Objection to subpoena for production of father’s migration records (on ground that documents were “private”, irrelevant and speculative) dismissed   

In Bennet & Carter [2013] FMCAfam 149 (30 January 2013) a subpoena was issued for production of records of the father’s arrivals in and departures from Australia held by the Department of Immigration and Citizenship. A Notice of Objection was filed by the father on the grounds that the documents were “private and not relevant to the current proceedings” and were “speculative” (para 26). Before the court was the mother’s application for an order setting aside parenting orders so that the children live with her.

Harman FM said at paras 32-40:

“The documents that are sought with respect to the father’s passage from Australia and return could not, in my mind, be described as irrelevant to the proceedings.

A limb of the mother’s case is that the father has been anything other than diligent in consulting with her and keeping her apprised of arrangements with respect to the children. The mother puts in issue care arrangements for the children in the past, a consideration of which must be of some relevance to a determination of future parenting arrangements. Specifically the mother suggests the father has routinely travelled outside of Australia leaving the children in the care of others.

The suggestion that the documents are ‘private’ cannot be made out in my mind. The documents are not private. They are public records accessible by a variety of government agencies for appropriate and lawful purposes. More importantly, once proceedings are on foot between parties within the Court’s jurisdiction, there is little, if anything, that, subject to the requirement of relevance as defined by section 55 of the Evidence Act, would be private as between the parents. The Respondent has an obligation to disclose the information.

The care arrangements for the children, and thus departure from and return to the Commonwealth and thus the children being left in the care of others during those periods of time, without any criticism of the quality of care therein provided, is a matter of some significance and relevance.

As to whether the information that is sought is speculative, that is addressed perhaps through submissions put by Counsel for the father. It is conceded that the father has had periods of absence from the Commonwealth, although he asserts he has made entirely appropriate arrangements for the children’s care with his partner during those absences. However, it is the absence itself which is the subject of the wife’s contention and the subject of the documents which are sought to be produced under the subpoena.

On that basis, the subpoena could not be described as speculative or, in terminology more commonly adopted in case law, ‘a fishing expedition’.

To the extent that it is suggested that the mother is anxious to ascertain the husband’s work routine and to support a case for herself:

a)      what would seem to be sought by the mother is to obtain records which corroborate the father’s absence from direct physical care of the children for periods of time and which may or may not be of some assistance to her in addressing contentions by her that she has been less than fully informed or consulted regarding such matters; and

b)      to the extent that the mother seeks the production of documents, the contents of which may be of support to her case, that is, one would think, the fundamental purpose for the issue of a subpoena.

It is unlikely that a party would go to the trouble and expense of producing, filing and serving a subpoena for the production of documents which would not support their case or which would not go to or speak to an issue of relevance as raised within their case.

On that basis, I am satisfied the objection can, should and will be dismissed.”

Child support – SSAT decision to credit non-agency payments under s 71C in respect of vehicle expenses was an error of law – Being the expenses of the payer (under salary sacrifice with his employer), not the payee’s expenses, they were not prescribed payments – Nature of appeals from the SSAT examined 

In Benson & Benson & Anor (SSAT Appeal) [2014] FCCA 2398 (24 October 2014) Judge Brown considered a decision by the SSAT which allowed non-agency payments to be credited against a father’s child support assessment, the payments being in respect of a Mercedes Benz vehicle. The vehicle was used by the mother for domestic purposes; owned by the father’s employer (“[Q]”); and its lease and fuel costs were paid via the father’s salary sacrifice arrangements with [Q]. The payments totalled $8,128.48 (para 14).

Before the SSAT, the mother argued that the payments should not be credited, as “she had never agreed that these amounts should be in lieu of child support” (para 16).

The Court said (paras 29-31):

“…       In the context of section 71C the SSAT noted that it was not necessary for there to be a mutual intention to credit a payment made to a third party, by a liable parent, if the payment in question satisfied the criteria provided by the section, particularly that the payment fell within the list of payments prescribed by the regulations.

[30]     The applicable regulation is regulation 5D, which reads as follows:

‘For paragraph 71C (1) (b) of the Act, specified payments are payments of the following kinds:

 ( … )

(g)        costs to the payee of obtaining and running a motor vehicle, including repairs and standing costs.’

[31]     The SSAT found that in order to credit a prescribed non-agency payment, under section 71C, no mutual intention of the parties was necessary. It further found that, as Mr Benson had no care of [X], this amounted to less than regular care and therefore the provisions of section 71C(1)(ba) were met.”

Judge Brown proceeded to examine the nature and legislative basis of appeals to the FCC from the SSAT (paras 34-50), then continued from para 52:

“…       [Counsel for the Child Support Registrar] submits that the evidence, as found both by the SSAT and supported by documents, which were before the Tribunal, indicate that the Mercedes Benz motor vehicle was leased through a salary sacrificing arrangement between Mr Benson and [Q], to which Ms Benson was not a party.

