Stay pending appeal – Parenting case

In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 (19 June 2009), a parenting case, the Full Court outlined the applicable principles at paras 17 and 18, dismissing an appeal brought by a mother against Pascoe CFM’s refusal pending the hearing to stay an order allowing the (same sex) respondent to continue spending time with their child.

The Full Court at para 21 said:

“Referring to whether the refusal of a stay would render a successful appeal nugatory or make it impossible or impracticable to restore the position, he concluded that it would be likely to be more difficult to re-establish the existing warm and significant attachment between the respondent and the child if it was ended or significantly limited rather than if it was allowed to continue as he had proposed.”

Wife’s distribution from family trust to pay school fees not added back – Her payment of school fees in advance treated as a contribution under s 79(4) 

In Alexiou [2012] FamCA 1146 (14 December 2012) a dispute arose over the wife’s unilateral payment of school fees as to which Le Poer Trench J said at paras 155-156:

“The dispute about payment of the children’s school fees falls for determination in this case in two ways. Firstly, it relates to whether the wife was entitled to use the income and capital of the Alexiou Family Trust to pay the school fees as she has done since the separation. She applied part of the proceeds of the sale of the Queensland properties. Further, in relation to the parties’ property she used part of the $200,000 draw down she made against the ANZ loan to pay school fees. If allowed, the wife would avoid the addition of a notional asset on the balance sheet in relation to a large part of the net sale proceeds of the Queensland properties and at least for that part of the $200,000 which she drew down shortly after separation and can reasonably ascribe to the payment of school fees.

The wife’s argument is that prior to separation the parties had agreed the children should attend private schools. There is no dispute about that fact. The parties’ children C and J commenced attending M School in 2006, two years before separation. The child C commenced in year 5 and the child J in Kindergarten. C is now in year 11 and will complete her schooling in 2013. The wife says the children enjoy their school and are achieving well academically. She considers it would be detrimental and very distressing for the children if they were required to change schools. The husband does not assert to the contrary. Following separation, the husband declined to support the children attending M School on the basis that it could not be afforded unless the parties extended their borrowings or otherwise used capital. It is implicit in the wife’s case that in order to meet the children’s school fees, the capital of the parties was necessary to be drawn on. The husband says in the circumstances it was unreasonable for the children to attend private schools and for the parties to have to contribute their capital to the payment of school fees.”

Le Poer Trench continued at paras 158-159:

“Notwithstanding the husband’s present objection to the children attending private schools, he did on 16 August 2010 transfer to the wife’s account $700 with the description ‘Term 3 School fees’.

In relation to the payment of school fees, the wife relies on three authorities: Mee & Ferguson [1986] FLC 91-716; T & T [1984] FLC 91-588; and Farmer & Farmer [2007] FamCA 158. This argument is also relevant to the wife’s application for a child support departure order.”

Le Poer Trench proceeded to examine those and other authorities and relevant provisions of the Child Support (Assessment) Act 1989, such as s 114 (parents to share equitably in the support of their children); 117 (matters relevant to departure from a child support assessment); s 118 (orders which may be made) and ss 111 and 112 (restrictions upon amending assessments more than 18 months old).

Le Poer Trench concluded at paras 182-184:

“Given all the matters relative to the trust as set out above I am of the opinion that on balance the payment of school fees from the sale proceeds of the Queensland properties are or are capable of being categorised as distributions under the trust to the children. To the extent that all the necessary declarations and paper work necessary to comply with the conditions of the trust have not been complied with I accept that as the wife controls the trustee she has the capacity to remedy that failure. Such is impliedly conceded by the husband in his submission above referred to. The husband has a concern that the payment made to the children attracts taxation. That may or may not be so. It seems on the evidence available that the distribution was of capital rather than income. It was the wife’s evidence that the income earned by the trust from renting the properties it owned was insufficient to pay all the outgoings and it was necessary for the wife and/or the parties to meet the shortfall.

I also consider there is a clear inference from the construction of the trust deed that the parties had anticipated that the trust would primarily benefit their children. The payment of school fees for the children by the trustee is clearly within the scope of the trust deed.

As a consequence of the above I would not accede to the husband’s submission that the sum of $63,970 paid from the proceeds of the sale of the Queensland property for the children’s school fees should be included in the balance sheet as an add-back against the wife.”

The wife had paid a further $116,886 for school fees, which included a payment of $63,524 for “school fees in advance to ensure the children were able to continue in their current school” (para 185) which she drew from her own inheritance.

In respect of the current school fees Le Poer Trench J concluded at paras 196-197, after examining s 117(4) CSAA (whether it would be just and equitable to make the order) and the evidence, including the financial circumstances of the parties:

“I conclude that the parties expected their children to be educated in private education and it is only the advent of the post separation financial circumstances of the parties which has caused the husband to review the proposal and now oppose the private education for the children.

