interim stage of the process. The criticisms raised by [the father] … is the type of inquiry that will occur at trial when all the evidence can be tested, but, acting cautiously, the Court cannot ignore the serious concerns raised by Ms E at this interim stage.”

After citing Marvel [2010] FamCA 240, SS & AH [2010] FamCAFC 13 and Eaby & Speelman [2015] FamCAFC 104 the Court said (from [56]):

“The assessment of whether a risk is ‘unacceptable’ does not require a court exercising jurisdiction under Part VII ‘to resolve in a definitive way the disputed allegation … as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence’ … The Full Court in Isles & Nelissen [ed. full citation: Isles & Nelissen [2022] FedCFamC1A 97] clarified that unacceptable risk is also not to be measured according to the civil standard of proof — on the balance of probabilities … A trial judge may find past allegations proven on the balance of probabilities but find no unacceptable risk to a child. On the other hand, there may be no finding of past wrongdoing on the balance of probabilities, but there may be a positive finding of unacceptable risk … It remains that any risk must be grounded on the evidence, which then informs a trial judge’s exercise of their discretion under s 65D by reference to the child or children’s best interests …

( … )

[69] [Counsel for the father] … submits that the findings of Ms E should not be given weight due to her lack of experience and impartiality. [Counsel for the mother] … submits that Ms E has significant experience, with her findings being of the same or similar view of the Child Impact Report and the New South Wales Department of Communities and Justice.

[70] On the face of it, Ms E has relevant experience to undertake an assessment of this family and whether either party poses a risk to the children. She has previously practised as a Clinical Psychologist and was a Family Consultant for approximately 9 years for the Family Court of Australia… Her report thoroughly considers the information available to her. Further, PPP was not the only assessment tool she used to determine the risk the Father poses to the Mother and the children as she compared her results with those of the DVSAT assessment undertaken in early 2023 …

( … )

[80] On the untested evidence, I do not place great weight on the children’s views. I have concerns that their views have been influenced by the Father and that they do not have the level of maturity and insight to express views that meet their best interests.

( … )

[93] I am satisfied that the Orders of a Senior Judicial Registrar of 27 October 2023 meet the children’s best interests. That is not to say that there is no merit in the Father’s arguments, particularly as to the basis of the Single Expert’s report. Those arguments are, however, a matter for trial where a detailed forensic examination of the Single Expert Report and supporting information can take place. At this time, however, acting cautiously and conservatively, the court cannot ignore the opinion of the Single Expert who fears that to place the children in the Father’s unsupervised care could put them at an unacceptable risk. I am not prepared to do that. Consequently, the Father’s Application for Review will be dismissed.”

The review was dismissed and the matter transferred to Division 1 of the Court.

Financial agreements – Supreme Court of New South Wales enforces a “Binding Terms Sheet” signed to implement the parties’ financial agreement

In Carnegie v Nelson-Carnegie [2023] NSWSC 1379 (15 November 2023) Elkaim AJ of the Supreme Court of New South Wales considered a husband’s application to enforce a “Binding Terms Sheet” to the extent that it provided for the wife to facilitate particular distributions of foreign income through a trust, either to himself or his nominees as beneficiary.

The Court explained that a purpose of the dealing was to attract an exemption from tax, where the husband had moved to New Zealand and could claim an exemption on foreign income for a period of up to four years from his arrival ([17] & [23]).

The wife had not filed a defence or material in response to the claim and did not appear at the hearing.

The Court explained that during their marriage, the parties had signed a financial agreement to wind up their structures and divide their property interests equally. The “Binding Terms Sheet” was signed in 2021, following separation so as to give effect to the financial agreement ([10] & [12]).

The Court said (from [13]):

“Classically, a term sheet is a document outlining, usually in brief, the terms of a forthcoming agreement. A term sheet is usually not binding on its parties, but can, by its terms, be expressed to be binding.

( … )

[24] I think the first matter to be resolved is the question of jurisdiction. My initial reaction to the summons was that it concerned a “matrimonial cause” as defined in s 4 of the Family Law Act. This in turn would mean that this court did not have jurisdiction to hear the matter…

( … )

[26] In this case the proceedings are between parties to a marriage, and they concern property of the parties. The question then arises as to whether the proceedings arise out of the marital relationship. The High Court considered the matter in Perlman v Perlman … [1984] HCA 4. Wilson J said of the agreement in Perlman, at 500:

‘It is sufficient for me to express the opinion that on no reasonable construction of the paragraph could it be said that the wife’s claims focus on circumstances arising out of the marital relationship. The marriage was dissolved in 1978 and the financial relationships of the parties were finally determined by the approved agreement. The husband’s failure to respect his obligations under the agreement has nothing whatever to do with the marital relationship.’

[27] Dawson J said, at 511-512:

‘It was also submitted that the proceedings in the Supreme Court were proceedings for an order in circumstances arising out of the marital relationship within the meaning of par. (c) of the definition of matrimonial cause and for that reason excluded by the proclamation from the jurisdiction of that Court. Clearly, that submission cannot be sustained. The proceedings arose out of a contractual relationship entered into after the marital relationship had been concluded by the dissolution of the marriage. The dissolution of the marriage was the occasion for the contract but the circumstances in which relief was sought arose out of the contract and its breach and not the marital relationship.’