[53]     The [Q] Motor Vehicle Guidelines indicated that vehicles subject to the Guidelines are owned by [Q]. …

[54]     Following the parties’ separation there is no dispute that Ms Benson had exclusive use of the Mercedes Benz vehicle. She herself did not make any payments to [Q]. This is because only Mr Benson and [Q] were parties to the agreement arising pursuant to the [Q] executive motor vehicle guidelines. As such, only Mr Benson was responsible for such payments. No obligations fell on Ms Benson notwithstanding her use of the motor vehicle with Mr Benson’s ostensible consent.

[55]     In these circumstances, [Counsel for the Child Support Registrar] submits that the SSAT fell into error in considering that the payments made by Mr Benson personally for the Mercedes Benz vehicle fell within the remit of those described in regulation 5D(g) particularly in that they were not costs to the payee (that is Ms Benson) directly of obtaining and running a motor vehicle. Axiomatically they were payments which fell upon the payer (that is Mr Benson).

[56]      [Counsel for the Child Support Registrar] submits as follows:

‘Regulation 5D provides that payment of certain “costs” may be a “prescribed non agency payment” and directs attention to two characteristics of those costs:

a)      They must be costs “to the payee”;

b)      The costs (to the payee) are limited to those that constitute “obtaining and running a motor vehicle.

The use of the phrase “to the payee” in regulation 5D(g) directs attention to the person(s) with responsibility for those costs. For costs to fall within the sub-paragraph, the payee must have an actual obligation or liability to meet them (be it because he or has directly or indirectly incurred them, or for some other reason. … ’

( … )

[58]     I agree with this contention. In addition, the evidence available to the SSAT indicates that Ms Benson did not have any liability for making the lease and fuel payments in question. It seems to have assumed that because she had the use of the motor vehicle in question that it fell within the scope of regulation 5D(g). In my view, this conclusion was erroneous.”

The decision was set aside and the matter remitted to the SSAT for re-hearing.

Change of venue – Sydney preferred to Adelaide in Part VIIIAB case for less uncertainty as to disputed date of separation  

In Benson & Owens [2011] FamCAFC 236 (15 December 2011) former de facto partners were both resident in SA when the de facto husband filed a Part VIIIAB application in the FMC in Sydney, alleging that four of the parties’ six years together were spent in NSW where most of their property dealings occurred. Their de facto relationship was alleged to have broken down in January 2010 by the applicant and in 2006 by the respondent (paras 6-8). There was a property in SA. Walker FM transferred the proceedings to the FMC at Adelaide and the applicant appealed.

On appeal, Coleman J referred to FLR 8.01 which requires a court to have regard to the convenience of the parties, the limiting of expense and the cost of the proceedings, whether the matter has been listed for final hearing and any other relevant matter. As to the appellant’s submission that Walker FM had erred in taking judicial notice of the likelihood of the case being heard sooner in Adelaide than in Sydney, Coleman reviewed s 144 of the Evidence Act 1995 (Cth) which included the requirement to give parties the opportunity to make submissions when the taking of judicial notice was proposed, saying at para 47 that “her Honour’s discretion to transfer the proceedings could not permissibly have been influenced by the matter of which she took judicial notice”.

Coleman J next considered the appellant’s submission that he would be possibly disadvantaged by the transfer to Adelaide due to the date of referral of State powers in SA. 

Coleman J said at para 61:

“It was common ground that the referral of power with respect to de facto relationships by the State of South Australia became operative on 1 July 2010. It was submitted that, if the [de facto] husband’s assertion that the de facto relationship between the parties ended in January 2010, the [FMC] may not have jurisdiction to determine the proceedings if they were heard in [SA], rather than in [NSW] where the referral of powers became effective on 1 March 2009.”

In allowing the appeal on this ground too (and setting aside the transfer to Adelaide), Coleman J said at paras 69-71:

“Whether, if, the Court concludes that the de facto relationship broke down in January 2010, as the husband asserts, the [FMC] sitting in [SA] would have jurisdiction to entertain the proceedings, is less than certain. What is certain is that, subject to issues in relation to the ‘geographical connection’, the [FMC] sitting in [NSW] would have jurisdiction to do so, the date of commencement of Part VIIIAB of the Act in the state of [NSW] having been 1 March 2009.

Without being comfortable, or necessarily able to express a concluded view, the submission of Counsel for the husband … that:

‘It is not known how the court will interpret the provisions of this legislation concerning geographical requirements. In the circumstances, it is prudent that the proceedings be heard in the state in which there is a significant geographical connection for the relationship.’

resonates with this Court.

As the submissions of Counsel for the parties recognised, complex jurisdictional issues arise for determination in these proceedings. It is difficult to see how those issues could be determined in the absence of findings of fact in relation to the various matters which would inform the determination of those issues. Given the absence of a clear imbalance of convenience [between the parties and their witnesses] whatever the ultimate outcome of the proceedings, their continued hearing in Sydney appears to involve least potential for multiple actions, and consequential increases in legal fees.”

