Procedure – Husband’s failure to adduce evidence-in-chief should not have precluded him from cross-examining wife and was a denial of natural justice

In Morgan & Valverde [2022] FedCFamC1A 133 (31 August 2022) Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a de facto husband’s appeal from property orders after a childless de facto relationship of 9 years which ended in January 2019.

The respondent commenced proceedings in 2019 and the first trial listed for April 2021 was adjourned and rescheduled for February 2022. The appellant sought an adjournment of the rescheduled trial date which was refused and the trial proceeded. The appellant failed to file and serve any evidence before the trial and the only evidence at trial was that of the respondent.  Orders were made for a division 57.5:42.5 in favour of the appellant.

On appeal, the de facto husband argued that he was denied natural justice and procedural fairness.

Austin J said (from [16]):

“The appellant’s complaint about the decision to refuse his application to adjourn the trial is groundless because no appeal lies from the decision (s 26(2)(b)(ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) …

[17] In any event, the transcript reveals the discussion over the proposed adjournment and its foreshadowed refusal to have been entirely unexceptional. The oral ex tempore reasons delivered for the refusal of the adjournment do not form part of the appeal material, but it should be noted the appellant was grateful to have had the dispute heard rather than delayed. …

[18] Nor could the appellant have any reasonable complaint about the trial progressing without his evidence, given his protracted failure to file and serve the evidence-in-chief upon which he would want to rely. He was not merely late filing evidence. He did not file any evidence at all, even though he must have realised his adjournment application might fail. The appellant’s submission of not having ‘reasonable opportunity…to submit his own evidence’ is rejected. Procedural orders were made long before in April 2021, fixing the trial date and directing the parties to file and serve their evidence by January 2022 in readiness for the trial. While the appellant was apparently hospitalised for six days in January 2022, he had plenty of time to be ready for the trial commencing on 18 February 2022.

[19] … [D]uring the discussion which ensued about the need for the trial to proceed without further delay, the primary judge told the appellant he would not be able to cross-examine the respondent. Ostensibly, that was only because he failed to comply with the procedural orders requiring him to file and serve his evidence-in-chief. ( … )

[20] In Re F: Litigants in person guidelines [2001] FamCA 348 … the Full Court established this as one of several guidelines for judges dealing with self-represented litigants:

A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses.

[21] The respondent commendably conceded in the appeal the primary judge did not do that.

[22] There is no doubt the appellant was in default of the procedural orders … [which] then empowered remedial action …

( … )

[24] … Her Honour did not order the appellant to take some other ‘step in the proceeding’ (r 10.27(2)(a)). Nor did her Honour ‘give judgment’ against the appellant (r 10.27(2)(b)). The Response filed by the appellant in February 2020, seeking certain property settlement orders, was not summarily dismissed. In fact, during final submissions, the primary judge elicited from him the precise nature of his proposal, as her Honour was properly intent on determining what just and equitable orders were needed to finalise the cause between the parties under Pt VIIIAB of the Act.

[25] The appellant was allowed to make final submissions, but not permitted to cross-examine the respondent, though no ‘other order’ of that sort was actually made or explained (r 10.27(2)(b)). The hearing did not proceed on an ‘undefended basis’, as the primary judge said it did …, since the appellant participated in the trial and resisted the respondent’s application, though he was deprived of an opportunity to cross-examine her.

( … )

[28] If allowed to cross-examine the respondent, the appellant would have been bound by her answers to his questions, at least to the extent her evidence was accepted by the primary judge as being credible and reliable, since he led no contrary evidence to positively establish his own version of events (Goldsmith v Sandilands [2002] HCA 31 … ; Pt 3.7 of the Evidence Act 1995 (Cth)), but he might feasibly have been able to extract favourable concessions from her. …”

Austin J concluded (from [35]):

“The appellant had no absolute right to cross-examine the respondent – only an absolute right to a fair trial. However, supposing appropriate notice is given (r 8.20 of the Rules), it would be a rare case in which the refusal of a party’s request to cross-examine a material witness at final trial would not manifest the deprivation of procedural fairness (Naparus & Frankham [2020] FamCAFC 32 …).

( … )

[37] Although the appellant did not specifically ask to cross-examine the respondent, he had already been told he would not be allowed to do so and, absent legal representation, he meekly did not contest the ruling. Denying the appellant the chance to cross-examine the respondent, at least without any adequate explanation for why and without giving him the chance to be heard about the ruling, denied him natural justice and was an error of law.

( … )

[40] Had the appellant cross-examined the respondent, it might have made no difference at all, but that is not the test. … [I]t is no easy task to be satisfied that the cross-examination of the respondent by the appellant could have had no bearing at all on the outcome. I am not so satisfied. It follows that the error was material and there is no option but to remit the proceedings for re-hearing.”

Property – De facto wife’s inconsistent representations as to status of de facto relationship in Supreme Court proceedings – Earlier proceeding and judgement give rise to claim and issue estoppel

In Colburn & Cleese [2022] FedCFamC1A 147 (23 September 2022) the Full Court (McClelland DCJ, Austin & Gill JJ) heard an appeal by a de facto husband (“the appellant”) from a declaration of Altobelli J that the parties were in a de facto relationship for five distinct periods between 1991 and May 2014 and ancillary orders in relation to the application for an adjustment of property by the respondent de facto wife (“the respondent”).

At the time of the appeal the appellant was 75 years and the respondent 76.  The parties were litigants in proceedings before the Supreme Court of NSW which culminated in orders on 28 November 2006 that divided their property interests pursuant to the provisions of the Property (Relationships) Act 1984 (NSW). The Supreme Court found that the relationship broke down in November 2002.

In the family law proceedings, the appellant asserted that their relationship subsisted from 1995 until the end of 2000; while the respondent said that the relationship endured between 1990 and May 2014.

Altobelli J found that the parties were in a de facto relationship during five periods: 1991 to 1994; 1995 to the end of 2000; September 2006 to July 2010; January 2011 to October 2012; and April 2013 to May 2014. His Honour set aside the Supreme Court judgment and did not deal with the respondent’s estoppel arguments or the applicant’s argument that estoppel prevented the respondent or His Honour from going behind the Supreme Court judgment.