[28] A similar issue was considered in the New South Wales Court of Appeal in Bate v Priestley (1989) 13 Fam LR 376. At 393-394, Hope AJA (as his Honour then was) said:

‘It has been submitted for the defendant that there is a much closer relationship in the present case between the deed upon which the plaintiff sued and the orders of the Family Court, and hence it can the properly said that the proceedings arose out of the marital relationship……. Nonetheless the proceedings arose out of the deed and not otherwise. They did not arise out of the marital relationship which led to proceedings in the Family Court and to the execution of the deed.’

[29] At 396, his Honour emphasised that the proceedings had been brought to enforce a deed, not to enforce any orders of the Family Court.

( … )

[32] Finally, on jurisdiction, I think it relevant that the term sheet was executed on 30 June 2021, 11 years after the financial agreement was registered in the Family Court. For purposes of these proceedings, I am satisfied that the proceedings arise out of the term sheet and not out of the marital relationship.

[33] … [T]he defendant has refused to comply with the obligation she undertook in respect of future distributions from the M&T Family Trust to the plaintiff (or his nominee).

[34] This then raises the appropriateness of the remedy sought by the plaintiff. It is essentially one of specific performance of the defendant’s undertakings under the term sheet …

( … )

[37] The defendant’s lack of response amounts in my view to a failure to perform the contract (the term sheet) according to its components. The silence of the defendant excludes any argument that performance is not possible.

[38] I have considered whether the proper approach should be a claim for damages. Theoretically, the plaintiff could sue the defendant for breach of contract and seek damages accordingly. The difficulty with this approach is that the time necessary to bring such an action to fruition would necessarily involve the plaintiff being denied the tax exemption available under New Zealand law.

( … )

[40] The specific orders sought by the plaintiff include an order that should the defendant fail to comply with orders made by the court, that the Registrar of the court be directed to execute the documents on behalf of the defendant. Having regard to the apparent disinterest of the defendant in the proceedings, and in performing her part of the term sheet, I think this is an appropriate order and is one sanctioned by r 40.8 of the UCPR.

[41] In relation to costs, the defendant has, by ignoring all requests to perform her part of the term sheet, led the plaintiff to institute the proceedings and to continue them in the absence of any participation by the defendant. I think it inevitable that the defendant must pay the costs of the proceedings.”

Children – Court lacks jurisdiction to make orders that a therapy animal (a pet dog) accompany child during father’s time – Father’s application for equal shared parental responsibility dismissed as Rice & Asplund not satisfied

In Arena (No. 4) [2024] FedCFamC1F 22 (31 January 2024) Curran J determined an interim application filed by the father after trial and before judgment being delivered. On the final day of the trial, a final order had been made by consent that the mother have sole parental responsibility for the children, “X” and “Y”.

X was the younger child who suffered from autism spectrum disorder and attention deficit disorder, each party acknowledging that the children’s pet dog served a therapeutic purpose for X’s special needs.

In 2020 Altobelli J made property orders by consent, which included a transfer of the dog’s registration to the mother but that the mother “ensure” that the pet “travels with the children when they are spending time with” the father “where reasonably possible” ([58]).

When the father’s time had been withheld by the mother after trial, the father filed an application in a proceeding, seeking orders for equal shared parental responsibility and that the pet travel with the children “on Sundays of each week and additionally at the request of the children” ([43]).

The mother and independent children’s lawyer (“ICL”) contended that the father had not satisfied the rule in Rice & Asplund and also said that the Court lacked jurisdiction to make an order as to a pet as part of parenting proceedings.

As to the Rice & Asplund issue, the Court said (from [26]):

“The father submits that there is evidence before the Court that there has been a significant change in circumstances since the final hearing when the order was made by consent. He contends that this change in circumstances is that the mother unilaterally ceased the children spending time with him, and that the absence of meaningful time with the father has caused a significant change to the children’s relationship with him…

( … )

[34] That there was a dispute in respect of time following Father’s Day does not, in my view, constitute a change of circumstances in respect of parental responsibility, and there is no other evidence relied upon by either party that satisfies me that the matter should be relitigated…

( … )

[37] If parental responsibility was a contested issue at final hearing, the mother’s counsel submitted that she would have presented, in submissions, a summary of the evidence that supports the order for the mother to have sole parental responsibility and supported a finding that equal shared parental responsibility would not be in the children’s best interests. Those submissions, counsel submitted, would have been:

(a) Evidence of the high-conflict relationship between the parties which supports a finding that their relationship is fraught;

(b) Evidence of difficulty with communication between them;

(c) The fact that Court Child Expert opposed such an order due to the potential exposure of the children to further conflict; and

(d) There would be a high risk of further litigation between the parents.

[38] It was submitted that the order was made by consent, and that the Court was satisfied that such consent orders were in the children’s best interests.

[39] The ICL submitted that it would be entirely contrary to the children’s best interests to facilitate a reopening in relation to parental responsibility which would further prolong the litigation and the conflict. I am persuaded by the submissions made both by the mother and the ICL.

( … )

[42] Accordingly, I decline to vary the final orders made by consent on the final day of hearing in relation to parental responsibility. I am not satisfied that the threshold required in Rice and Asplund has been met … ”

As to the pet issue, the Court noted the Full Court’s decision of Grunseth & Wighton [20222] FedCFamC1A 132 to the effect that a pet was property and Davenport (No 2) [2020] FCCA 2766 where Judge Tonkin held that there was “no jurisdiction under Part VIII of the FLA to make an order for ‘shared custody’ of a dog” ([47]).