 

Commercial international surrogacy – Section 69VA is not an independent head of power for a declaration of parentage – Section 60HB covers the field as to children born under surrogacy arrangements – Section 60H addresses conventional artificial conception but was not applicable in this case (nor was s 67ZC as s 60HB covers the field)

In Bernieres and Anor & Dhopal and Anor [2017] FamCAFC 180 (1 September 2017) the Full Court (Bryant CJ, Strickland & Ryan JJ) heard an appeal by a married couple against Berman J’s refusal to make a declaration of parentage under s 69VA of the Family Law Act and s 67ZC (orders relating to the welfare of children) in respect of a child born from sperm of the second appellant Mr Bernieres and an ovum of an anonymous donor pursuant to a commercial international surrogacy arrangement. They had also applied for leave to apply for a step-parent adoption under s 60G. The birth mother and her husband were the respondents but took no part in the appeal. 

The Full Court said (from [17]):

“His Honour … referred to s 60HB of the Act in relation to children born under surrogacy arrangements and noted that for the purposes of this case the relevant legislation pursuant to reg 12CAA of the Family Law Regulations 1984 (Cth) … was the Status of Children Act 1974 (Vic) … His Honour discussed ss 20 and 22 of that Act and explained that demonstrably the appellants were ‘not able to gain any assistance from the relevant Victorian legislation’ as the surrogacy arrangement was ‘clearly commercial as opposed to altruistic, was not commissioned with the assistance of a registered ART provider and … the procedure was not carried out in Victoria’. Thus, s 60HB … did not apply to this case …

( … )

[19]    … [H]is Honour was not satisfied that s 69VA was a ‘stand alone power but rather requires “parentage” of a child to be in issue in proceedings in respect to another matter’. His Honour noted the construct of subdivision E of Division 12 of Part VII of the Act in relation to parentage evidence and the steps to be taken in determining the parentage of a child. His Honour accepted on the basis of the legislation that the ‘focus is to ensure that the court has a wide discretion in relation to the types of orders that can be made in order to determine the parentage of a child in issue’ and explained that the ‘reference to “receiving evidence” in s 69VA is directed to determining the biological connection and therefore the parentage of a child’ … 

( … )

[40]    … [T]he issue that must be considered is whether it is in fact open to apply s 69VA here, and that would depend on whether s 60HB covers the field in relation to surrogacy arrangements, and where s 60H sits in the statutory scheme.

( … )

[49]    Section 69VA provides as follows:

DECLARATIONS OF PARENTAGE

69VA As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.

[50]    This section is in that part of the Act (Part VII) where a number of general provisions dealing with parentage, presumptions and declarations of parentage appear, and the obvious question is whether specific sections such as ss 60HB and 60H prevail over these general provisions where they conflict. The answer to that question is assisted by the rule of statutory construction known as generalia specialibus non derogant. That provides that if there is a specific section or sections of the Act that apply, then that section or those sections prevail, particularly where, as here, the specific sections, namely s 60HB and the amended s 60H were enacted after the general (Commissioner of Taxation v Hornibrook [2006] FCAFC 170; (2006) 156 FCR 313).

[51]    The proposition that ss 60H and 60HB prevail over the general provisions can also be supported by a consideration of the meaning and effect of those two sections. …

( … )

[58]    On its plain meaning, if s 60H(1) is applied to a surrogacy arrangement (including the arrangement here), it results in the birth mother and her husband or partner being the parents, and the child not being the child of any person who provided genetic material. Thus, neither of the commissioning parties can be the parents of the child under this subsection, and it is clearly designed to cover conventional artificial conception arrangements where the birth mother and her partner are to be the parents of the child.

[59]    For completeness, we note that unlike s 60H(1), ss 60H(2) and (3) do not expressly exclude any donor of genetic material from recognition as a parent. … [J]udicial opinion is divided as to whether those sub-sections impliedly exclude such a donor. However, because we have not heard argument in relation to this matter, we are not able to express any informed view about the same. Further, and in any event, it is unnecessary for this court to consider that issue because neither ss 60H(2) or (3) apply in this case; paragraph (b) in both sub-sections cannot be satisfied.

( … )

[62]    … [I]t is plain that s 60HB now specifically addresses the position of children born under surrogacy arrangements, leaving s 60H to address the status of children born by means of conventional artificial conception procedures. Further, the plain intention of s 60HB is to leave it to each of the States and Territories to regulate the status of children born under surrogacy arrangements, and for that to be recognised for the purposes of the Act. In other words, s 60HB covers that field, leaving, as we say, s 60H to address conventional artificial conception procedures.

[63]    In conclusion then, s 69VA is not available here because s 60HB covers the field, and s 60H does not apply.

[64]    The unfortunate result of that conclusion is that the parentage of the child here is in doubt. There is no order made under the relevant State legislation (and nor could there be, as explained in Green-Wilson & Bishop) [[2014] FamCA 424].

[65]    There is no question that the father is the child’s biological father, but that does not translate into him being a parent for the purposes of the Act. Further, the mother is not even the biological mother, and thus is even less likely to be the ‘legal parent’.” 