Given all of the above circumstances coupled with the fact that the children’s school fees since the separation have largely been paid for from the parties’ assets I am of the view that they should bear the cost of that education equally.”

The wife’s payment of $63,524 for school fees in advance from her own inheritance was treated as a post-separation contribution under s 79(4) FLA (para 265).

Husband’s application to be re-appointed co-director dismissed

In Allan and Ors (No. 2) [2010] FamCA 998 (28 October 2010) Watts J dismissed the application of the husband, whom the court in 2009 had removed as director of the parties’ property development company, to be re-appointed as a director. The wife relied on the court’s earlier order which appointed her as the sole director when it had been found that the husband was being uncooperative and failing to account for his actions as director. 

Watts J concluded at paras 30-31:

“I do not have confidence that the wife and husband will be able to work together in relation to the M property proposal. The husband has demonstrated his lack of cooperation both in the Court proceedings and in the M property correspondence. The short meeting between the husband and the wife’s experts clearly showed his contempt for those who the wife is currently instructing. The husband gave no indication in the hearing that he would continue to instruct the current experts. I think it is very likely that should the husband and wife both be directors, there will be conflict between the two parties, disagreements as to who to instruct, disagreements as to the direction of the proposal and decisions that need to be made, and consequently an unworkable stalemate. I have no plan from the husband as to how he would proceed. Where the husband and wife are unlikely to be able to work together, and with a high level of uncertainty about the husband’s vision for the process, I cannot find that there is a basis for varying the previous injunctive orders which I have made, so that the husband be reappointed a director of W Nominees.

The evidence before me does not establish that the wife has done anything since she was given control of W Nominees or is currently doing or failing to do anything which will decrease the assets which the parties will eventually have to divide.”

De facto relationship declared to have existed – Emails and other documentation given weight

In Allenby & Kimble [2012] FamCA 614 (2 August 2012) the parties sought competing declarations under s 90RD FLA as to whether they were in a de facto relationship within the meaning of s 4AA or not. 

Murphy J heard evidence that the parties were in a “relationship” for about 10 years but did not live together until the last five of those years; that they did not own property together nor pool resources but did attend family events together, spend time with each other’s family and travel together. 

Upon reviewing the Act, case law and the evidence, Murphy J concluded at paras 91-92:“In decided whether this relationship meets the statutory criteria – whether it exhibits the required ‘coupledom’ – I attach particular weight to:

•      The fact that the relationship moved from a five-year phase in which each party can be seen to maintain their ‘separateness’ to a cohabitation;

•      The fact that the parties shared the master bedroom;

•      The fact that Mr Kimble modified a property owned by him specifically to permit Ms Allenby to conduct a business from it, yet he drew no financial gain from that business;

•      The intermingling of the parties’ respective families centreing on Mr Kimble’s denial of same;

•      The fact that drawing of a specific form of statutory agreement was pursued some 18 months after being mooted and after co-habitation commenced;

•      Evidence from Mr Kimble’s former solicitors as to his instructions and their advice would not have assisted his case;

•      Email communications post-September 2007 are redolent of a relationship not of friendship but, rather, of a couple sharing information.

By reference to all of the circumstances of this case, I am persuaded that it is more likely than not that the parties were in a relationship as a couple living together on a genuine domestic basis and that they were so for more than two years ending at a point after April 2009.”

Father fails in application to restrain mother from using her maiden name for child instead of father’s surname as registered – Young child had always used mother’s maiden name – Found that child’s name was not an issue for child who would be confused by a name change 

In Ambrose & Bead [2017] FCCA 681 (21 March 2017) Judge Henderson heard the father’s application for an injunction restraining the mother from using any name for their pre-school aged child (“X”) other than the child’s registered surname (“Ambrose”) where the mother had been using her maiden name (“Bead”) for the child’s surname since the child’s birth. The mother wished to continue to use that name but was prepared to accept a hyphenated surname.

The Court said (from [15]):

“The father may well be, and clearly is, furious that the mother does not use his son’s registered name on his birth certificate, namely his surname, Ambrose, to describe X in official documents such as enrolment at school and the like. That anger or the consequence of the mother’s decision is not something that X should have to deal with. Thus, I trust that this behaviour, if it is occurring, will no longer occur for there is no doubt the father is very attached to his son.

[16]     The mother asserts that she told the father she wanted X to have her surname because the parents really did not cohabitate for any significant period after X’s birth. The mother’s case is that the father wasn’t ready to be a father and effectively left her on her own with her son, as a form of abandonment.

