Children – Evidence of parental misconduct prior to consent orders not to be disregarded when considering subsequent application for supervision – Issue estoppel does not apply in parenting cases

In Fowler & Northwood [2022] FedCFamC1A 173 (24 October 2022) Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a father’s appeal from interim orders that his time be supervised.

Final parenting orders were made by consent on 26 June 2020, providing for the parents to have equal shared responsibility for the children, the children to live with the mother and spend substantial, unsupervised time with the father.

The mother sought to vary those orders, seeking supervised time until a family report was prepared. The father sought to vary the orders by increasing his time.

Together with an interim order for professional supervision at changeover, an order was made for a single expert psychologist. The single expert report did not support the father’s application and recommended supervised time.

The primary judge ordered professional supervision of the father’s time on an interim basis ([15]). The father appealed.

Austin J said (from [24]):

“ … [T]he single expert report was in evidence and the primary judge was obliged to take its contents into account and provisionally assess its reliability, recognising that the single expert was yet to be tested by cross-examination. Had the primary judge ignored the single expert report merely because unidentified parts of it were under challenge, her Honour would have been at risk of alternate criticism for the discretionary error of failing to take material considerations into account.

[25] Single experts are called as witnesses because their qualifications and experience equip them to provide opinion evidence to the court which is relevant to the determination of the issues in dispute, though their expert opinion evidence is not necessarily decisive. Judicial power to decide the legal dispute always rests in the hands of the trial judge, not the expert witness (Albert & Plowman [2020] FamCAFC 23 at [19]–[22]). No judge is bound to accept or reject the whole or any part of the evidence of a single expert (U v U [2002] HCA 36 at 261). … Even though expert opinion evidence is normally untested in an interim hearing, the provisions of the Act expressly require a judge to react to credible evidence concerning risks of harm to which children might be exposed and against which they require protection (Cimorelli & Wenlack [2020] FamCAFC 58 at [80]–[81]; Lim & Zong [2020] FamCAFC 20;  at [32]–[33]).

( … )

[26] … [H]er Honour recognised two important things: first, the untested single expert report was not dispositive, but secondly, it was evidence which would nonetheless bear upon the existence of risks which her Honour could not ignore.

( … )

[28] The father submits … that, having foreshadowed his intended challenge to the reliability of the single expert report and having heard the primary judge’s cautionary comments in relation thereto, he expected little weight would be reposed in the single expert report at the interlocutory hearing and he need say little more about it. ( … )

( … )

[30] … [O]nce critical issues in the proceedings are known to the parties, a judge is not required to give the parties a running commentary upon his or her provisional views as the case proceeds, nor expose his or her thought processes or inclinations for further comment by the parties before the necessary decision is made (Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 … SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 … )

[31] … [T]he primary judge reserved judgment and, upon reflection, was seemingly persuaded the content of the single expert report deserved more weight than her Honour first thought. However … the primary judge was not then obliged to re-list the matter, forecast to the parties her altered inclination to attribute greater weight to the untested evidence of the single expert, and give them another chance to persuade her Honour either for or against that course. …”

Austin J continued (from [37]):

“The ancillary proposition put by the father … is that it was not open for the primary judge to go behind the existing orders made in June 2020, since the parties’ assent to those orders, providing for the children to spend substantial amounts of unsupervised time with him, reflected their mutual admission that the orders were made in the children’s best interests, thereby subsuming all antecedent complaints of parental misconduct or incapacity.

( … )

[40] … [The father’s] argument is also misconceived because it assumes the ‘issue’ of the children’s best interests was definitively resolved up to the point at which the orders were last made with the parties’ consent in June 2020 …  However, no ‘issue’ was immutably resolved. The principle of ‘issue estoppel’ does not apply to parenting proceedings conducted under Pt VII of the Act (Reid v Lynch [2010] FamCAFC 184 … ; Schorel & Schorel [1990] FamCA 58). The statutory imperative of children’s best interests always being the paramount consideration is not overridden by principles of estoppel.

[41] Given the mother consented to the orders made in June 2020, the primary judge was certainly entitled to evaluate any evidence adduced by her about the father’s alleged misconduct or parental incompetence prior to her assent to the orders with a healthy degree of scepticism, because she willingly overlooked such concerns when she agreed to the orders allowing the children to spend substantial time with the father. But that is a quite different proposition from her Honour being obliged to disregard such evidence, as the father explicitly submitted.”

The appeal failed and an order for costs in the sum of $12,114 was made against the father.

Property – Findings of contempt set aside where no flagrant challenge to the court’s authority – Undesirability of imposing one sanction covering multiple counts of contempt

In Zamir [2022] FedCFamC1A 193 (24 November 2022) the Full Court (McClelland DCJ, Austin & Tree JJ) heard a husband’s appeal from a decision of Altobelli J that sentenced him to 6 months’ imprisonment after 3 findings of contempt made in his absence.

The husband resided overseas. The parties owned assets in Australia and overseas. Interim orders were made by a registrar restraining the husband from dealing with assets, including assets outside Australia. The husband filed an application for review while the injunctions still remained in place subject to particular exceptions that allowed the husband to deal with assets on a restricted basis ([10]).

The husband subsequently transferred real properties overseas, transferring one property to his son and another to his mother. He also withdrew $600,000 from his bank account, which prompted the wife’s contempt application ([12]).

The husband did not appear at the contempt hearing and orders were made in his absence, including directions for the issue of a warrant for his arrest and detention. The husband appealed.

The Full Court said (from [29]):

“ … [T]he primary judge found the husband deliberately breached the first orders by transferring ownership of Property A to the parties’ adolescent son on 11 August 2021, little more than a week after the first orders were made on 2 August 2021.