As to whether s 67ZC (orders relating to welfare of children) could be used by the Court to declare parentage, the Full Court said ([81]):

“ … [W]e find that s 67ZC cannot be utilised to make a declaration of parentage, but for different reasons than his Honour provided. His Honour proceeded on the basis that s 67ZC only applies where the child is a child of a marriage, whereas our finding is based on the circumstance that s 60HB covers the field. ( … )”

The Full Court also found no error in the dismissal of the appellants’ application for leave to adopt the child, saying (from [86]):

“The effect of those exchanges [between the appellants’ counsel and his Honour] is that it was only necessary for his Honour to address s 60G if there was a declaration of parentage in favour of the second appellant [Mr Bernieres], but not in favour of the first appellant [Ms Bernieres]. As is apparent his Honour did not make a declaration in favour of either party, and thus on the appellants’ own case his Honour was not obliged to address the application pursuant to s 60G.

[87]    In any event, for s 60G to apply there must be a ‘prescribed adopting parent’. In s 4(1) a ‘prescribed adopting parent’, in relation to a child, is defined as:

a)             a parent of the child, or

b)             the spouse of, or a person in a de facto relationship with, a parent of the child; or

c)             a parent of the child and either his or her spouse or a person in a de facto relationship with the parent.

Plainly neither party came within that definition.”

The appeal was dismissed.

Parents incapable of properly caring for child – Child to live with paternal grandmother who was granted sole parental responsibility

In Berryman & Jones and Anor [2010] FamCA 235 (22 January 2010) the paternal grandmother successfully applied to Bell J for a parenting order for the child to live with her and for her also to have sole responsibility for making decisions in respect of the child, in a case where neither parent was capable of providing proper care. The parents were granted limited time with the child.

Full Court re-exercises discretion in Bevan – Husband’s property application dismissed, it being not just and equitable to make any order – Stanford applied – Husband had made representations to wife that she could retain all assets in Australia 

In Bevan [2014] FamCAFC 19 (19 February 2014), the Full Court (Bryant CJ, Finn & Thackray JJ) determined a matter where it had previously upheld an appeal and invited further submissions as to the proper re-exercise of discretion. A summary of the previous judgment of the Full Court, Bevan [2013] FLC 93-545, is at our online Members’ Archive (“case notes – property”). The parties had been married for 22 years when in 1994 the husband took “to the sea” then moved to England, telling the wife that she could retain their Australian property and that he would get on with his life elsewhere. The wife proceeded to invest and act in the belief that the Australian property was hers. The parties did spend some time living together and went on holidays until 2004, funded by the wife.

In its previous decision the Full Court held that the trial judge (Jordan AJ) had not applied Stanford [2012] HCA 52 correctly, particularly as to whether it was just and equitable to make a property adjustment order when the husband had made the representations he did in 1994 and the wife had acted in accordance with those representations since that time.

Counsel for the husband contended that the “four-step” approach was still applicable such that the trial judge’s decision (of 60:40 in favour of the wife) should remain undisturbed. The Full Court responded by saying “we accept [that the ‘four-step’ approach] provides a convenient way to structure both submissions and judgments provided the [‘fundamental propositions in Stanford’ referred to by counsel] are ‘not overlooked’” (paras 18-19 per Bryant CJ and Thackray J).

In re-exercising discretion, the Full Court dismissed the husband’s application (so that there was no property adjustment in his favour), Bryant CJ & Thackray J saying (from para 28):

“…       Having determined that the wife is the legal owner of all of the assets, the question arises whether it would be just and equitable to make any order altering her interest in those assets. Only if that question is answered in the affirmative would it be necessary for us to consider the extent to which her interest should be altered.

( … )

[30]     In the present matter, the husband elected to leave the relationship in 1994, at which time the parties had been married for 22 years. From time to time thereafter, the husband represented to the wife that she could retain their assets for herself and their sons, on the basis he would build his own life and acquire property elsewhere. Acting on the representations, and believing the assets were hers, the wife dealt with the property as if it were her own. …

( … )

[37]     The husband sought to explain his failure to pursue a claim for property settlement between May 2006 (when he says the parties separated) and July 2011 (when he commenced proceedings) by referring to his poor health and lack of funds to meet legal expenses. The husband’s health did not prevent him from working for most of this period, and when he ultimately asked the wife for a property settlement he did so without incurring legal costs.

( … )

[40]     In Stanford, the plurality touched on the issue of unwritten arrangements between parties to a marriage when discussing the three ‘fundamental propositions’ which they identified as governing applications under s79 of the Act. Their Honours said … :

‘41.    If the parties have made a financial agreement about the property of one or both of the parties that is binding under Pt VIIIA of the Act then, subject to that Part, a court cannot (s 71A) make a property settlement order under s 79. But if the parties to a marriage have expressly considered, but not put in writing in a way that complies with Pt VIIIA, how their property interests should be arranged between them during the continuance of the marriage, the parties to a marriage have not expressly considered whether or to what extent there should be some different arrangement of their property interests in their individual or commonly held assets while the marriage continues, the application of these principles accommodates that fact. These principles do so by recognising the force of the stated and unstated assumptions between parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.’

[41]    In commenting on this passage in our earlier reasons, we said:

‘[119] In our view, if the three ‘fundamental propositions’ can truly accommodate any consideration the parties gave to how their property interests should be arranged during the continuance of their marriage, they must also accommodate express consideration given to how those interests should be arranged after separation. Indeed, the argument for doing so is stronger, given that any mutual understanding is less likely to have been affected by extraneous influences that would be at work whilst their relationship was intact.