Curran J then said (from [49]):

“The father says that the pet became, and still is, an important part of the parenting strategy around X, given the therapeutic value that he provides X in relation to his special needs. The father says that the pet is important in the context of managing X’s behaviours, and hence, X should be considered in the parenting proceedings. It is relevant that the father has another therapy animal in his home. I infer that animal provides therapeutic value for X with his special needs.

( … )

[52] The father submits that the Court has the jurisdiction to make orders in respect of a pet in parenting proceedings, as the pet is of significant therapeutic value to X who has special needs and therefore it is in the children’s best interests that the pet holds a place at both households.

[53] The mother deposes that since the father, she alleges, withheld the pet from X at separation, X has been extremely anxious about the pet spending time with the father …

[54] The ICL submits that the Court lacks jurisdiction to make orders in respect of an animal in parenting proceedings.

[55] Similarly, counsel for the mother submits, with reference to Grunseth & Wighton, that a pet is a chattel not to be dealt with in parenting proceedings.

( … )

[57] I find that the pet is a chattel, and the court has dealt with the ownership of the pet [by the] … orders of Judge Altobelli … transferring the registration of ownership of the pet to the wife.

[58] Insofar as the father contends the mother had an obligation to facilitate the time with the pet the order states ‘the Applicant Wife ensure that [the pet], travels with the children when they are spending time with the Respondent Husband where reasonably possible, or as further agreed between the parties’. I am not dealing with a contravention application, but if one were filed, given the high tension and lack of communication between the parties since the consent order was made nearly four years ago now, the interpretation of ‘reasonably possible’ would no doubt be carefully scrutinised.

[59] … [I]t is my determination that I do not have jurisdiction to deal with the pet in the parenting proceedings, and orders as to his ownership have previously been made. Even if I was wrong in respect of jurisdiction, and assuming I accepted the argument that there may be therapeutic benefit to X in the pet travelling with him (noting that I have no evidence of this therapeutic benefit to X), on balance, the extreme tension and mistrust between the two parents in my view would outweigh any possible benefit to X for such an order to be made. I would not make such an order had I determined I had jurisdiction to do so …”

The application in a proceeding was dismissed.

Children – Order for unsupervised father’s time was made without procedural fairness where each party accepted that the father should attend anger management courses but no such order was made

In Kearney & McMaster [2024] FedCFamC1A 2 (24 January 2024) Christie J heard an appeal against parenting orders made by Judge Neville in respect of an 11 year old child.

Supervision of the father’s time was contested, but each party sought that the father attend anger management programs as a prerequisite to his time ([7] & [8]).

It was ordered that the father have unsupervised time one day each alternate weekend and that the father be the subject of random urinalysis drug and alcohol testing to be requested by the independent children’s lawyer (“ICL”).

The mother appealed and said that she had been denied procedural fairness as to the order for unsupervised time, where the Court had not ordered the father to attend an anger management program ([14]). She said that no party had contemplated such an order at trial.

Christie J said (from [16]):

“It is well accepted that a trial judge is not bound by the proposals of the parties (U v U [2002] HCA 36 … at [80]). However, it is settled law that it will be an error if the primary judge represents to the parties that a certain order is not in contemplation but then makes that order without affording an opportunity for the parties to make submissions in respect of it (see Bolitho and Cohen [2005] FamCA 458 … at [85]; Lenova & Lenova [2011] FamCAFC 114 … at [55]; Robertson & Sento [2009] FamCAFC 49 at [138]).

[17] The authorities emphasise that the role of the primary judge as the judicial decision maker responsible for making a best interests determination may from time to time require that judge to look beyond the proposals of the parties, not in an ‘unfettered manner’, but in the context of the evidence in the proceedings as a whole and hence it is important to turn to the evidence about the father’s position.

[18] The mother had a full opportunity to make submissions about the father’s position … He submitted ‘it is unwarranted to mandate his participation in anger management courses’ but said he should spend unsupervised time with the child on completion of an online anger management course…

[19] The primary judge did not explicitly engage with the father’s preparedness to undertake the course of his election and proceeded to make an order which provided ‘[c]ommencing immediately … ’

( … )

[21] In my view, while the ground is framed as raising questions of procedural fairness, it is … also properly understood as a failure on the part of the primary judge to give reasons for making an order for immediate unsupervised time.

( … )

[26] … [T]he failure on the part of the primary judge to raise with the parties:

(a) His intention to make an order for immediate unsupervised time; and

(b) His intention to make the father’s attendance at an anger management course optional

so as to allow them to make submissions, constituted a denial of procedural fairness. I accept the submission on behalf of the appellant that those two factors constitute a significant deviation from the ambit of the dispute as defined by all parties: see Guthrie & Guthrie [1995] FamCA 134 …

[27] While I accept that not all denials of procedural fairness will require an appeal to succeed, I am persuaded that the facts and circumstances of this case are such that the denial of procedural fairness is dispositive of the outcome of the appeal. It follows that the appeal should be allowed on this basis …”

The Court also considered the allegations of family violence by the father at trial, that included charges brought against him by his current spouse. The Court found that the primary judge had not set out “any analysis of whether the judge accepted or rejected the argument of the mother that the father’s conduct would place the children at risk” ([42]).

The Court concluded (from [48]):

“It is not the failure by the primary judge to make orders for supervised time or his failure to order that the father complete an anger management course which is the error but rather the failure to explain by way of the reasons for judgment why, in his view, supervision and the anger management course were not necessary protective orders given his findings.

[49] The inability to ascertain the extent to which the primary judge has assessed the father’s conduct from the perspective of future risk to the children is a fundamental error and the appeal must succeed.”

