Children – Contravention – Mother’s “tit-for-tat” withholding of child to make-up for father’s earlier non-compliance is not a “reasonable excuse”

 In Bircher [2022] FedCFamC1A 59 (11 May 2022) the Full Court (Aldridge, Bennett & Howard JJ) considered a decision of Hogan J where the Court found that the mother had contravened parenting orders in relation to a 13 year old child “C” on three occasions without reasonable excuse.

The mother contravened by not providing the child to the father during the school holidays; not making the child available for another period; and taking the child to the dentist and optometrist where the orders restrained her from taking the children to medical and allied health appointments without the consent of the father.

The mother appealed, arguing that:

i) the father had withheld the child during her holiday time, such that she was entitled to make up time;

ii) the father was not attending to his responsibility for the children’s health, therefore the mother attended to the health concerns ([9]).

The Full Court said (from [22]):

“Whilst it may have been the intention of the parenting orders, in a general sense, to provide for the parties to share the school holiday period, it is necessary to consider the actual wording of the parenting orders when considering a contravention application. Order 4 of the parenting orders provided for C to spend the entirety of the second half of the December 2020/January 2021 holidays with the father. …

[23] It was agreed between the mother and the father in writing that the first half of the school holidays ended, and the second half of the school holidays began, on 1 January 2021. It is clear that the mother breached the terms of this order.

[24] The mother’s defence is that the father nonetheless had C reside with him for an aggregate period equivalent to one half of the holidays even if he did not have the precise days provided for in the parenting order. At [11], the primary judge discusses whether the mother’s allegation that the father withholding C from her for the first week of the first half of school holidays, was a reasonable excuse for the mother contravening the parenting order. The primary judge concluded that it was not.

[25] Whether the father’s retention of C for the first week of the … school holidays was appropriate is attended with some doubt ( … )

[26] Section 70NAE(1) of the Act provides an inclusive definition of the phrase ‘reasonable excuse’. In Childers and Leslie [2008] FamCAFC 5, Warnick J confirmed that the circumstances described in s 70NAE(1) of the Act are not the only circumstances in which reasonable excuse may be found. However, even if the father contravened Order 4 of the parenting orders, by retaining C … that lack of compliance and potential contravention of the orders does not entitle the mother, on the facts of this case, to over-hold C as she did … If the mother alleges non-compliance with, or contravention of, an order, by the father she may invoke the court’s powers under Pt VII Div 13A of the Act … by making an application … It is not for one party to take these matters into their own hands and engage in self-help.

[27] It is conceivable that a reasonable excuse may involve a reasonable belief held by one party concerning the effect of the other party’s failure to comply with an order. However, on the facts of this case, we are not persuaded that it was open to the mother to over-hold C and then claim that time as compensation for a previous wrongdoing on the part of the father. To accept such an argument would lose sight of the fact that parenting orders regulate the actions of parents for the benefit, protection and security of children. Viewed from the perspective of the child, the father’s actions deprived C of the company of her brothers and spending the first week of school holidays in the mother’s household. Then, as if that was not unfortunate enough, the consequence of the mother’s action was to replicate that situation in relation to the first week of the holiday period to which the father was entitled to have the children reside with him. Superficially, it was a tit-for-tat exercise as between the parents. In substance, however, the disruption and deprivation was doubled for C and would also have impacted her and her brothers, the three people whose interests the parenting orders are designed to protect and who are innocent of wrongdoing including non-compliance with, or contravention of, orders. On a more general level, self-help is not open to citizens when they believe another citizen has breached a court order or legal rule: the remedy always lies in an application to the courts who adjudicate upon such issues according to law.”

The Full Court continued (from [58]):

“It is difficult to accept that any reasonable person would not see a dentist as within the category of at least an ‘allied health professional’, if not a ‘medical practitioner’. …

( … )

[62] The case Gaunt and Gaunt [1978] FamCA 97 in the Full Court of the Family Court of Australia (as it was then known) considered whether a parent, who does not agree with the court’s decision about access, can defy the access order based on his or her genuine belief that to allow the order to operate would be contrary to the welfare of the child. The Full Court stated …

The question of the child’s welfare is, of course, the paramount consideration for the Court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the Court’s order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.”

The appeal was dismissed.

Property – Jurisdiction of Federal Circuit and Family Court of Australia (Division 1) to hear cases commenced in the Family Court of Australia prior to 1 September 2021 – Intention of Parliament readily inferred from reform legislation as a whole

In Nevins & Urwin [2022] FedCFamC1A 57 (6 May 2022) the Full Court (Alstergren CJ, McClelland DCJ, Austin, Bennett & Cleary JJ) heard a case stated to the Full Court with the following questions:

1. Does the Federal Circuit and Family Court of Australia (Division 1) (“Division 1”) have original jurisdiction to hear and determine this proceeding which was pending in the Court previously known as the Family Court of Australia [FCoA] before 1 September 2021 (“a legacy case”)?

2. Does the Chief Justice of Division 1 have the jurisdiction to transfer this proceeding to the Federal Circuit and Family Court of Australia (Division 2)?

The Full Court said (from [23]):

“At the moment in time the FCFCA Act commenced operation, there were many undetermined causes of action still pending before the FCoA. What was to become of them due to the changes to the original jurisdiction possessed by Division 1 as from 1 September 2021?

