Transcript of taped telephone conversation held to be inadmissible

In Badger & Ors [2013] FMCAfam 124 (14 February 2013) a litigation guardian taped a telephone call from one of the parties as to which objection was taken as to the admissibility of the transcript made of the conversation. Myers FM examined s 138 of the Evidence Act 1995 as to the exclusion of improperly or illegally obtained evidence, finding that the call had been taped without the caller’s knowledge or permission (para 15) and (para 24) that the resulting evidence therefore offended s 7 of the Telecommunications Act 1997. Myers FM reviewed case law as to the issue of illegally obtained evidence, saying at paras 26-27:

“The statutory provisions relating to the admission of improperly or illegally obtained evidence is found at section 138 of the Evidence Act 1995. That section makes it clear that such evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting such evidence. Without prescriptive limitation the court is required to take into account eight separate matters. Those matters are explored below.

The court must consider the probative value of the evidence. That is, is the evidence sufficiently useful to prove something important in the case. The court must also consider the importance of the evidence in the proceedings and the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceedings.”

The court (para 28) accepted that the evidence was “probative and important in the context of the orders being sought” but said that the court must also consider “the gravity of the impropriety or contravention, and whether the impropriety or contravention was deliberate or reckless” (para 29). Myers FM observed that the illegality was an indictable offence that carried with it “potentially grave consequences” under the Telecommunications Act. Myers FM next considered whether the contravention was contrary to the right of privacy inherent in s 7 of the Act (para 34). 

Upon a review of relevant case law, Myers FM concluded at para 59:

“ … the court finds the evidence in the form of a transcript of the conversation between the litigation guardian and the second respondent is not to be admitted in circumstances where the desirability of admitting the evidence does not in the mind of the court outweigh the undesirability of admitting evidence.”

Departure application dismissed – The “pending” proceeding within meaning of s 116(1)(b) CSAA was an enforcement summons against him – Held not “in the interests of” payee for court to consider application where payer had failed to seek administrative departure – Payer also estopped from applying, having failed to apply in earlier property proceedings

In Bagala  [2009] FMCAfam 953 (9 September 2009) at paras 22-34 Riethmuller FM dismissed an application for a departure order. Such an application [to a court] being available under s 116(1)(b) of the Child Support (Assessment) Act where there are pending proceedings before the court, the applicant applied when the “pending proceeding” was an enforcement summons issued against him for arrears of $11,500 accruing under four prior assessments.

The first ground on which the application was dismissed was that the court was not satisfied that it would be “in the interests of” the payee, as required by the section, having regard to the payer’s failure to have his child support liability reviewed administratively, His Honour saying:

“The applicant had real opportunities, prior to the Child Support Registrar filing the enforcement summons, to seek a review of his child support liability. He chose not to do so and has not provided any evidence of a reasonable excuse for not doing so… By waiting until the Child Support Agency issued proceedings for enforcement before seeking a departure decision, the applicant is also circumventing the substance of the legislation scheme which provides for all departure decisions to be administrative, and only to be heard in court on appeal from the SSAT [Social Security Appeals Tribunal] or if other proceedings are pending. The legislature would not have expected the payee to be drawn into expensive litigation at this stage.”

The second ground was estoppel, as discussed in Anshun’s Case (Port of Melbourne Authority & Anshun Pty Ltd [1981] HCA 45) applied in the Family Court (three cases cited). His Honour said:

“The substance of the Anshun estoppel is that a party is required to bring all of that party’s claims in the one proceeding if they can reasonably do so.

In this case the applicant had rights of review following his initial objection in 2007, and with respect to his May 2008 application for a change of assessment. These rights of review are administrative and therefore do not create an Anshun estoppel. However, it is clear he could have sought a change to the assessment at the same time as the property proceedings between the parties in November 2008…[in which] the payee had child support proceedings on foot seeking non-periodic child support…He did not raise the child support issues in those proceedings, despite the fact that there were so many common issues. The applicant would have been able to seek the changes to the assessment he seeks now in those previous child support proceedings.

The applicant did not take any action until faced with enforcement proceedings by the Child Support Registrar. In the circumstances I am persuaded that the applicant should be estopped form pursuing a departure application now on the basis of the principles in Anshun.”  