[17]     The mother asserts that she told the father she was using her surname, Bead, as X’s in August 2013 and that the father has known since at least that time that this is the surname she has used for their son.

( … )

[21]     The father’s case is that the child having a different surname to him will alienate him from his child. The father makes this assertion despite final orders for the child to spend ultimately significant and substantial time with him during holidays, weekends, festivals, and before and after school as he ages. The father is clearly, by the orders and by consent, involved in all aspects of his son’s life. The surname of his son is an important issue for the father. However it seems to me it is much less significant or important for X.

[22]     It is clear from both the mother and the father’s material, and particularly from the father’s affidavit … that X is confused at times about his surname.

( … )

[24]     [At] [p]aragraph 38 the father says:

‘Ms Bead has engaged in a pattern of conduct of unilaterally making decisions about X as to care/education and other matters such as the use of the surname “Bead”. If X’s surname is changed from “Ambrose”, I am concerned it will continue to make it more difficult for me to practically fulfil my duties and responsibilities to X in circumstances where on a practical level Ms Bead is, and will continue to be, the parent who has the primary, in timing and frequency, contact with others involved in X’s life such as at his place of education, healthcare, sporting and other activities and otherwise.’

[25]     That assertion by the father … is simply incorrect … [T]he surname of a child in no way … has any impact upon the parents’ capacity or obligations and duties to their child, or their capacity to parent their child or be involved in all aspects of their child’s life. If the father just thinks on this, it would mean that for a mother who did not change her surname from the name she had at marriage, but whose children have the name of their father, would also find it more difficult to practically fulfil her duties and responsibilities to her children. That … simply is not the case. The surname a child has is absolutely no impediment whatsoever to a parent exercising parental responsibility and this father is well placed to exercise parental responsibility towards his son.

( … )

[27]     I do not accept that for X having a separate surname, or a different surname to either of his parents, would impact on his relationship with them. He is their child, they are his parents, and his surname or his parents’ surname is not an issue for X. It is an issue for his parents however, that is clear. X is cognisant of this dispute, clearly, on the evidence. He has, in his short life, always known himself to be X. This is raised by both parents in their affidavit.

( … )

[29]     The order that the father seeks will change the usual arrangements for X; that being that X’s surname, which is now Bead, would be changed to Ambrose. The reality is that to change X’s surname now to Ambrose will confuse X. Of that I am clear …

( … )

[31]     The father does not want a hyphenated name as the mother [has] proposed and, therefore, I will not make that order.

[32]     When I go to the case law, I turn to the decision of Flanagan & Handcock [[2001] FamCA 189] … The children in that case, as here, had a clear sense of identification with their father and it was inappropriate, the Court found, to ask the mother to change the surname she had chosen for the children. X has a clear identification, knowledge of his father and understanding who his father is and to change his surname now would be merely confusing for the child.

[33]     In … Mahoney & McKenzie [[1993] FamCA 78] … a hyphenated name was determined by the Court to be an order in the children’s best interests as that would reflect each parent’s surname for the child. However, the father does not agree to a hyphenated name …

[34]     I do not have any concerns that X does not know who his father is; he clearly does know who his father is. Additionally in their decision, the Court determined to change a children’s surname to their father’s name to ameliorate the father’s resentment and anger at the children not having his surname, and that that such an order would make it easier or better for them in terms of their relationship with their father.

[35]     If I had formed the view that that was the attitude of Mr Ambrose, then I would be concerned to make any orders for Mr Ambrose to spend time with his son. However, that is not the attitude of this father. He will never have anger or resentment towards his son for decisions the Court may make. One would question in this day and age how the Court could have even made the order they did it in the factual circumstances that are described. These types of applications are clearly, when one has a look at these cases, very much fact-based and very specific to the facts of each case.

[36]     I am most concerned at this stage that to change X’s surname now to Ambrose when he has known himself as X, and not have some hyphenation of both names, would be significantly confusing to X and I do not see that that this is then an order in his best interest and, therefore, the father’s application cannot succeed.”

The father’s application was dismissed.

Spousal maintenance – Child support departure – Departure application was determined first – Administrative assessment departed from so as to add payment of school fees by husband – Order for interim spousal maintenance 

In Anderson [2014] FamCA 766 (16 September 2014) Macmillan J heard the wife’s applications for interim spousal maintenance and departure from an administrative assessment of child support. The wife worked part-time in education and the husband was a partner in a law firm. The parties had three children aged 12, 6 and 5 while the husband had a child of his current de facto relationship, aged 1. It had been jointly decided to send the children to a private school (para 5) and “during the marriage the wife’s parents paid half of the children’s school fees and expenses” (para 7).