[120] This is not to suggest that any understanding between spouses would be conclusive of any later dispute, since an agreement can only be conclusive when the s 90G(1) formalities are satisfied or when a s 90G(1B) declaration is made … But the reasoning in Stanford makes clear that such an understanding would have to be a factor to be taken into account in deciding whether it would be just and equitable to make orders altering existing interests.’

[42]     We also expressed the view, at [84] of our earlier reasons, that, in determining whether it would be just and equitable to make any order altering existing property interests, it would be necessary to have some regard to the matters mention in s 79(4), since it was accepted that it may not be considered just and equitable for the husband to be denied any entitlement in circumstances where it is accepted he made a significant contribution to property that may be seen as having provided the base from which the wife built the assets she now holds. However, such a contribution is but one matter to be considered in the exercise of the discretion conferred by s 79.

[43]     Furthermore, the time at which such a contribution was made may have an impact on the weight to be afforded to it. Thus, in the unusual circumstances of the present matter, when we come to weigh up all matters relevant to the exercise of discretion to make any order altering existing interests we consider that contributions made by the husband after he made the representation about future ownership of the property would assume greater significance than those made previously.”

After considering the husband’s contributions the Full Court said (from para 80):

“…       … we do not consider there is an onus on the wife to establish some form of equitable defence to the husband’s claim for property settlement. The onus is on the husband to show some principled reason for the Court to interfere with the wife’s interest in property.

[81]     The fact the Court is given a wide discretion when deciding whether the husband has discharged the onus does not mean that the matter will be disposed of in an unprincipled fashion …

[82]     The basis upon which it can be concluded in many cases that it is just and equitable to make orders interfering with existing interests in property following the breakdown of marriage is because it is no longer appropriate to proceed on the basis of the stated and unstated assumptions between the parties to the marriage in circumstances where they have not expressly considered whether, or to what extent, there should be some different arrangement of their property interests (Stanford at [41]). In the present matter, however, the parties did give express consideration to what should become of their property. In such circumstances we consider the husband must do more that point to the end of the relationship in order to persuade us that there is some principled basis upon which we should interfere with an existing state of affairs created by consent, or at the very least, acquiescence of the parties.

[83]     The present state of affairs between the parties did not arise as a result of any duress or even agitation by the wife, but rather by the voluntary act of the husband. ( … )

( … )

[85]     While we accept that the wife did not give evidence that she acted to her detriment on the basis of the husband’s representations, we consider any such assertion would have been dismissed as self-serving. Notwithstanding the absence of solid evidence, we find it impossible to resist the conclusion that the wife must have arranged her affairs secure in the knowledge that she would retain the assets for her benefit and for the benefit of the children.

[86]     Although of lesser significance than the representations, we consider that the husband’s protracted delay in commencing proceedings until the eleventh hour prior to the expiration of the limitation period is also a matter to be taken into account. …”

The Full Court also dealt with a separate issue in that the husband sought, as part of the Full Court’s re-exercise of discretion, to have the Full Court accept that the net asset pool was $1,249,387, rather than the $1,069,000 found by the trial judge. Bryant CJ and Thackray J said (at para 23):

“We were not referred to any authority to support a proposition that, on the re-exercise of discretion, a respondent to an appeal who has not successfully cross-appealed is bound to accept all findings made by the trial Judge. The decision of the Full Court in Wall v Wall (2002) 167 FLR 461, although not precisely on point, would provide strong support for the proposition that the discretion of the Full Court is largely unfettered. … We are therefore prepared to proceed on the basis that it is open to the husband to advance his contention concerning the asset pool.”

Finn J delivered a separate judgment, agreeing with the dismissal of the husband’s application but expressing “reservations [that] … it is open to the respondent … to challenge the trial Judge’s findings as to the content and value of the parties’ property in circumstances where the husband did not cross-appeal…” (para 98). 

Full Court considers whether just & equitable to make an order in accordance with Stanford where the parties had lived largely apart for 18 years

In Bevan [2013] FamCAFC 116 the parties had been married for 22 years when after an incident in 1994, the husband took “to the sea” and then moved to England, telling the wife that she could retain their Australian property and that he would get on with his life elsewhere. The wife proceeded to invest and act in the belief that the Australian property was hers. The parties did spend some time living together and went on holidays until 2004, funded by the wife.

At trial, the net asset pool was found by Jordan AJ of the Family Court of Western Australia to be $1,069,000, of which, the husband’s only property was a $4,000 car. None of the assets were in existence in 1994. At first instance, the Court ordered a 60:40 division between the parties.

On appeal to the Full Court (Bryant CJ, Finn and Thackray JJ) the wife submitted that the trial judge had not applied Stanford appropriately, particularly the question as to whether it was just and equitable to make a property adjustment order when the husband had made the representations he did in 1994 and the wife had acted in accordance with those representations since that time.