The appeal was allowed and orders set aside. The matter was remitted for re-hearing and costs certificates granted.

Children – Order that mother own and reside in an Australian property as condition precedent to her travelling internationally with the child was ultra vires

In Kai & Min [2024] FedCFamC1A 6 (9 February 2024) Christie J heard an appeal against parenting orders made in respect of the parties’ 6 year old child.

At trial, an interim injunction restraining the parents from travelling internationally with the child had expired. The father sought restoration of the injunction based on evidence of risk of the mother permanently residing overseas, that included the mother selling her vehicle and listing her Australian investment property for sale; the mother writing to the father asking for his consent to remove the child’s name from the airport Watchlist; and  online information that suggested the mother’s parents “appeared to be living in or spending significant time in [Country B]” ([8]).

The court at first instance restrained international travel with the child for five years and, thereafter, ordered that travel by the mother with the child occur subject to her providing the father with confirmation that she was the “registered proprietor of real estate in Australia which she occupies as her primary place of residence”, and payment of a $100,000 bond ([12] & [70]).

The mother appealed and said that the restraint was ultra vires (and that the parties had not been given procedural fairness).

The Court said (from [16]):

“For the order to have been made within power, under s 64B of the Act, it would need to have been made pursuant to s 64B(2)(i) of the Act [ed. the order ‘may deal with… any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child’]. I raised with both parties whether the injunctive power was an alternate source of power but am satisfied that given the detailed and thorough references to the Act in the primary judge’s reasons, the power which she purported to exercise was the power to make a parenting order.

( … )

[18] The relevant factual context is as follows: the mother owned a piece of real property in Australia at the time of hearing but it was not her place of residence. The father sought to place caveats on property owned by the mother as a means of securing the return of the child in the event she was retained by the mother overseas …

[19] The primary judge’s order required the mother to either move into her investment property … or acquire another piece of real property as her residence in order to be permitted to remove the child from Australia at the expiration of the five-year period in which travel was prohibited.

( … )

[23] The requirement that the appellant own property was explicitly characterised by the primary judge as designed to demonstrate ‘ongoing ties with Australia’ and distinct from the purpose of providing additional financial security.

[24] It is accepted that a judge may impose conditions on a child’s overseas travel which are designed to ameliorate the risk of non-return or to provide for the child’s welfare in relation to proposed travel (for example, not to travel to countries the Department of Foreign Affairs and Trade travel advisories have classified with ‘do not travel’ status).

[25] Here, conditions on the mother’s travel with the child make it logistically or practically less likely that the mother will abandon the property which she owns – or leave it vulnerable to application by a left-behind father. However, for such conditions to be an order within power, they must deal with an aspect of the care, welfare or development of the child.

[26] There is no obvious, direct and logical connection between the order and its operation and the care, welfare or development of the child.

[27] There are a number of reasons why [the restraint] … has insufficient connection with the child’s care, welfare or development. Firstly, the ownership of property per se is sufficient to demonstrate ongoing ties to Australia – it is difficult to understand why the mother’s occupation of the property in the circumstances of this case is material. Secondly, no parameters are placed on the ownership such as the amount of equity or the classification of property ownership. Finally, it imposes what may be regarded as a significant directive to the mother about the manner in which she deals with real estate with unknown and unknowable market forces and consequences such that it falls outside the parameters of what may be regarded as an order in respect of the care, welfare or development of the child. It is therefore an order made without power.

( … )

[40] The order which the primary judge made was not as sought by the parties but was in keeping with the mother’s sworn evidence – she intended to buy a home – and the order made was, on its face, potentially less onerous than the mother’s proposal that her home be used as security. If the order was within the power of the primary judge to make then I am satisfied that all parties were squarely on notice that the primary judge was being invited to make orders concerning real property owned by the mother but not the making of an order which no party sought and which was beyond power. The ambit of the dispute as defined by the parties was one that would be resolved by orders being made which are within power. As discussed above, the precise order concerning real property which was ultimately made was ultra vires; it follows that its making in that form was also a denial of procedural fairness.

( … )

[67] Given the nature of the error in this case, the parties agreed that it would lend itself to re-exercise and I agree…

( … )

[69] The order requiring the mother to own her residence was explicitly not made as an order for security to ensure the return of the child to the jurisdiction or to provide funds to permit the father to apply to access resources to aid return in the event of a non-return. Rather, it was made as an order to provide reassurance to the father that the mother had continuing ties to the jurisdiction. Both the mother and the father approached the issue of orders relating to the mother’s real property as orders in respect of security…

[70] The trial judge ordered a bond of $100,000. In those circumstances I propose merely to allow the appeal in part and thereby discharge Order 4(e)(i) [ed. as to ownership and residence of real estate in Australia] and not make an order in its place. The father retains the benefit of the five-year prohibition and the need for lodgement of a bond. On his own case, the child will be older and more easily able to communicate and express independent views.”

The appeal was allowed and the restraint as to property ownership discharged. Both parties received costs certificates.

Procedure – Trial judge erred in refusing to recuse himself – Reasonable apprehension of bias where Court had considered but rejected proposed consent orders that included a balance sheet and an agreed percentage

In Henley & Bestari [2024] FedCFamC1A 12 (21 February 2024) the Full Court (McClelland DCJ, Tree & Williams JJ) heard an appeal against the dismissal of the appellant’s application for an order that Gill J recuse himself.