The Full Court said (from [20]):

“Before turning to the grounds of appeal, it is apposite to deal with the estoppel created by the Supreme Court judgment, which issue was raised at trial but not addressed at all in the reasons for judgment. … [I]t is an issue which assumes primary importance.

( … )

[23] The Supreme Court judgment was the culmination of proceedings voluntarily commenced by the respondent in November 2004. In the Statement of Claim she filed to commence those proceedings for remedial relief under both the State Act and in equity by way of constructive trust, the appellant pleaded that the parties’ de facto relationship began in early 1990 and ended on 24 November 2002.

[24] … The litigation was eventually settled and judgment was entered on 28 November 2006, with orders made for the parties to divide their real and personal property on an agreed basis.

( … )

[26] The fact the Supreme Court judgment was entered by consent does not deprive it of any legal force. Any res judicata or estoppel which results from the pronouncement of a final judgment applies equally to judgments made by consent …

( … )

[29] … [T]he Supreme Court judgment created a ‘claim estoppel’. Any rights to property settlement relief that could be asserted in federal proceedings under Pt VIIIAB of the Act arising from any period of the de facto relationship before November 2006 are equivalent in nature to those rights that have already been asserted and determined by the Supreme Court judgment (Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 … ; Clayton v Bant [2020] HCA 44 … ). There was substantial correspondence between the parties’ rights under both the State Act and the Act arising from their de facto relationship prior to November 2006. The Supreme Court judgment finally determined the parties’ financial rights against one another as former de facto partners and estopped their entitlement to re-litigate the alteration of their property interests consequent upon the existence of their de facto relationship at any point in time prior to the Supreme Court judgment.

[30] Whilst ever the Supreme Court judgment stood undisturbed, the parties and the primary judge were estopped from enquiring behind it. Rights flowing from the parties’ de facto relationship in the period before November 2006 had already been determined and did not remain available to form part of the justiciable controversy before the primary judge. …

[31] Aside from the ‘claim estoppel’ created by the Supreme Court judgment, the circumstances under which it was entered created an ‘issue estoppel’. The termination of the parties’ de facto relationship was an ‘issue’, resolution of which established a jurisdictional fact conditioning the grant of relief (s 18(1) of the State Act; Saravinovski v Saravinovska [2017] NSWCA 85 at [109]) and upon which the parties agreed and the Supreme Court relied to exercise statutory power to quell the dispute over their financial rights. … The respondent was estopped from contending … that the de facto relationship had been revived before, and was in existence at, the time of the Supreme Court judgment, as it was contingent upon the resolution of the issue in a contradictory way: the de facto relationship had ended.

( … )

[34] In the teeth of the Supreme Court judgment, based as it was on the respondent’s verified pleadings about the de facto relationship having ended, she could not claim an alternate truth in the proceedings before the primary judge.

[35] … The respondent … wanted the Supreme Court judgment set aside … only because she regarded it as not being generous enough, she allegedly only assented to it under duress exerted by the appellant, and it was allegedly impracticable to implement. … [T]he primary judge found the appellant did not exert any duress upon her (at [134]) and the Supreme Court judgment has been fully executed, as the property and liabilities have since fallen according to the terms of the judgment, so it was not impracticable to implement. Her retrospective dissatisfaction with the generosity of the agreement could not be enough to disturb it.

[36] It follows that the appeal must succeed because the primary judge’s findings and the declaration as to the first three phases of the de facto relationship, together with the order setting aside the Supreme Court judgment, were all precluded by estoppel. …”

The orders were set aside and the case was remitted for re-hearing before another judge in relation to declaratory and substantive relief available for the period after judgment was entered between the parties in the Supreme Court of NSW on 28 November 2006. Costs certificates were issued.

Children – Relocation – Mother’s choice of residence subordinate to the best interests of the children – Application of s 114(3) injunctions to require a parent to live in a particular place

In Wagstaff [2022] FedCFamC1A 119 (2 August 2022) the Full Court (Aldridge, Wilson & Jarrett JJ) heard a mother’s appeal from parenting orders involving two boys aged 10 and 7.

Prior to the mother’s unilateral relocation, the parties lived in Town A. The children lived with the mother and spent time with the father 5 nights per fortnight until the mother moved with the children to Town D, to live with the mother’s partner in 2019 without the father’s consent. Following her move, the children attended school in Town A and the 5:9 arrangement continued. The distance between Towns A and D was at least one hour.

The parties agreed that travel between Towns A and D for the children to attend school was untenable for the children.

The father sought orders that the children should live in Town A with him; the mother sought orders for the children to live in Town D with her and to change the children’s school.

At trial, orders were made for the parents to have equal shared parental responsibility and that the mother reside at a place of her choosing within 20 kilometres of the children’s school in Town A.

The mother appealed, arguing that the trial judge erred in failing to adequately assess the mother’s freedom of movement; effectively making a mandatory injunction requiring the mother to live within a prescribed distance of the children’s school; inadequate reasons; and failing to consider s 65DAA(2) of the Act.

Aldridge and Jarrett JJ said (from [9]):

“A matter of particular significance is that … both parents took the view that the travel between Town D and Town A was untenable for the children. That was so whether the children were living in Town D and attending school, activities and spending time with the father, or living in Town A and spending substantial and significant time with the mother in Town D.

( … )

[14] In Adamson & Adamson [2014] FamCAFC232, the Full Court said:

66. These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.

[15] To this must be added the consideration that orders requiring a parent, as opposed to the children, to live in a particular place are rare. In a well-accepted passage, Bryant CJ and Warnick J said in Sampson and Hartnett (No 10) [2007] FamCA 1365 … :

58. … [W]e conclude there is power under s 114(3) of the Act to enjoin a parent from relocating …, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare. ( … )

[22]  We … respectfully disagree with Wilson J who does not accept that orders requiring a parent to live in a particular place should be made only in rare or exceptional cases, on the basis that those words are not used in s 114(3) of the Act.”

