Review of legislation and case law as to the court’s power to make a parentage testing order
In Brianna [2010] FamCAFC 97 (28 May 2010) at paras 17?31 the judgment of Bryant CJ contains a review of the legislation and case law as to the court’s power to make a parentage testing order.
Adult child maintenance – Contravened periodic order varied, replaced by lump sum order
In Bridges [2011] FMCAfam 1288 (13 December 2011) the respondent father was in default of payment under an order that he pay $84.40 per week in adult child maintenance to his daughter until completion of her first tertiary qualification. Pursuant to liberty to apply granted when that order was made, the mother applied for an order that that order be replaced by a lump sum order for payment of $5,486 to cover the remaining 65 weeks of her daughter’s degree (and that in default of that order the respondent’s car be sold and the amount paid to her from the proceeds).
Burchardt FM granted the mother’s application, observing at para 15 that s 66S(2)(d) of the FLA empowers the court to vary a child maintenance order so as to increase or decrease the maintenance payable or vary it “in any other way”, subject to subsection (3).
Burchardt FM then said at paras 16-18:
“Subsection 66S(3) provides relevantly that ‘the Court must not vary the order so as to increase or decrease any amount ordered to be paid by the order unless it is satisfied … that since the order was made or last varied … the circumstances of the child have changed so as to justify the variation’.
Here, although on one view what is being asked for is not an increase or decrease in the amount but rather its payment in a single lump sum, I am satisfied that Ms Bridges’ circumstances have indeed changed. Previously she had the benefit of an order that she would be paid the sum ordered and although she received it for a brief while … the fact is she does not now have that money. It is plain that the Court has power to make the order sought.
Sub-section 66R requires the Court, in the event that it makes an order requiring payment of a lump sum, to express the order to be one to which the section applies and to specify the child for whom it is to benefit. I will do so.”
Kennon – Wife wins appeal against exclusion of her evidence as to family violence – Held that while her affidavit lacked precision it was admissible – Distinction between admissibility and weight
In Britt [2017] FamCAFC 27 (27 February 2017), a property case where a farming couple had cohabited for about 30 years, the Full Court (May, Aldridge & Cronin JJ) heard Ms Britt’s appeal against Judge Terry’s order by which the asset pool of $2.2 million was divided as to 44.95 per cent to the wife and 55.05 per cent to the husband (having regard to his pre-cohabitation ownership of a farm). The wife’s case where she had argued Kennon [1997] FamCA 27 was that the primary judge failed to properly take into account her allegations of family violence and her argument that her contributions towards the property and welfare of the family were made more onerous by the husband’s physical violence and coercive and controlling behaviour.
The Full Court said (at [25]):
“The primary judge … rejected parts of the appellant’s evidence as to family violence, essentially on the basis that the evidence was not in ‘proper form’. The primary judge considered that the evidence consisted of conclusions, was ‘just too general’ and lacked particularity. In particular, her Honour was critical of adjectives such as ‘regularly’, ‘routinely’, ‘repeatedly’ and ‘often’. This was because these words lacked specificity and were too general. Her Honour was of the view that such evidence gave no indication as to ‘whether [the family violence] happened once a week or once a decade’. Further, scattered throughout the transcript are statements made by the primary judge to the effect that the evidence was not relevant to the issues before the court.”
The Full Court referred to evidence deposed to by the wife in her affidavit that was rejected, such as statements that the husband “dominated me throughout the relationship”; that he had been “violent and aggressive” towards her; that he “regularly forced her” to have sex with him; that he “regularly left” her “alone on the property for days at a time” and would return intoxicated and “always aggressive and violent”; and that she “often intervened when he attempted to hurt the children physically usually with the result that” she “was assaulted physically” herself, saying (from [31]):
“ … [E]vidence that is probative, even slightly probative, is admissible because it could rationally affect the determination of an issue. For it to be inadmissible it must lack any probative value.