( … )

[33] The wife … admits the husband entered into a contract to transfer title in Property A to their son on 6 March 2021 – five months before the first orders were made restraining the husband from doing so. …

[34] … In [a] … letter written by the husband’s solicitors to the wife’s solicitors in February 2022, he suggested that they procure single expert opinion evidence to verify his contention about the conveyancing law and practice in the jurisdiction where Properties A and B are situated, but there was no evidence before the primary judge of the wife embracing that idea before she filed the contempt application in July 2022. …

[35] … [T]he wife’s solicitors submitted to the primary judge that there was ‘not a scintilla of evidence that would objectively establish’ the husband’s account of the transaction …The submission inverted the onus of proof. The husband had to prove nothing. The wife had to prove his contempt beyond reasonable doubt and … she was unable to do so.”

The Full Court continued (from [40]):

“The wife deposed how the husband received Property B from his father as a gift in 2012 … The husband transferred title in the property to his mother on 11 August 2021, several days after the first orders were made. … [I]t was alleged the husband contracted to transfer the property to his mother years before on 22 September 2017.  …

( … )

[44] … [T]he wife failed to exclude the reasonable possibility that the husband contracted to transfer the property before the injunction was made, in which case she could not prove the husband’s contempt beyond reasonable doubt for the same reasons discussed in respect of Count 1 …”

The Full Court concluded (from [57]):

“The sanction must be set aside when the underlying findings of contempt are erroneous, but it is worthwhile dwelling upon the merit of this ground in isolation.

[58] It is contended the primary judge erred in principle by failing to give adequate reasons for the penalty imposed upon the husband. We accept that proposition to be correct, though there is a broader question about the principled approach to adopt when imposing penalty for contempt, in respect of which the authority on the point is not all one way.

( … )

[60] … [I]n this instance, the primary judge did not impose separate sanctions upon the husband in respect of each individual count of contempt found proven. Instead, an indivisible sentence of imprisonment covering all three separate acts of contempt was imposed. The single global sanction precludes an isolated challenge to the correctness of any one particular count and, in the event of complaint about one, forces an appeal against all. It also hinders the consideration of an appeal directed only to the severity of the sanction because it is impossible to discern what parts of the overall sanction are intended to reflect the individual counts.

[62] The practice of imposing one sanction to cover multiple counts of contempt has not been uniformly deprecated (Abduramanoski and Abduramanoska [2005] FamCA 88 … Cummings and Cummings [1976] FamCA 73), though the Full Court has more recently commented upon the general undesirability of the practice (Gravis & Major [2010] FamCAFC 239 … ).

( … )

[63]  … To ensure the transparency which is obligatory when sanctioning proven counts of contempt, it is better for the primary judge to impose a separate sanction for each count, representing the ideal balance between relevant objective and subjective factors. The balance should properly reflect the principled consideration of the need to punish the contemnor for the flagrant breach of orders, encourage the contemnor’s future compliance with orders, deter the contemnor from acting in contempt again, and deter others from so acting ((Keehan v Keehan [2019] FamCAFC 250; Oakley & Millar [2019] FamCAFC 12 …; McClintock & Levier [2009] FamCAFC 62 …). Having determined an appropriate sanction for each proven count of contempt, the primary judge should then consider the extent to which any sentences of imprisonment should be served cumulatively or concurrently.

( … )

[66] It is a fundamental principle of common law that the imposition of a custodial sentence ought be the sanction of last resort (Boulton v R [2014] VSCA 342). The primary judge’s reasons offer no explanation for why a fine, security for good behaviour, or suspended sentence of imprisonment were rejected as inadequate sanctions. Nor do the reasons explicate why a full-time custodial sentence of six months was chosen.”

The sentence of imprisonment was set aside and the Application-Contempt filed by the wife was dismissed.  No costs order was made.

Child support – Departure order from administrative assessment for two children now aged 22 – Withdrawal of superannuation prior to terminating event artificially increased father’s assessable income

In Brenner & Chessington [2022] FedCFamC2F 1354 (6 October 2022) Judge Monahan heard a father’s application for a departure order from an administrative assessment for two children in relation to a period from 1 July 2017 to when each of the children turned 18 in 2018.

Both children were born to different mothers ([5]). The father paid child support for each of the children since 2000 until they turned 18 years.

The father ceased employment on 6 June 2017. He was advised by the child support agency to pay the minimum amount of child support until the children turned 18. After being diagnosed with cancer in September 2017, the father withdrew funds from his superannuation. In 2020 the child support registrar assessed the father’s adjusted taxable income for 2017-2018 to include his superannuation withdrawal, making his income $201,106, resulting in child support debts of about $18,800 to each of the children’s mothers.

The father’s objection to the assessment was dismissed by the child support registrar. His application to the Administrative Appeals Tribunal was also dismissed.

The father filed an application in the FCFCA, effectively seeking leave to vary the child support payments and an amendment of the calculation so that $201,000 of his superannuation was not considered taxable income ([28]).

The Court said (from [44]):

“The Applicant does not need to demonstrate exceptional circumstances to persuade a Court to grant leave under section 111 but the Court does need to carefully consider the matters in section 112 subsections (4) and (5).

( … )

[46] The first relevant matter is the responsibility for the delay. While it is clear from the evidence that the Applicant was responsible for the delay, he does provide a reasonable explanation for the delay and his predicament. …

[47] The second relevant matter is the issue of hardship to the Applicant and to Respondents should leave be granted. In addition to his serious illness, the Applicant relied on advice about the impact of his withdrawal of his superannuation entitlements which … was to his detriment. Although he was eligible to withdraw his superannuation monies because of his age, there are rules about how those monies may be treated for income tax purposes and for child support purposes. … [H]ad the Applicant simply waited to withdraw his superannuation entitlements to a date after both children had turned 18 years of age in July/August 2018, this child support problem would not have arisen. … The revised child support assessment only came about because of the Applicant’s mistaken belief that the superannuation monies would not be relevant for child support purposes. In circumstances where the child support assessments were to terminate in July/August 2018, it is difficult to see how the Respondents would suffer hardship because, had the Applicant known about the ramifications of withdrawing the superannuation funds before August 2018, he would not have done so. … [A]ny assessment of alleged hardship by the Respondents would be difficult because they did not put forward any evidence to suggest such.