[24] The Transition Act (Sch 1, Pt 2, Item 229) stipulates that the amendments to the Family Law Act apply in relation to proceedings commenced before, on and after 1 September 2021, stating:

229 Application

The amendments of the Family Law Act 1975 and the Federal Court of Australia Act 1976 made by this Schedule apply in relation to a proceeding commenced before, on or after the commencement day.

(Emphasis added)

[25] Read literally and in isolation from all other provisions, the item could be construed as applying the new provisions of the FCFCA Act, including those truncating Division 1’s original jurisdiction, to any proceedings validly pending in the FCoA before 1 September 2021, thereby removing jurisdiction to hear legacy cases, of which there were, and still are, hundreds.

[26] The necessary corollary of so narrowly interpreting Sch 1, Pt 2, Item 229 of the Transition Act is this:

(a) since 1 September 2021, Division 1 lacks jurisdiction to entertain any legacy case (and, by reason of the second question posed in the stated case, prospectively even lacks jurisdiction (or perhaps ‘power’ rather than ‘jurisdiction’, as those two things are different) to transfer legacy cases to Division 2);

(b) any order made by Division 1 in any legacy case since 1 September 2021 would be, as an order made by a superior court of record, voidable (on an appeal to the Full Court or pursuant to prerogative writ issued by the High Court of Australia) by reason of it being made without jurisdiction;

(c) the legacy cases remain permanently suspended in the state they stood as at 31 August 2021; and so

(d) the time and expense incurred by litigants in advancing their causes of action in legacy cases up to and including 31 August 2021 is entirely wasted.

[27] The mere articulation of the problem inexorably leads to the conclusion that the Parliament could not have intended such legal absurdity.

The solution

[28] Despite the literal interpretation of the Transition Act leading to such absurdity, it is the premise for the case stated to this Court. The Attorney urged a quite different interpretation, advocating for an interpretation of the reform legislation which accommodates Division 1’s retention of original jurisdiction to entertain and decide legacy cases. The parties and the Independent Children’s Lawyer (‘the ICL’) renounced their former doubts and vigorously supported the conclusion about the retention of jurisdiction by Division 1.

( … )

[32] … [T]he Parliament’s intention that Division 1 would retain original jurisdiction to finalise legacy cases is readily inferred from the context of the reform legislation when viewed as a whole, in the manner urged by the High Court.

( … )

[38] … [T]o the extent it may be necessary to also rely upon extrinsic aids (pursuant to s 15AB of the Acts Interpretation Act), the Explanatory Memorandum published to explain the Transition Bill stated this in the General Outline:

5. For the avoidance of doubt, any first-instance proceedings on foot in the Family Court … as at the date of commencement of the FCFC Act would be heard in the FCFC (Division 1) … This arrangement appropriately reflects the continuation of the Family Court as the FCFC (Division 1) … under the FCFC Bill.

[39] It is well accepted that statutes should not be interpreted as withdrawing or limiting the conferral of jurisdiction upon courts unless the implication to do so is clear and unmistakeable (Shergold v Tanner [2002] HCA 19 … Magrath v Goldsbrough, Mort & Co Ltd [1932] HCA 10 …). No such clear and unmistakeable implication is evident here. ( … )

[40] The primary judge observed … that, unlike the express transition provisions for appeals pending before the FCoA, the reform legislation contains no counterpart express transition provision for pending proceedings within the original jurisdiction of the FCoA. That may be so, but it is no proper basis for imputing an illogical intention to oust the original jurisdiction of Division 1 in legacy cases. The transition provisions especially for appeals were desirable, if not essential, because of the abolition of the Appeal Division of the FCoA.

[41] Neither the absence of any transition provision expressly preserving the original jurisdiction of Division 1 in legacy cases, nor the latent ambiguity of Sch 1, Pt 2, Item 229 of the Transition Act, detracts from the overall construction of the legislative package which points strongly to the retention of original jurisdiction by Division 1 in legacy cases.”

The Full Court concluded (from [54]):

“The answer to the first question must be: Yes.

[55] The second question is rendered otiose by the answer to the first …

( … )

Use of the ‘stated case’ procedure

[58] The use of the ‘stated case’ procedure should be used only in exceptional circumstances (Federal Commissioner of Taxation v Tomaras [2018] HCA 62 …) Although the primary judge found the circumstances here were exceptional (at [20]), that conclusion is not easily defended. The existence of jurisdiction was integral to the disposal of this long-standing litigation in which the trial is still part-heard three years after it started but, if the primary judge doubted the continuing existence of jurisdiction, we think it would have been more expedient and less costly if her Honour had proceeded to determine the issue herself – as other judges have done, both before and since, with each finding that Division 1 does retain original jurisdiction in legacy cases.”

Children – Unilateral relocation allowed where child’s connection with her Aboriginal culture best maintained by living with mother

In Pascoe & Larsen [2022] FedCFamC1A 64 (13 May 2022) McClelland DCJ heard a father’s appeal from an interim decision dismissing an application for the return of the mother and child after the mother unilaterally relocated from City A to City B in May 2021.

The child “X” was 5 and due to commence school in 2022.

The father lived in City C which was close to City A.

The mother and child were Aboriginal and the trial judge concluded that the connection to the child’s culture was best maintained by the child living with the mother ([15]) and refused to make a coercive order requiring the mother to move back to City A.