Aldridge and Jarrett JJ continued (from [26]):

“ … There is no challenge to her Honour’s finding that it is in the children’s best interests to live in the Town A area primarily with the mother. … [G]iven that the primary judge was satisfied that the children’s best interests were met by not living with the father and where the mother herself said she would move, the only outcome was that the mother had to move. …

[27] Whilst the 20 kilometre limit … is somewhat arbitrary and may have little significant effect on travel time, it is in the mother’s favour.”

In separate reasons, Wilson J said (from [96]):

“ … [T]he mother asserted that in making the order requiring her to live within 20 kilometres of the children’s primary school in Town A so as to perform the primary parenting role in circumstances not of her choosing, the primary judge made an injunctive order pursuant to s 114(3) that was not proper ( … )

[98] In my view, the … judge made no error in ordering the mother to relocate to a point of her choosing 20 kilometres from the children’s school. ( … )

( … )

[101] I do not accept that only in rare or exceptional circumstances may a relocation order be made.  … [N]othing in the wording of that section permissibly leads to the qualification that such an order must only be made in a rare or exceptional case.  …  Nowhere in s 114(3) is there reference to the orders there mentioned being invoked only in rare exceptional cases.  To the contrary – the section speaks of orders being made in the exercise of the power conferred by s 114 ‘in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.’  The breadth of discretion thereby conferred is enormous.  No warrant exists to fetter that discretion by the introduction of adjectival precursors such as ‘rare’ or ‘exceptional’ circumstances where no such wording appears in the legislation itself.

( … )

[103] I disagree … that it cannot be said that the injunction was no broader than was necessary to secure the best interests of the children. … Of course, the mother enjoys freedom of movement.  But when her choice of residence for herself and her children is inconsistent with the best interests of her children …, her choice of residence must be subordinated to the best interests of the children. … The primary judge determined that their best interests were served by their occupying a home within 20 kilometres of their school. … The mother said that the primary judge’s orders will cause her unhappiness.  Whether that transpires remains to be seen. … ”

The mother’s appeal was dismissed and as the father was not represented, no costs order was made.

Maintenance – Urgent spousal maintenance order discharged where considerable uncertainty as to husband’s capacity to pay maintenance

In Holman & Bates [2022] FedCFamC1A 141 (8 September 2022) Tree J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a wife’s application for leave to appeal from an interim order of the Magistrates Court of Western Australia that discharged an earlier interim order for the husband to pay urgent spousal maintenance.

The wife was aged 52 years and the husband 48. The parties had a childless relationship of 6 years which ended in December 2018. The wife had a 17 year old child from a previous relationship and the husband lived with his new partner and her child.

The wife was diagnosed with a terminal illness in November 2021 and had been undergoing palliative care at the time of the hearing. She filed an initiating application in January 2022 seeking property settlement, urgent spousal maintenance and interim spousal maintenance.

On 27 January 2022 the magistrate made an order for urgent spousal maintenance of $800 per week pending the interim hearing. At the interim hearing on 8 and 11 March 2022, the magistrate dismissed the urgent spousal maintenance order and transferred the proceedings to the Family Court of Western Australia.

The wife argued on appeal that the Court erred by not dealing with her application for periodic spousal maintenance, where she had a need and on the husband’s evidence the husband had an available surplus of $261 per week.

Tree J said (from [14]):

“Although the … magistrate did not make a stand alone order dismissing the wife’s interim application for periodic spousal maintenance, when the ex tempore reasons are read as a whole, it is evident his Honour intended to determine the wife’s application for interim spousal maintenance ( … )

( … )

[18] The contention … was that the primary magistrate conflated the requirements of ss 72 and 74 with those of s 75(2)(o) of the Family Law Act 1975 (Cth) (“the Act”), and in so doing, erred at law.

( … )

[21] There can … be no doubt that his Honour correctly understood the task before him, and at least initially conformed to the steps he had identified. …

( … )

[24] It seems clear that the … magistrate was not persuaded that the husband had capacity to pay spousal maintenance, but nonetheless went on to say that s 75(2) considerations would persuade him not to have made an order for spousal maintenance in any event. So construed, there was no conflation of ss 72, 74 and 75(2)(o) of the Act.”

Addressing the wife’s ground that the primary magistrate erred in finding that at best the husband’s surplus was $261 per week, Tree J said (from [36]):

“This challenge arises from the primary magistrate’s conclusions to the effect that his Honour could not determine the husband’s capacity to pay spousal maintenance. To succeed on this ground the wife would need to show that conclusion was not open on the evidence (Edwards v Noble [1971] HCA 54 … ).

( … )

[39] … [T]here was considerable uncertainty as to the husband’s capacity to meet an order for spousal maintenance, particularly given that both his income and expenses were expressly said to be estimates …

[40] It was for the wife to satisfy the primary magistrate of the husband’s capacity to pay, and the state of the evidence was sufficiently unclear that it was certainly open to the primary magistrate to conclude as he did, namely that he could not ‘make definitive findings as to what surplus, if any, the husband has over income and expenditure’ …”

The wife’s application for leave to appeal was refused; her Notice of Appeal dismissed; and she was ordered to pay the husband’s costs fixed at $5,000.

Property – Error in treating non-commutable military pension as capitalised asset rather than an income stream – Double counting of pension as asset and future income

In Preston [2022] FedCFamC1A 157 (5 October 2022) the Full Court (Alstergren CJ, McClelland DCJ & Austin J) heard a husband’s appeal from final property orders made by a judge of Division 2 of the Federal Circuit and Family Court of Australia.

The parties had a relationship of about 15 years, separating in 2018. There were four children of the relationship who lived with the wife, who was 18 years younger than the husband. The husband was in receipt of a defined benefit military pension in the payment phase.

At trial, the wife sought 52.5 per cent of property and the husband sought 57.5 per cent. The asset pool including superannuation was $4,110,068. The trial judge ordered a 58.5:41.5 division in favour of the husband, treating the husband’s military pension as a capitalised asset ([9]).