[48] In relation to delay, … the Applicant did seek to address the child support problem once he became aware of it and opted to pursue, unsuccessfully, a review application through the Child Support Agency and then to the Administrative Appeals Tribunal. … ”

The Court continued (from [50]):

“Given that the Court is satisfied that the Applicant has:

-provided an explanation for his delay in making his application;

-provided evidence that he would suffer hardship if leave was not granted;

-made out a prima facie case to have the child support assessments changed;

and further noting that the Respondents did not take up the opportunity to participate and put contrary evidence before the Court, I find in favour of exercising the Court’s discretion that the Applicant be granted leave pursuant to section 111 of the Act.

[51] … The Applicant asks that the Court consider a departure order under section 118 of the Act. The Court agrees that that would be appropriate given that the child support assessments have terminated.

( … )

[54] … [T]he Applicant relies on section 117(2)(c)(ia) and submits that his application is ‘out of the ordinary’. … [He] argues that the superannuation monies he received were in the nature of savings and were not income that he earnt in the relevant child support year. … [T]he necessity to withdraw the superannuation monies was largely because of Applicant’s serious illness and his inability to earn an income …

[55] … I am satisfied that a ground for departure has been established because the Applicant had been assessed to pay child support at a rate not commensurate with his actual income in the relevant period for which he sought a departure order.”

After concluding that it would be just and equitable ([56]) and otherwise proper ([59]) to depart from the administrative assessment the Court concluded (from [65]):

“ … [G]iven leave will be granted to apply for a departure order, section 118(1)(g) of the Act gives the Court the power to adjust the Applicant’s taxable income to ‘nil’ for the relevant periods. … [G]iven the nature of this dispute, and the Applicant’s circumstances, it would be more appropriate for the Court to use its powers under section 118(1)(a) of the Act to adjust the annual rate of child support payable by the Applicant to the minimum annual assessment rate for the relevant periods, noting that the Applicant has already paid the minimum annual assessment rate for the relevant periods.

[66] This Court does not have the jurisdiction to remit the penalties that have been included in the Applicant’s child support debt. … [O]nly the Child Support Registrar has the power to remit a penalty incurred in circumstances where a parent underestimates an income amount. However, as the Applicant’s annual child support rate has been set to the minimum annual assessment … the Court would consider it inappropriate for the penalties to remain.”

Children – Graduated increase in time with young child – Discomfort of supervision insignificant compared to potential long-term detriment to child if relationship with father not rekindled

In Samad & Haider [2022] FedCFamC2F 1256 (16 September 2022) Judge Street heard a father’s application for time with a two year old child.

The parents had a short relationship commencing and concluding in 2019 and were separated before the child’s birth in 2020. At the time of the hearing, the father had not spent time with the child since her birth other than four supervised visits in 2021. He did not oppose orders that the child live with the mother provided that there was no risk to the child ([6]) and sought time on a graduated basis, with 2 hours each Saturday increasing to alternate weekends once the child commenced school plus mid-week and holiday time.

The mother adopted the position of the independent children’s lawyer, seeking sole parental responsibility, that the child live with her and spend supervised time with the father.

Judge Street said (from [18]):

“The Court is satisfied that the Father engaged in controlling conduct during that short period of the relationship. There was competing evidence about other communications relating to the physical allegations, but it is not necessary to determine those issues.

( … )

[20] … The Court finds that similar controlling behaviour has been engaged in by the Father in seeking to dictate the circumstances in which his access to the Child should recommence. …

[21] However, the Court does accept that the Father has a genuine concern as to the wellbeing of the Mother in respect of her ability to parent their Child. The Court does not, however, accept that the Father’s concerns identify any proper on-going evidentiary basis beyond the period that the Mother spent at the R Hospital from 17 June 2020 to 6 July 2020. The placing of the Child into the care of a friend for a period of approximately two weeks voluntarily by the Mother does not identify a proper basis for the ongoing concerns expressed by the Father as to the mental health and parenting ability of the Mother. …

( … )

[28] Dr G, who has been an outstanding expert for many years, prepared a detailed and helpful family report and two further letters and gave extensive helpful and perspicacious evidence to the Court on the issues raised between the parties. Again, it is not necessary to summarise the whole of Dr G’s evidence beyond identifying that Dr G, having seen the GPs records in relation to the Mother, was satisfied as to the Mother’s mental health and her ability to perform the parental responsibilities, and that the Child should live with the Mother. The Court accepts that evidence of Dr G.

[29] Dr G also characterised the conduct of the Father in the cessation of the supervised visits as being to the detriment of the best interests of the Child. Dr G also identified the potential concern as to the Father’s ability to exercise parental responsibility in circumstances where he was willing to engage in controlling behaviour in relation to supervised access, and lacked insight in relation to the best interests of the Child.  Dr G identified the importance of a parent complying with a supervised access regime in order to move forward to more meaningful and significant time. Dr G referred to the small amount of pain by the parent to the significant gain of the Child in participating in that supervised access and permitting the appropriate rekindling of bond between the Father and the Child.

( … )

[34] The Court accepts the evidence of Dr G that it is very much in the interests of the Child X for the Father to participate in the short period of discomfort of supervision so as to advance the best interests of the Child and to then facilitate the growth of that relationship through significant and meaningful time in a graduated way. The Court accepts the evidence of Dr G that, given the Father’s controlling conduct and lack of insight to which the Court has referred, that overnight time should not commence until the Child has reached the age of six. Dr G also referred to the parties undertaking alternate periods attending school events or other significant occasions.”