The parties reached agreement as to parenting matters on the first day of trial and final orders were made that day. Further discussions on days two and three led to agreed property adjustment terms being handed up to the Court, which were rejected as, while there was an agreed percentage, the terms required valuations to be carried out and future steps. The Court rejected the terms as the overall proposed settlement had essentially been delegated to third parties/experts.

When adjourning the trial, the husband sought orders that Gill J recuse himself from any further involvement in the matter, where the Court had been exposed to the agreed percentage. The Court dismissed that application, where the terms were inadmissible under s 131 of the Evidence Act and because the Court was not satisfied that a fair-minded lay observer might reasonably apprehend that the Court would not bring an impartial mind to the property dispute.

The husband appealed.

After observing that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the issue to be decided per Ebner v Official Trustee in Bankruptcy [2000] HCA 63, the Full Court said (from [25]):

“The application of the apprehension of bias principle involves a two-step analysis. First, the identification of what it is said might lead a decision maker to decide a case other than on its legal and factual merits, and second, the articulation of a logical connection between the matter and the feared departure from the judge deciding the case on its merits (Ebner at [8]). Per Ebner, once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

( … )

[27] In this case, the relevant category of disqualification in the first step of the requisite analysis of apprehended bias, is knowledge of extraneous information. That is, the primary judge’s knowledge of the proposed settlement, both as to variation of the formally asserted percentage divisions which both parties asserted would constitute a just and equitable division of their property, and the balance sheet together with the proposed in specie distribution of the assets. In his reasons, the primary judge correctly identified … his exposure to the parties attempted terms of settlement of the property proceedings.

[28] As to the second step and the reasonableness of the asserted apprehension of bias, senior counsel for the appellant helpfully referred to five propositions relevant to the nature of the inquiry, which can be extracted from the authorities.

[29] First, the inquiry is objective (Johnson v Johnson [2000] HCA 48 … at [12] (‘Johnson’)) and does not require a conclusion about the judge’s actual state of mind (QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 … ), secondly, all circumstances must be considered (Re JRL; Ex parte CJL [1986] HCA 39 … at 371 … ), thirdly, the criterion is concerned with ‘possibility (real and not remote), not probability’ (Ebner at [7]), fourthly, the apprehension is from the perspective of a fair-minded observer, meaning ‘it is the court’s view of the public’s view, not the court’s own view’ that is determinative … and lastly, the qualities and attributes of the fair-minded observer must be taken into consideration.

[30] These qualities and attributes include; an observer who is neither complacent nor unduly sensitive or suspicious, who is also taken to be reasonable, is all too aware of the reality that the judge is human, is not conceived of as a lawyer but a member of the public served by the courts and is not to be assumed to have a detailed knowledge of the law, or the character or ability of a particular judge … Likewise, the person being observed is a professional judge whose training, tradition and oath or affirmation require them to discard the irrelevant, the immaterial and the prejudicial …

[31] Although the primary judge correctly recognised the factor or circumstance that might lead a decision maker to decide a case other than on its legal and factual merits, the appellant contended in the appeal that his Honour, albeit without the assistance of proper submissions, failed to undertake the second step of the requisite analysis. That submission, with respect, has merit.

[32] The primary judge … referred to Silva & Phoenix [2018] FamCAFC 41 … (‘Silva’) where it had been determined that the trial judge’s knowledge of the parties’ proposed terms of settlement precluded the judge from continuing to hear the matter. However, his Honour distinguished the facts of Silva from this case. In Silva, the trial judge had expressed a view that the proposed percentage division was not appropriate, whereas in the present case, his Honour did not express a view one way or the other. Whilst his Honour’s analysis was correct, and it is a relevant consideration, that exercise did not resolve the application of the second step of the test or the issue of apprehended bias.

[33] We now turn to the second step, namely the logical connection between exposure to the terms of the proposed settlement and the objective apprehension the primary judge might not determine the property application on its merits …

( … )

[38] … [T]he primary judge was well aware of both the appellant’s formal position, the compromised percentage division, the significant asset pool and what the compromise actually represented in monetary terms to each party. We accept the compromise was a material and substantial deviation from the appellant’s stated position.

[39] … It would be forensically embarrassing for the appellant to contend at trial the settlement previously agreed and presented for approval, would not be just and equitable. We agree with that submission, in particular because of the significant monetary value of the appellant’s compromise and departure from his former position before the Court, it would be untenable for counsel for the appellant to contend at a subsequent trial, that his client’s formal position would be just and equitable and the compromised position would not be.

[40] … [T]he proposed terms of settlement were not akin to ordinary evidence, which could be disregarded by the primary judge.

( … )

[42] … The primary judge’s prolonged exposure to and familiarity with the proposed property settlement orders and the exchanges with counsel over two consecutive days are not analogous to a judge disregarding an objectionable piece of evidence …

( … )

[45] We agree with and accept the submissions of senior counsel for the appellant that there is a logical connection between the exposure to the terms of settlement and the objective apprehension. From the perspective of the fair-minded lay observer, knowledge of the proposed settlement orders and balance sheet over two days might, at the least, subconsciously affect both the primary judge’s future assessment of the evidence and his Honour’s ability to carry out the discretionary evaluative exercise required under s 79 of the Act, to determine adjustments of property.”

The appeal was allowed and the matter remitted to a judge other than Gill J. A costs certificate was granted to the husband.