Addressing the four step process, Bryant CJ and Thackray J considered the High Court’s decision of Stanford [2012] HCA 52 and said at para 65:

“Although the High Court did not disapprove the four step process, we accept it was not approved either. Given the way the matter was resolved, there was no requirement for a pronouncement either way. However, the High Court’s decision serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so.”

and further (at para 72):

“It follows that judges would be well advised to avoid what we consider to be arid discussion of the ‘stage in the process’ at which ‘adjustments’ are permissible. Such discussion tends to elevate the four step process to the status of a statutory edict, when in fact it is no more than a shorthand distillation of the words of a statute which has but one ultimate requirement, namely not to make an order unless it is just and equitable to do so.”

Their Honours then summarised the High Court’s three “fundamental propositions” in Stanford, explaining at para 81 that one such proposition demanded “separate consideration of the preliminary question of whether it is just and equitable to make any order altering the property interests before the need arises to consider the extent to which existing interests are to be altered and in the manner in which that is to be done”.

Their Honours said that while this question could not be described as “a “threshold issue” the consideration of whether making an order was “just and equitable” was not to be conflated with s 79(4) considerations. At para 89 they said:

“In our view, it will be less likely that the separate issues arising under s 79(2) and s 79(4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order”.

The Full Court found merit in the appeal on this point (as to the Court at first instance having conflated the two questions) and stood the matter over, directing the wife to file submissions as to the redetermination of the matter.

The Full Court also took issue with the Court’s finding at first instance that there “was no requirement to consider what representations the parties may have made during the marriage”, finding “such representations clearly could be relevant in determining whether it is just and equitable to make an order adjusting existing interests” (at para 111).

Contravention of parenting orders – Correct procedure – Hearsay evidence  

In Biddell & Ervin [2012] FMCAfam 926 (5 September 2012) the father of a young boy claimed that the mother had contravened two interim parenting orders that required the parties to make arrangements with the Wollongong Contact Centre for the father to spend supervised time there with the child. The alleged contraventions were that the mother “obstructed” those arrangements by “failing to respond in a timely and adequate fashion to the Contact Centre’s staff” and by “refusal to present the child for re-orientation”. The father did not allege that those contraventions were without reasonable excuse. Some of the allegations were withdrawn when the father objected to an absence of particularity.

Sexton FM at paras 9-23 reviewed deposed and sworn evidence of the applicant (including relevant correspondence) and at paras 24-31 the parties’ submissions. The mother argued that there was no evidence to identify any contravention of one order and that as to the other order no particularisation of what she had or had not done. She further submitted that the father abandoned his claim by not signing the Centre’s policy document or doing what he was required to do under the order. Sexton FM stated the relevant law at paras 32-39:

“Applications to deal with a person for contravening a parenting order are child-related proceedings under the provisions of Part VII of the Family Law Act. Contravention is defined by s.70NAC, and applies both to people bound by the order and others, who prevent compliance with the order or aid and abet the contravention of an order.

Paragraph 70NAC(a) provides that where a person is bound by the order, he or she contravenes the order when he or she has:

i)       Intentionally failed to comply with the order; or

ii)       Made no reasonable attempt to comply with the order.

In drafting a contravention application, it is usually advisable to specify whether the person intentionally failed to comply or made no reasonable attempt to comply with the order.

In bringing the application, it is necessary for an applicant to show that:

a)      there is an order in existence; and

b)      the respondent to the application has contravened the order  s.70NEA(1)(a) and (b)).

Once the contravention has been proved, it is up to the respondent to prove that he or she had a reasonable excuse for contravening the order (s.70NEA(1)(c)). It is not required of an applicant to negative reasonable excuse.

The standard of proof for establishing the contravention is proof on the balance of probabilities (s.70NAF(1)). Similarly, once the contravention is established, the determination of whether the person who contravened the order had a reasonable excuse is again the balance of probabilities (s.70NAF(2)).

Because these proceedings are child-related proceedings under Part VII of the Act, certain provisions of the Evidence Act 1995 do not apply, including Parts 3.2 to 3.8, which deal with hearsay, opinion and other matters (s.69ZT(1)). However, the fact that certain material is admissible under this subsection does not give it any more probative value than it otherwise would have. Subsection 69ZT(2) provides:

‘The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).’

The procedure for bringing an Application for contravention of a parenting order is found in Division 25B.1 of the Rules [FMCR 25B.02 requiring an application to be filed in the approved form; the applicant to file an affidavit that states the facts necessary to enable the Court to make the orders sought and has attached a copy of any order alleged to have been contravened].”

Sexton FM dismissed the application, observing that the contravention allegation was “imprecise” (para 41), “couched in vague, generalised terms” (para 42) and lacked any specific allegation relating to any of the orders (para 43). Sexton FM said at para 62:

“What the Applicant needs to show is that it was the Applicant who was, either by her action or inaction, preventing those arrangements from commencing.”

As to the hearsay evidence relied on by the applicant (statements made by Contact Centre staff to the applicant, not in the presence of the respondent, as to availability and as to re-orientation being necessary as six months had elapsed), Sexton FM concluded at para 68:

“The evidence is so remote and therefore unreliable that it cannot be given any weight.”