Transfer of properties by husband’s father – Contributions equal for a transfer to parties – Full Court finds no error in contribution assessment of 70:30 for a transfer to husband as trustee of a trust

In Bagby [2015] FamCAFC 209 (6 November 2015) the Full Court (Bryant CJ, May & Thackray JJ) heard the husband’s appeal from a property order made by Magistrate Moroni of the Magistrates Court of Western Australia in a case involving a 25 year marriage. The asset pool mainly comprised land which the husband’s father had owned which he subdivided into “Property A” and “Property B”. Property A valued at $610,000 was transferred to the parties jointly while Property B (worth $1,950,000) was transferred to the husband who argued in the court below ([24]) that it should not be regarded as his property as he held title as bare trustee of a trust for the benefit of the children.

As to the magistrate’s reasons, May J said at [31]-[32]:

“ … the magistrate accepted that the husband’s father’s interest in Property B was settled upon the husband in his capacity as trustee of Trust E … [and] that Property B had been treated as an asset of Trust E in financial statements for several years.

( … ) The magistrate concluded that Property B should be treated as property of the husband (at [187]) for the following reasons:

a)      When initially drawn the trust deed named the husband as the sole trustee …

b)      The husband is a member of a class of general beneficiaries …

c)      The husband has the power under the trust deed as trustee to ‘settle the whole or any part of the capital of the trust upon any beneficiary’ …

d)      The husband’s power as trustee is subject to the consent of the guardian of Trust E. The magistrate found that, as per the requirements of the trust deed, the husband is now also the guardian of Trust E as both his father and mother have passed away, and that he has not appointed any new guardian … and

e)      The evidence demonstrated the husband treated Property B as his own property by exercising his powers to borrow $170,000 against the title of B Property … ”

At first instance the magistrate adopted an asset by asset approach, assessed the parties’ contributions to Property A as equal ([47]), adjusted superannuation 55:45 in favour of the husband to reflect his greater post-separation contributions to it and assessed the wife’s interest in Property B at 30 per cent. The Court declined to make a s 75(2) adjustment, notwithstanding that the wife was in receipt of a Centrelink pension.

On appeal, the husband argued that the order was unjust as the overall outcome was more than the wife had sought in her application. Thackray J (with whom Bryant CJ agreed) did not accept that the wife received more than what she sought at trial, saying (from [127]):

“…     Counsel for the husband conceded that it was open to the magistrate to award the wife more than she sought, and accepted that there was no obligation on the magistrate to give any notice of his intention to do so. However, he argued that the fact the wife had received more than she had sought provided support for his claim that the outcome was ‘outside the range’.

( … )

[157] When the submissions of the husband are boiled down, they amount to little more than an assertion that the magistrate placed insufficient weight on the fact that the parties received both Property A and Property B because of the generosity of the husband’s father. However, there can be no doubt that the magistrate accepted and placed weight on the fact that the parties (or the trust controlled by husband) received the property from the husband’s father. ( … )

[158] It is important to recognise that there is no challenge to the finding that it was reasonable to infer that the husband’s father intended to benefit both the wife and the husband, either by transferring Property A to them jointly or consenting to the husband vesting that property in the joint names of the husband and the wife. …

( … )

[163] Although it would have been open to his Honour to have concluded that greater weight should have been given to the fact that Property B came into the ‘pool’ as a result of the generosity of the husband’s father, I am by no means persuaded that his Honour’s conclusions in relation to the overall contributions to that property were outside the range of his very wide discretion.

[164] It should also be noted that his Honour found that the majority of the s 75(2) factors favoured the wife, but decided not to make any adjustment in her favour on account of that fact, ‘mainly because of the reasonably substantial size of the asset pool under consideration and to the practical results of the Court’s determinations on the subject of contributions’ …

( … )

[166] In effect, the magistrate was saying that whatever the wife might have lost on the contributions’ swings, she would have made up on the s 75(2) merry-go-round. Given the length of the marriage and the parties’ ages, health and employment prospects, I consider that view was well open to his Honour.”

The husband’s appeal was dismissed.

Valuation of business for which proper records had not been kept – Order made for sale of business

In Baghti [2012] FamCA 711 (22 August 2012) Fowler J accepted the recommendation of a valuer (paras 694-718) that the wife’s retail business, owned by the wife and her sister in partnership, be sold, saying at paras 694-700:

“Professor WL stated that he had limited information available with respect to the operation of the business, and proper books and records had not been kept. He said the wife did not provide the till rolls, daily book or cheque stubs.