The husband’s “profit share for the year ending 30 June 2014 was $711,000 gross” (para 38) while the wife’s income was $971 per week or about $50,000 per annum (para 48).

An order was made by consent on 4 February 2014 for payment of school fees and expenses by the husband. Macmillan J at para 11 expressed doubt as to the source of power for that order and said (at paras 17-18):

“ … whatever the husband’s intention may or may not have been at the time the orders were made, the order made 4 February 2014, which I am satisfied could only have been made pursuant to s 139 [an urgent maintenance order under s 139 of the Child Support (Assessment) Act made after an application had been made for an administrative assessment], ceased to have effect on 17 February 2014 when the assessment issued. I do not accept counsel for the wife’s submission that this is simply a case of non-compliance with s 125 of the Assessment Act and can be remedied under the slip rule.

It is, however, open to the wife to now seek an order for non-periodic child support … rather than, as had been assumed by both parties, the husband seeking to vary an already existing order for departure.”

Macmillan J continued (from para 21):

“…     The husband’s obligation to pay child support is a matter I must consider in determining what, if any, obligation he has to pay spousal maintenance. On that basis, both parties agreed that the appropriate course would be for me to determine the question of the child support payable by the husband and then determine the question of what, if any, spousal maintenance the husband ought to pay for the wife’s support.

[22]    On this basis, the issues I must determine are as follows:

*        whether there should be a departure from the child support assessment and, if so, how much should the husband pay for the children of the marriage and in what form; and

*        what, if any, spousal maintenance the husband should pay and in what form.”

After referring to the “three-step process” for a departure application as identified in In the marriage of Gyselman and Gyselman (1992) FLC 92-279, the Court said (from para 27):

“…     The husband’s case is that he should pay the wife $5,000 per month or effectively $1,154 per week for the support of all three children. He also seeks orders directing how that payment or payments should be applied. Insofar as the current assessment requires the husband to pay $2,295 per month or almost $530 per week, this appears to be a concession on his part that a departure from the assessment is appropriate.

[28]    The wife’s case is that the husband should pay the periodic payments he is required to make pursuant to the assessment and, in addition, pay non-periodic child support by way of the children’s educational expenses at L School, inclusive of all tuition fees including arrears, levies, uniforms, books, stationery, computer requirements, excursions and extra-curricular activities.

( … )

[49]    … I am satisfied that the wife’s income is not sufficient to meet the reasonable needs of the children and that she requires the ongoing periodic child support payments from the husband to support the children. It is then a question of whether the husband can afford and should be required to also pay for the children’s education expenses and whether those education expenses or any part thereof should be substituted for periodic child support payments.

[50]    Neither party is suggesting that the children should not attend L School. The husband’s case is predicated upon the wife paying half of the school fees. Given the wife’s income, she clearly could not afford to do so and that could only be on the basis of the wife’s parents paying her share. The wife’s parents do not have a legal obligation to do so.

[51]    … allowing for all of the husband’s expenses, including the amount he says he spends on legal fees and disregarding the sum of $1,153 he says he is paying for educational expenses, the husband would have an excess of income over expenditure of approximately $1,683 per week. If I were to deduct the husband’s legal expenses of $1,615 per week that excess of income over expenses would be approximately $3,300 per week.

[52]    I am satisfied that in all of the circumstances of this case it is both just and equitable that the husband be required to continue to make the periodic payments pursuant to the assessment together with an amount sufficient to meet the cost of the children’s educational expenses. I have in reaching that decision had regard to the matters set out in ss 117(4) and 117(5) of the Assessment Act, including but not limited to:

*        the primary obligation of the husband and the wife to support the children;

*        the respective financial circumstances of the husband and the wife and, in particular, the husband’s income which is by community standards substantial;

*        the commitments of the husband and the wife to support themselves and, in the case of the husband, his new partner, their child and his partner’s child; and

*        the needs of the children and, in particular, the manner in which the parties have chosen to educate the children.

[53]    I am also satisfied, having regard to s 124 of the Assessment Act, that it is in all of the circumstances of this case both just and equitable and otherwise proper to make the order for the non-periodic payments sought by the wife in her initiating application.”

As to spousal maintenance, the Court said (from para 66):

“        … the wife sought interim orders ‘by way of spousal maintenance’ that the husband pay all principal and interest in respect of the loans secured by mortgage registered over the properties …

( … )

[90]    The circumstances in this case are that there is an arrangement between the wife and her parents that they will take responsibility for the mortgage ‘come what may’ and it is only a question of timing. There is, in those circumstances, some artificiality about the wife’s application that the husband pay the mortgage payments or that she is unable to support herself adequately unless the husband makes those payments.