The Full Court said (from [10]):

“The wife began the trial foreshadowing a dispute between the parties over whether the military pension would be treated as a tangible asset or … a financial resource but, in final submissions, she abandoned her initial application for a superannuation-splitting order. She did not contend for the military pension to be counted as an asset at its capitalised value and anticipated its treatment as only an income stream for the appellant. ( … )

[11] It was impossible to commute the military pension … and neither party ultimately sought a superannuation-splitting order in respect of it … so the expert opinion evidence of it having a capitalised value of $638,109 … lost its utility.

[12] …  [T]he primary judge counted it as an asset at the capitalised value … even though she acknowledged neither party sought superannuation-splitting orders. The corollary of that conclusion was the husband’s presumed receipt of the military pension in the form of an asset at that capitalised value as an integral part of his proportional share of the divided property …, notwithstanding he could never liquidate it as an asset and its continued payment was contingent upon future review of his medical condition.

[13] The military pension is only ever payable to the husband whilst his medical condition justifies it, though the parties acknowledged it was unlikely his entitlement would ever wane. …

[14] … [H]er Honour concluded the husband had a significantly higher income-earning capacity than the wife … which in part stemmed from his indefinite receipt of the military pension, then worth $976 per week … The husband’s greater income-earning capacity was one factor which resulted in an adjustment in the wife’s favour of another 6.5 per cent (at [94]).

[15] There was no need to ascribe a capitalised value to the military pension when no splitting order was sought in respect of it … because, as the Full Court established in Carron & Laninga [2019] FamCAFC 115:

36. In property settlement proceedings, there is no need to ascertain the capitalised value of a superannuation interest, much less one in the payment phase being paid in the form of a non-commutable pension, unless a superannuation-splitting order is sought in relation to the interest (Welch & Abney [2016] FamCAFC 271 … ; Surridge & Surridge [2017] FamCAFC 10 … ). …

( … )

[17] Having been notionally counted as an asset in the balance sheet … the primary judge’s findings necessarily meant that the husband’s 58.5 per cent share of the assets and superannuation incorporates the military pension at its capitalised value of $638,109, even though he does not and never will have that capitalised sum available for his use.

( … )

[20] The primary judge’s methodology caused the military pension to be impermissibly counted twice – first as an asset and then as a source of constant income. … [W]hen taking the military pension into account as a financial resource for the purpose of s 75(2) of the Act, the primary judge did so at its gross value of $976 per week and did not seemingly take into account its taxable component …”

Considering the assessment of contributions, the Full Court said (from [24]):

“In very many cases, the evidence will often lead to a conclusion that the spouses’ contributions were relatively equal when non-financial contributions as a homemaker and parent are properly afforded substantial and not merely token recognition (Mallett v Mallett [1984] HCA 21…), but there must be no presumption of equality in the assessment of such contributions under s 79 of the Act (Mallett v Mallett … Norbis v Norbis [1986] HCA 17 … ).

( … )

[27] The reasons for judgment strongly imply the primary judge improperly assumed a starting point of equality, then first assessed the husband’s contributions to determine the extent to which an adjustment away from the equilibrium in his favour was justified (at [74]–[75]), then determined the extent to which the wife’s contributions counteracted the provisional adjustment to the husband by way of ‘discount’ (at [76]), and then ultimately settled upon a net adjustment of 15 per cent in the husband’s favour (at [77]).

( … )

[29] Such methodology repudiates the well-established need to eschew any assumption of equality and to instead holistically weigh the entirety of the parties’ financial and non-financial contributions according to the unique facts and circumstances of the case at hand …”

The appeal was allowed; the final order set aside, the court re-exercising its discretion ordering a 50:50 division of the asset pool; and costs certificates ordered for both parties.

Property – High Court overturns declaration of a resulting trust – Presumption of advancement between husband and wife upheld – Wife retained beneficial entitlement in matrimonial home, despite sourcing purchase funds from joint accounts 

In Bosanac v Commissioner of Taxation [2022] HCA 34 (12 October 2022) the High Court of Australia (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ) heard a wife’s appeal from a decision of the Full Court of the Federal Court of Australia that the wife held 50 per cent of a property registered in her name on trust for her husband.

The husband and wife married in 1998, separated in 2012 or 2013 but continued to live together in a property in Perth (“the Dalkeith property”) until September 2015. The Dalkeith property was purchased in the wife’s name in 2006 for $4,500,000, with a deposit of $250,000 sourced from an existing loan account in the parties’ joint names. The wife obtained two loans totalling $4,500,000 and funded the balance of the acquisition costs from the joint loan account. The security for the loans included the Dalkeith property, a property owned solely by the husband and one owned solely by the wife.

The Commissioner of Taxation (“the Commissioner”) was a creditor of the husband and issued proceedings seeking a declaration of resulting trust over one-half of the Dalkeith property, contending that the presumption of advancement between husband and wife is no longer part of Australian law in relation to the matrimonial home ([8]).

At first instance in the Federal Court before McKerracher J, the wife was successful in her argument of the presumption of advancement in her favour and the Commissioner’s application was dismissed.

The Commissioner appealed and the Full Court (Kenny, Davies and Thawley JJ) found the presumption of advancement was rebutted and that the wife held 50 per cent of the Dalkeith property on trust for the husband.

The wife was granted special leave to appeal to the High Court and argued that there was no basis to infer that the husband had an intention to have a beneficial interest in the Dalkeith property ([11]).

After summarising the law on the presumption of advancement ([12]-[18]) Kiefel CJ and Gleeson J said (from [24]):

“The Commissioner relies upon what was said … in Cummins [Ed. full citation: Trustees of the Property of Cummins (A Bankrupt) v Cummins [2006] HCA 6 (“Cummins”)]:

‘Where a husband and wife purchase a matrimonial home, each contributing to the purchase price and title is taken in the name of one of them, it may be inferred that it was intended that each of the spouses should have a one‑half interest in the property, regardless of the amounts contributed by them.’