The reported results for the years ended 30 June 2005 to 30 June 2010 were based on a one week observation of D Business’ operations carried out by LL Partners.

While Professor WL was requested to value D Business without regard to the LL Partners’ documents, he indicated that this was not possible as the estimated turnover and revised income tax returns (lodged after the observation of the business suggested an under declaration of income) were based on the observations in the LL Partners’ documents.

Professor WL assessed the value of D Business at $225,000 including stock at valuation.

He assumed the estimates provided were a reasonable reflection of the turnover of the business and used FMRC Benchmark earnings for a retailer of the type and of a similar size to the business.

D Business has a loan owed to WS Mortgage Management in the sum of $195,040. It is also asserted by the wife and interveners that the amount of $400,000 is required to be repaid to the interveners once the business is sold.

It is Professor WL’s evidence that as his valuation conclusion is based on revenue estimates from a one week sample observation and earnings before interest and tax (EBIT) based on FMRC Benchmark data, the amount received on sale to a third party may vary significantly from the valuation.”

Fowler J referred to the valuer’s review of similar business sales in the Sydney area, the trading hours of the business, cost of renovations and assessment of value of the business “on the basis of capitalisation of EBIT, after allowance for notional proprietor salaries and rent in accordance with reported benchmarks” (para 704) and the factors relevant to the capitalisation of EBIT methodology. 

Fowler J said at paras 707-709:

“Professor WL acknowledged in his valuation that sales multiple/rule of thumb valuations are not a generally accepted valuation methodology, however in the absence of reliable financial information he has had regard to the range of price/turnover ratios implied from his review of comparable businesses in Sydney.

Professor WL gave evidence that the difficulty with the husband’s proposal for the wife and Ms B to continue to trade for another twelve months and have the business audited would be the cost of the auditors. He stated that this would not be a practical way of removing any uncertainty and that the alternative way of achieving a sales price would be to allow potential purchasers to work in the business and observe it themselves.

His evidence was to the effect that ultimately a sale to a third party at arm’s-length would be the only accurate way to place a value on the business.”

The Court’s conclusion was stated at para 669:

“The Court finds that the value of the business will be realised upon its sale and the Court proposes to make orders for the sale of the business.”

Child support – SSAT appeal – Extension of time – Company income not wrongly assessed

In Bagley (SSAT Appeal) [2010] FMCAfam 215 (23 March 2010) Terry FM heard an application by a self-litigant father for an extension of time to file an appeal 12 months out of time against a decision of the Social Security Appeals Tribunal on the ground that it had wrongly set his child support income higher than his taxable income.

The preliminary application was granted under Federal Magistrates Court Rule 3.05(1) extending the 28 day time limit under FMCR 25A.06(2) for such an appeal. Despite the father prima facie not having made out a compelling case (para 25), Terry FM granted the extension as the payer had “always been genuinely aggrieved about the decision” (although perhaps mistakenly believing that he could raise his objection during the enforcement proceedings); was not legally represented; and may lose his home if enforcement were not stayed.

The appeal, however, was dismissed as the Tribunal was found not to have improperly reviewed the evidence or wrongly assessed income the payer had received from a company of which he was the sole director and shareholder.

Property – Relevant principles – Murphy J’s application of Stanford 

In Baglio [2013] FamCA 105 (27 February 2013) Murphy J at paras 178-183 discussed the principles for the making of an order under s 79 FLA post-Stanford [2012] HCA 52, saying at paras 178-179:

“The statutory mandate is to not make an order pursuant to s 79 of the Act unless, in all of the circumstances, it is just and equitable to do so (s 79(2)).

The circumstances of the parties’ relationship (its nature, form and characteristics) is plainly important to the exercise of the s 79(2) discretion.”