( … )

[92]    Although I am not satisfied that it is either necessary for her adequate support or, for that matter, affordable for the wife to retain the former matrimonial home save and except as may be made possible by her parents, it does not necessarily follow that the husband does not have an obligation to contribute to her support.

( … )

[94]    Based upon the figures in her financial statement the wife has a shortfall of approximately $367 per week. I am also mindful of the fact that, of necessity, some part of the wife’s expenditure, for example rates and house insurance, is referrable to the support of the children. I have however also had regard to the fact that the expenditure both the husband and the wife have identified in their financial statements, whether or not it was reflective of their standard of living during the marriage, may no longer be either realistic or sustainable.

[95]    … Based upon a weekly income of $13,673 and after payment of income tax of an estimated $5,240 per week, and after payment of periodic – and non-periodic child support pursuant to the orders I propose to make – of approximately $1,672 per week, the husband will have approximately $6,761 per week to meet his ongoing weekly expenses. Those expenses, on the basis of his most recent financial statement, but excluding his legal fees and the amount he includes for the children’s educational expenses, are $5,134 per week.

( … )

[97]    This is not and cannot be an exact mathematical exercise. ( … )

[98]    Doing the best I can on the evidence before me and mindful of the fact that the orders I am asked to make are interim orders based upon untested evidence, I am satisfied that even without the obligation to make mortgage repayments or pay rent for alternative accommodation, the wife is unable to adequately support herself.

[99]    I am also satisfied that the husband … has the capacity to contribute to the wife’s support and that it is proper in all of the circumstances that the husband pay the sum of $350 per week for the wife’s maintenance.”

A departure order was made to provide that in addition to the administrative assessment of child support the husband pay as non-periodic child support the children’s school fees and specified expenses and an order was made until further order that the husband pay the wife spousal maintenance of $350 per week.

Interim hearing – Court’s approach to parent’s mental health issues

In Anderson & Jones [2011] FMCAfam 519 (25 March 2011) the father at an interim hearing questioned the mother’s capacity to care for the parties’ 14 month old child due to the mother’s mental health issues. 

Halligan FM said this at paras 12-18 and 20:

“The critical issue … is the father’s suggestion that there are good reasons for concern about the mother’s capacity to properly care for the child. This arises as a result of her admitted mental health conditions, being obsessive compulsive disorder, severe post-natal depression and anxiety depression. These are the terms the mother uses herself.

The mother certainly has had a hospital admission history since about June of last year and continuing into this year that would seem to suggest that she has been suffering acute psychiatric episodes. In that period of time there have been two involuntary admissions. There [have] also been two voluntary admissions. All of these have been to psychiatric hospitals. She continues under the care of a psychiatrist under an acute mental health team. She has visits weekly from a mental health nurse. But the mere fact that the mother suffers from mental health issues does not per se prove that she cannot care for a child.

… I would be looking to see whether or not there is evidence upon which the court might have genuine concern, either that the intrinsic nature of any condition that the mother suffers poses a risk to the child or, alternatively, if untreated and there is evidence to suggest that it is not being properly treated or medicated, that it may constitute such risk. No such submission was made to me.

There is evidence to suggest, as I say, that the mother for her own welfare has been involuntarily hospitalised twice last year. There is within the medical records that have been produced indications that at different times the mother may have been less than compliant with medication regimens recommended by her treating doctors.

On one occasion, the mother [had] left hospital contrary to medical opinion when she was a voluntary patient. On another occasion when she was an involuntary patient, she was discharged from involuntary care by a magistrate, despite medical opinion suggesting that she should remain in that facility.

But the difficulty I have in the father’s position is the care arrangements he agreed to post separation and what he did post separation. At separation he left the mother and the child in the Lake Macquarie area and moved to the Central West. That is not consistent with any then existing immediate concern for the safety of the child. He then agreed to a fortnight-about equal time care arrangement and, whatever else might be said about the appropriateness of that sort of an arrangement for such a young child, it is hardly consistent with a concern that the mother may be a risk to the child.

Rather, the submission that was made was that after separation the mother sought and received the assistance of her father and stepmother and there is no issue about that. She did, and appropriately so. She was having difficulty handling the emotional turmoil flowing from the breakdown of her relationship. She was also suffering severe post-natal depression. Rather than a matter of criticism of the mother, it is a matter of reassurance that she sought appropriate support. And the appropriateness of the support she sought is amply verified by the fact that it is the very people from whom she sought support that the father suggests should be the supervisors of the mother’s time with the child.