[32] … s 55 of the Evidence Act proceeds on the basis that a trial judge cannot take the credibility, or lack thereof, of a witness into account when determining the admissibility of evidence. Any issue of credit is taken into account later, when considering the weight or importance the evidence should be given.
[33] Therefore, in determining the admissibility of the proposed evidence … the primary judge was obliged to consider whether the evidence could rationally affect the assessment of the existence of family violence, which led to the appellant’s contributions becoming more onerous. If the evidence could do so – that is, if it was not ‘inherently incredible, fanciful or preposterous’ [IMM v The Queen [2016] HCA 14 at [39]] – it should have been admitted.
[34] In this regard it is important to note that the probative value of a particular piece of evidence should not be considered in isolation from the rest of the evidence, including the proposed evidence. … This is because one piece of evidence may affect the probative value of another and a number of pieces of evidence when considered together may have a probative value greater than if each is considered individually.
[35] Evidence is capable of being relevant to an issue if it puts other evidence into context, such as explaining the nature of the relationship in which other events occurred.
( … )
[38] The proposed evidence went to the relationship between the parties. In proceedings under the Family Law Act, evidence of relationships and the parties’ contributions to their property is commonly given in general terms and in terms which are redolent of being a conclusion. Affidavits would be excessively long otherwise. For example, parties often describe ‘relationships commencing’ or starting ‘to live together’ and this evidence is routinely and unremarkably admitted. Judges use their experience and, importantly, all of the evidence in the case to understand such statements.
[39] It is true, of course, that complaints of family violence raise serious issues. Even so, there is not a higher standard for the admissibility of evidence of family violence compared to evidence on other issues. In determining whether or not allegations of a serious nature have been proven, the Court will apply s 140 of the Evidence Act, but such a task is undertaken after issues of admissibility have been decided.
[40] … There is nothing in the Evidence Act that prevents evidence being given as a conclusion (save for expert opinion expressed as conclusions which can only be given by expert witnesses). The test remains that posed by s 55 and s 56. Thus a trial judge is required to consider whether the proposed evidence has sufficient, even if slight, probative value to make it admissible. …
[41] … We are … of the view that none of the evidence which was excluded should have been excluded on the basis that it had no probative value at all, simply because it was expressed as a conclusion.
( … )
[44] There is a second difficulty. A determination, at the threshold of the hearing, that evidence is irrelevant because the fact or proposition contended for cannot be established must be undertaken cautiously and carefully. This is because such a consideration is, in effect, a summary determination of that issue. Accordingly an approach similar to summary dismissal applies and the evidence should only be rejected if there is no reasonable likelihood of the fact or proposition being established (to use the words of r 10.12(d) of the Family Law Rules 2004 (Cth)). …
( … )
[46] In the present case, the primary judge admitted some of the appellant’s evidence of the respondent’s behaviour. That can only have occurred because the behaviour was a relevant issue. Thus, any evidence capable of bearing upon the determination of that issue was relevant and, therefore, admissible.
( … )
[50] The statements made by the primary judge, to the effect that the evidence was too general and was a conclusion, confuse admissibility with weight. Whilst the evidence could have been more specific (although we do not see how, in relation to this particular evidence, it would have advanced matters much) any generality went to the ultimate weight to be given to the evidence and not to whether it should be admitted or not.
( … )
[53] We would add that the words ‘routinely’ and ‘regularly’ have a common meaning capable of carrying some, although perhaps it might be said slight, probative value. The evidence that contained these words was rationally capable of affecting the determination of the allegations of family violence. To complain about them being too general is, in reality, to complain about the importance to be given to them and is not a consideration of whether they have any probative value.
[54] Evidence is commonly given in general terms and when taken in conjunction with other evidence it can be tolerably clear what is meant. One would not expect any person who had been in a long relationship to remember the exact nature and frequency of recurring events throughout that relationship, let alone specific dates.
( … )
[76] We cannot be satisfied that the excluded evidence would have made no difference to the outcome if it had been admitted. …”
The appeal was allowed and the matter remitted for re-hearing.