Children – Equal time arrangement reduced from week about to paternal alternate weekends as father’s alcohol abuse presented a welfare risk, although not a risk significant enough to warrant ongoing testing

In Euclid & Brantley [2023] FedCFamC2F 1612 (14 December 2023), Judge Glass heard competing parenting applications in respect of the parties’ 5 year old daughter.

The parents separated when the child (“X”) was one year old, after which the wife moved to Melbourne for 18 months, during which X and the mother’s two children of a previous relationship lived with the father.

When the mother returned from Melbourne, she spent time with the children on alternate weekends, with interim orders being made thereafter, for the children to spend week about time with each parent. The mother conceded that the week about time was working well, but argued the children should primarily live with her and spend supervised time with the father, based on her concerns as to the father’s consumption of alcohol in front of the children and their exposure to family violence.

An interim injunction was made restraining the father from consuming alcohol for 12 hours before and during his time with the children, the mother deposing that X had made disclosures to her that the father was consuming “five to six” beers and “up to 10” after the injunction was made ([20]).

The Court said (from [25]):

“Even if I were to apply the law against hearsay, evidence of X’s representations would not be inadmissible for that reason … I am entitled to give the evidence such weight as I think fit. I determine to give it significant weight, not only in light of Mr Brantley’s own admissions, but also the independent material available from Victoria Police.

( … )

[28] Albeit Police had no welfare concerns for the parties and recorded that X was not distressed in any way, it is clear that X was exposed to an alcohol-fuelled episode of family violence between her father and his partner.

( … )

[31] Mr Brantley produced a hair sample in mid-2023 which was assessed to reflect excessive consumption of alcohol … Albeit a subsequent Carbohydrate Deficient Transferrin test collected in late 2023 does not suggest recent or ongoing excessive alcohol use, Mr Brantley admitted in oral evidence that he has a problem with alcohol.

( … )

[33] Mr Brantley has an extensive history of involvement with authorities due to his use of drugs, alcohol and violence. His criminal history reveals multiple instances of offending prior to his convictions in 2019.

[34] In late 2022, he also evaded a breath test whilst intoxicated and lost his license.

[35] Mr Brantley suggests that he is obtaining help with his alcohol misuse. He has attended a single drug and alcohol counselling appointment in the last four years. However, he has not ceased using alcohol. Most significantly, he has repeatedly contravened an Order of this Court made with his consent that restrains him from using alcohol in X’s presence. He has also exposed her to family violence. I do not accept that attending a single drug and alcohol counselling session, in light of Mr Brantley’s extensive history, sufficiently ameliorates the risk to X of continuing to be exposed to alcohol use and family violence in her father’s care.

( … )

[82] [The family report writer] … recommends a continuation of the week about arrangement only if ‘the Court accepts the father’s narrative and that he poses no risk of alcohol abuse and family violence to [X].’ … As the Independent Children’s Lawyer emphasises, the recommendation is contingent upon a finding that Mr Brantley poses no relevant risk. Such a finding is unsustainable on the evidence before the Court. Mr Brantley has continued to abuse alcohol during X’s time with him. He has also continued to expose her to family violence.

( … )

[85] [The family report writer] … considers that reducing X’s time with her father ‘would also make it less likely that [X] would be exposed to family violence and alcohol abuse in [Mr Brantley]’s home if that is occurring. It is easier to refrain from alcohol abuse for 2 or 3 nights than it is for 7 nights.’

[86] Balancing X’s relationship with her father and his historical care for her, with his continued exposure of her to alcohol abuse and family violence, I find [the family report writer’s] … recommendations to now be in X’s best interests.

( … )

[94] The Independent Children’s Lawyer and Ms Euclid propose that Mr Brantley be restrained from consuming alcohol while X is in his care. … [The father] … previously consented to such an Order being in X’s best interests. In light of the risks identified by [the family report writer] … attending Mr Brantley’s alcohol abuse, and his own admission of having an alcohol problem, I consider X’s best interests are served by her father being restrained from consuming alcohol whilst caring for her.

( … )

[97] Ms Euclid proposes that she be at liberty to request Mr Brantley to undertake ongoing alcohol testing, with the consequence that if such testing shows excessive alcohol use, X’s time with her father be suspended until he provides a nil or low alcohol use screen. I am not satisfied the relief sought is in X’s best interests. Mr Brantley has been abusing alcohol in recent times, and it has nevertheless been the position that X can continue to spend extended time with him. To completely sever X’s relationship with her father is a significant step that is not warranted on the evidence now before the Court. I also consider the relief sought likely to lead to further proceedings, given the disputes that may arise about the interpretation of testing results.”

Orders were made that the mother have sole parental responsibility, that X live with the mother, spend alternate weekends with the father and week about time during school holidays.

Property – Anti-suit injunction against a third party – Wife’s de facto husband restrained from enforcing his mortgage in the District Court, where his loans to the wife were secured against the former matrimonial home

In Nicotra [2023] FedCFamC2F 1548 (19 December 2023) Judge Monahan heard a husband’s application in a proceeding that sought to join the wife’s de facto partner to the husband and wife’s property proceedings and sought injunctions to restrain the de facto from continuing District Court proceedings against the wife.

The husband and wife had purchased the former matrimonial home (“the Suburb H property”) during their marriage in the wife’s sole name. They separated under one roof in September 2019, following which the wife commenced a de facto relationship with the third party, Mr Gull.

The wife and two children had vacated the Suburb H property following family violence orders. The wife had then purchased other real estate interests, via loans that included at least two loans from Mr Gull, that were secured against the Suburb H property.

