Children – Admissibility of earlier family reports and reasons for judgment

In Burke & Carrow [2011] FMCAfam 286 (29 March 2011) Scarlett FM allowed the father to tender into evidence copies of earlier family reports on condition that he call the family consultant to give oral evidence and provide to the mother’s lawyers a copy of the transcript of earlier oral evidence given by the consultant. The father was also permitted to tender earlier Reasons for Judgment delivered by another federal magistrate.

Full Court finds error in order permitting overseas relocation where the only contestants were the child’s aunt and step-mother – Primary consideration of 60CC(2)(a) does not apply to non-parents

In Burton & Churchin & Anor [2013] FamCAFC 180 (15 November 2013) the Full Court (Finn, Strickland and Loughnan JJ) considered an appeal against the trial judge’s order that “the child would live with the aunt in France and that the aunt would have sole parental responsibility for the child” (para 3) in circumstances where the primary carer for the child (the father) had died, the mother “could not be relied upon to take any responsibility for the child or to participate in the child’s life” and had failed “to participate in the proceedings” (para 35) and the child’s step-mother sought “final orders for the child to remain living with her” in (para 19). Both the mother and step-mother lived in Australia.

The Full Court at para 48 cited the following passage from the trial judge’s reasons:

“ … the first of the primary considerations in s 60CC(2) of the Act is the benefit to the child … of having a meaningful relationship with her mother. For the reasons referred to above, I also have the view that the primary considerations also extend to both the step-mother and the aunt for the reason that clearly [C] has a close relationship with them.”

The Full Court said (para 49) that the “principal focus of the submissions” on behalf of the step-mother in support of her appeal was “that s 60CC(2)(a) gives a special status to the relationship between a natural parent and a child, and that the second sentence of his Honour’s reasons [325], with its reference to the primary considerations extending to both the step-mother and the aunt … contained an error of principle”.

The Full Court continued at paras 50-57:

“ … It was also the submission of senior counsel for the step-mother that we should hold that the Full Court decisions of Mulvaney & Lane [(2009) FLC 93-404] and Aldridge & Keaton [(2009) FLC 93-421] which the trial judge cited … were wrongly decided … For us to speculate as to what that error was would only add to the confusion which already exists in this area because of the references in s 60CC(2) only to ‘parents’ but in s 60CC(3) to both ‘parents’ and other persons, in circumstances where the Act envisages that a parenting order may be made in favour of a person who is not a parent of the child but is a grandparent, or is simply ‘concerned with the care, welfare or development of the child’ (s 65C).

We accept that his Honour did in fact make an error of law when he expressed the view in [325] that the primary considerations in s 60CC(2) ‘also extend to both the step-mother and the aunt for the reason that clearly [the child] has a close relationship with each of them’. There can be no question (and regardless of what may have been said in other cases) that the words of s 60CC(2), or more accurately s 60CC(2)(a), refer only to the benefit to the child of having a relationship with both the child’s parents. The paragraph says what it means, and there is no canon of statutory construction which would enable it to be rewritten. If this needs to be confirmed then we refer to and adopt what the Full Court (Warnick, Thackray and O’Ryan JJ) said in Donnell & Dovey (2010) FLC 93-428, at [101]:

‘In our view, there can be no doubt that s 60CC(2)(a) has no application to a person who is not a “parent”. That is so because the paragraph refers only to “parents”, and there is no extended definition of that word … ’

Further, we are prepared for present purposes to assume (without deciding) that s 60CC(2)(a) does apply in a case such as the present where the child’s only surviving parent has ultimately neither sought a parenting order in her favour, nor even participated in the parenting proceedings. ( … )

His Honour was, of course, required to consider the nature of the child’s relationship with both the step-mother and the aunt specifically under s 60CC(3)(b). It was self-evidently important that he do so because it was ultimately only those two persons who were seeking orders in relation to the child, and it is apparent from his Honour’s reasons that he did this. It must not be overlooked that s 60CC(3)(b) is contained within the set of factors described as additional considerations as opposed to the primary considerations set out in s 60CC(2). The additional considerations do include a catch-all provision (s 60CC(3)(m)), but it is plain that it cannot be relied on to elevate the benefit to the child of having meaningful relationships with the step-mother and the aunt to a primary consideration.