Court’s approach to Rice & Asplund at a preliminary hearing – Final order provided no means for reviewing father’s supervised time with the effect that he had no relationship with the children – Mother’s application for summary dismissal of father’s application for unsupervised time dismissed – Indefinite orders for supervision are not in the best interests of children
In Bronson & May (No. 2) [2017] FCCA 2317 (25 September 2017) Judge Jones heard the mother’s application for summary dismissal of the father’s application for an order for unsupervised time withthe parties’ children, X (9) and Y (8). A final parenting order was made in 2015 requiring his time to take place at a contact centre or with a supervisor approved by the mother. Supervision had been ordered after consideration of family violence by the father and where he suffered from bipolar affective disorder. The order provided for no means of reviewing the supervision requirements. The father’s application was for his supervised time to be incrementally increased in stages, including a supervisor “in substantial attendance” and ultimately unsupervised time. The mother sought summary dismissal of the father’s application, relying on Rice & Asplund [1978] FamCA 84.
The Court said (from [15]):
“The approach of the Court to the evidence of an applicant seeking to commence litigation was recently considered in Searson & Searson [2017] FamCAFC 119 … [where] Justice Kent … said as follows … :
‘60. In considering the application of the so called rule in Rice & Asplund at the preliminary stage of the proceedings … which the primary judge did in this case, her Honour was bound to assume the acceptance of the mother’s evidence on the question of whether a sufficient change in circumstances was demonstrated. I agree with his Honour’s observations that [24], [25] and [26] of her Honour’s Reasons for Judgment demonstrate error in this respect. On the mother’s evidence it is clear that the mother demonstrated a substantial change in circumstances via the nature and quality of the relationship with her present partner and in respect of her financial circumstances.’
( … )
[51] There is a particular feature of this case which, in my opinion, is relevant and critical to deciding whether I should allow litigation regarding parenting orders for the children to re-commence. This is the fact that the 2015 final orders do not provide any review mechanism for the orders requiring ongoing supervision. The Full Court of the Family Court of Australia has been critical of such orders on the basis that … indefinite orders for supervision are not in the best interests of children. The leading case is Moose & Moose [[2008] FamCAFC 108], which was referred to with approval in the decision of Slater & Light [[2013] FamCAFC 4] as follows:
‘38 While the making of orders for supervised time is an exercise of discretion, statements from the Full Court of this Court have sought to give specific guidance where such orders are to be made for an indefinite or indeterminate period. In Moose … the Full Court … agreed that an appeal against orders for indefinite supervised time should be allowed.
39 May J considered the specific issue of ensuring sufficient reasons for such orders and noted the difficulties faced in future review ( … )
40 Boland J commented on the general undesirability of long term supervised contact and similarly expressed May J’s concern about orders providing
for their own review:
“119. The undesirability of, and the practical difficulties associated with long term supervision in a children’s contact centre are referred to in the Guideline for Family Law Courts and Children’s Contact Services January 2007, Part C 4.1.1 and 4.1.2 (published by the Attorney-General’s Department, the Family Court of Australia and the Federal Magistrates Court of Australia). In Fitzpatrick & Fitzpatrick (2005) FLC 93-227 May J, having found that the evidence in the case ‘objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised…’, then referred to the difficulty associated with long term supervised contact and said ‘the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests’.
Her Honour then explained ‘[w]hilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored’. (See also W & W (Abuse allegations: unacceptable risk) [2005] FamCA 892 … at paragraph 114).”’
( … )
[54] I accept … that the effect of the 2015 final orders may be that ‘ … the children do not see their father and so do not have a relationship with him … ’ … At the time that the … orders were made X was aged six … and Y was aged five …
In the absence of a review mechanism regarding the children’s supervised time, it seems inevitable that the children will not have a relationship with their father.
[55] Whilst there may be an argument whether the change in diagnoses of the father’s mental health and/or the passage of time during which professional supervision has taken place amounts to significant or material change, it is clear that the 2015 final orders are not working and, on the only independent evidence available, have not given effect to the best interests of the children.