The wife had sought orders to the effect that the Suburb H property be sold, while the husband sought to retain the property by way of settlement. Mr Gull had commenced debt recovery proceedings in the District Court against the wife, in which he sought to enforce his mortgage.

The husband said that the loan and mortgage were not genuine. He argued that the District Court proceedings were a sham designed to procure a sale of the property ([33]).

The Court said (from [72]):

“The husband relies upon the provisions of Pt XIV (s.114) and Pt VIIIAA (in particular s.90AF) of the Act for the power to make the orders sought.

( … )

[75] … s.114(1)(1)(a) to (f) sets out a non-exhaustive list of injunctions that may be made. Relevant to this present application is s.114(1)(e) that provides for ‘an injunction in relation to the property of a party to the marriage.’ However … the power is broader than the non-exclusive criteria and permits the Court to ‘make such order or grant such injunction as it considers proper.’ The word ‘proper’ in this section means reasonable and just in the circumstances of the case.

[76] The more commonly used provision is s.114(3) of the Act which is ‘ancillary’ in that it operates only where there are existing proceedings…

( … )

[86] In relation to the requirement in s.90AE(3)(a), that the making of the proposed order is ‘reasonably necessary’ or ‘reasonably appropriate and adapted’ to effect a division of matrimonial property, the Full Court has held in AC & VC [2013] FamCAFC 60 … at [91] that both phrases should be read together with the balance of the paragraph as providing ‘the requisite sufficient connection between the making of the order … in relation to a third party and the core of the marriage and matrimonial causes power’ and this construction ‘meets the test which marks the limits of the power and discretion of the Court’.

( … )

[89] Given that the Court accepts that the proposed third respondent is arguably entitled to bring the debt recovery proceedings, the Court should be cautious in making an order which would prevent him from commencing those proceedings in a jurisdiction of his own choosing…

[90] While it is acknowledged that the relevant debt recovery proceedings could be commenced in the District Court, I note that neither the wife nor the proposed third party argue that this Court does not have jurisdiction to hear and determine the dispute involving the proposed third respondent. If the matter were to be determined by this Court, it would arguably be as a non‑federal matter with sufficient connection with the federal matter before this Court.

[91] Moreover, this Court has the power to restrain a party from commencing or continuing proceedings in another court. That power arises either from the Court’s inherent power to prevent an abuse of its own processes or from the power to prevent proceedings which are vexatious or oppressive or both: see the High Court’s decision in CSR Ltd v Cigna Insurance Australia [1997] HCA 33 …

[92] As to which court or jurisdiction should hear the matter, the test is more than one of mere convenience.

[93] In the decision of Eastburn & Eastburn [2022] FedCFamC1F 706, Christie J provided the following list of factors at [29] that the Court should consider in determining whether an anti‑suit injunction should be granted:

…

(a) Do both courts have jurisdiction?

(b) Will the [Federal Circuit and Family Court of Australia] recognise orders made in the [other] Court as binding upon its determination of the factual controversy?

(c) Can one court or the other more effectively deal with all disputed matters?

(d) Which proceedings were filed first in time?

(e) What stage are both sets of proceedings at?

(f) Are there barriers to participation faced by one party or the other in the different courts (put another way can both parties participate on an equal footing)?

(g) Is there a juridical advantage to one party or the other in the available jurisdictions?

( … )

[111] In relation to the husband’s proposal for the proposed third respondent to be injuncted from proceeding, or recommencing, District Court proceedings against the wife, I find in favour of granting the anti-suit injunction as sought by the husband.

[112] By the conclusion of the interlocutory hearing, it was clear that the gravamen of the husband’s case was his assertion that the loans between the proposed third respondent and the wife were a sham, and the District Court proceedings have been instigated by them to force the sale of the Suburb H property. Whilst the proposed third respondent conceded that the loans had not ‘been dealt with appropriately’ … he, and the wife, disputed the husband’s assertions. I accept their submissions that the husband has not provided any basis to establish his assertions at present…

[113] Notwithstanding this, it is plain that there is a factual dispute as to the legitimacy of the loans and the source of the funds allegedly loaned to the wife, vigorously disputed as it is. … If the proposed third respondent is permitted to recommence proceedings in the District Court of NSW, there will be, in effect, two sets of proceedings addressing the same issue – being the enforceability of the relevant loan agreements. The husband is not a party to the current District Court proceedings and, unless joined, will not be able to give evidence in relation to the enforceability of the loans in any future proceedings in that jurisdiction. If the matter was heard in this Court, the parties will all be afforded the opportunity to give evidence in relation to this issue.

[114] … I do not accept that the husband has failed to establish that an injunction is reasonably necessary. The wife has given sworn evidence of her intention to not to file a Defence to a Statement of Claims in the current proceedings, or to otherwise dispute the loans… The wife has also given evidence that she is unable to repay the loans… In such circumstances, where the loans are secured against the Suburb H property, I am satisfied that any District Court proceedings between the wife and the third respondent are likely to impact on the husband’s claims in this Court. I am also satisfied that if the matter was heard in this Court, the parties would be spared the expense of potentially litigating the issue in two jurisdictions.”

Orders were made to join the wife’s de facto husband as a party to the proceedings and that he be enjoined from taking further steps in the District Court proceedings, other than a discontinuance.

Property – Contempt – Continuing breach of procedural orders for disclosure of documents were not a flagrant challenge to the authority of the Court and could be addressed satisfactorily by costs order

In Perica (No 4) [2023] FedCFamC2F 1670 (20 December 2023), Judge Taglieri heard a husband’s contempt application in which he sought that the wife be imprisoned in respect of 17 alleged contraventions of various orders made by registrars of the court ([1]).