McClelland DCJ said (at [30]-[31]):

“ … [H]is Honour states that it is important for the child to live with her mother ‘in order to maintain and promote her connection with her Aboriginal culture’, in circumstances where it was not disputed that the child is an Aboriginal child. His Honour’s consideration of that issue was entirely consistent with his obligation pursuant to s 60CC(3)(h) of the Act.

While strictly unnecessary, his Honour nonetheless also took into consideration the [mother’s] evidence that part of the child rearing practice of the D Nation is that traditions are passed on from mother to daughter, which was a matter that caused him to ‘err on the side of [the] child who is an Aboriginal and female continuing to live with her Aboriginal mother.’ In so doing, the primary judge acknowledged he was unable to make findings in respect to contentious facts however, as noted by the Full Court in SS & AH [2010] FamCAFC 13 (‘SS & AH’) … in the context of interim proceedings ‘[i]t is not always feasible, when dealing with the immediate welfare of children, simply to ignore an assertion because its accuracy has been put in issue’. In this case, the [mother’s] evidence was plausible and it was entirely appropriate that it was not ignored by the trial judge.”

McClelland DCJ continued (from [56]):

“Section 60CC provides that … where the child is an Aboriginal child, the Court ‘must consider’ in accordance with s 60CC(3)(h):

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right.

[57] While the primary judge acknowledged that there were aspects of the [mother’s] culture and kinship that required further evidence, it was entirely proper and, indeed, consistent with his Honour’s obligation pursuant to that sub-section, to have regard to the child’s right to enjoy her Aboriginal culture ‘with other people who share that culture.’ It was unnecessary for the primary judge to make findings in respect to the depth and richness of the culture of the D Nation and how that culture is passed from generation to generation. It was sufficient for the primary judge to be satisfied, to the extent required in the context of interim proceedings, that the child shares her Aboriginal culture with the [mother] and the orders which he made for the child to live with the [mother], rather than the [father], were consistent with the child’s right to enjoy her Aboriginal culture, including with others who similarly enjoyed that culture being, in this case, most relevantly, her mother.

[58] In that respect, s 61F is not to be read as narrowing the rights of an Aboriginal child to enjoy their culture. That is, the mandatory obligation of the Court to consider those matters set out in s 60CC(3)(h) is not constrained by a precondition of the Court being in a position to make a determination in respect to any kinship obligations and, relevantly in this matter, child rearing practices of the D Nation. ( … )

( … )

[64] … [W]hat his Honour [found] was that the fact that the child is Aboriginal was a factor that he considered as favouring orders being made for the child to live primarily with the [mother] rather than the [father]. That consideration, together with the others to which I have earlier referred, was clearly explained by his Honour as underpinning his decision as to who the child should live with.

[65] Having made that decision, his Honour then proceeded to determine whether he should make orders requiring the child to be returned to live in the City A region, in circumstances where it would detrimentally impact upon the [mother] in terms of her employment and her new relationship. Having regard to those matters, in particular, his Honour rejected the [father’s] submission that orders should be made that resulted in that detrimental impact upon the [mother].”

The appeal was dismissed and orders made for submissions as to costs.

Children – Unacceptable risk of harm posed by mother’s “entirely negative” perception of the father – Inadequate reasons for extended period of supervision

In Willmore & Menendez [2022] FedCFamC1A 73 (20 May 2022) the Full Court (McClelland DCJ, Baumann & Hartnett JJ) heard a mother’s appeal from a decision of Carew J in which Her Honour found that the mother posed an unacceptable risk of psychological and emotional harm to the six year old child “X”.

Her Honour ordered that the father have sole parental responsibility and that “X” live with the father and spend time with the mother on a supervised period for two years, then transitioning to unsupervised time.

The child lived with the mother from separation and spent 3 nights per week with the father until the mother suspended time in 2019 and again in 2020, after interim orders were made, making allegations that the father had sexually abused the child ([9]-[12]).

Despite single expert recommendations of unsupervised overnight time, at the time of trial, the child was spending supervised time with the father for one hour each alternate Saturday and Sunday.

At trial, the mother alleged the father posed an unacceptable risk of sexual harm to the child and sought orders for supervised time. The father alleged the mother intentionally manipulated evidence and made allegations of family violence and sexual abuse to remove the father from the child’s life, and in so doing posed an unacceptable risk of psychological abuse and/or emotional harm to the child ([13]-[14]).

The Full Court said (from [50]):

“The primary judge clearly explained her conclusion as to with whom the child should live. In so doing, the primary judge weighed the relevant evidentiary matters and engaged in the exercise of a balancing of the benefits of the child’s relationship with the appellant as against the risks found by her Honour to be posed by the appellant. Having engaged in that task, the primary judge then considered how those risks might be ameliorated in order to advance the best interests of the child and gave consideration to what time the child should spend with the appellant, and in what circumstances.

[51] … [T]he primary judge fell into appealable error in her failure to give adequate reasons for the making of Orders 4(b)–(f) and 5. Those orders went to what time the child would spend with the appellant and in what circumstances and the extent to which there would be communication between the appellant and the child.