For present purposes, we also accept the proposition that, given the provisions of s 60CC(2)(a), his Honour had to have regard to which placement of the child would permit her to have ‘the benefit … of having a meaningful relationship’ with her only surviving natural parent. ( … )

It seems to us that while there can be no room for debate as to the application of s 60CC(2)(a) in a case where neither natural parent is a party to the parenting proceedings there can be no doubt that s 60CC(2)(b) has application in every parenting proceeding, no matter who the parties to those proceedings are.”

The Court then considered the effect of the error, saying “we consider that the error of law evident in that paragraph did undermine [the Court’s] decision, and that decision cannot stand” (para 59). 

The case was remitted for a new trial. 


Substituted service via Facebook  

In Byrne & Howard [2010] FMCAfam 509 at paras 16-29 (21 April 2010) Brown FM ordered that in lieu of personal service an application was taken to have been served on the respondent by the relevant documents being sent to him via the social networking site Facebook, which he used regularly.

Contravention – Full Court finds error in trial judge’s approach to contravention application – Hearing proceeded when case was listed for directions – Mother found to have contravened an order by failing to notify father of her change of address – Procedure for contravention hearings – Applicant denied procedural fairness

In Caballes & Tallant [2014] FamCAFC 112 (27 June 2014) the Full Court found error in Judge Baumann’s approach to a contravention application, Strickland and Ryan JJ writing separate judgments but agreeing that the applicant had been denied procedural fairness (Kent J dissenting, finding no such error).

The order said to be contravened was that the “mother and the father shall … keep the other parent informed at all times of their residential address and contact telephone number and obtain written consent from the other parent if one intends relocating their residence beyond a radius of 20 kilometres from where the child attends school” (para 23). At first instance, the court found “that on or about 10 February 2013 the mother changed the child’s place of residence to a place within 20 kilometres … [but] told the father about the move by text message on 20 March 2013” (para 29) so that the order had not been contravened. However, the mother moved the child’s residence again on 5 April 2013 and the Court found that “the mother had not … notified the father of the April 2013 change of residence” (para 30) in contravention of the order.

The matter “was initially just listed for directions … but after his Honour made appropriate attempts to broker an agreement, his Honour then embarked upon a hearing …” (para 9). The father appealed, arguing that while one of his contravention grounds was successful he had been denied procedural fairness.

Ryan J said (from para 42):

“…     The procedure to be followed at the hearing of a contravention application in the Federal Circuit Court is governed by r 25B.04 of the [FCC] Rules. That rule is set out below:

At the hearing of the application, the Court must:

a)        inform the respondent of the allegation; and

b)        ask the respondent whether the respondent wishes to admit or deny the allegation; and

c)        hear any evidence supporting the allegation; and

d)        ask the respondent to state the response to the allegation; and

e)        hear any evidence for the respondent; and

f)         determine the proceeding.

( … )

[43]    … the transcript confirms that the parties were given insufficient opportunity to present their cases. For example, neither party was invited to make submissions about whether or not a prima facie case was established.

[44]    Having determined that in relation to both counts the father established a prima facie case, the mother was directed to give evidence. Without first allowing her to give evidence in chief, she was questioned by the trial judge. After she acknowledged she had said all she wanted to say, the father was then asked if he wanted to cross-examine, which he did. However, as the father says, this opportunity was compromised by frequent interruption from the trial judge such that in truth he was denied a proper opportunity to test the mother’s evidence.

[45]    Somewhat curiously, his Honour then directed the father to give evidence. This was a forensic decision that should have been left to the father. As he did when the mother entered the witness box, the trial judge then cross-examined the father. Having satisfied himself that in answering his Honour’s questions, the father had said all he wanted to say, the mother was invited to cross-examine. Again the trial judge took over the witness. Without giving the parties an opportunity to make submissions, judgment was delivered. Relevantly, the father was denied the opportunity to address the trial judge on why, in relation to count 1, not only had he established a prima facie case but the mother had failed to establish a reasonable excuse. Although it cannot influence the outcome of the appeal, it should not pass without comment that the mother was denied the opportunity to address the court on why her evidence established that she had not understood the obligations imposed on her by the order, and thus she had a reasonable excuse (s 70NAE).