Murphy J then set out paras 41-43 of the High Court’s judgment in Stanford, concluding at paras 180-183:

“Provided the discretion is exercised judicially, it is at large; it is neither possible nor desirable to specify its ‘metes and bounds’ (Stanford at [36]-[40] and [46]). Recognition is given to the fact that the circumstances of individual marriages (their nature, form and characteristics) can and do differ and those differences – the way in which the parties have organised and lived their marriage – may be relevant to the exercise of the s 79(2) discretion. Equally, provided that the questions required by s 79(2) and s 79(4) are seen as separate and applied as such, and not conflated, the enumerated factors within s 79(4) can inform the s 79(2) discretion together with any such other considerations as are properly relevant (see, Stanford at [40]).

As a result of those matters, the Court’s approach to s 79 may be less compartmentalised than what a strict or unthinking adherence to four (or three) ‘steps’ might otherwise reveal. The task is essentially holistic; is it just and equitable in the particular circumstances of the particular relationship or marriage under consideration to make an order and, if so, its terms must similarly meet that criteria. Of course, holistic though the approach is, it must be referenced to what the Act requires and care must be taken to ensure that the Court’s reasons make that clear (see, for example, Davut & Raif (1994) FLC 92-503 at 81,237).

As Stanford makes plain (see, especially at [39]), the breakdown of a marriage does not bring, as an automatic consequence, an alteration of existing legal and equitable interests. Just as, if an order is to be made, equality is neither to be assumed nor is a starting point (Mallett v Mallett (1984) 156 CLR 605), so too, the making of an order at all is not to be assumed.

The emphasis by the High Court in establishing the existing legal and equitable interests of the parties as a precursor to answering the question required by s 79(2) can be seen to derive from the fact that s 79 is concerned with rights in property which ‘…have their source in [the] relationship…’ but which ‘…are created by curial order…’; ‘…orders made under s 79…perform a dual function by creating and enforcing rights in one blow, so to speak…’ (Fisher v Fisher (1986) 161 CLR 438 at 453, per Mason and Deane JJ). Given that the relationship does not itself create interests in property, due recognition must be given to existing legal and equitable interests because, as Macrossan CJ said (in a different context) in Turner v Dunne [1996] QCA 272, ‘[i]f it were otherwise, it might have to be concluded that ordinary categories of legal ownership could be not much more than provisional in all domestic relationships.’”

Murphy J then proceeded to identify the existing legal and equitable interests of each party (Stanford at para 37). Upon making a finding as to the parties’ net assets at para 208, Murphy J asked “should an order be made (s 79(2) FLA)?” After referring to paras 35-36 and 39-40 of Stanford Murphy J said at paras 211-213:

“Here, the parties’ relationship subsisted for only about five years (from about 2005 until about 2010). By the time these proceedings were heard, the parties had been separated for almost half as long as they were together. Each are important considerations in determining if any order should alter existing legal and equitable interests in property. That said, during the course of the relationship, each brought significant property to it (unencumbered real property at its outset and a later cash sum in the case of the mother and, in the case of the father, a significant cash sum received by way of inheritance about half-way through the relationship).

The parties’ existing legal and equitable interests in property are arrived at in circumstances where the underlying assumptions evident during the parties’ relationship when it was intact can be seen to have changed significantly as a result of their ‘voluntary separation’. Here, the circumstances in which the parties’ respective legal and equitable interests, or their value, changed during the course of what was a very short relationship is a very significant pointer to a change to the ‘… express and implicit assumptions that underpinned the existing property arrangements [which] have been brought to an end by the voluntary severance of the mutuality of the marriage relationship’ (Stanford at [42]). In the instant case, the use of the mother’s real property as a home in which she, the father, and the child lived, the use of the parties’ respective funds and, in particular, their use in joint investments, point to those series of ‘…express and implicit assumptions…’ borne out of the definition of marriage (a ‘union … for life’) and out of the way in which these particular parties chose to live their particular marriage, which such assumptions were brought to an end or altered by the parties’ separation.

In my judgment, justice and equity requires an alteration to the parties’ existing legal and equitable interests in property.”

Upon then asking “what orders are just and equitable (s 79(4) FLA)?” Murphy J proceeded to examine the parties’ contributions and s 75(2) factors, asking at para 289 “result and orders – just and equitable?” and duly addressing that question at paras 289-296.

Five nights with father, nine with mother – Equal time sought by father dismissed  

In Bahl & Brandon [2010] FMCAfam 630 (20 August 2010) Bender FM dismissed the father’s application for a ten-year-old child to spend “week about” time with each parent, ordering that the parties’ existing arrangement where the child spent five nights a fortnight with the father and the remaining time with the mother continue.