[25] The Commissioner relies on [the above] … statement as displacing or qualifying the presumption of advancement. But to give it that effect would be to elevate what Professor Scott said to a statement of principle or another presumption when there is nothing to suggest the Court was concerned to do so. Professor Scott was referring to a possible inference which might be drawn from particular circumstances. …

( … )

[29] The Commissioner now seeks to … contend that this Court should conclude that the general law does not recognise a presumption of advancement in relation to a benefit provided by a husband to a wife. … [T]he Commissioner asks this Court to abolish the presumption of advancement on the basis that it has no acceptable rationale, and is anomalous, anachronistic and discriminatory. It is the Commissioner’s position that absent the operation of the presumption of advancement, it would follow that there was no basis upon which the presumption of a resulting trust is or could be refuted in this case.”

Kiefel and Gleeson J continued (from [35]):

“There was a history of Ms and Mr Bosanac holding their substantial real and other property in their own names. Consistently … it was evidently the desire of Ms Bosanac to purchase the Dalkeith property and have it registered in her name alone. … These facts alone are sufficient to rebut any presumption that her interest in the property was attributable to the relationship of husband and wife and his intention to benefit her.

[36] The Dalkeith property was never registered in Mr Bosanac’s name. There was no transfer of the property from Mr Bosanac to Ms Bosanac. He did not advance all the monies for the purchase of the Dalkeith property. Ms and Mr Bosanac were both parties to the loan agreements and both were liable to repay the loans. This may be thought to raise a question as to whether they intended that the property be held jointly. …

[37] Some of the factors identified by the Full Court as relevant to the question of whether it was intended by Ms and Mr Bosanac that the property be owned jointly and that a one-half interest in the property be held on behalf of Mr Bosanac do not provide a strong foundation for any inference as to intention. … It may be accepted that the Dalkeith property was to be the matrimonial home in which both spouses would reside and which they both would enjoy, but the Full Court did not suggest that that fact alone was sufficient for a conclusion as to intention. … [T]his was not the first time that Ms and Mr Bosanac had shared a matrimonial home which was registered in the name of one only of them. …

[38] The remaining factor alluded to by the Full Court is that Mr Bosanac made a substantial borrowing without a corresponding benefit being received. …

[39] There was a history of the use of the properties held by each of Ms and Mr Bosanac in their own names as security for joint loans. … There was no evidence of the use of joint loans to acquire property which was then jointly held. … [A]part from some shared bank accounts there does not appear to have been any substantial property in which Ms and Mr Bosanac had a joint interest.

( … )

[41] There was further evidence … of a subsequent dealing with the loan accounts over the Dalkeith property, or rather loan accounts which resulted from refinancing. The new loans continued to be secured by that property together with property owned individually. A portion of the loans was used by Mr Bosanac for his share trading. Ms Bosanac permitted this course. It may be assumed for present purposes that evidence of subsequent dealings of this kind is admissible … The history of the spouses’ dealings with property might suggest a use of property to secure joint loans which might benefit either or both of them, but it does not support an inference that either intended that property be held jointly. …

[42] The finding … that Mr Bosanac was a sophisticated businessman who must have appreciated the significance of property being held in Ms Bosanac’s name is not unimportant. His Honour was correct to conclude that that understanding did not support an inference that Mr Bosanac intended to have a beneficial interest in the Dalkeith property”

Gordon and Edelman JJ provided a separate judgement as did Gageler J, all agreeing with the orders proposed by Kiefel CJ and Gleeson J. The High Court unanimously granted the appeal and set aside the declaration of a trust.

Children – Equal time arrangement in place for 4 years varied so that children live with mother and spend time with father on alternate weekends

In Connelly & Wilshire [2022] FedCFamC2F 928 (18 July 2022) Judge Kearney heard an application in relation to living arrangements for the parties’ 7 year old twins (“X” and “Y”). The twins had lived in a week about arrangement with their parents since they were 3 years old.

The mother sought orders that the children live with her and spend alternate weekends (of 3 nights per fortnight) with the father. The father sought alternate relief to the effect that the children live with him and, if not that arrangement, the existing care regime continue.

The mother alleged that the time arrangement exposed the children to parental conflict, stemming from the father’s mental health (his having been diagnosed with panic disorder). The father alleged that the mother lacked capacity to provide for the needs of the children ([182]).

In a family report, X expressed a view “to retain the existing ‘50-50’ regime” ([87]) while Y was “reluctant to express a view” but that a change was “not good … because I like seeing them both a lot” ([88]).

The Court said (from [11]):

“The legislation makes clear that s 60CC(2)(a) is not intended to elevate the paramount consideration as to the benefit of a meaningful relationship for the benefit of the parent, but rather it is for the benefit of the child. …

( … )

[13] Put another way, s 60CC(2)(a) does not invite a Court to act on an artificial view that any circumstance which would increase a parent’s involvement with a child must be in that child’s best interests. It may be that to do so would simply increase the child’s potential (if not real) exposure to parental conflict between two people they may love and for whom the child would have adverse … by seeing one parent upset, angry or frustrated by actions or decisions taken by the other parent for whom they share similar feelings. Conversely, a reduction in time does not necessarily mean a reduction in the meaningful relationship between a child and a parent.

( … )

[50] Since separation it is common ground that the children have lived between the parties in a week-about regime … The mother said she did not want 50/50 but felt like there was no way she could go any other way because of how the father made her feel. This was hotly contested by the father. …

( … )

[56] Sometime in 2019, the parties started communicating about where the children should start school in 2020. … The negotiations broke down and the mother unilaterally enrolled the children at R SCHOOL. The father saw this decision as the start of the deterioration of the parties’ otherwise amicable co-parenting relationship. …

[57] In October 2019, the parties attempted to organise a mutually convenient place for the children to regularly attend swimming lessons. It was common ground that the issue remains unresolved …

( … )

[65] It was common ground that on 6 May 2020, the father’s general physician again recorded that the father needed to see a psychiatrist to secure ongoing access to his prescribed medication and had written a referral to psychiatrist, Dr Z. The father said he had tried to make an appointment without success. …

( … )

[87] … X expressed a desire to retain the existing ‘50‑50’ regime of time … The child expert gave three possible explanations for X’s expressed wish regarding her future living arrangements which included her wish not to upset either parent.