[46]    Once his Honour decided that he would depart from the procedure contained in r 25B.04 of the Rules, it was incumbent upon him to design a fair procedure for the hearing and explain the altered procedure to the parties. The altered procedure was not explained to the parties and did not afford either party a fair hearing. ( … )”

Ryan J also said (para 49):

“When regard is had to the imperative in order 5(a) that the parties keep each other informed ‘at all times’ and the mother’s evidence that she took about five weeks to notify the father, it is difficult to see how the trial judge could dismiss count 1 without finding that the mother did not understand the obligations imposed by the order. That particular finding not having been made, I can only conclude that the trial judge impermissibly imported into order 5(a) the notion of ‘reasonable time’ in lieu of the words contained in the order ‘at all times’. It follows that had the father not already established a basis upon which his appeal should succeed, subject to affording the mother procedural fairness, I would have contemplated him being given leave to amend his notice of appeal so as to capture this otherwise meritorious point.”

Kent J disagreed, saying (from para 86):

“…     Clearly enough the provisions of Division 12A dictate that a judicial officer hearing and determining proceedings to which Division 12A applies, including a contravention application under Division 13A, should take an active role in directing, controlling and managing the conduct of the proceedings including by the exercise of the powers identified in Division 12A which have been referred to.

[87]    This is not to say that Division 12A operates or can be utilised to effect a denial of natural justice or procedural fairness. ( … )”

As to r 25B.04 of the [FCC] Rules, Kent J said (from para 89):

“ …    it is well recognised that procedural rules of this type in the context of contravention or contempt applications operate for the benefit of the respondent to the application. Thus they may be waived by the respondent or may be departed from if there is no injustice or prejudice occasioned to the respondent (per Fogarty J in Stevenson v Hughes [1993] FamCA 14; (1993) FLC 92-363 at p 78,816 cited with approval in Jackson & Fordham [(1995) FLC 92-561] at p 81,595). Here, it is to be noted that no complaint is advanced by the mother as to any departure of the trial judge from the strict application of the procedure prescribed by the rule.

( … )

[94]    Rule 25B.04 of the Rules is no more or less than a reflection of the need, in the interests of justice given the prospect of sanction of the respondent, to appropriately protect the respondent’s interests and not cause any prejudice to those interests by the manner in which the application is heard and determined. The severity of the alleged contravention and the consequent potential or severity of imposition of sanctions are obvious considerations. Balanced against that is the need for the court to apply Division 12A of the Act given that these are ‘child-related proceedings’ with that focus.

[95]    In short, in any such case an appropriate balance must be struck between the interests of the respondent on the one hand and the interests of the child or children the subject of the order on the other, in the manner in which the proceeding is heard and determined. In cases where the alleged contravention is serious (within the meaning of subdivision F of Division 13A) adherence to the procedure laid down in r 25B.04 in determining the application before taking any further steps to deal with variation under s 70NBA would achieve both objectives.

( … )

[116] Each party … was self-represented and neither legally qualified. Cross-examination by one estranged former partner of the other in the context of a contravention application not only has the potential to divert away from central issues but has significant potential to create further animosity between the two parents. A fair reading of the transcript reveals that the trial judge assisted each party in the course of cross-examination either when that party was unsure of the approach to be taken; or to ensure that issues central to the contravention application were the subject of evidence.”

Strickland J said (from para 7):

“…     There are clear examples in the transcript of the hearing before the primary judge of his Honour failing to afford the mother procedural fairness, including as outlined by Ryan J, but as Kent J emphasises, there is no cross-appeal by the mother, and thus it is only the father’s position that needs to be addressed. In that regard, it is also apparent from the transcript that his Honour did not give the father the opportunity to first give evidence in support of the allegations (r 25B.04(c)), then hear evidence from the mother (rr 25B.04(d) and (e)), allow the father to cross-examine and then receive submissions from the father as to the charges (I note that although the latter is not a step set out in r 25B.04, it is plain that it is a step that must at least be taken in order to provide procedural fairness). Instead, his Honour put the mother into the witness box, questioned her himself, invited the father to cross-examine, but undertook the questioning himself. His Honour did then invite the father to cross-examine the mother, but in my view the damage had been done by that time. Finally, his Honour, without inviting any submissions from the father, delivered his reasons for judgment. In so doing, as Ryan J says, the father was denied the opportunity to address the primary judge on why, in relation to count 1, not only had he established a prima facie case, but the mother had failed to establish a reasonable excuse.

( … )

[9]     ( … ) In my view, once his Honour determined to proceed with the hearing his Honour should have explained the process that he would be applying and in any event that process should have been in accordance with r 25B.04 of the Rules. ( … ) As Kent J correctly emphasises in paragraph 87, Division 12A cannot be ‘utilised to effect a denial of natural justice or of procedural fairness’.”