The Court continued from ([54]):

“The Court has taken into account that the Father has not established a relationship with the Child, and that the four visits that he had under supervised access occurred at a period of time that means there is no existing bond or relationship between the Father and the Child, notwithstanding the Father’s belief to the contrary.

[55] The Court has taken into account that the Father failed to take up the opportunity to complete the supervised access as was required under the earlier orders. It is now incredibly important for the Father, in order to advance the best interests of the Child, to spend a brief period of supervised time over six visits and then, on a graduated basis, to spend increasing time with the Child, including introducing the Child’s siblings from the Father’s other relationship, and to communicate with the Child on a regular basis.

( … )

[68] … If the Father has failed to comply with and undertake the supervised access, the progression to more meaningful time with the Child, including facilitating the parties agreeing on significant and meaningful time, is to be suspended until the Father has completed the six fortnightly supervised visits, which is the subject of the Court’s order.”

Orders were made for the father to have graduated time periods with the child increasing to unsupervised day time and then overnight time from the child’s sixth birthday.

Children – Sole parental responsibility – Mother’s application for no time with father dismissed despite intractable and unabated conflict between parents – Lump sum and non-periodic child support orders where father had not paid periodic assessment nor contributed to school fees

In Blatch (No 5) [2022] FedCFamC1F 651 (31 August 2022) Rees J heard  competing parenting, property and child support departure applications after a 15 year relationship which produced two children, X born in 2010 and Y born in 2012.

The parties separated in early 2018 and lived separately under the one roof until an incident that resulted in a domestic violence order against the father which was subsequently set aside (where the father’s conviction of charges relating to the incident was quashed on appeal).

The father sought orders for equal shared parental responsibility and that his time with the children increase over a six month period to an equal time arrangement. The mother sought sole parental responsibility and that the children spend no time with the father and have no communication with him. In the alternative, she sought that the children’s paternal time be supervised.

Rees J said (from [149]):

“I accept the evidence of Mr J [the family report writer] that the harm which has been caused to these children, and the risk of further harm, stems from the intractable and unabated conflict between their parents.

[150] … [S]ince neither appears to have heeded Mr J’s very clear warnings about the effect of the parents’ behaviour upon their children and the possibility of further psychological damage to the children if they do not take steps to remediate their respective attitudes … and their method of relating to one another, I am unable to make any orders which will effect those necessary attitudinal changes.

[151] I have every confidence that these parents will continue to behave as they have in the past, heedless or regardless of the consequences for their children.

( … )

[152] The children’s views are clearly stated. They want to spend more time with their father including overnight time and holiday time.

[153] They are 12 and 10 years old and they understand that their mother does not support their wishes.

[154] Their views need to be given considerable weight.

( … )

[165] Each of the parents fails to take responsibility for his or her contribution to risks that the children face as a result of the parents’ continuing conflict.

[166] The father at least acknowledged that the mother is a good parent with the exception of her staunch opposition to his having a relationship with the children.

( … )

[168] The mother, although asked on a number of occasions what benefits the father might bring to the children if he were able to have a relationship with him, could only say that they had fun with him. She was unable either to comprehend or acknowledge that the children might benefit from the qualities they see in their father.”

Her Honour continued (from [175]):

“I also accept the evidence of Mr J that equal shared parental responsibility is not an option for these parents.

[176] The presumption … of equal shared parental responsibility is rebutted by the incident of violence … and I am unable to find that it is otherwise in the children’s best interests to make such an order.

( … )

[178] I have no confidence at all that these parents are capable of reaching any decision in relation to their children … The father’s method of problem solving, by bullying and aggression, and his disregard for court orders … The mother is no more conciliatory as she has demonstrated in her stanch refusal to allow the father to spend time with the children and her entirely unreasonable insistence on retaining [the child’s] therapist.

[179] The children will spend the majority of their time with their mother and she will have sole parental responsibility.”

In relation to child support, the Court said (from [232]):

“Lump sum child support

[232] The husband has not paid child support in accordance with the assessment since March 2021.

[233] Although it is submitted on his behalf that he will pay voluntarily … he gave no evidence to that effect and I have no reason to believe that his future behaviour will be any different from his past behaviour.

[234] The wife has been forced to enforce the assessment on two occasions. She should not be required to do so again.

( … )

[236] I am satisfied that it is just and equitable and otherwise proper to make the order sought by the wife and that the amount to be paid equals or exceeds the annual rate of child support payable for the children pursuant to the assessment.

[237] The husband will pay lump sum child support in the sum of $186,238.

Tuition fees

( … )

[239] It is not in dispute that the parents both signed the applicable documents to enrol the children in their current school and that they both intended, during the marriage, for the children to attend that school. X has attended since she was in Year 3 and Y’s enrolment was completed in November 2018, shortly before the parents separated. The documents signed by both the husband and the wife included an agreement to pay Y’s fees. Y has attended since the beginning of 2019.

[240] It was only after the parents separated that the father wrote to the school stating that he did not intend to continue to pay the school fees.

[241] I do not accept that the husband is unable to make a contribution to the school fees. …

[242] I am satisfied that it is just and equitable and otherwise proper to make the order sought by the wife.”

Property – Arbitration – Arguable that “review” of arbitral award under s 13J is not an appeal – Non-disclosure properly considered under s 75(2)(o)

In Paviello [2022] FedCFamC1F 592 (2 September 2022) Wilson J heard a wife’s application to “discharge” an arbitral award following its registration ([1]).

The wife’s grounds centred around the husband’s alleged material non-disclosure ([7]). The husband and the second respondent sought the dismissal of the wife’s review application.