( … ) She is continuing with engagement with mental health support services, both a psychiatrist and a mental health nurse. At that stage, I cannot see anything on the evidence which would cause me serious concern at present about the welfare of the child in the mother’s care. This is very much a preliminary view without even the level of evidence that might usually be available for an interim determination, limited and circumscribed though an interim determination may be. But I have been specifically asked by the father to make a determination at this stage and I, therefore, do so and the effect of the evidence, as I say, is insufficient to bear out the father’s expressed concerns which seem to me, in large measure, the basis for his claim.”

Property – Full Court upholds decision that leave to proceed out of time is not required in the case of a foreign divorce

 

In Anderson & McIntosh [2013] FamCAFC 200 (13 December 2013) the Full Court (Bryant CJ, May & Thackray JJ) considered a first instance decision where the Family Court (McIntosh & Anderson [2013] FamCA 164 summarised at our online “case notes – property”) had held that the 12 month time limit to institute property proceedings under s 44(3) of the Family Law Act refers to a divorce order made under the Family Law Act, so that the time limit would not apply in respect of a divorce issued in a foreign jurisdiction.

The parties had married in Australia but divorced in a foreign country. A property order was made in that country limited to property within that jurisdiction. Upon the wife later applying for property orders under the Family Law Act, the husband unsuccessfully argued that the wife should seek leave under s 44(3) before her application could proceed. At first instance, Murphy J examined the section, its legislative context and use of the expression “divorce order” as opposed to “divorce”.

On appeal Bryant CJ and Thackray J delivered separate reasons but the entire court dismissed the appeal.

Summarising the first instance decision, Bryant CJ and Thackray J said (at para 13):

“Endeavouring to do justice to the comprehensive reasons of the trial judge, we summarise his conclusions as follows:

•        When the Act commenced in 1976 there was no provision for applications for property settlement to be made other than in relation to an Australian divorce and s 44(3) therefore had no application to overseas divorces;

•        An amendment made in 1983 enabled an application for property settlement to be made in relation to an overseas divorce and s 44(3) was also amended to extend the time in which an application could be made for property settlement from 12 months following the granting of a decree nisi to 12 months following the granting of a decree absolute, but nothing suggests that the two amendments were connected;

•        Amendments made in 2005 altering terminology in the Act from ‘dissolution of marriage’ to ‘divorce’, and ‘decree nisi’ and ‘decree absolute’ to ‘divorce order’ maintained the differences between the two concepts that have always existed.

•        The difference between the two concepts remains crucial to the interpretation of s 44(3) in its current form.

•        Properly construed s 44(3) has no application in cases involving overseas divorces.”

In dismissing the ground of appeal as to the trial judge’s differentiation between the terms “divorce” and “divorce order”, Bryant CJ and Thackray J said (from para 70):

“…     In our view, the amendment made in 1983 to allow property settlement proceedings to be commenced in cases where there has been a divorce overseas, sits happily with the time limit in s 44(3) continuing to apply only in proceedings where a ‘divorce order’ is made in Australia. Those who approach the courts in this country seeking a divorce can be assumed to know the law of this country, including that there is a limitation period on making application for property settlement after the divorce is granted. Furthermore, s 56 of the Act requires a certificate to be prepared after the divorce takes effect and such certificates give notice to those who receive them of the existence of the limitation period.

[71]    Parties who obtain a divorce overseas are not to be taken to have these advantages. True it is that an application for property settlement might therefore be made in a particular case many years after an overseas divorce, but, if that occurs the other party would not necessarily be without a remedy (Bevan & Bevan (2013) FLC 93-454). And if it is considered that the application of different rules to parties who have divorced overseas to those who have been divorced locally leads to unjust results, then it would be a simple matter for Parliament to amend the law.”

May J said at paras 150-153:

“…     In my view, the legislation is clear. ‘Divorce order’ relates to a divorce obtained pursuant to the Family Law Act. The statutory limitation in relation to property settlement applies only to parties to a divorce order.

[151] No part of the legislation, including the definition of ‘matrimonial cause’, would lead to the conclusion that the term ‘divorce order’ should apply to a divorce obtained overseas by order or otherwise. The term ‘divorce order’ is used consistently throughout the legislation – pertaining to Australian divorces exclusively.

[152]  It may seem to be an anomaly that foreign divorces recognised under Australian law do not have the same temporal limitations imposed where the parties seek a property settlement in this country. There is no doubt that a divorce may be obtained in another country with different administration and different limitation periods. The Act clearly has provided a limitation period only for Australian divorces.

[153] For these reasons, it cannot be accepted that, on an ordinary construction of the relevant sections of the Act, an application for property settlement in circumstances where there is a foreign divorce recognised pursuant to s 104 requires leave after the expiration of the time provided by s 44(3).”