Financial agreements – Husband wins appeal against order setting aside financial agreement – Court erred in rejecting his argument that wife had waived legal professional privilege in respect of her solicitor’s file subpoenaed by husband

In Bilal & Omar [2015] FamCAFC 30 (27 February 2015) the husband appealed to the Full Court (Bryant CJ, Murphy and Loughnan JJ) against Henderson FM’s decision (Omar & Bilal [2011] FMCAfam 1430, a summary of which is at our archived “case notes – financial agreements”) to set aside a s 90C financial agreement on the ground that the wife had not been provided with independent legal advice which she was able to understand as to the advantages and disadvantages of signing the agreement. The parties had migrated to Australia from Lebanon nine months after their marriage there, the wife having limited English skills.

On appeal, the husband argued that the court at first instance erred by rejecting his argument that the wife had waived legal professional privilege, “[t]he issue of privilege and its asserted waiver [being] central to her Honour’s decision because it pertained to the central question of whether advice required by s 90G(1)(b) of the Act [FLA] was given to the wife” (para 4).

The Full Court recited the 2009 amendments to s 90G(1) and said (from para 7):

“…     The 2009 amendments, and more particularly the transitional provisions applicable to them, have caused significant confusion. Subsequent to the hearing of this appeal this Court (differently constituted to the present) decided Wallace & Stelzer & Anor [2013] FamCAFC 199. An application for special leave to appeal to the High Court of Australia from that decision was dismissed with that Court holding that ‘there is no reason to doubt the correctness of the conclusions reached by [this Court]’. As a consequence, the statements of this Court in Wallace can now be taken as authoritative as to the effect of the transitional provisions.

( … )

[9]     The issue before her Honour was … whether s 90G(1)(b) had been complied with: that is, had advice of the required kind been given to, relevantly, the wife by the required person before she signed the agreement. However, as Wallace had not been decided when her Honour heard the proceedings below, her Honour apprehended that it was also necessary to establish ss 90G(1)(c) and (ca) [provision of signed statement by legal practitioner] had been complied with [Ed – which Wallace subsequently held was unnecessary].”

The Full Court continued (from para 13):

“…     The husband subpoenaed the file of the wife’s certifying solicitor. Her Honour held … that “[t]he subpoena addressed to [the wife’s solicitor] to produce his file was, ultimately, dismissed due to the wife’s claim of legal professional privilege”.

[14]    No direction was made that the wife file any form of pleading. So much is unfortunate; in a context of some legislative complexity, the precise basis upon which the wife sought to set aside the agreement was not particularised adequately and must be gleaned from her affidavit.

( … )

[20]    It is demonstrably clear from the judgment that her Honour’s decision was reached on the basis that:

*        The wife did not understand the form of Arabic spoken (with an Egyptian accent or dialect) by the wife’s solicitor.

*        Thus she could not have received legal advice from the solicitor in accordance with s 90G(1)(b) of the Act.

*        Reference to an interpreter to explain the agreement in a language she understood did not fulfil the requirement of the Act because the interpreter was not present when the advice was being given and could not have interpreted the advice from the legal practitioner.

*        The recitation of s 90G(1)(b) at [67] lends force to the apparent reliance by her Honour upon that sub-paragraph as the basis upon which the agreement should be set aside. (See further in that respect [63] – [69] of the reasons.)

( … )

[25]    … In essence, the argument [by the husband] is that her Honour directed her attention to whether … advice as was given to the wife by her solicitor was understood by the wife whereas the wife’s evidence, and ultimately case, was that no advice was received. …

[26]    The husband’s case before her Honour was, in summary, that the wife had seen a solicitor who spoke Arabic (but with an Egyptian accent or, perhaps, dialect) on two occasions; that she had seen an interpreter with the agreement between those two occasions; and, subsequently, the wife’s solicitor had certified that he had given the wife the appropriate advice. The husband’s contention was that this was sufficient to allow the Court to find the advice required by s 90G(1)(b) had been provided.

[27]    It is important to understand that her Honour’s basis for finding non-compliance with s 90G(1)(b) was not that advice of the type required hadn’t been given, but that such advice as was given was not understood …

[28]    Yet, the wife’s evidence was, ultimately, that no advice had been given. …”

As to Henderson FM’s rejection of the husband’s argument that the wife had waived privilege to her solicitor’s file, the Full Court said (from para 37):

“…     Plainly evident in both the transcript exchange and … from her Honour’s reasons is what her Honour perceives as the necessity for conscious decision on the part of the holder of the privilege in order for there to be a waiver of it.

[38]    With great respect to her Honour, that view is erroneous.

[39]    In Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, it was made clear that the subjective intention of the holder of the privilege does not determine whether the privilege is impliedly waived. Rather, it is the inconsistency between maintenance of the confidentiality which the privilege protects and conduct which is inconsistent with the maintenance of that confidentiality. …

[40]    The decision in that case prompted an amendment to s 122(2) of the Evidence Act 1995 (Cth) which sought to make clear that the privilege is lost by reference to ‘… the behaviour of the holder of the privilege, as opposed to the intention of the holder of the privilege’. ( … )

( … )

[42]    The Full Court of the Federal Court [in Commissioner of Taxation v Rio Tinto (2006) 151 FCR] formulated the question as being whether the party has:

‘ … made an assertion as part of his case that puts the contents of the privileged scheduled documents in issue, or necessarily lays them open to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege.’