( … )

[103] The child expert was asked if X’s reporting of wanting ‘50-50’ was age-appropriate and in response said, from his experience and observation of X, it was language that had come from someone else. …

( … )

[155] I have accepted the mother’s evidence about what happened on the night the parties separated and found that the father has perpetrated family violence upon the mother. …

[156] … I am satisfied that the father does not pose a risk of family violence to the children …

( … )

[168] In my view, given the children’s ages and stage of development (where they are quite capable of telling those they love what they want to hear), the children’s expressions reflect their lived experiences of their relationships with the parties but no more. They love both the parties and have not experienced anything other than equal time so it would be highly unlikely for them to understand what another regime of time would be like …

( … )

[172] One of the more significant additional considerations was the likely effect of any changes in the children’s circumstances including the effect upon the children of being separated from a parent or any other person with whom they have been living. As one of the many identified positives and negatives to a change in circumstances, I accept the child expert’s view that the children will be able to adjust to a different living arrangement after four (4) years of equal time provided that appropriate support is provided by the parents and their partners. By the nature of their competing proposals to change equal time, both parties must have considered the children would be able to adjust and I accept that to be the case.

( … )

[174] Through the prism of the child expert’s ultimate recommendation that … the children spend time with the father for four to five nights a fortnight … the child expert considered that the benefits to the children of changing the existing regime would outweigh the negatives. Both parties proposed something different to this ultimate recommendation.

( … )

[220] I have made a finding that the father has perpetrated family violence upon the mother. The presumption of equal shared parental responsibility is rebutted (see s 61DA(2)).

[221] … [T]he party with whom the children shall live should exercise sole parental responsibility given all the practical considerations that flow from that responsibility …

( … )

[223] The allocation of sole parental responsibility leaves open my discretion about what time the children should spend with the father provided that I am satisfied it is in their best interests to do so. The mother’s proposal was for the children to spend three (3) nights per fortnight with the father during school terms and five consecutive nights with the father each alternate week of the school holidays. The father had no alternate proposal in the event that I ordered the children live with the mother. I am satisfied that the mother’s school term-time proposal is in the children’s best interests…”

Children – Covid-19 – Risks of 9 year old child being vaccinated or remaining unvaccinated favoured neither party’s case – Anticipated social and indirect benefits of vaccination

In McGowan & Brennan [2022] FedCFamC2F 1082 (17 August 2022), Judge Eldershaw determined whether a 9 year old child (“X”) should be vaccinated against Covid-19 as a discrete issue, where the father sought orders permitting vaccination and the mother sought restraints against vaccination.

Without the mother’s knowledge and after she told the father that she would not agree to vaccination, the father unilaterally vaccinated the child (a first dose). The mother first learned of this when she was contacted by the child’s school, when the child felt sick the following day ([35]-[36]).

In support of her case, the mother relied on adversarial expert Dr B, whose evidence included a conclusion that “there is a statistically or virtually nil risk of serious COVID-19 in general affecting children aged 5 to 11 years – there seems to be little benefit to be gained by vaccinating these children. But there is a clear and significant risk of serious adverse effects including myocarditis, pericarditis and death in this age group … ” ([60]).

The father sought to rely on recommendations of the Australian Technical Advisory Group on Immunisation (“ATAGI”).

After citing McGregor [2012] FamCAFC 69 as to judicial notice and s 144 of the Evidence Act 1995 (Cth), the Court said (from [56]):

“ … I accept that the existence of the health advice is common knowledge. However, the purpose upon which the father relies on the advice pertains to the accuracy or correctness of its substance. The substance of the advice is that of an opinion.

[57] Having regard to the authorities, and noting that there is a report from Dr B which expresses a different opinion, the substance of the health advice does not fall within the operation of s 144 of the Evidence Act.

( … )

[59] That said;

(a) There is no dispute that the advice of ATAGI and government health advisors is admissible in the proceedings;

(b) Pursuant to s 183 of the Evidence Act, I can infer that the documents that have been prepared by, and set out the advice from, ATAGI and the government health advisors, are persons who are appropriately qualified …

(c) While it is preferable, it is not necessarily essential, that the information from ATAGI be before the Court through an expert witness; and

(d) This matter concerns an evaluation of risk to a child, for which as much information as possible would assist me in making a decision. I also note that in child-related proceedings, the rules of evidence do not apply …

( … )

[69] In relation to the aspect of risk relating to vaccine evaluation for five to 11 year olds, I find that:

(a) The vaccine for which X is eligible has received provisional approval by the Therapeutic Goods Administration;

(b) The amount of safety and efficacy data usually required prior to a drug being released to the market has not been obtained for the vaccine, on account of urgency;

(c) The vaccine has not been fully evaluated although data continues to be gathered;

(d) To the extent the drug was evaluated in clinical trials prior to the Omicron variant, such evaluation indicated efficacy … ; and

(e) Real world or actual vaccine effectiveness is not yet known.

( … )

[76] In relation to the aspect of risk relating to adverse events, I find that:

(a) The most common side effects include a sore arm, headaches and fatigue. … ;

(b) There is a risk to X of experiencing an adverse event after being vaccinated against COVID-19;

(c) Such risk includes myocarditis, pericarditis or death;

( … )

(h) The incidence of X experiencing a common side effect is high but the severity of that risk is likely to be acceptable; and

(i) The incidence of X experiencing a serious adverse event is low however the severity of that risk, if experienced, may be serious or catastrophic, i.e. unacceptable.

( … )

[82] On balance, I find that:

(a) The risk to X from receiving the vaccine is uncertain. …

(b) The risk of X experiencing a common side effect is high but the severity of such side effects is acceptable;

(c) The risk of X experiencing a severe adverse event from the vaccine is low but the severity of such reaction may be unacceptable;

(d) If X contracts COVID-19, he is less likely to experience severe disease, less likely to be hospitalised, and less likely to transmit the disease as compared to individuals in other age cohorts;

(e) If X contracts COVID-19, he is at risk of developing multisystem inflammatory syndrome, which may include severe cardiac disease, and/or ‘long COVID’;

( … )

[83] Having regard to the [above] matters … I find that the risks to X in being, or not being, vaccinated against COVID-19 favour neither party’s case.