Married couple’s renewal of vows inadvertently resulted in registration of a second marriage – Court declares second marriage invalid under s 113 of the Marriage Act 

In Anouihl & Temke [2017] FamCA 325 (18 May 2017) Foster J heard an application by a married couple in a case where the parties were married in 2008 in a civil ceremony held at the Registry of Births, Deaths and Marriages in Suburb D NSW. In the following year a religious ceremony was held which was celebrated with friends and family. After separation, the husband filed an application for divorce but discovered that the second marriage had inadvertently been registered under the Births, Deaths and Marriages Registration Act 1995 (NSW). The husband applied for a declaration that the second marriage was invalid, the wife agreeing with that application. 

Foster J said (from [8]):

“Section 113 of the Marriage Act 1961 (Cth) … makes statutory provisions as to second marriage ceremonies.

[9]       Section 113(5) relevantly provides:

(5)       Nothing in this Act shall be taken to prevent 2 persons who are already legally married to each other from going through a religious ceremony of marriage with each other in Australia where those persons have:

a)        produced to the person by whom or in whose presence the ceremony is to be performed a certificate of their existing marriage; and

b)        furnished to that person a statement in writing, signed by them and witnessed by that person, that:

(i)        they have previously gone through a form or ceremony of marriage with each other;

(ii)       they are the parties mentioned in the certificate of marriage produced with the statement; and

(iii)       they have no reason to believe that they are not legally married to each other or, if their marriage took place outside Australia, they have no reason to believe that it would not be recognised as valid in Australia.

[10]     Regrettably at the time of the later marriage ceremony the then already husband and wife failed to comply with the formal provisions as to notification provided in the section. The wife asserts that … she and her husband had informed the celebrant that there was an earlier registered marriage in 2008 … [and] when they completed documentation to facilitate the religious ceremony that she and the husband were not aware that the celebrant would forward documentation for registration …

[11]     In the event that the celebrant had been properly notified in accordance with the provisions of section 113(5) then that celebrant was not to:

a)        prepare or issue in respect of it any certificate of marriage under or referring to this Act; or

b)        issue any other document to the parties in respect of the ceremony unless the parties are described in the document as being already legally married to each other.

[12]     It is clear that in circumstances where the parties were already married the subsequent ceremony had no legal effect on their status as a married couple and that the subsequent registration of the ceremony as a registrable marriage was in error and in breach of the provisions of the Marriage Act 1961.

[13]     Section 113 of the Family Law Act 1975 (Cth) provides:

Proceedings for declarations

‘In proceedings of the kind referred to in paragraph (b) of the definition of matrimonial cause in subsection 4(1), the court may make such declaration as is justified.’

[14]     The relevant definition of ‘matrimonial cause’ is:

b)        proceedings for a declaration as to the validity of:

(i)        a marriage; or … 

[15]     The terms of section 113 permit the Court to provide such declaration in circumstances when it ‘is justified’ in the matter. It is well settled that provided there is a satisfactory reason for making a declaration and it is warranted a court may proceed to do so.

[16]     In this matter the applicant and respondent have demonstrated that there is a satisfactory reason for making the requested declaration and that the declaration is warranted so as to appropriately resolve the validity or otherwise of the religious ‘renewal of the vows’ that unexpectedly resulted in the formal registration of a second marriage.”

Short childless marriage – Significance of wife’s IVF treatment – Husband’s initial contributions comprised 96.5 per cent of the pool – Error in trial judge’s approach – A court’s approach to “comparable cases” 

In Anson & Meek [2017] FamCAFC 257 (7 December 2017) the Full Court (Murphy, Aldridge & Cleary JJ) heard the husband’s appeal against Judge Hughes’s property order in a case between a childless couple who were married for 5 years. The wife left her job as a CEO (with a salary package of $180,000) to live with the husband in East Asia before the couple returned to Melbourne. The wife had unsuccessfully undertaken IVF treatment during the parties’ pre-marital cohabitation. A year before cohabitation the husband bought a farm in his name for about $1,070,000, contributing $400,000 of his savings to the purchase and borrowing $750,000. He owned 96.5 per cent of “the property of the parties or either of them” at cohabitation. At trial the farm had increased in value to $1,860,000 and total assets in Australia were valued at about $2 million.

The husband owned pre-marital assets in “Country T” of $1.76 million in value which were considered in a separate pool as to s 75(2) only. Judge Hughes assessed contributions as to the $2 million pool as 80:20 in favour of the husband and made a 20 per cent adjustment in the wife’s favour for s 75(2) factors, being a division of 60:40 overall. The husband appealed.