The Court concluded at [139]-[145]:

“The issue to be determined in this matter is whether it is in [X]’s best interests that he live equally with both his parents, as is sought by the husband, or whether the existing arrangements whereby he lives with the wife and spends five nights with the husband in each fortnight remain in place, as is sought by the wife. 

In her family report, Ms R initially recommended that once the parents had completed a Post Separation Parenting Program, the arrangements for [X] alter so that he spends equal time with both of his parents. 

However, what became apparent in the running of this matter is that [X]’s parents have a highly conflicted relationship, have limited capacity to communicate with each other in relation to [X]’s arrangements and both are critical of and undermine the time that [X] spends in the household of the other, the wife because of her insecurities about [X]’s relationship with his stepmother and the husband because of his disapproval of the wife’s decisions in relation to the activities and educational choices that the wife makes for [X] when he is in her care. 

It was also apparent that both parties, having completed their Post Separation Parenting Program, had not in any way developed any insights into the necessity for them to ameliorate their behaviour in order to better parent their son.

When the evidence of the conflicted parental relationship was put to Ms R, she changed the recommendation in her family report for shared care without hesitation. She indicated that in such a circumstance a shared care arrangement would not be in [X]’s best interests as, firstly the requisite level of communication to make shared care work would be absent and secondly because of the high level of conflict, [X] would be better supported by having a home base which would enable him to be more centred and less torn by the conflict to which he is exposed.

It is apparent that [X], who is described as a delightful, insightful and quite mature young lad, is also a very confused and conflicted child who is currently in an untenable position because of his parents’ behaviour.

In these circumstances I have determined that it is in [X]’s best interests that his current living arrangements continue and that he live with the husband from after school Wednesday to before school Monday in each alternate week. ( … )”

The mother, primary carer of a 19 month old infant unilaterally moved from Darwin to Melbourne and refused to return if the child were required to – Injunction granted for the return of the child and an order made that the child live with the father  

In Baier & Wagner [2009] FMCAfam 683 (3 July 2009) where the mother, the primary carer of a 19-month-old infant, had unilaterally moved from Darwin to Melbourne with the child and refused to return if the child were required to Terry FM granted an injunction for the return of the child and ordered that the child live with the father. 

Contempt – Wife’s legal personal representative has standing to file an application for contempt – Judge’s rejection of solicitor husband’s evidence that he did not know of his undertaking not to apply moneys to be held in trust was in error – Finding of contempt against husband (and sentence of six months imprisonment) set aside

In Bain & Bain (Deceased) [2017] FamCAFC 80 (3 May 2017) the Full Court (Bryant CJ, Ainslie-Wallace & Rees JJ) heard an appeal by the husband in a case where his terminally ill wife in property proceedings had applied for an interim order that the husband transfer his interest in a MLC life insurance policy over her life to her so that the children would benefit from the insurance payment upon her death. The husband, a principal of a law firm and practising solicitor, opposed the application, arguing that the parties had more debts than assets and that any insurance payment should be applied towards their debts. He sought dismissal of the wife’s application or an order that any payment be held in his solicitor’s trust account. 

Hogan J dismissed the wife’s application upon the husband’s undertaking that the moneys would be held in trust. The undertaking was not given in court but noted in the order after being deposed to in the husband’s affidavit and reiterated in his counsel’s submissions. The wife died and her legal personal representatives were appointed to continue the case on her behalf under s 79(8). The husband received the insurance payment but applied it towards debts. The estate brought contempt proceedings, Hogan J finding the husband guilty of contempt and sentencing him to six months imprisonment, to be suspended pending his appeal. 

The husband appealed the contempt finding and the orders made. He argued that the estate lacked standing to seek an order for contempt; and that he was unaware of his undertaking and was not told of it by his solicitor, he having been told that the wife’s application was dismissed but not upon any undertaking.  