( … )

[92] Dr B cites no benefit to X in obtaining the vaccine …

[93] ATAGI cites benefits of the vaccine which include the corollary of avoiding the risk of the disease and other wider social and/or indirect benefits.

( … )

[95] As to wider social and/or indirect benefits, ATAGI identifies that vaccination of children aged five to 11 years:

(a) Has the anticipated benefit of reducing the likelihood of school closures, and disruptions to extra-curricular activities and social activities;

(b) Is anticipated to reduce parental absenteeism and isolation of children and their families;

(c) May reduce disruption to usual activities which may have positive impacts on the mental health and wellbeing of children and their families … ; and

(d) May reduce transmission of disease through children which may lead to lower disease incidence in the general population and household contacts.

( … )

[98] Although the risks to X from receiving the vaccine, and the risks to X of not receiving the vaccine, favour neither party’s case, a point of contrast can be identified by reference to the anticipated social and/or indirect benefit to X in being vaccinated. That anticipated benefit, is currently available to X. It is in his best interests that he be able to avail himself of it.

( … )

[110] … I find there is a benefit to X in being vaccinated against COVID-19 which exceeds the balance of risk. As such, it is in X’s best interests that he be vaccinated against the COVID-19 virus as soon as reasonably practicable.”

Financial Agreements – De facto relationship agreement made pursuant to the Property (Relationships) Act 1984 (NSW) declared a binding financial agreement pursuant to the transitional provisions of the Family Law Act 1975

In Clowes & Konig [2022] FedCFamC1F 565 (10 August 2022) Campton J heard an application after a relationship between a 56 de facto wife and 64 year old de facto husband who had no children together, where the de facto wife’s child from a previous relationship had lived with them during their relationship.

The relationship lasted from 2001 to November 2020, where the parties entered into a relationship agreement made pursuant to the Property (Relationships) Act 1984 (NSW) in 2005.

The de facto wife argued that the agreement was not binding for reasons that included her having not received independent legal advice, duress and fraud. She argued that the requirements of a de facto agreement pursuant to s 47 of the Property (Relationships) Act 1984 (NSW) were not satisfied.

The de facto husband sought to enforce the agreement or, in the alternative, argued that the parties had kept their financial affairs completely separate in accordance with the agreement, such that there was “no warrant for adjustment pursuant to s 90SM of the Act” ([3]).

The Court said (from [46]):

“The gravamen of the respondent’s evidence is that the parties maintained separate financial identities throughout their relationship. He said that they kept separate bank accounts, save for one … This joint account was closed in May 2005, prior to the execution of the Financial Agreement. …

[47] The applicant accepted that she kept a record of payments she had made on the respondent’s behalf at his request … A six page document written by the applicant recording payments she had made taken from invoices she had paid for the renovation materials … The document recorded the amounts that the respondent was required to reimburse to the applicant. The applicant agreed she received these reimbursements from the respondent.

[48] … She said the ‘deal’ was that she paid for the groceries and household expenses, while the respondent paid for the rates and utilities … The applicant said this was not the way that she desired the relationship to be conducted, but accepted that it was the reality of their relationship. She agreed that she and the respondent maintained separate financial lives during the period of their cohabitation.

( … )

[66] The respondent engaged Mr T of R Solicitors to act on her behalf in respect of the Financial Agreement. She records in her affidavit that she was referred to Mr T by either the respondent or his solicitor, Mr P. She attended on Mr T for the first time in April 2005.

( … )

[74] The Financial Agreement annexed two ‘Certificate[s] for the Purposes of Section 47(1)(d) Property (Relationships) Act 1984’ (‘the s 47 certificates’), executed by the respective solicitors of each party.

( … )

[127] The Financial Agreement is not (and could not have been) one entered under Pt VIIIAB of the Act. Rather, as the Financial Agreement was entered into before the commencement of that legislation, the question is whether it is one that is now taken to be a financial agreement for the purposes of Pt VIIIAB. That question is to be answered by reference to legislation that deals with the recognition of agreements which existed under state law when Pt VIIIAB came into force.

[128] … [I]n considering the status of the Financial Agreement in this case, it is necessary to consider various aspects of the NSW Act.

( … )

[133] I find that immediately prior to the commencement of the relevant amendments to the Act, the parties remained in a de facto relationship, had not married, and the Financial Agreement was one enforced pursuant to the NSW Act. …

( … )

[136] The implication of a finding that the certificate signed by Mr T contained a misleading or false representation is that he acted in a manner that would have seriously compromised his professional integrity. Such a serious finding of fact must only be made on satisfaction of the civil standard of proof as contained in s 140(2) of the Evidence Act 1995 (Cth), requiring me to take into account ‘the gravity of the matters raised’. Where allegations of misconduct of this nature are raised, the Court’s reasonable satisfaction of a fact must not be ‘produced by inexact proofs, indefinite testimony, or indirect inferences’ (Dixon CJ in Briginshaw v Briginshaw [1938] HCA 34 … ).

( … )

[138] A starting point from the applicant’s … evidence to demonstrate some deficiency in the requisite legal advice received was that she had ‘no recollection of receiving oral advice [from her solicitor]’ that she ‘did not ask my solicitor for explanation’ and that ‘the only person with whom I discussed the Domestic Relationship Financial Agreement was the Respondent’. It is to be observed that, even taking this evidence at its highest, the fact of ‘no recollection’ does not easily equate to a positive assertion …

( … )

[144] The applicant said the reason why she did not read the file upon it becoming available was that she ‘didn’t know [she] had to’. In circumstances where the applicant’s case as to this challenge in the proceedings is grounded from the fact, nature and content of the legal advice she received prior to entering the Financial Agreement, I find that response to be incredulous. This remarkable circumstance is compounded by the fact of the applicant’s solicitors, having the R Solicitors file in their possession, drafted the applicant’s trial affidavit and then arranged for her to swear that document. …

( … )

[161] The applicant has been represented throughout these proceedings. It was put to her that she could have called Mr T as a witness in her case but that she did not. There was no evidence that Mr T was unavailable to give evidence. I infer that had the applicant adduced evidence from Mr T, that evidence would not have assisted her case.