Addressing the grounds of review, Wilson J said (from [7]):

“ … The review applicant argued that material non-disclosure ‘should have been as to the ultimate just and equitable adjustment pursuant to s 79(2) of the Act’. The review applicant contended that rather than doing that, the arbitrator considered that non-disclosure enlivened s 75(2)(o) of the Act. The wife argued that authorities such as Black v Kellner  [1992] FamCA 2; In the Marriage of Briese  [1985] FamCA 23; Oriolo v Oriolo [1985] FamCA 54; In the Marriage of Weir [1992] FamCA 69 and others contain stipulations about the correct approach to be adopted when one party has been derelict in his or her compliance with the duty of disclosure. …

( … )

[9] The arbitrator addressed four motor vehicles, observing in paragraph 300.14 that the husband made no attempt to adduce evidence as to the source of funds that the husband applied in his acquisition of the four motor vehicles. The arbitrator then drew the inference that the husband had the benefit of additional income or access to funds not disclosed or access to some other financial resource which was utilised to acquire the motor vehicles. The arbitrator stated that he was left guessing, as was the wife.

[10] It was open to the arbitrator to draw an inference if the material enabled such as an inference to be drawn. However, circumstances giving rise to equal degrees of probability so that the choice between them is no more than a mere matter of conjecture will not support an inference legitimately drawn. The arbitrator indicated he was left to guess at the source of funds used to purchase the four motor vehicles.

[footnotes omitted]”

Wilson J continued (from [19]):

“So far as the procedure under s 13J was concerned, despite being invited to do so, counsel for the review applicant declined to advanced submissions before me on the meaning of ‘review’ as opposed to the meaning of the word ‘appeal’ where elsewhere used in the Family Law Act. Accordingly, in the absence of detailed debate on the issue it would not be proper for me to adjudicate on the correct construct of the word ‘review’ where used in s 13J. Counsel for the first respondent relied on the decisions of a judge of what was once the Federal Circuit Court of Australia in Braddon v Braddon [2018] FCCA 1845 and in Pavic & Pavic [2018] FCCA 3386. In both of those decisions the judge pronounced that on a review application under s 13J the review applicant must establish error of law. In view of the fact that the point was not debated before me it is not appropriate to rule definitively on point on this review application. However … I express my gravest reservation that the word ‘review’ in s 13J requires the review applicant to demonstrate error of law. The point must await determination on another day. That said, it seems to me to be arguable that ‘review’ and ‘appeal’ are not the same. Debate may also abound in relation to whether the material the court examines on a review is the same as the material a court examines on the hearing of an appeal. Further, in the specific context of s 13J the ‘review’ is on ‘questions of law’. Debate may very well be enlivened on whether a question of law equates with a question of fact or even with a question of mixed fact and law. In addition, issues may very well arise about the degree of precision with which the question of law must be expressed. As I say, those points remain for another day …

( … )

[24] The ‘review’ to which s 13J is directed does not involve a hearing de novo as does a review of a registrar’s decision; it seems to me. That is in part the function of the different wording of the relevant legislative provisions and of the observations of the High Court in Harris v Caladine [1991] HCA 9. … [I]t seems to me to be unlikely that the legislature is to be taken to have intended that an arbitrator to whom a s 79 application is referred for determination in pursuance of s 13E is to apply different considerations to those a judge must apply when determining a s 79 application. So, when a dissatisfied party takes the s 79 determination further, whether to a single judge in the case of an arbitral determination or to a full court in the case of a judicial determination, the matters falling for examination by the reviewing body should be the same. Were it otherwise, a party to an arbitration would be penalised for selecting arbitration because by that selection of arbitration, the parties to arbitration would somehow have compromised their remedies consequent upon a s 79 determination. … In my view it follows that the ‘review’ in s 13J involves an examination of the evidence that was before the arbitrator against the questions of law posed in the review application so as to determine whether the arbitrator’s determination on the s 79 application was just and equitable.

( … )

[25] Under ground 1 the review applicant placed heavy reliance upon the arbitrator’s statement that non-disclosure enlivened s 75(2) considerations. The review applicant submitted that non-disclosure went to s 79 issues in the context of the verification of aspects relating to the property pool. Of that contention several things must be said.

[26] First, s 75(2)(o) is among the many s 75 factors to which the arbitrator was required to have had regard. That subsection is deliberatively broad. The arbitrator took the view that the matter of disclosure deficiencies (more properly, dereliction of duty concerning disclosure) was captured by s 75(2)(o). …

[27] … The authorities that I surveyed above concerning the consequences of disobedience with the duty of disclosure speak of the relevant rule in Chapter 13 of what was then the Family Law Rules. Those authorities addressed the impact of non-compliance with the duty of disclosure in a s 79 application. The statements of principle arising from those authorities bear upon s 79 applications. It seems to me to follow axiomatically that if non-disclosure and its consequences is a matter that can be taken into account in a s 79 application, then non-disclosure is also a matter, which, by operation of s 75(2)(o), can legitimately be taken into account. In other words, s 75(2)(o) is one of the legislative enabling provisions pursuant to which non-disclosure finds its status in a s 79 application.

[28] Here, the arbitrator specifically identified non-disclosure as a matter to be taken into account under s 75(2). Far from that not being an error of law, s 75(2) expressly permitted its consideration.”

The application for review was dismissed, the parties to file submissions as to costs.

Children – Finding of long-term pattern of “pervasive, coercive and controlling conduct” and an order for no time with father upheld

In Lim & Zong [2022] FedCFamC1A 146 (20 September 2022) McClelland DCJ heard a father’s appeal against final orders made by Judge Coates in a parenting matter in relation to one child who was born in 2012.

The parties married in 2006 in Country Q, relocated to Australia in 2007 and separated in 2012 whilst on holiday in Country Q. The parties returned to Australia in January 2013 when the mother relocated with the child.