[43]    By reference to s 122(2) and the principles just discussed, we consider that the circumstances of this case provide a very clear example of the implied waiver of legal professional privilege. The wife’s affidavit deposes, and the solicitor’s certificate attests, that the wife has received advice of a certain kind. In defending the husband’s case, the wife clearly asserted in the witness box a position entirely inconsistent with that. Put simply, the wife put squarely into issue whether the advice required under s 90G had in fact been given.

[44]    The matters referred to by her Honour relating to the wife’s understanding of the agreement and her language and educational difficulties may well have been relevant to other issues (including, it might be said, issues not raised before her Honour which may have impugned the agreement itself). However, with respect to her Honour, none are relevant to the issue of inconsistency that lies at the heart of the decision to be made pursuant to s 122(2) of the Evidence Act.

[45]    It will be clear, then, that we agree … that the trial judge erred in failing to adopt the appropriate test for waiver of privilege, namely inconsistency.

[46]    Error of law is established. That error is essential to the evidence upon which central findings are made ultimately. The appeal must succeed.”

The matter was remitted for rehearing.

Choice of school – Unilateral enrolment – One parent was deeply religious while the other parent was not – Child “immersed in religion” 

In Bilz & Breugelman [2013] FamCA 578 (9 August 2013) Austin J considered the best interests of the parties’ 5 year old daughter, where the mother was “deeply religious, but the father … [was] … not” (para 87). The mother sought an order that the child continue to attend a Christian school at which “notwithstanding her awareness of the unresolved dispute about the issue … [she had] unilaterally decided to enrol the child” (para 75).

Despite the dispute as to the school it was agreed that the child would continue to live with the mother. It was also “broadly agreed the child should spend time with the father no less frequently than in alternate weeks (comprising three successive overnights stays)” (para 9).

The Christian school was “in reasonable proximity to … [the mother’s] home” (para 76) whereas the father “proposed that the child attend … [an alternate public school] … because that school is equidistant between the parties’ homes” (para 78).

The Court said at para 87:

“The father has no objection to the child’s religious instruction … but he considered such instruction could be satisfactorily achieved by her practices at home with the mother and by attending church with the mother on Sundays. The father believed the child’s exposure to religious beliefs at the school was more akin to indoctrination than instruction. The father pejoratively described the child’s life as being ‘saturated with Christianity’.”

Austin J said at para 82:

“ … the process of evaluation should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where the competing schools are prima facie satisfactory (Re G [Re G (Children’s Schooling) (2000) FLC 93-025] at [91-92]). Ordinarily, it will be in the child’s best interests to attend a school close to his or her residence, and further, it is proper to consider evidence as to any greater effect of the decision upon the resident rather than non-resident parent (Re G at [92]-[93]), but that does not mean the convenience of the non-resident parent is ignored (Eden-Proust [Eden & Eden-Proust [2011] FamCAFC 138] at [56]-[63]). While the views of the child are relevant to the inquiry … those views are usually not determinative … because, unless a child is actively unhappy in a particular school environment, it is not at all unusual for the child to express a desire to remain at his or her existing school (see Re G at [96]).”

Austin J continued at paras 88-90:

“It could not be reasonably said the father’s fears were entirely unfounded. The child already practises religion at home with the mother. They pray together daily. She accompanies the mother to her Denomination Y church on Sundays and she is educated at a Denomination X school in which religion lies at the core of the curriculum ( … )

It is relatively plain that, when at home with the mother, at school during the week, and at church on the weekend, the child is immersed in religion and inculcated with strong beliefs.”

Austin J said further at paragraph 94:

“It is important for the child to receive religious instruction when the mother holds such deep convictions and she shares the child’s parental responsibility. But it is also important to remember the father shares equally in that parental responsibility. It is therefore just as important for the child to receive instruction from the father about his values and beliefs. In order for there to be some adequate space in the child’s life for her instruction with his secular morals and values, it is desirable for the child to either not attend church or not attend the Christian school. Given the mother’s religious denomination is Denomination Y rather than Denomination X, it is more desirable for the child to receive her religious instruction from or with the mother, both at home and at the mother’s church, than it is from teachers at a Denomination X school. As the mother conceded, church is a place of religious worship whereas school is an academic environment”.

The Court said at para 105:

“While I accept the mother genuinely believes the child would not receive as holistic an education at a public school, the honesty of her belief does not mean it is factually correct. The ideological principles of a public school may not match the mother’s but they match the father’s. As the Full Court observed, little is gained by attempting to analyse the respective merits of schools which are ostensibly satisfactory … No evidence was led and no submission was made that a public school would be unsatisfactory for the child”

And at para 108:

“The desirability of the child having some respite from constant instruction in devout Christianity, the need for the husband to be afforded a reasonably equivalent opportunity to teach the child his own secular values, the parties; mutual reservations about the small size of the student body at the child’s current school, and the potential disharmony over payment of private school fees are factors which collectively suggest the child should not continue to attend her current school.”

An order was made for the child to attend the public school which was closest to the mother’s home (the Court disagreeing with the father’s proposal of a public school that was equidistant between the parties’ homes).