The appeal was allowed (on the ground that the applicant father had been denied natural justice) and the case was remitted for re-hearing.

Initial contributions – Husband’s pre-marital house the sale of which enabled purchase of new home at trial worth $1.1m – Long marriage – Three children – Total net assets $8.5m

In Cabbell [2009] FamCAFC 205 (20 November 2009) a solicitor and his wife, a senior public servant, had been married for 25 years. They had three adult children and a net asset pool at trial of $8.5 million. Before marrying, the husband owned a house from the sale of which $75,000 was paid towards the $121,000 purchase of their home which at trial was valued at $1.1 million. He also had a 50% interest in another property, worth $260,000 at trial.

The Full Court allowed the husband’s appeal against Baumann FM’s assessment of his initial contributions as being equal, reassessing them at 55%. The Full Court cited Pierce (1999) FLC 92-844 at paras 25-28 as reviewing the principles applicable in respect of initial contributions, saying at para 43:

“Their Honours…explained that in assessing contribution (including initial contributions) rather than considering if an initial contribution had been ‘eroded’, what was relevant was the ‘weight to be attached, in all the circumstances, to the initial contribution’…the initial contribution should be weighed with all other contributions…stress[ing] the need for a trial judge ‘not only to identify the relevant contributions, but also to assess them’.”

The Full Court at paras 54 and 104 said:

“We are satisfied that the federal magistrate did not adequately analyse and give weight to the husband’s initial contributions, nor did he sufficiently trace the use of initial assets and consider the foundation they laid for the parties’ substantial wealth at the date of trial. ( … ) Taking those contributions into account we are satisfied that the parties’ respective contributions should be assessed as to 55 per cent by the husband and 45 per cent by the wife, that is a differential of $851,155.00 or 10 per cent.”

Security for mother’s travel to convention country assessed at $200,000, reducible to $50,000 upon her Australian residency and recognition of her qualifications

In Cadena & Beltran [2010] FMCAfam 1165 (28 October 2010) the mother proposed a $20,000 security for her travel with a child to a convention country (Brazil). Halligan FM instead at para 223 granted the father’s application for a $200,000 security, to be reduced to $50,000 upon Australian recognition of her qualifications and her permanent Australian residency. 

De facto relationship existed despite multiple absences in the US by one party – His attempted sham marriage with a third party for green card purposes was held not inconsistent with the existence of a de facto relationship – Separation occurred when the other party communicated his intention to separate

In Cadman & Hallett [2014] FamCAFC 142 (11 August 2014) the Full Court (Strickland, Ainslie-Wallace & Aldridge JJ) considered a decision of Rees J in which a de facto relationship was found to have existed between the applicant (“Mr Hallett”) who was aged 47 at the time of the hearing and the respondent (“Mr Cadman”) who was 70 (para 6) and “suffering from dementia” and for whom a case guardian was appointed (para 1). It “was not in dispute that from 1991 until 2000 the parties lived together in a de facto relationship” (para 7), the “issue before the trial judge [being] when the relationship between the parties ended. For Mr Cadman it was contended that the relationship ended in January 2000. For Mr Hallett it was argued that the relationship ended in October 2010” (para 22).

From 2000 Mr Hallett travelled to the United States and returned on a number of occasions to facilitate his studying and exhibiting art overseas, particularly from 18 January 2000 to 18 April 2000, June 2002 to May 2003, February 2004 to October 2004, 30 May 2006 to November 2008 and from 28 January 2009 to 13 November 2009. On 29 January 2010 Mr Hallett again left for the United States (paras 11-19).

The Full Court said (from para 21):

“…       On 20 July 2010 Mr Cadman revoked his will which left a life interest to Mr Hallett and made a new will leaving only a bequest of $20,000 to him. The life interest that had previously been bequeathed entitled Mr Hallett to live in the neighbouring property at Town N and to receive income from investments for his life. Three months later on 20 October 2010, Mr Cadman sent an email to Mr Hallett saying ‘[l]iving with me in Town N is not right or an option’.

( … )

[26]     There were many emails between the parties in evidence before her Honour and she considered that those emails demonstrated clearly their commitment to each other and their shared life. The emails continued to show this commitment notwithstanding the time that Mr Hallett spent in the United States and indicated that, although they were physically living apart at those times, they each considered the relationship to be continuing, and continuing in the same way that it had before the trips to the United States commenced save and except as to a sexual relationship. It was not until October 2010 that the content of the emails took a different turn.