[52] The requirement for the giving of reasons is a fundamental requirement of the exercise of the judicial function, as it both demonstrates that justice has been done, and enables the proper challenge of a decision. The content required varies depending upon the circumstances of the case, but is generally that which makes apparent how the decision was arrived at [Bennett and Bennett [1990] FamCA 148]. The obligation is particularly significant where orders are made limiting the amount of time that a child will spend with a parent and the circumstances in which that will occur. In that respect, in Blinko & Blinko [2015] FamCAFC 146 the Full Court said:

‘The authorities dealing with cases of unacceptable risk are replete with exhortations to trial judges to ‘consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard’ … That extends not merely to the identification and analysis of the risk itself, but also to the imposition of conditions or other safeguards in relation to the non-resident parent.’

[53] The primary judge set out … her balancing of the child’s need to maintain his relationship with the appellant, with the risk of the appellant exposing the child to her distress about the outcome of the trial and her negative views about the respondent.

[54] Whilst her Honour set out her reasons for the need for professional supervision for the first three months following the making of orders … [she] failed to provide adequate reasons as to why she concluded it was in the best interests of the child for the period of supervision to extend over two years. … [I]n reaching that conclusion, her Honour was required to carefully outline why the risks that she identified, when balanced against the benefits of the child maintaining a meaningful relationship with the appellant, could not be ameliorated such that the child could spend time with the appellant, more frequently and in part unsupervised, prior to the expiration of a two year period.

( … )

[56] The primary judge, in our view, provided adequate reasons for making an order for the child to spend no more than two hours weekly with the appellant, for a period of three months. It is not apparent, however, why her Honour concluded that the child’s time should then be constrained to supervised time of six hours per fortnight, together with four hours on each of Christmas Day, Easter Sunday and the child’s birthday, and video calls, cards and gifts for a further period of 21 months.

[57] In the circumstances of this case, less severe options required careful evaluation by her Honour. …

( … )

[60] … [I]t is not clear, on a reading of her Honour’s reasons, how her Honour determined that after such a restricted regime of time spent with the appellant, for the two years following the orders, the child’s best interests would be advanced by an immediate re-introduction of unsupervised overnight time, which included continuous days and one half of all school holidays. This was in circumstances where there were no orders for the appellant to undertake therapy or counselling to gain the necessary insight as her Honour referred to.

[61] For these reasons, we find that there is merit in this ground in so far as the primary judge gave inadequate reasons as to her determination to make Orders 4(b)–(f) and 5.”

The case was remitted for rehearing before a different judge specifically in respect of the issue of what time the child is to spend with the mother, in what circumstances and upon what conditions.

Children – Artificial conception procedure – Respondent lacked standing to bring a parenting application where she and the deceased mother were not in a de facto relationship and where her lack of relationship with the children meant that she was not a “person concerned with the care, welfare or development of the children”

In Wickham & Toledano [2022] FedCFamC1F 32 (3 February 2022) Carew J heard an application for parenting orders by the maternal aunt and her husband in respect of twins born in 2021 where their birth mother died in that year.

The respondent was the former partner of the late mother with whom she commenced a relationship in June 2020 after meeting on a same sex dating website in June 2020. After a short engagement and at least five separations, the relationship finally ended in April 2021.

The applicants sought that the children remain living with them in Brisbane. The respondent sought orders for the children to live with her in Sydney. The interim issue before the Court was the respondent’s standing to apply for a parenting order.

It was agreed that per s 60H(1) of the Act, the respondent was a parent if she and the birth mother were in a de facto relationship at the time of carrying out of the artificial conception procedure which resulted in the birth of the child ([20]).

The respondent asserted that she was in a de facto relationship with the mother when the artificial conception procedure took place and was therefore a parent. Alternatively, she argued that she was a person concerned with the “care, welfare and development” of the children under s 65C(c).

Carew J said (from [21]):

“Whether or not Ms B and the respondent lived in a de facto relationship at the time the artificial conception procedure was carried out is a question of fact to be determined by the Court [Sinclair & Whittaker [2013] FamCAFC 129 (‘Sinclair’)]. The perception by the parties of their relationship is a relevant matter but not determinative (Sinclair).

( … )

[51] … [T]he relationship between the respondent and Ms B was short. At times they expressed an intention to share a life together and to have children. They became engaged but separated shortly thereafter. It was an intense and volatile relationship. They maintained their own residences despite Ms B spending time, including overnights, at the respondent’s residence. They maintained their financial independence and had no arrangements for financial support between them. They owned no property together. They had no joint accounts. The commitment to the relationship waxed and waned. They informed family members of the relationship and of its demise.

[52] It could not be said that [at the time of the procedure] … having regard to all the circumstances of their relationship, that they had a relationship as a couple living together on a genuine domestic basis.

[53] Accordingly, I find that the respondent is not a parent within the meaning of the Act.”

As to whether the respondent was a person concerned with the care, welfare or development of the children under s 65C(c) of the Act, Carew J said (from [74]):

“The relationship between Ms B and the respondent was unstable and volatile. The respondent was coercive and controlling of Ms B. Her manipulation of Ms B was at times breathtaking. She faked a serious illness and threatened suicide to manipulate Ms B into continuing the relationship. She threatened Ms B with legal action to enforce her so-called rights in order to put pressure on Ms B to continue the relationship. The respondent seriously suggested that she was concerned for the welfare of Ms B and the unborn children because of the ‘high risk pregnancy’ and that her motivation for lying was to keep Ms B ‘safe’ in Sydney. She actually had the temerity to say that ‘if people would have heard me back then, Ms B wouldn’t be deceased today’. Her conduct would suggest she was anything but concerned for the welfare of Ms B and the unborn children.