[56] I am satisfied, on the evidence before the Court, that the best interests of the children will be served by a consideration of alternative supervision arrangements and, whether the inclusion of a review mechanism of these arrangements are in the children’s best interests. I have weighed this consideration against the adverse impact that embarking on litigation may well have on the children’s emotional well-being and consequently their best interests. On balance, however, and with a degree of caution, I have decided that litigation should proceed.”
Husband awarded 80 per cent of his costs because wife received at the final hearing a settlement lower than that offered by him in 2010 – 20 per cent deducted for his opposition to wife’s maintenance claim
In Bronson (No. 2) [2012] FamCA 676 (13 August 2012) the husband was awarded 80 per cent of his costs because the wife received at the final hearing a settlement lower than that offered by him in 2010 (20 per cent was deducted for his opposition to the wife’s maintenance claim).
Relocation to UK allowed – Sole responsibility so s 65DAA not triggered – “Best interests” under s 60CC
In Bryce & Bonig [2010] FamCA 999 (10 November 2010) Dawe J allowed the mother to relocate from Darwin to the UK with children aged 10 and 12 on terms that included the payment of $30,000 as a security deposit. Applying MRR v GR, Dawe J held at para 174 that the presumption of equal shared parental responsibility was rebutted, not being in the best interests of the children “primarily because of the ongoing conflict which continues to exist and the difficulties in communication which currently exist and are likely to continue regardless of where the children and the mother reside” and that s 65DAA [of the Family Law Act] (as to equal or substantial and significant time) did not therefore apply.
Dawe J at para 71 had noted the Full Court as saying in MRR v GR that when s 65DAA was not triggered “the only requirement would be to make a parenting order which was in the best interests of the child having regard to matters in s 60CC”. Upon reviewing the s 60CC factors Dawe J at para 140 said this:
“The evidence establishes that the children will be able to maintain meaningful relationships with both of their parents, even if the mother and children move to the United Kingdom. The type of meaningful relationship will be different especially if the father is unwilling to travel regularly to the United Kingdom. I accept the mother’s evidence that she will arrange for the children to spend time with the father regularly by bringing them to Australia. Arrangements can also be made for the children to communicate with the father regularly by telephone, email and Skype.”
Assets of $137,000 – Contributions over 8 year marriage found to be equal – Adjustment of 35 per cent to wife for disparity of earning capacity and ongoing care of parties’ 3 year old child – Spousal maintenance award of $530 per week for an indefinite period – Husband’s appeal against those orders dismissed
In Bucknell [2009] FamCAFC 177 (30 September 2009) the husband’s appeal against a property settlement and maintenance order awarded by Purdon-Sully FM was dismissed by the Full Court.
Her Honour had held the parties’ contributions over 8 years to an asset pool of $137,000 to be equal, but increased the wife’s interest by 35% for disparity of earning capacity and her ongoing care of their 3-year-old child. Maintenance of $530 per week was awarded.
Her Honour had found, applying Clauson (1995) FLC 92-595 (FC), that “the real impact in money terms” of the wife’s 35% adjustment was $48,000, and that a settlement where she netted non-super assets of $83,000 and super of $33,000 and the husband super of $20,000 was just and equitable.
The Full Court said at paras 55-56:
“ A court making a spousal maintenance order often has a choice between, on the one hand, leaving the order to operate for an indefinite period, knowing that s 83 of the Act provides for variation if circumstances so change that variation is justified or, on the other hand, fixing a date of cessation, which often involves a prediction, albeit on the balance of probabilities, about future events. Even if the latter course is chosen, an application to vary by way of removing or extending the date fixed for cessation, is possible. The major difference between the choices is simply that in the first instance either party may be as likely as the other to wish to apply for variation, whereas in the second instance, only the payee is likely to want a variation and if so, must seek it.