The wife maintained her right to silence, filed no evidence and put the Applicant to proof ([2]). The husband submitted that the number of breaches meant that it was a serious case; that a breach of the wife’s obligations of disclosure constituted a flagrant challenge to the authority of the court; and that ignoring not only orders, but orders subsequently made permitting the wife an extension of time to disclose, constituted a flagrant challenge ([5]).

The husband’s submissions as to penalty were described as a “mathematical” approach where each breach contained a cumulative penalty ([8]).

The wife contended that despite repeated orders that she provide particular disclosure, there was no evidence of an intentional breach, nor evidence of non-disclosure/refusal. The wife contended that she had simply taken her time before producing the required documents ([17]).

It was common ground that documents to be disclosed by 3 November 2021 were not produced until 2 November 2022; and separately, that documents ordered to be disclosed by 4 May 2022 were not disclosed until 2 November 2022.

The Court said (from [12]):

“Counsel [for the Respondent wife] … highlighted the Full Court’s reasoning in Stradford & Stradford [2019] FamCAFC 25 that it was difficult to envisage a case where failure to comply with procedural obligations for disclosure of documents could amount to a flagrant challenge to the authority of the Court. However, he also conceded that the Rules themselves provide that non-disclosure may amount to contempt.[7]

[13] Ultimately, Counsel for the Respondent emphasised that:[8]

… this court has consistently declined to make a finding of a flagrant challenge in cases involving what I would describe as a mere or run-of-the-mill type of contravention that would, otherwise, be dealt with by the contravention provisions of the Act.

[14] Addressing the timeframe of an established non-compliance and where it was ‘run-of-the-mill’ or ‘flagrant’, Counsel referred to Brasch J in Mason & Mason [2023] FedCFamC1F 18 at [38].

( … )

[18] … [I]t became clear that the [wife’s] submission that there was no evidence that [she] … had not disclosed the documents or refused to disclose them was dependent on the meaning of ‘contravene an order’. In particular, [the wife] … submitted that the Court should not infer that she had not disclosed documents on the basis that the orders for disclosure were repeated at subsequent court events after the original Orders of 3 November 2021.

( … )

[21] Ultimately, when I highlighted that it seemed to me that the issue was one of whether non-compliance with disclosure orders on a number of occasions over some months could, or should, be regarded as a flagrant disregard for the Court’s authority, Counsel agreed.

( … )

[32] I disagree with the contentions of Counsel for the [wife] … An order extending time for disclosure of documents or renewal of such an order would simply not be logically made if, at the time of the appearance before the Court, the documents had in fact been disclosed. Further, there was no evidence supporting his contentions and I am unwilling to make the inference suggested by Counsel. It would be tantamount to saying that court orders are made ‘by rote’ illogically and do not address the circumstances as they are at the time of a procedural hearing.

[33] I accept that the repeated making of the order may not demonstrate a refusal to disclose documents, but instead may simply indicate a delay in disclosing. However, the making of the repeated order does evidence non-disclosure at that point in time and in this case contrary to previous order. This is highly relevant to the issues I am to decide because the meaning of ‘contravene an order’ includes making ‘no reasonable attempt to comply’ … Accordingly, I reject the submission by Counsel that contravention of an order within the meaning of s 112AB of the Act necessarily requires intentional failure to comply.

( … )

[34] The above findings and reasons show that there was delay in providing documents which should have been disclosed by no later than 4 May 2022. The delay between the order for extension to 4 May 2022 and the provision of documents on 2 November 2022 is unexplained and lengthy in my view.

[35] In the absence of evidence from the [wife] … there is also no evidence to demonstrate what attempts she made to comply with the Orders of the Court prior to 2 November 2022. Relevant and adverse inference can be drawn because the documents are typical of documents normally within a party’s possession, custody, or power. I am satisfied beyond reasonable doubt that the [wife] … made no reasonable attempt to comply [until] … well after the extended timeframe for compliance.

( … )

[46] The contravention … is not capable of being characterised as a flagrant challenge to the authority of the Court because:

  • It was a continuing breach of a procedural order for disclosure of documents, and the Full Court of the Family Court has suggested that it will be a rare case where such a contravention would be characterised as such;
  • The delay in disclosing the documents did not in fact prejudice the final hearing, but did have potential to do so and frustrate the Applicant’s preparation; and
  • The continuing non-disclosure and the effect of it on the Applicant could be addressed satisfactorily by costs order.”

The Court concluded (from [50]):

“The mathematical method of imposition of penalty suggested by the Applicant has no place in contempt proceedings in family law matters, in my view. Even in cases of contravention of orders that are a flagrant challenge to the authority of the Court, the consequence of the conduct should inform the nature of the consequential order made, not a formula which arbitrarily appoints a value of penalty units.

[51] Further, the Court’s powers in contempt proceedings should ordinarily be used sparingly and exercised to deter blatant and capricious acts which set out to frustrate the ability of the Court to administer justice in a family law dispute or which harm or threaten to risk the well-being of a child.

[52] The above remarks are not intended to convey that the Court condones non-compliance with orders of the Court. To the contrary, contempt proceedings have a role in deterring non-compliance and promoting the expectation that court orders should be obeyed. However, the nature of the order contravened and how or why is highly relevant to the Court being satisfied of contempt and what sanction should follow.”

The contempt application was dismissed.