[75] I find that the respondent is not a person concerned with the care, welfare and development of the children within the meaning of s 65C(c) for the following reasons:

(a) The respondent has no relationship with the children;

(b) She has no biological connection to the children;

(c) The relationship between Ms B and the respondent was brief and volatile;

(d) The respondent engaged in coercive and controlling behaviour of Ms B to achieve her own ends;

(e) The respondent placed Ms B under extraordinary pressure to keep her in the relationship in Sydney;

(f) Her conduct does not demonstrate a concern for the unborn children’s welfare in circumstances where she described Ms B as being at high risk in her pregnancy, yet put her under so much stress;

(g) The respondent detests Ms B’s family which includes the first applicant, Ms Wickham;

(h) The focus of the respondent has been on her perceived “rights” rather than the care, welfare or development of the children.

(76) Accordingly, I find that the respondent has no standing to apply for a parenting order in relation to the children. …”

The respondent’s application was dismissed and the case was otherwise listed for a final hearing. No order was made as to costs.

Children – Reversal of care set aside where the assumptions of a single expert were inconsistent with the evidence

In Thornton & Little [2022] FedCFamC1A 49 (8 April 2022) Aldridge J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard an appeal from final parenting orders made by Judge A Kelly for a child born in 2019 to live with the father.

The child lived with the mother following separation.

The parties attended upon Dr C who prepared a family report that recommended the child spend more time with the father. Dr C met with the parties again and was subsequently invited to give his opinion at Court. He was not sworn or affirmed to give evidence, but opined that there was a “disturbed attachment between this child and her mother” ([at 24]).

After the mother and the child failed to attend additional appointments with Dr C, the Court made an order for the child to live with the father. The mother appealed and filed a stay application which was refused by the trial judge. At the time of the appeal, the child was living with the father.

The Court said (from [26]):

“One of the set of facts that Dr C had relied on to draw his opinion, that the child spends very little time away from the mother, that the child does not go to childcare and is not involved in any other activity, was demonstrably wrong. …

[27] It is so obvious that it should not need saying, but Dr C was not in a position to give evidence as to the child’s attendance at playgroup and the like because he had no direct knowledge of it. … Thus any opinion of his which was based on the lack of attendance was based on that as an assumption. Unless and until that assumption was established by other evidence, any opinion of Dr C so based was not admissible and, if admitted, could not be given weight. The unchallenged position was that his assumption was entirely wrong.

( … )

[36] The point of the mother’s submissions was to attempt to undermine the primary judge’s acceptance of the opinion of Dr C that the mother had a disturbed and dysfunctional attachment to the child (at [289]) and that the child was not thriving in the sole care of the mother (at [292]).

[37] I accept the mother’s submission that these findings permeate his Honour’s reasons and are referred to at least 18 times by him.

( … )

[39] The essential opinions of Dr C were that the child had a disturbed and dysfunctional relationship with the mother, that the child was not thriving in the mother’s care, that the child had not been well socialised, that the mother had a near incomplete capacity to support the child having a relationship with the father and that the mother had and would seek out professionals who would support her view and not those who would challenge it … ”

Aldridge J continued (from [107]):

“ … [T]he misapprehension of Dr C as to the activities, although completely dispelled … seemed nonetheless, to continue to support the opinion of Dr C and the findings of the primary judge. That was so despite the opinion being not being based on established facts but on misapprehension. What was lost sight of was the need to accept that even a single expert’s opinion must have a solid basis. If an opinion is posited on the basis of facts which are not proven or worse, shown to be wrong, the opinion is based on a flawed premise and can carry no weight.

[108] I consider this to have occurred, notwithstanding that the false premise was identified at the outset in August.

[109] …As to Dr C’s comment that the child was not thriving in the care of the mother and was confirmed by the Department and other independent third parties, those documents were in evidence and did not do so. Their view was that the child was anxious because of the toxic relationship between the parties.

( … )

[114] Here, the case concerned what parenting orders were in a very young child’s best interests. The orders made had the very significant effect, described as ‘destabilising’ by Dr C, by moving the child from her primary carer when neither parent was found to pose a risk of harm to the child (at [379]).

[115] … I am satisfied that this is an exceptional case where there was error, where no evidence could have been called had the points been raised, or re-raised, and where the subject matter of the proceedings carries its own unique and significant weight.

( … )

[120] Here the impugned findings clearly influenced the result and were material to the outcome, as explained above.”

The orders were set aside, the case remitted for rehearing and the child returned to the mother pending the outcome of the rehearing. Costs certificates were ordered.

Property – Interim orders to sell the former matrimonial home are not final orders solely because they rendered the wife’s final application otiose – Wife retained an ability to purchase the home

In Kartal & Templeman [2022] FedCFamC1A 46 (4 April 2022), Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a wife’s application for leave to appeal against interim orders made by a magistrate in the Magistrates Court of Western Australia for the sale of the former matrimonial home, which was the principal asset of the parties.

The parties had significant debt. The wife sought interim orders for the property to be transferred into her sole name so that she could re-finance the secured debt by entering into a loan agreement with a relative. The husband sought the interim sale of the property and for the debts to be discharged from the proceeds of sale, along with an interim distribution to each party. The magistrate made orders in the terms of the husband’s application. The wife appealed.