In this case, where the wife was some years away from completing her university course, where that completion was not necessarily a certainty, when the child in her primary care would at the time of anticipated completion still only be in early years of schooling, and where availability of employment was not assured, we are not satisfied that matters affecting the period for which spousal maintenance ought be paid were so predictable that the only option reasonably open was to fix a date for cessation.”
Court disagrees with Commonwealth Superannuation Corporation’s view that invalidity pension was superannuation such that it could be split – Military invalidity benefit unsplittable
In Burge [2015] FamCA 178 (10 March 2015) Kent J heard a case where the husband was in “receipt of an invalidity benefit by virtue of his former role with the Public Service” from the Commonwealth Superannuation Corporation (“CSC”) but the Court expressed a preliminary view that “it was unlikely on [the evidence provided by the single expert valuer] that the relevant interest could be regarded as a superannuation interest” which was splittable ([2] and [7]).
This view was expressed notwithstanding that the pension had been valued by a single expert and that the CSC had “issued information to the wife’s solicitors … suggesting or, in fact, expressing that the husband was a ‘member’ of the Superannuation and Benefits Scheme and was receiving an annual pension under that Scheme” and “that in the family law information [form] provided it was suggested that this was a superannuation interest at least insofar as the information provided stated in the negative to the question ‘Is the superannuation interest unsplittable?’” ([4]).
The matter was resolved by consent on this basis. The wife did not press the superannuation split she sought, there being “little other in the way of capital held by the parties or either of them” ([2]).
Editor’s note – This judgment was delivered ex tempore and has been reviewed in response to recent media articles about the decision. The judgment contains no reasons for the “preliminary views” referred to by the Court.
Primary carer refused relocation with her daughters of 5, 4 and 2 from NSW country to Melbourne where her new partner lived – Mother’s proposal found to involve many “unknown factors”
In Burke [2009] FMCAfam 984 (18 September 2009) Neville FM dismissed an application by the primary carer of the children (the mother) to relocate with her daughters of 5, 4 and 2 from a NSW country town to Melbourne where her new partner lived.
The Court (at paras 47 and 55) noted her evidence that “her future was with Mr S and…if necessary she would leave her children…(that she had) the right to be happy and (was) not going to be happy in (the country town)”, finding “her emphasis (to be) rather more on her needs than those of the children”.
Neville FM (at paras 53-55) found that the mother’s proposal involved much “fluidity” (a new relationship; the girls had spent little time with the new partner; the fluidity of her living and work situation in Melbourne; her plan for more children; and the girls’ family, on both sides, being in the country town), amounting to “a very significant number of unknown factors”.
The Court found that relocation would risk significant damage to the children’s relationship with the father, and held that it was in their best interests to live with him should the mother relocate. An order was made for the gradual increase of the father’s time to equal time if the mother were to stay.
Section 75(2)(a) and (b) – Capacity to work – Rejection of medical evidence in error
In Babbit [2011] FamCAFC 64 (25 March 2011) the Full Court (Bryant CJ, Finn and Ainslie-Wallace JJ) upheld an appeal from Turner FM’s ruling that the husband’s treating physiotherapist was not qualified to give an opinion on the husband’s capacity to work due to symptoms arising from an injury, saying at paras 66-67:
“First, it was never suggested either in cross-examination or in submissions that he did not have the qualifications necessary to express his opinion. Secondly, he was the husband’s treating physiotherapist and had the advantage of seeing and assessing the husband’s injuries over a considerable period of time in the context of his recovery and return to work and its effects on him. Thirdly, his curriculum vitae, set out in his affidavit, together with the evidence he gave could not have provided the basis for her Honour’s finding that he was unqualified and, finally, there was simply no evidence before her Honour that would permit a finding that an occupational therapist would be qualified to give the opinion about how the husband’s injuries have affected his capacity to work.
A reading of Mr G’s evidence, together with that of the husband, about the nature of his work provided ample evidence of how his injuries have impacted on his capacity to work both presently and in the future.”