( … )

[28]     Her Honour then considered the authorities dealing with the issue of when a relationship ends or breaks down and concluded:

‘The Full Court stressed the importance of the necessity of one party communicating to the other his intention to end the relationship.

Thus the authorities establish that in order to establish that a relationship has “broken down” for the purpose of the legislation, it is necessary that one party forms an intention to end the relationship, that the party acts upon the intention and that the intention is communicated to the other party.

In the circumstances of the present case, it is not clear when Mr [Cadman] formed the intention to end his relationship with Mr [Hallett]. There is no evidence that he had either formed the relevant intention or communicated it to Mr [Hallett] in January 2000 which is the date relied upon by the Case Guardian. There is no evidence that he had either formed the intention or acted upon it before 1 March 2009 which is the relevant date for the accrual of jurisdiction. I am satisfied that the evidence establishes that Mr [Cadman] formed the intention to end the relationship in mid-2010 when he changed his will and I am in no doubt that he communicated his intention to Mr [Hallett] in his emails in October 2010 to which reference has been made earlier.’”

On appeal Mr Cadman argued that the trial judge failed to find “whether the parties had achieved a practical union of both lives and property such as to constitute them living together as a couple on a genuine domestic basis” and “relied upon Mr Hallett’s sexual relationships with other persons in the United States and what were said to be admissions by Mr Hallett in the course of his cross-examination” as to not living together on a genuine domestic basis with Mr Cadman (para 44).

The Full Court found no error, saying (from para 42):

“…     In Sinclair & Whittaker (2013) FLC 93-551 after referring to both the first instance decision and the decision of the Full Court in Jonah & White [[2011] FamCA 221 and [2012] FamCAFC 200 respectively in which both courts said that the existence of a de facto relationship turned on a finding that the parties were ‘a couple living together on a genuine domestic basis’] the Full Court said:

‘Comments made in the course of discussing facts are not to be elevated to the status of the provisions of the statute or substituted for the statutory test. This is because, taken on their own, they either add nothing to the statutory test or, if they do, they are adding an impermissible gloss. Thus it is not appropriate to consider the facts other than in the light of the statutory test.

It is also to be remembered, perhaps making the task of a trial Judge applying s 4AA more difficult, that the nature of relationships and commitments for both married and unmarried couples find expression in many different domestic arrangements. The application of the statutory criteria to reach a conclusion must be done judicially. It is difficult, absent error, for an appeal court to interfere, even if it would not itself have reached that conclusion.

Each of the matters raised by these grounds was taken into account by the trial Judge. Any attempt to regard any particular factor as determinative or having particular importance is contrary to the approach to be taken as identified in Lynam v Director-General [Lynam v Director General of Social Security (1983) 52 ALR 128].’

[43]     It is apparent that Mr Cadman has fallen into the trap eschewed by the Full Court in Sinclair & Whittaker. The ground and this submission all rely upon only part of the definition of a de facto relationship, which for convenience we will restate, emphasising the part omitted:

Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

( … )

[48]     In Sinclair & Whittaker the Full Court approved the following passage from Lynam v Director General of Social Security (1983) 52 ALR 128 where Fitzgerald J at page 131 said:

‘ … Each element of a relationship that draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitude and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.’

[49]     Having regard to those principles no error has been shown.

[50]     Indeed, the reliance by counsel on just one part of the definition of a de facto relationship is, of itself, likely to be productive of error.”

As to the applicant’s visa (green card) status in the United States, the Full Court said (from para 55):

“…       It was … suggested to Mr Hallett that he had tried to arrange a sham marriage to an American citizen for the purpose of obtaining a green card so that he could stay in the United States.

( … )

[58]     It was argued on appeal that … the aim of Mr Hallett was to marry, which would lead him to obtaining a green card, which would in turn entitle him to live permanently in the United States. This, it was said, would compel a finding, that in trying to arrange the marriage, Mr Hallett had formed an intention to end the relationship.

[59]     The entry into a sham marriage for the obtaining of a right to live permanently in the United States is not necessarily inconsistent with a continuing relationship with Mr Cadman. Further, the steps do not necessarily each flow from the other. Even if the intention was formed there is no evidence it had been communicated to Mr Cadman.”

The appeal was dismissed.

Subpoena – Production by wife’s mother and brother sought – Husband had not pursued discovery by wife first – Objections upheld  

In Cahill [2013] FamCA 176 (26 March 2013) counsel for the wife’s mother and brother described subpoenas for production of documents issued by the husband as “absolutely oppressive, unwarranted, an intrusion into commercial affairs and an abuse of the court’s process” (para 9). 