Austin J said (from [17]):

“The wife considers the sale orders are final because their execution would preclude her from pressing her application for orders granting her sole proprietorship of the former family home at the upcoming trial. While it is true the sale orders render otiose her application for final relief in respect of the former family home, that consequence does not convert interlocutory orders into final orders.

[18] The orders are not ‘final’ because they do not exhaust the Court’s statutory power and are not dispositive of the parties’ respective applications for relief under Pt VIII of the Act. The essence of finality is disposition of the justiciable dispute (Licul v Corney [1976] HCA 6).

( … )

[20] Since the orders are interlocutory in nature and do not relate to a ‘child welfare matter’, leave to appeal from them is required (s 28(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”); reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth)).

( … )

[22] The wife contends she will suffer the substantial injustice of her enforced removal from, and deprivation of, the home in which she wishes to continue living with the children, but the argument is not as strong as she perceives. If the former family home is sold according to the orders, nothing stops the wife from purchasing the property on the open market with the aid of the same financial assistance she had envisaged using to privately acquire the husband’s one-half share. While she would then experience the disadvantage of having to compete with other prospective purchasers, any price increase caused by such competition will be mollified by her receipt as a joint vendor of one-half of the increased capital gain.”

Austin J continued (from [55]):

“ … [T]he wife’s application entailed an interim adjustment of the parties’ property interests, but the husband’s did not. His application was merely facilitative of the parties’ extraction of the net value of their existing equal proprietary interest in the former family home.

[56] Since only the wife sought an interim order adjusting their property rights, she bore the onus of demonstrating how and why her application should be granted in accordance with established legal principles. Her claim depended exclusively upon an interlocutory exercise of discretionary power under s 79 of the Act. She did not pitch her claim as being one for spousal maintenance or as a costs order.

[57] It is well accepted that the exercise of statutory power under s 79 of the Act may be fragmented until the power is entirely spent (Gabel & Yardley [2008] FamCAFC 162; Strahan & Strahan (Interim Property Orders) [2011] FamCAFC 126; though it is clearly preferential for there to be only one exercise of power at final trial …

[58] It is not necessary for the applicant to establish compelling circumstances in order to secure interim financial relief … but there must be some principled reason for fragmenting the process. An application for interim property settlement is not granted just because an applicant earnestly wants it. Such relief is usually granted to meet the applicant’s costs of pursuing the litigation and to level the litigious playing field … which is why three considerations are always relevant to the inquiry … : first, the respondent’s position of relative financial strength; secondly, the respondent’s capacity to meet his or her own litigation costs; and thirdly, the applicant’s inability to meet his or her litigation costs.

[59] The parties’ capacity to continue funding the litigation was irrelevant here because each party enjoyed an existing legal entitlement to the net proceeds which could be derived from the sale of the former family home, after discharge of the mortgage and payment of the attendant sale expenses. The wife’s application was to stop the sale by acquiring exclusive legal title in the property. Her aim was to preserve the home for herself; not to acquire cash with which to pay her legal fees. Neither party enjoyed a position of financial superiority over the other.

[60] What then, it may be rhetorically asked, brought the wife’s application for an interim alteration of property interests within legal principles? Why should she have been able to pre-empt the outcome of the adjustment proceedings at trial by acquiring exclusive title in the single asset of any substance, particularly when it would necessarily force her to re-structure debt? Why should the husband have been deprived of access to his share of the net equity in the family home, absent any application by the wife for an interim injunction granting her exclusive occupation of the property and thereby preventing its sale? These were questions she did not answer … ”

The wife’s appeal was dismissed and she was ordered to pay the husband’s costs in the sum of $8,823.44.

Property – Leave to proceed requires a prima facie case, not a “real probability of success” – Possibility, not probability that legal fees would exceed the quantum of relief sought

In Skelton & Lindop [2022] FedCFamC1A 47 (4 April 2022) Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard an appeal against the dismissal of a de facto wife’s application for leave to proceed out of time.

The parties were in a de facto relationship from late 2009/early 2010. The appellant asserted that separation occurred in March 2016, while the respondent asserted separation occurred in February 2014. The appellant brought her application for property settlement in November 2018, such that she was at least 7 months out of time.

Austin J said (from [14]):

“The primary judge determined the appellant failed to demonstrate she will suffer hardship if precluded from bringing her substantive claim, which conclusion was expressed this way:

82. The Court accepts that, on the [appellant’s] own evidence, her contribution, both financially and non-financially, would be regarded as so minimal that it would be, therefore, difficult, on the balance of probabilities, to establish any hardship.

( … )

87. … Accordingly, noting the [appellant’s] costs of pursuing any such an entitlement would likely outweigh any award … [and] the Court is of the view that the [appellant’s] prima facie claim does not have a real probability of success.

( … )

[16] … The distinction between, on the one hand, a ‘prima facie claim’ and, on the other, a claim which has a ‘real probability of success’ is not novel … The distinction has been described as semantic (Hall & Hall [1979] FamCA 50;  Althaus & Althaus [1979] FamCA 47 …), but it can be troubling to see how a ‘prima facie claim’ and a claim which has a ‘real probability of success’ are one and the same thing when a prima facie claim is not one which need be conclusively proven on the balance of probabilities.”