As to the issue of standing, the Full Court said (from [64]):

“Counsel for the legal personal representatives argued that nothing in s 112AP or in r 21 restricts the class of people who may bring an application for contempt. Indeed, it was argued that the rule itself speaks of ‘a person’ who brings an application. ( … )

( … )

[73]     Since the introduction of s 79(8) into the Act in 1983, the issue of what a legal personal representative can do has been examined. There is no doubt that the legal personal representatives can enforce an order after the death of the party in whose shoes they stand … The legal personal representatives can appeal an order made and seek an extension of time in which to bring an appeal …

[74]     In Greval, J.S, v. Estate of the late Greval, F.; Sandalwood Lodge Pty. Ltd. (Intervener) (1990) FLC 92-132 the Full Court held that incidental proceedings could also be continued under s 79(8) ( … )

( … )

[82]     Section 112AP(3) provides that ‘[t]he applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge’.  

[83]     The section itself makes no provision for who may bring an application. ( … )

( … )

[92]     The 2004 Rules do not provide any category of persons who may bring an application as the 1984 Rules did. Rule 21.02 (How to apply for an order) provides:

(1)       A person seeking to apply for an order under this Part must file an application as set out in Table 21.1.

[93]     Rule 21.02(2) provides that:

‘A person filing an application mentioned in Table 21.1 must file with it an affidavit … ’

[94]     The Dictionary to the 2004 Rules describes ‘person’ as including a corporation, authority or party. 

[95]     That definition is broad and may be thought to include a mere interested bystander. ( … )

[96]     … [W]e do not need to consider whether, and to what extent, the 2004 Rules may be said to have expanded the class of persons who may make an application, as the definition of a person includes a party, and the appointment of the legal personal representatives pursuant to r 6.15 had the effect of substituting them for the wife as a party to the property proceedings. Hence, in our view, they had standing to bring the proceedings.” 

As to the finding of contempt, the Full Court said (from [98])

“Her Honour concluded that, contrary to the husband’s evidence, [the husband’s undertaking] was not offered conditional on and in lieu of the court acceding to the wife’s application but was offered to be accepted no matter what decision the court came to. The husband contended that her Honour’s characterisation of the undertaking was erroneous.

( … )

[101]    ( … ) It is perhaps more apt to describe the husband’s position as being that the undertaking was only offered in the event that the wife’s application was not dismissed on its merits, and would be offered in lieu of an order made in the wife’s favour.

( … )

[108]    … [I]t was unnecessary for her Honour to determine what the actual basis on which the undertaking was offered, but rather what the husband believed he offered.

( … )

[110]    Although her Honour accepted that the husband was not served with the order, she nonetheless rejected his evidence that he did not know that an undertaking had been accepted by the court … and that all he had been told by [his lawyer] … was that the wife’s application had been dismissed. Her Honour further rejected his evidence that he made no enquiries about an undertaking because he believed it would only be offered as an alternative position to making the orders sought by the wife (in the event that the wife’s application was to succeed) and that on being told that the wife’s application had been dismissed he believed that no undertaking had been given or accepted … 

( … )

[117]    In circumstances where her Honour did not identify in what way the husband’s evidence was ‘inherently unbelievable’ in the sense that ‘no reasonable man could accept it’ and to the extent that the trial judge rejected the husband’s evidence on that basis, it cannot be supported.

( … )

[130]    Given that the husband’s evidence was almost entirely unchallenged in this regard and in regard to the matters on which her Honour concluded that the husband’s evidence was not to be accepted, as a matter of procedural fairness she was obliged to raise them with him (or his counsel) to enable him to make what answer he could. Without having done so, her Honour failed to accord the husband procedural fairness.

[131]    Of course, having rejected the husband’s evidence that he did not know of the undertaking did not, without more, entitle her Honour to find the contrary, that is that he did, in fact, know.

( … )

[133]    … There seemed to be no issue that the husband was a person of good character. At the time of the hearing on the contempt application her Honour was aware that the husband was a solicitor practising as the partner in a law firm and nothing was suggested to her that he was other than a person of good character. Furthermore, her Honour had before her and accepted the husband’s evidence that he understood the nature of an undertaking accepted by a court and the serious consequences that would flow from a breach of that undertaking … 

( … )

[135]    … [I]n considering the guilt of a person in the position of the husband, good character has an important role to play. 