Cronin J said at paras 10-11:

“Senior Counsel for the husband rejected that and described the request as one seeking unremarkable statutory records. The basis for the pursuit of these documents was what was described as the husband’s perception that the wife’s mother was not in control of the various entities but rather the wife and her brother were. That perception came about because the wife’s mother resigned from every entity in 2009. It was said that the husband might be wrong but he wanted to know.

Senior Counsel for the husband submitted that this was not ‘fishing’ because the entities and in particular the brother and his mother, either had the documents or they didn’t. He submitted that all of these entities were investment vehicles.”

Cronin J cited case law as to a court’s approach to an objection to produce documents, saying at para 14:

“( … ) My concern is whether endeavours have been made to seek out the wife’s position before the invasion of the non-parties has occurred.”

Cronin J said at para 17:

“In general civil litigation, even with some modern restrictions, discovery is available but in this jurisdiction, there is an obligation on each of the litigants to make full and frank disclosure first. Thus, it ought to be obvious that if disclosure is not made properly by a party, then a subpoena to a non-party is reasonably justified but then the draftsperson must still be able to point to the relevance of the documents sought.”

Cronin J continued at paras 26-27:

“The test to be applied is whether the subpoena was necessary for the proper conduct of the proceedings. In family law litigation, whether the subpoena was proper gives rise to the question of whether disclosure has been sought and given. If it has not and the subpoena is justified, the focus will then be on whether the documents pursued are reasonably likely to add to the relevant evidence in the case.

Here, the husband argued that he had tried to “cut to the chase” by correspondence to which there had not been a comprehensive response. Indeed, it was said that not one document had been produced by the wife but it would also seem that no enforcement of the wife’s obligation had been undertaken either.”

The subpoenas were set aside except as to certain documents which the named parties volunteered to produce.

Trial judge erred in denying mother’s proposed relocation from Sydney to the Hunter Valley – Failure to weigh relevant considerations

In Cales [2010] FamCAFC 237 (26 November 2010) the mother of two young daughters, who had sought permission to relocate from Sydney to the Hunter Valley in NSW about 166 km from the father’s home, was ordered by Cowen J to reside within a radius of 30 km from Sydney GPO with the children who were to spend alternate weekends and time each Wednesday after school with the father. 

The Full Court (May, Boland and Cronin JJ) allowed the mother’s appeal, saying at para 110:

“ … his Honour had not specifically considered whether the mother’s proposal was reasonably practicable, nor had he considered whether the father’s proposal which was that the children live primarily with the mother but the mother remaining in Sydney, was in their best interests and reasonably practicable.”

Then at para 114 the Full Court said this:

“Further, we were not taken to any evidence by the father’s counsel, which supported the trial judge’s reasoning as to why the 30 km restraint on the children’s residence from the Sydney GPO was necessary or appropriate. We note that the mother could have moved to a Sydney suburb such as Engadine (28 kms from the Sydney GPO) which would have the effect that after school time with the father, whilst not impossible, would in reality not be practicable unless the father spent the time in the Engadine area.”

The Court said this at para 127:

“His Honour found that it would not be in the children’s best interests to live with the mother in the Hunter Valley. However, the structure of his reasons does not allow us to find that he considered whether a substantial and significant arrangement as proposed by the father, by answering the two questions required by the legislation, namely, was it in the children’s ‘best interests’ and ‘reasonably practicable’ in the context of his consideration of s 65DAA (including s 65DAA(5)) [of the Family Law Act], but rather that his Honour’s best interests conclusions were made in the context of his discussion of s 60CC findings.”

And this at para 132:

“We see some merit in the challenge that his Honour failed to examine adequately the practical and economic aspects associated with the mother obtaining a home, and having the benefit of practical support if she lived in Sydney. Nor was there any real discussion by his Honour of how, if the parties lived, as they may as a result of his order, a substantial distance apart in Sydney, it would be practical for mid-week time with the children to occur.”

The Full Court also said this at paras 142-144:

“In this case, as the parties had asked his Honour to make an order for equal shared parental responsibility, he was required by reason of s 65DAA to consider, notwithstanding it was not in issue between the parties that the children should continue to live predominantly with the mother, a time regime which would, if in the children’s best interests and reasonably practicable, provide for them to spend substantial and significant time with the father, and if those two criteria were satisfied to go on and consider whether he should make such an order.