Austin J continued (from [21]):

“It may be in this case the primary judge was saying no more than that the appellant did not demonstrate her case had ‘sufficient likelihood of success’ to prove hardship, which would be the correct test, but his Honour’s reference in the reasons for judgment to not being satisfied ‘on the balance of probabilities’ … nor that the appellant’s claim has ‘a real probability of success’ … has the flavour of demanding more from the appellant than she needed to give. She certainly did not have to prove it was more probable than not that her claim for property settlement relief would succeed if allowed to proceed.

[24] The parties lived in a de facto relationship for eight years, during which time the appellant made many noteworthy financial and non-financial contributions. The respondent did not deny she had, but rather contended her contributions paled by comparison with his.

( … )

[27] Despite a multitude of prospective factual disputes between the parties, the appellant had a reasonably arguable case on the evidence before the primary judge for a proportional share of the respondent’s property, given her contributions over eight years and her comparatively superior future needs.

[28] … [T]he appellant quantified her claim for relief at $170,000, which sum was a quite modest proportion of the overall value of the respondent’s assets – about 16 per cent thereof on his estimate of value at $1.079 million … On any objective view, the claim was not disproportionately audacious. Given her relative penury, the appellant’s deprivation of any claim at all was likely to occasion her hardship …

[29] The primary judge accepted the respondent’s submission that the value of any relief obtained by the appellant would likely be subsumed by the legal fees she would expend to acquire it, but that finding was not reasonably open. It was possible her legal fees would exceed the value of any relief she obtained, but it could not be reasonably said to be probable. …

[30] … [I]f the appellant succeeded with her claim and was then able to demonstrate the respondent’s unreasonable defence of it by, for example, rejecting her reasonable offers of compromise, she might even be able to improve her position with a costs order against him. Though that is speculative, it illustrates why it was an error to assume it was probable the appellant’s claim for relief would be overwhelmed by her own costs.”

Austin J concluded (at [39]):

“ … [T]he appellant has demonstrated she will suffer hardship if deprived of the chance to bring her reasonably arguable substantive property settlement claim against the respondent. In the exercise of discretion, she should be permitted to do so. …”

The orders were set aside and the appellant was granted leave to proceed. Costs certificates were ordered.

Property – Court erred in considering husband’s defective disclosure when assessing contributions – Including capitalised value of pension in asset pool and considering pension under s 75(2) is “double dipping”

In Mayhew & Fairweather [2022] FedCFamC1A 53 (12 April 2022) the Full Court (Austin, Tree and Gill JJ) heard a husband’s appeal from orders of Wilson J for a 60:40 division of matrimonial property in the wife’s favour after a relationship of between 34 and 36 years.

The husband’s grounds of appeal included the treatment of his alleged defective disclosure and double counting of his pension, where its capitalised value was included in the asset pool, but also considered as part of the wife’s section 75(2) adjustment.

As to the husband’s defective disclosure, the Full Court said (from [11]):

“ … [N]otwithstanding not being satisfied as to ‘[the husband’s] version of the property’, the primary judge considered that the appropriate way to deal with the defective disclosure was to reflect it in an unspecified way … in the assessment of the parties’ contributions to the agreed pool. That it was material is demonstrated by the fact that it ‘supported’ the ‘tilting [of] the scales’ in the wife’s favour such that her contributions were adjudicated to be superior to the husband’s to the extent of 7.5 per cent.

[12] The primary judge relied upon the Full Court’s decision in Weir and Weir [1992] FamCA 69; in support of this approach. In that case, some slender reference to the impact which inadequate disclosure can have on the assessment of contributions is made … however it is very difficult to see how, in this case, inadequate disclosure could have any logical connection to either the wife’s financial contributions to the identified and agreed pool, or her non-financial contribution to it either.

[13] … [I]n order to be considered under s 79(4)(a) or (b) of the Act, the defective disclosure must relate to a direct or indirect, financial or non-financial, contribution ‘to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them’… [H]ere where the pool was agreed, we cannot see it, and as the primary judge did not explain how the defective disclosure related to contributions, we cannot ascertain the reasoning upon which the decision is based (Bennett and Bennett [1990] FamCA 148 … ).

[14] The usual way in which defective disclosure is taken into account is either by adding a sum to the pool, reflective of an estimate of the value of undisclosed property … or under s 75(2)(o) of the Act. … [W]e are satisfied that by factoring it in to the analysis of contributions, the primary judge erred, and further, his reasons in that respect are inadequate.”

As to the treatment of the husband’s pension, the Full Court continued (from [15]):

“By virtue of his career, the husband is entitled to a tax free pension for life … [A]t trial both parties dealt with that non-commutable pension by attributing to it an agreed capital value of $1,353,642, although no evidence of the valuation methodology was put before the primary judge.

[16] The primary judge, as the parties asked him to, included the figure of $1,353,642 in the balance sheet as if it were a tangible asset, and that sum was part of the 40 per cent taken by the husband under the orders. …

[17] … [I]n addition to including the full value of the notional asset in the balance sheet, the primary judge also took the pension into account when considering s 75(2) factors.

( … )

[21] The plurality of the Full Court in Semperton v Semperton [2012] FamCAFC 132 … held that ‘where the nature of the property to be retained by one of the parties has a quality about it which is not accurately reflected in the value ascribed’ then it may be legitimate to take that into account under s 75(2)(b) (at [146]), and likewise if ‘there was some aspect of the entitlement that had not already been taken into account when assigning it a value’ (at [148]).