( … )

[164] I find that the applicant did receive the advice in terms recorded in the certificate executed by her lawyer attached to the agreement. That finding is grounded by the fact and terms of the applicant’s solicitor’s certificate annexed to the agreement, the inference from her failure to adduce evidence from that solicitor as to the fact and terms of the advice he provided, the contents of the R Solicitors file and the concessions made by the applicant … The evidence of the applicant’s memory on this topic to primarily ground this aspect of her challenge to the agreement was, at its highest, inexact and ill conceived. I find that the applicant brazenly ignored a raft of contemporaneous objective evidence available to her from the R Solicitors file in the prosecution of this part of her case absent adequate explanation. …

[165] Having been satisfied that the applicant did receive legal advice from Mr T on entry into the agreement in the terms identified by the s 47 certificate, I find that:

(a) The Financial Agreement entered was one pursuant to, and enforceable under, the NSW Act; and

(b) Pursuant to s 47 of the NSW Act a Court cannot make an order inconsistent with the terms of the Financial Agreement; and

(c) The Financial Agreement constitutes a Pt VIIIAB financial agreement for the purposes of the Act.”

The Court also found no merit in the wife’s arguments as to fraud, duress, unconscionability and uncertainty.

Alternatively, and citing Stanford [2012] HCA 52, the Court found “that it is not just and equitable to adjust” property, there being “no warrant for an exercise of a s 90SM discretion” ([7]).

The Court declared the agreement to be a binding financial agreement and made orders implementing its terms.

Property – Variation that changed an order for sale to an order enabling husband to pay wife’s fixed entitlement was a consequential order such that relief pursuant to s 79A was not required

In Olsson [2022] FedCFamC1A 129 (18 August 2022) Aldridge J (sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia) heard a wife’s appeal in a case where final consent orders required the sale of four real properties, including the former matrimonial home.

The order provided that the wife receive $1.27 million from the sale proceeds, the husband to retain any remaining balance.

The husband did not implement the order as he found finance to pay the $1.27 million to the wife. He successfully applied to the Family Court of Western Australia to vary the order so that he could pay the cash amount to the wife, in exchange for his retaining the properties.

The wife appealed, arguing that the variation was a substantive alteration of the parties’ rights, which could only be done by means of a s 79A application. The husband argued that the variation was within the ordinary power of the Court, as it merely altered the machinery that gave effect to the substantive rights created by the original order.

Aldridge J said (from [5]):

“ …  [T]he husband contended that the orders that were altered by the magistrate were consequential orders to the substantive settlement of property rights which could properly be varied.

[6] The issue on appeal therefore … was the characterisation of the orders so as to identify the substantive property orders and the orders that were consequential to them and intended to put the substantive orders into effect. … [S]uch consequential orders may be subsequently varied whereas the substantive orders can only be varied under s 79A of the Act.

( … )

[11] It is clear … that it was envisaged that the sale of all four properties was likely to be necessary to realise the payment to the wife. …

( … )

[17] In McDonald and McDonald [1976] FamCA 29 … the Full Court identified the distinction between ‘those parts of an order which determine and vest property rights and those which provide for the machinery to carry out the order effectively’. The Full Court added:

… [T]here is ample power to modify the machinery provisions of a property order provided this does not affect the substantive property rights or cause undue hardship to either party.

[18] The Full Court returned to these issues in Ravasini and Ravasini [1982] FamCA 62 … The Court said … :

There is no question of the power of the Court to make what we would with respect suggest is more properly called a consequential order. The real questions are what is the proper definition of a consequential or machinery order and where is the dividing line between a consequential order which may be varied or modified and a substantive order which the Act gives no power to the Court to modify or vary.

[19]  … [T]he Court said:

In determining whether or not an order may be varied as a machinery order, the enquiry must be firstly as to what part of the order is the substantive order and what part or parts of it merely follow that order as a necessary consequence. A Court in making a property order might do no more than order that the property be sold and the proceeds equally divided. That is the substantive order. If the Court at that time has before it sufficient evidence of the facts and circumstances it may go on and make appropriate ‘consequential’ orders providing the machinery whereby the substantive order is to be carried out.

( … )

[23] It is necessary to look at the orders as a whole.

[24] … [T]he wife was to receive the fixed sum of $1.27 million, whatever the outcome of the sale of the properties. …

( … )

[26] … [T]he only reasonable interpretation of these orders is that any surplus funds remaining after the payment of $1.27 million in full to the wife, would effectively remain in the hands of the husband.

( … )

[28] It follows … that the wife was to receive $1.27 million regardless of what might be recovered from the sale of the properties. The husband was to retain the equity the parties held in the four properties subject to the making of that payment. … [T]he risk resulting from any rise or fall in the value of the properties and whether their sale would generate sufficient funds to pay the wife lay entirely with the husband.

[29] This then … is the substantial division of property – the wife is to receive a fixed sum of money and the husband is to receive the equity in the properties. The orders made to effect that division are consequential orders.

[30] The sale of the various properties was to give effect to the agreed division and therefore are to be seen as consequential orders.

[31] The wife submitted that these orders, however, did alter the interest of the husband and his entities in each of the properties. That is clearly so; they were required to be sold and the proceeds dealt with in a particular way. The purpose of the sale … was to generate funds to pay the wife the $1.27 million … and she was not entitled to any other share of the proceeds.

[32] … [I]n circumstances where the wife had been paid in full prior to the sale of the properties, the husband directly or indirectly, would receive all of the benefit of the proceeds of sale. There would be no point in them being sold.

[33] That position must be contrasted with the example given in Ravasini of a property having to be sold with the proceeds divided in a fixed proportion. There, the sale of the property cannot be divorced from the division of property and cannot be said to be a consequential order.

[34] In my opinion, the magistrate was completely correct in making the above finding.”

The wife’s appeal was dismissed with costs, fixed at $14,833.44.