Proceedings commenced in 2014 and after numerous court events and delays, interim orders were made on 29 October 2020 stopping the father’s time with the child on the basis of unacceptable risk. Judge Coates accepted the mother’s evidence as to numerous incidents of family violence by the father against the mother and controlling behaviour ([14]).

The self-represented father appealed.

After describing the father’s grounds of appeal as “virtually unintelligible” ([18]), McClelland DCJ said (from [26]):

“… [The primary judge found] that the father had engaged in a long-term pattern of pervasive, coercive and controlling conduct directed towards the mother. ( … )

[27] This campaign of coercive and controlling conduct carried out by the father included sending offensive emails to the mother, extending back to 2014. Those emails … extend over 30 pages, including a series of emails spanning five years in which the father seeks to coerce the mother into taking a particular course of action. …

( … )

[35] The primary judge did not accept the evidence of the father that he acknowledged the flaws in his conduct and that he had committed to change the manner in which he communicated with the mother. …

[36] … [T]he primary judge noted that the only time the father’s ‘campaign of family violence using coercion and threats over a long period of time’ halted was when orders were put in place ceasing the child’s time with the father …

( … )

[43] … [T]he primary judge found that the father had used ongoing litigation against the mother as an additional means of exerting coercive control. His Honour noted that the proceedings which are the subject of this appeal were the fifth attempt by the mother to have the matter listed for hearing that had been obstructed by the father, including by dismissing two sets of lawyers who had been appointed to act on his behalf by Legal Aid. The primary judge also referred to the conduct of the father in pursuing apprehended violence orders against the mother in the Queensland Magistrates Court. …

[44] In the context of that litigation history, the primary judge accepted the evidence of Mr O, the mother’s treating psychologist, that the ‘long years of litigation’ in addition to the father’s pattern of engaging in coercive and controlling conduct have taken a toll on the mother, the cumulative effect of which has resulted in the mother suffering from a mental illness (at [144]). …

[45] That stress and anxiety … included the mother’s concerns for the emotional well-being of the child if orders were to be made for the child to spend time with the father. …

( … )

[50] … [T]he primary judge found that the mother’s mental health would be so profoundly impacted by orders providing for the child to spend time and/or communicate with the father, that her parenting capacity would be adversely impacted. …”

Finding the father’s grounds of appeal were without merit, the Court considered the mother’s costs application and said (from [129]):

“I accept that the father is of limited financial means. On the other hand, the mother earns a relatively small salary … in the sum of $50,000 per year and has responsibility for maintaining both herself and the child. … [I]n Cross & Beaumont [2008] FamCAFC 68 …, the Full Court held that financial incapacity to pay a costs order is not a barrier to the making of a costs order where the conduct of the party may warrant such an order being made.

( … )

[131] In terms of other considerations as referred to in s 117(2A)(g), the emotional cost of litigation is well documented. As Keane J observed in Rozenblit v Vainer [2018] HCA 23 … :

Litigation is sufficiently stressful and expensive for all concerned without the unnecessary aggravations of additional cost, stress, distraction and delay occasioned by inefficiency, incompetence or sheer disregard of the rules. … Inefficient or incompetent conduct of litigation may cause injustice even if it is not intended to do so. …

(Footnote omitted)

[132] That statement of Keane J is particularly pertinent in the context of these proceedings where the primary judge acknowledged that the father has used litigation as a tool in his unrelenting campaign of coercive and controlling conduct directed towards the mother. …

[133] Accordingly, for these reasons there should be a costs order made against the father.”

The husband’s appeal was dismissed and he was ordered to pay the costs of the mother and the Independent Children’s Lawyer assessed at $4,671.90.

Procedure – Conflict of interest found where wife’s solicitor was also acting for wife’s litigation funder (which was owed $3.6 million) – Appeal from dollar for dollar costs order allowed where recoverability not adequately considered

In Charisteas [2022] FedCFamC1A 160 (7 October 2022) the Full Court (Alstergren CJ, McClelland DCJ & Aldridge J) heard a husband’s appeal from orders of a judge of the Family Court of Western Australia (“FCWA”) in relation to a property matter which commenced in 2006.

The wife’s application for a property settlement was remitted for rehearing by the High Court on 6 October 2021 (see Charisteas [2021] HCA 29, summarised at our archived case notes – property under “bias”).

On 19 April 2022, the FCWA determined a number of interim applications in preparation for the rehearing. The applications included injunctions to restrain a firm and Mr P from acting for the wife on the basis they were also acting for the wife’s litigation funder (“AF”), which was owed at least $3,600,000. A further restraint was sought against the wife’s counsel, Ms D, on the basis that contact between Ms D and the trial judge had led to the final property orders being set aside ([14]).

The husband’s applications were unsuccessful and he appealed ([4] & [10]). He also appealed an order for him to pay a “dollar-for-dollar” costs order in favour of the wife ([6]).

The Full Court said (from [34]):

“… [I]t was contended … [by the wife] that the relevant test to apply in considering whether to restrain lawyers from acting in order to protect the integrity of the judicial process is found in Kallinicos v Hunt [2005] NSWSC 1181 (“Kallinicos v Hunt”) at [76], where Brereton J said:

…

The test to be applied … is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

( … )

[36] … [T]he primary judge was led into error by the parties in these proceedings, who contended that the relevant principle to be applied … is the principle set out above.