It must be remembered that although the two criteria may have been answered affirmatively, that fact alone did not dictate his Honour must make an order for substantial and significant time. What the legislation obliged him to do was to consider whether he should make such an order. In his overall consideration his Honour should, in the circumstances of this case, have weighed and balanced the undisputed fact that regardless of where the mother lived, the children were to remain primarily in her care for the majority of the time and balanced the benefits the children would experience living with the mother in the Hunter Valley, including the provision of more suitable affordable accommodation, and support for the mother from her family members, against the reduction of time to be spent with the father, including essentially the opportunity to spend time with him mid-week. This consideration would have involved his Honour in assessing whether, if the children lived in the Hunter Valley, the time spent with the father and their communication with him would enable them to maintain a meaningful relationship with him. This we are satisfied his Honour did not do.

His Honour’s reasons disclose no significant discussions of the fact that the mother was to remain the children’s undisputed primary caregiver, and that the extra time sought by the father at trial involved, in reality, only one extra daytime period per week in his care. It was not suggested in this case (as discussed in Sampson & Hartnett (No.10) [(2008) 38 Fam LR 315]) that in the event the children were not permitted to relocate, and the mother moved to the Hunter Valley, that the children would live predominantly with the father. We are satisfied that his Honour’s reasoning did not adequately deal with this aspect of the mother’s case … ”

The matter was remitted for an expedited re-hearing. 

Treatment of property acquired after separation is discretionary – No error in trial magistrate’s one pool approach – Open to the court to include the inheritance or deal with it separately 

In Calvin & McTier [2017] FamCAFC 125 (12 July 2017) the Full Court (Bryant CJ, Ryan & Aldridge JJ) heard the husband’s appeal against orders made by Magistrate Calverley of the Magistrates Court of Western Australia. The trial magistrate included among the property of the parties to be divided by the court an inheritance received by the husband 4 years after separation (of which $430,686 was unspent) which comprised 32 per cent of the $1.3 million pool. The parties had been married for 8 years and had one child who spent equal time with them. 

It was found that initial contributions also favoured the husband ([11]). They comprised the proceeds of sale of two pre-marital properties of his used to buy two other properties the net value of which at trial was $580,000; a motor vehicle, shares and superannuation of unstated value ([10]). Contributions were found to have been otherwise equal, the trial magistrate assessing contributions overall as 75:25 in favour of the husband. A 10 per cent adjustment for the wife under s 75(2) produced a 65:35 division overall. 

The Full Court observed (at [4]):

“The husband appealed against the trial magistrate’s finding that the inheritance should be included amongst the property to be divided but did not contend that if the inheritance was properly available for division, the percentage division arrived at by the trial magistrate was erroneous.”

The Court continued (from [24]):

“ … [B]oth the relevant definition of ‘matrimonial cause’ and s 79 refer to all of the property held by the parties at the time of the hearing before the court. All of the property then held by both of the parties or either of them can therefore be the subject of orders under s 79, regardless of when particular assets were acquired. The fact that the court is to take into account the contributions of a party with respect to the acquisition, conservation or improvement of that property or to the welfare of the family makes this abundantly clear (s 79(4)(a), (b) and (c)). Such contributions may, of course, continue long after separation.

[25]    In this matter, that property could include the inheritance. So much was accepted by senior counsel who appeared for the husband, who also accepted that there is a significant body of Full Court authority to the effect that, in the exercise of the court’s discretion, property acquired after separation can be the subject of division. See, for example, Jones & Jones (1990) FLC 92-143 at 77,993; Thynne & Madison [2007] FamCA 558; Norman & Norman [2010] FamCAFC 66; Polonius & York [2010] FamCAFC 228 (‘Polonius & York’); and Singerson & Joans [2014] FamCAFC 238. 

[26]    In conceding that this was so … senior counsel’s argument ultimately became a contention that while the court had the power to make an order against the inheritance, in this case it should not have, in its exercise of discretion, because there was no clear connection between the inheritance and the parties’ marriage. He submitted that the mere fact that the parties were married was not sufficient to justify the court bringing the inheritance into account.

[27]    Accordingly, the relevant question before us became one of whether the trial magistrate properly exercised his discretion in including the inheritance in the property to be divided between the parties. In answer to this question, senior counsel identified three propositions of law on which he founded his argument:

•        There is no High Court case that says that all of the property owned by the parties is, without more, available for division under s 79.