[22] Here, since the notional capital value of the husband’s pension was agreed, no evidence was presented as to what had been taken into account in reaching that value. Whilst not altogether clear, it appears … that it was ‘the greater income stream … by reason of [the husband’s] pension’ and … that the husband’s higher earning capacity was ‘more assured’ by virtue of the pension, which were relied upon by the primary judge when considering s 75(2) factors.

[23] … [I]t seems inconceivable that the quantum of the income stream was not expressly taken into account in arriving at its notional capital value, and its assurance likely was reflected in the capitalisation rate applied to the income stream, and hence it was already valued by reference to that feature. In any event, even if that were not so, absent the matters taken into account in the valuation of the pension being known by the primary judge, how his Honour could have been satisfied that some aspect or quality of the pension had not already been taken into account in arriving at its notional value, is completely unclear. To thus use both the income stream and its assurance as the justification, even in part, for an adjustment of 2.5 per cent – in this case reflective of about $384,000 – is to ‘double dip’ and thus to err.”

The appeal was allowed and the case remitted for rehearing. The wife was ordered to pay the husband’s costs fixed at $20,000.

Children – No time, contact or communication – Father’s paraphilia and associated behaviours posed risk to children – No requirement for mother to keep father informed of decisions made exercising sole parental responsibility

In Saunders & Yorke [2022] FedCFamC1A 54 (13 April 2022), the Full Court (McClelland DCJ, Austin and Schonell JJ) heard a father’s appeal from a decision of Hannam J that children aged 10 and 6 live with the mother and spend no time with the father.

It was common ground that the children had a good relationship with the father ([3]).

A fundamental issue before the Court was the father’s paraphilia, associated behaviours and connections with a community of people with similar proclivities. Hannam J found that restraints proposed by the father would be insufficient to restrain him such that it was in the best interests of the children to spend no time with their father ([4]).

The father appealed, contending that Hannam J failed to balance the risks when making the final orders and that inadequate reasons were given.

The Full Court said (from [13]):

“It is clear that the primary judge here was engaged in balancing the risks to the children of losing a relationship with their father against the risk to the children of the father’s behaviours and associations.

( … )

[15] The primary judge observed that the children would be likely to experience humiliation and ridicule if the father’s links to the Community were exposed, that they would find the exposure confusing and embarrassing, and that they may be exposed to sexual ideas and concepts that they may not able to understand or comprehend.

( … )

[18] The primary judge then observed:

203. The father has not satisfactorily addressed the issues of risk identified by the expert, and the only way to mitigate risks he poses to the children is for their time with him, if it is to occur, to be supervised. The limitations associated with a paid supervision service for long term have been discussed. As no other arrangement has been proposed, it is in my view in the children’s best interests for their relationships with their father to be severed rather than for them to spend unsupervised time with him as he proposed.

And concluded:

206. While the outcome of the orders to be made is most unfortunate for the children and they will undoubtedly experience loss associated with the severing of their relationships with the father, there are some risks involved in the mother being required to have some form of ongoing relationship with the father especially given the (albeit unusual) power imbalance between the parties and the mother’s tendency to capitulate to the father’s expectations in recognition of the children’s love for their father as she has done in the past.

[19] … [T]he primary judge clearly balanced the competing risks in making her final determination.

( … )

[25] In relation to the ways that the father could mitigate the risk, the primary judge summarised the single expert’s evidence as follows:

109. … the only real option would be that the father cease his fetish behaviour in any manner to which the children were likely to be exposed. She explained that this would require that the father refrain from engaging in his minority lifestyle when the children are in his care, terminating his business or ‘completely de-identifying himself from his business and [the Community] at large’. The expert also added that this would require the father to accept that the children cannot know about this aspect of his behaviour and that any public profile he has presents a risk to the children.

( … )

[28] It is clear from the acceptance by the primary judge of the single expert’s opinion that the single expert was not satisfied that restraints proposed by the father were sufficient to mitigate the risk. Likewise, the single expert expressed ‘real concerns’ that the father would be able to contain his behaviours during periods of time with the children (at [126]).”

As to the requirement of the mother to notify the father when exercising certain aspects of sole parental responsibility, the Full Court said (from [34]):

“There was no issue at trial that the mother should have sole parental responsibility. The father and the ICL urged the primary judge that the mother should notify the father and consider his input prior to making long-term decisions in relation to the children. ( … )

[35] Within the context of the time arrangements, the primary judge referenced her earlier reasons and identified:

201. … [T]he shortcomings in the father’s parental capacity and associated risks he poses to the children of psychological harm is the most salient matter in these proceedings. …

( … )

204. … [I] am of the view that the orders proposed by the mother that the children spend no time with the father are proper and in the children’s best interests.

205. … [T]he additional orders proposed by the ICL in relation to the mother informing the father of proposed decisions … are in my view not proper.”

The Full Court concluded ([at 45]):

“It is clear that the single expert was not satisfied that the restraints were sufficient, let alone that they ‘wholly ameliorated’ the risks. It is not submitted that the primary judge incorrectly recorded the single expert’s evidence. The primary judge’s findings were consistent with the expert evidence.”

The appeal was dismissed.