[37] The correct test that should have been applied … is that which is adumbrated by the Full Court of the Federal Court of Australia (Besanko, Lee and Abraham JJ) in Porter v Dyer (2022) 402 ALR 659 who applied, with approval, the following statement of principle by Griffiths J in Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475:

The relevant principles which guide the exercise of the Court’s separate discretion are broadly as follows:

…

(b)     The test to be applied is whether a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice …

( … )

[40] … [W]e are of the opinion that the primary judge erred in failing to have regard to a relevant consideration, namely, that there is a ‘real or substantial possibility of a conflict’ between the interests of the respective clients of Firm Y and Mr P …

( … )

[42] … The wife currently owes AF … [at] least $3.6 million and AF has an interest in ensuring that the adjustment of the parties’ property sought by the wife … is reflected as a transfer of property to the wife, rather than the settlement being structured on an alternative basis. Such an alternative would be to maximise non-property or cash benefits to the wife … which may be beyond the claim of creditors including AF. …

( … )

[52] The … primary judge erred in failing to have regard to the potential and actual conflict between the interests of Firm Y, Mr P and the wife … We are satisfied that, if the extent of that actual and potential conflict were identified to a fair-minded, reasonably informed member of the public, they would conclude that the proper administration of justice requires that the restraints sought by the husband against Firm Y and Mr P be established.”

In relation to the application to restrain Ms D, the Full Court continued (from [54]):

“ … [T]he primary judge erred … in that she failed to have regard to the fact that Ms D was in a position of conflict of interest in acting for the wife, in circumstances where an application for costs had been made against Ms D.

( … )

[56] Additionally, the background facts in this matter suggest that it may be in the interests of the wife to obtain independent advice as to whether she has a claim for contribution against Ms D in respect to costs which the wife has incurred in these proceedings.

[57] For that additional reason, Ms D is in a position of actual conflict of interest as to whether she provides advice of that nature to the wife.”

Considering the dollar-for-dollar order, the Full Court concluded (from [77]):

“ … [U]ntil the High Court holds otherwise, the Court should proceed on the basis that s 117 empowers the Court to make litigation funding orders, including dollar-for-dollar orders.

[78] … As we have said, s 114 amply provides the basis for such orders and no error would be made by proceeding under that section. Whilst … the considerations to be taken into account may differ slightly due to the mandatory terms of s 117(2A) which do not apply to s 114, there is little practical difference in the approach to be taken …

( … )

[80] The appellant … submitted that her Honour erred by failing to take into account the extent to which any costs paid pursuant to the order could be later adjusted or recovered without recourse to s 79A of the Act.

( … )

[82] We accept that the primary judge did not undertake the consideration of recoverability, but that is not entirely surprising because we are unable to identify any submission put to her Honour that raised it.

( … )

[86] … [I]n the ordinary course, it would be very difficult … to make a litigation funding order, especially a dollar-for-dollar order, in favour or for the benefit of a commercial litigation funder.

[87] This was a relevant consideration to take into account. It was a point raised at the hearing and in oral submissions on the appeal, but was not referred to in the primary judge’s reasons. …

[88] It follows that the appeal must be allowed and the application remitted for rehearing. …”

The husband’s appeal was allowed; the wife was restrained from instructing the same lawyers who were acting for her litigation funder; and the wife’s counsel was restrained from acting for her.

Property – De facto thresholds – Judge’s denial of leave to proceed was “repugnant to” prior consent order granting leave under s 44(6) – De facto wife’s application could not be dismissed for want of prosecution

In Eden [2022] FedCFamC1A 178 (27 October 2022) Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, considered a decision of Judge Morley, where a de facto wife’s initiating application for property orders was dismissed for want of jurisdiction.

The parties were in a de facto relationship from 1989 to 22 November 2007. The de facto wife alleged that the parties reconciled in 2008 and the relationship continued for several years. There was uncertainty about the final date of separation, but consensus that the relationship ended by December 2014 ([5]). The de facto wife filed her application in August 2017.

The de facto husband initially sought dismissal of the application ([7]), but in April 2018 a different judge granted leave to proceed pursuant to s 44(6) of the Act, based on the de facto husband’s admission that jurisdiction existed ([10]-[12]).

Judge Morley found that if the relationship broke down prior to 1 March 2009, there was no jurisdiction to make any order other than dismissing the proceedings for lack of jurisdiction and an order under s 44(6) did not cure that jurisdictional issue ([17]).

Austin J said (from [18]):

“ … The minute of orders, representing the parties’ formal agreement, resolved the jurisdictional dispute. Acting on such evidence, the other judge granted leave to bring the claim for property settlement out of time, which order was entirely futile unless jurisdiction actually existed to entertain the appellant’s claim. The existence of jurisdiction could perhaps have been proven by the appellant if the issue had remained contested, but that became unnecessary when the respondent conceded.

[19] From the ancillary costs order made in the appellant’s favour, deferring the payment of such costs until after the respondent received his ‘share of entitlements’ upon resolution of the substantive property settlement claim, it is abundantly clear that the existence of jurisdiction was integral to the orders made in April 2018.

[20] The respondent’s deliberate decision to concede the existence of jurisdiction was confirmed by him before the primary judge in September 2020 and reiterated by him in the appeal, though without any apparent understanding of its significance.

( … )

[24] His Honour, despite being ‘acutely aware’ of the respondent’s admission …, wrongly rejected the appellant’s submission that his admission resolved the issue of jurisdiction in her favour …

[25] Parties are bound by the way in which they conduct their cases and these parties mutually conducted the original litigation on the premise that their de facto relationship existed at, and subsisted until sometime beyond, 1 March 2009. Jurisdiction to entertain the appellant’s substantive property settlement claim was therefore established …

[26] The primary judge observed how the order made under s 44(6) of the Act granting leave for the appellant to proceed with her substantive claim could not cure an absence of jurisdiction … but that observation requires some qualification. It is true parties cannot consensually invest courts with jurisdiction or power they do not possess (Harris v Caladine [1991] HCA 9 …), but there was no need to cure any jurisdictional lacuna here because the parties formally conceded the necessary jurisdictional facts.