•        That the decision of the majority in Farmer and Bramley (2000) FLC 93060 (‘Farmer and Bramley’) cannot stand in the light of Stanford v Stanford [2012] HCA 52 … (‘Stanford’).

•        Property acquired by a party after separation is available for division under s 79(1), but only if there is some nexus between the after acquired property and the parties’ marriage.

[28]    Little need be said about the first proposition. The absence of authority on a proposition does not, of itself, establish it; nor does it establish its opposite. In this respect, the legislation speaks for itself.

[29]    As to the second proposition, the submission was that the long line of authority referred to by us at [25] had been rendered nugatory by the High Court decision in Stanford. In particular, senior counsel for the husband relied on the High Court’s statement in that case at [41] that the court must have ‘a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage’ to argue that the court would have to be satisfied that there is a sufficient nexus between particular items of after-acquired property and the parties’ marriage before that property could be included for division between the parties. Thus, it was submitted that the dissenting judgment of Guest J in Farmer and Bramley, whereby his Honour suggested that contributions under s 79(4) must be contemporaneous with the existence of that property, was to be preferred.

( … )

[34]    In our opinion, Stanford does not support the submissions of the husband. That case was concerned with the conditions to be satisfied before the court should consider altering the parties’ interests in their property. It is necessary first for the court to determine that it is just and equitable to do so. ( … )

( … )

[37]    … [T]he question in Stanford was whether there should have been an order for property division at all. It was not concerned with the nature of the actual order that was made because it was held that the primary judge and the Full Court should not have advanced to that step. The decision therefore does not require that there be a principled reason to interfere with, as senior counsel put it, ‘individual assets of the parties’.

[38]    We turn then to the third proposition of senior counsel … Shorn of those aspects of the argument which are plainly not supported by authority … we understand the third proposition ultimately to be as follows: where there is after-acquired property and the owner of that property objects to its inclusion in the property to be considered for division under s 79(1) of the Act, there must be a separate and specific consideration as to whether there is a principled reason for its inclusion and division.

( … )

[44]    … As the first two propositions advanced by senior counsel do not succeed, the third proposition is left without support. It is difficult to see how it could then be accepted. It is contrary to the extensive weight of authority referred to above.

( … )

[47]    … [S]imilar submissions in support of the dissent of Guest J were expressly rejected by the Full Court in Polonius & York at [119]. We do not accept the submission that the reasons in Stanford require reconsideration of Farmer and Bramley or any of the other authorities to the same effect.

[48]    Finally, the husband sought to draw support from the following passages in Bonnici & Bonnici (1992) FLC 92-272 (‘Bonnici’) at 79,019 – 79,020 ( … )

[49]    The passage is redolent of the discussion of the exercise of a discretion. In Bonnici, the question of whether after-acquired property should be included in the property available for division was said to depend very much on the circumstances in each matter and the exercise of the discretion of the court. The court in Bonnici was, however, principally concerned with the reasons of the primary judge in that case and, in particular, the reasons why there had been a finding of equality of contributions by the parties notwithstanding the receipt of a significant inheritance by one of the parties after separation. The point being made was that if the inheritance was to be included in the property for division the introduction of that property would need to be reflected in the findings as to the parties’ financial contributions. Bonnici was not concerned with submissions akin to those made in this matter.

[50]    The husband particularly relied upon the first sentence of [44] of Bonnici above. We do not agree that in that sentence their Honours were purporting to lay down a guideline as to the approach the court should take to inheritances received after separation. It is clear from reading the passage as a whole that they were not doing so. Whilst the court did indicate that in the case before them it would have been simpler for the primary judge to have dealt with the inheritance separately from the other property, it expressly said that there was nothing wrong with a global approach (i.e. dividing just one group of assets, including the inheritance), provided there was an explanation as to how the division was arrived at (at [46]). See also Bishop & Bishop (2013) FLC 93-553 at 87,421.

[51]    In short, we consider that the court retains a discretion as to how to approach the treatment of after-acquired property. The trial magistrate could have included the inheritance amongst the property to be divided or dealt with it separately. The trial magistrate was not obliged to follow one course or the other. ( … )

[52]    It is worth repeating that it was not submitted that any error said to have arisen from the inclusion of the inheritance for division led to a result which, after consideration of the contributions and the s 75(2) factors, was inappropriate. Rather, the submissions were directed to the process.” 

The husband’s appeal was dismissed with costs.