( … )

[141]    The husband was entitled to have his good character taken into account in the determination of his guilt. ( … ) [W]here a court of any kind is invested with the jurisdiction of contempt, it is incumbent on the court to be mindful that ‘[s]afeguards similar to those appropriate in criminal proceedings therefore apply’ (Doyle v Commonwealth [1985] HCA 46; (1985) 156 CLR 510 at 516) and that ‘the defendant should have the same rights and privileges as a person charged summarily with a criminal offence’ (Sahari & Sahari(1976) FLC 90-086 at 75,406).

( … )

[168]    Her Honour was called upon to consider the nature of the husband’s offer of an undertaking insofar as it related to her determination of his state of mind, that is his knowledge that the undertaking had been accepted. ( … )

[169]    … [H]er Honour misdirected her enquiry from what the husband believed to be the circumstances in which the offer of the undertaking was to be given to a determination of the nature of the undertaking accepted by her. In so doing, her Honour strayed from a consideration of the husband’s state of mind.”

The appeal was allowed, Hogan J’s orders discharged and the application for contempt dismissed. 




Return to care of mother from grandparent – Alleged sexual abuse by father – Role of ICL   

In Baker & Borthwick and Ors [2010] FamCA 1018 (16 November 2010) Ryan J heard a case in which a nine-year-old child had been living with his maternal grandmother and spending time with both parent which was supervised – the father due to an alleged risk of sexual abuse and the mother because of her history of drug abuse and other issues. As the mother had been drug-free for nearly three years, it was agreed by the start of the hearing that it was time to begin the child’s gradual transition to the care of his mother. It was also agreed that the father did not pose an unacceptable risk of sexual abuse to the child (para 3), Ryan J finding that that concession “was consistent with the evidence presented at that point and with the opinion [of the court-appointed] consultant child & family psychiatrist”. The ICL also adopted the parties’ view. However, Ryan J said this at paras 4 and 5:

“On the afternoon of the second day of the hearing, the Independent Children’s Lawyer [ICL] withdrew his concession. Thus, the nature of the case changed with the [ICL] asserting the evidence would establish the father posed an unacceptable risk of sexual abuse to the child. When the Court enquired of counsel for the [ICL] whether additional evidence had come to light or there was another reason for this about face, the Court was advised a conference had taken place that day with a former family consultant and it was her strong opinion the father had sexually abused the child. Thus the [ICL] adopted her view. This a matter to which I shall return.

I indicated before the evidence continued, it was appropriate for the disclosure interview which had been undertaken by the New South Wales Police Service and the Department of Human Services (JIRT) team to be tendered. To my surprise, counsel for the [ICL] informed the court the JIRT interview was not produced. That is, the [ICL] had not followed up production of the JIRT interview. He had not seen it nor provided it to the court expert. On short notice, JIRT produced the DVD of their interview with the child. This was viewed by the parties, their lawyers, the court and was provided to the court expert. The JIRT interview reinforced the parties’ agreement the father did not pose an unacceptable risk of sexual abuse to the child. The court expert agreed. At the end of the hearing the [ICL] reverted to his original position … ”

Ryan J at para 6 rejected the ICL’s final submission that “if an unidentified counsellor was satisfied the child should have unsupervised time [with the father], this would commence in about six months”. Ryan J examined the evidence and at para 115 said “I am satisfied the father has not sexually abused the child”. As to the ICL’s conduct, Ryan J said this at paras 121 and 122:

“In this case the [ICL] failed to adopt the approach required by legislation and case law. It was an error of judgment to aggressively pursue a finding the father posed an unacceptable risk of sexual abuse to the child without considering and viewing the JIRT interview. This was a key piece of evidence. It was no less troubling that having identified the family consultant as a key witness in relation to this issue, the [ICL] was not present while she was cross-examined. Nor was he present while the father was cross-examined about this issue. ( … ) In relation to A, regrettably it is necessary to observe some of the material relied upon by the [ICL] had little or no forensic value and that no attempt was made to ensure evidence on this matter was put into context. ( … ) Suffice to say this hearing was prolonged unnecessarily and the parties put through an even more difficult hearing than would have occurred had the [ICL], as the parties’ lawyers and they had done, carefully considered the evidence in relation to the risk of sexual abuse. Had he done so, having reviewed Dr W’s report, the JIRT material and the other evidence to which I have made reference, as an honest broker, the [ICL] could have taken a role in setting the framework to re-establish the child’s relationship with the father in an unsupervised setting.”