[27] … The dissipation of any controversy over the existence of jurisdiction obviated any need for a finding on contested evidence. More than two years later, in the hearing conducted before the primary judge, it was not open to the respondent to adduce evidence contradicting the jurisdictional fact he formally admitted earlier in the same proceedings, at least without leave, which was neither sought nor given (s 191 of the Evidence Act 1995 (Cth)).

[28] Neither the primary judge nor the respondent was precluded by the principle of ‘issue estoppel’ from re-revisiting the issue of jurisdiction at the hearing, as the orders made in April 2018 were interlocutory in nature and did not finally resolve the issue of jurisdiction between the parties in the form of an anterior final judgment … Nevertheless, unless and until the parties were released from their binding concessions in the proceedings, the primary judge could not go behind the orders made by the other judge in April 2018.

[29] There would have been no impediment to his Honour dismissing the appellant’s substantive application for property settlement relief on merit, but her application could not be dismissed for want of jurisdiction … ”

The appeal was allowed and the proceedings remitted for re-hearing, with the court ordering costs certificates for the applicant for the appeal and the re-hearing. The respondent was self-represented.

Evidence – Subpoena – Public and children’s interest in Court having relevant evidence about parent’s mental health outweighs right to privacy

In Vitalis & Kazan (No 2) [2022] FedCFamC1F 601 (19 August 2022) Smith J heard an application for review of a decision of a Senior Judicial Registrar in a parenting case involving two children aged 4 and 8 years; the central issue being whether the children should continue to have supervised time with Ms Vitalis who was going through gender transition.

Ms Kazan had two subpoenas issued and served – on Ms Vitalis’s surgeon (“Dr O”) and on her medical insurer. Ms Vitalis objected and a Judicial Registrar set aside the subpoenas and ordered Ms Kazan to pay Ms Vitalis’s costs.

Reviewing the Judicial Registrar’s decision, Smith J said (from [16]):

“In any parenting proceeding any parties’ mental health issue is potentially relevant to the extent that it may impact on parenting capacity.

[17] The relevant mental health issue is not suggested to be gender dysmorphia.  …  [O]n her own evidence, Ms Vitalis’ overall mental health has been impacted by the totality of her circumstances, including these proceedings, and that she has sensibly been seeking assistance for her mental health.

[18] There is no dispute that Ms Vitalis’ mental health is therefore a relevant fact potentially in issue in the proceedings and a fact in respect of which subpoena may issue. Ms Vitalis has pointed out in her written submissions that she has not objected to subpoena issued by Ms Kazan on her identified treating mental health practitioners.

Dr O

[19] Ms Vitalis objected on the basis of relevance. The submission was to the effect that the details of the biological surgical procedures Dr O is involved in will not illuminate any issue relevant to parenting capacity.  On this basis this subpoena, together with that to P Company, was said to be a ‘fishing expedition’ (eg Commissioner for Railways v Small (1938) 38 SR (NSW) 564).

[20] Ms Kazan’s case was that the nature of the surgery is relevant to the possibility or likelihood that Dr O engaged in an assessment of Ms Vitalis’ mental health, and that this in turn is relevant …

[21] … [A]s part of gender reassignment, the nature of the surgery might reasonably require the surgeon to satisfy themselves that the patient meets the criteria under the World Professional Association of Transgender Health Standards of Care Guideline. That might reasonably require the surgeon to engage in their own assessment of the patient’s mental health status.

[22] In this case … it is at least possible that Dr O was required to and did undertake his own independent mental health assessment of Ms Vitalis, taking into account Ms Q’s [Ms Vitalis’ treating clinical psychologist] opinion but not merely relying upon it.

[23] Ultimately the solicitor for Ms Vitalis … conceded that given the nature of the surgery the possibility of Dr O engaging with Ms Vitalis’ mental health probably brought that subpoena within the tests stated by the High Court which bind me. I am satisfied that there is a sufficient apparent connection to the issues.

[24] Despite that concession Ms Vitalis maintained the objection on the basis firstly of privacy grounds, due to the intimate nature of the surgery, and secondly on the basis that the Court should control the use of subpoena in pursuance of the overarching purpose s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) … and the associated Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’).

[25] Whilst privacy grounds would be relevant if the information sought went only to the physical process, where it is conceded that there is a real possibility of a mental health assessment, and therefore a genuine forensic purpose, privacy is not a proper ground for objection.  While the Ms Vitalis’ position is understandable, given the sensitive nature of the procedures involved, the nature of the family law jurisdiction, in which the Court enquires into the welfare and best interests of children, means that the public interest and children’s interest in the Court having all available relevant evidence about a parent’s mental health outweighs the parent’s right to privacy.  …

[26] Whilst the Court should, and does, exercise close control over the issuing of subpoena as part of the application of the overarching purpose, I am not persuaded that in the context of these proceedings the subpoena to Dr O is inconsistent with the overarching purpose.”

Considering the subpoena to the medical insurer, Smith J continued (from [32]):

“Ms Kazan submitted that the subpoena to P Company is appropriate where a review of the documents which have been produced on subpoena have produced references to other medical practitioners who were not disclosed, and who Ms Kazan says should have been.

( … )

[37] In many cases the P Company subpoena would be a step too far, but each matter requires consideration on its own facts.

[38] Where a party’s mental health is an issue in the proceedings, and where it appears that she has taken an approach to disclosure which raises issues about the selectivity and reliability of that disclosure, it may be appropriate to allow a subpoena … to ensure that the Court has the best available evidence when considering the best interests of the children.

( … )

[45] For the reasons set out above I consider there is a genuine forensic purpose to each subpoena, that they should not have been set aside, that it is appropriate to grant the Application for Review, to set aside the Judicial Registrars orders, to allow access to the legal representatives only to Dr O’s records and photocopy access only to the ICL to Dr O’s records, and to reserve the questions of costs of the objections and this Application for Review to Trial.”