Murphy J said (from [30]):

“Her Honour [made] … an ultimate finding that during the … relationship … contributions … should be assessed as equal. …

[31]   One of the constituent findings comprising th[at] conclusion … is her Honour’s acceptance, relying principally upon a decision of Watts J in Lee &  Hutton [(2013) 50 Fam LR 322] that the (distressing and difficult) steps undertaken by the wife in seeking to become pregnant, and in particular the failure of those attempts, ‘ought to be taken into account as contributions’ … One part of that contribution is not embraced by the ultimate finding of equality of contributions during the relationship because it falls within the pre-cohabitation period: the wife sought to become pregnant, but failed in mid-2007, some nine months before the parties married.

[32]   The second finding falling outside those comprising the finding of equality during the relationship also occurred pre-cohabitation. Her Honour found that the wife made a non-financial contribution to the acquisition of the farm by providing advice as to its purchase as ‘she had expertise in the area’ and ‘made suggestions about boundary surveys, Occupational Health & Safety issues and insurance’ …

[33]   Thirdly, her Honour found that the wife’s ‘non-financial contributions … continued well after separation in March 2013 as she looked after the farm while the husband was overseas in May, July and October 2013’ …

( … )

[35]   No ground of appeal relates specifically to contributions during the post separation period but, in my respectful view, the husband’s contributions during that time were a very relevant consideration but were not at all referred to by her Honour in the reasons.

[36]   The fourth finding falling outside the rubric of equal contributions made during cohabitation relates to the husband’s direct financial contribution to the farm. … [He] contributed about $400,000 in cash to its purchase. Her Honour described the husband’s direct financial contribution as ‘overwhelming’ … and ‘significantly greater’ than the wife …

[37]   ( … ) Expressed in percentage terms, the husband held 96.5 per cent of ‘the property of the parties or either of them’ at the commencement of cohabitation and the wife 3.5 per cent. The nature of the parties’ respective interests in property did not change during the parties’ five year cohabitation.

( … )

[47]   Her Honour was, of course, entitled to take account of the increase in the value of the major asset the subject of the proceedings and to take account of the contributions of all types made by each of the parties (including, of course, indirect financial contributions and contributions, relevantly, as a homemaker) during the period in which the value increases. However, her Honour considers only one such matter: the equal contributions that each party made during their relationship; in my respectful view her Honour does not at all take account of other relevant considerations in that respect.

[48]   … The farm was purchased by the husband about a year before cohabitation commenced. The increase in value embraced a period of about eight and a half years … which included the period of cohabitation and the approximately two and a half year post-separation period (which represents about 30 per cent of the cohabitation period). Obviously, contributions made by the wife, equal to those made by the husband, during the period of cohabitation were also relevant to the increase in value over the whole of the eight and a half year period. However I am unable to see how the contributions made during nearly a third of that period, when the husband occupied the farm, could be assessed as anything other than favouring the husband.

( … )

[50]   The increase in value of the farm and the finding which her Honour made in respect of it were central to her Honour’s ultimate percentage assessment of the respective contributions of the parties. Respectfully, those findings failed in my view to take account of the material relevant considerations to which I have referred.

[51]   I am also of the view that her Honour failed to take account more broadly of the contributions of all types made by each of the parties in the two and a half year post-separation period which, in the context of a marriage of this duration, were very relevant.”

Murphy J then considered Her Honour’s reference to comparable short marriage cases, the trial judge having referred to Blanks [2006] FamCA 354; Douglas [2006] FamCA 1291; Hsieh & Chow [2007] FamCA 470; Kennon [1997] FamCA 27; Russo & Dorsey and Anor [2014] FamCA 467; Shewring (1988) FLC 91-926; and W & W (unreported, Full Court of the Family Court of Australia, Baker, Lindenmeyer and Smithers JJ, 28 January 1997) and said (at [113]-[114]):

“One of those cases, Hsieh, speaks of a result similar to that arrived at by her Honour. However, if that case or features of it were instrumental in informing her Honour’s assessment it is not apparent from her Honour’s reasons. Nor do any reasons indicate the features of that case have been compared with the features of the other cases cited to her so as to inform a conclusion of dissimilarity with the present case. Her Honour’s reasons do not reveal any consideration at all of the factors within those cases which favoured comparability with the facts before her. I am unable to see where her Honour gave any explicit reasons for rejecting what was submitted to her as matters of genuine comparability.

Failure to undertake that analysis is, in my respectful view, a failure to take account of relevant considerations in the exercise of discretion and manifests an inadequacy in the reasons.”

On this point, Aldridge & Cleary JJ said (from [126]):

“We do not consider that the existing authorities obliged the primary judge to consider the comparable cases at all, let alone obliged her to conduct an analysis of the comparable cases so as to identify both the factors that indicate a lack of comparability and those that do not.

( … )

[128]  [In Wallis & Manning (2017) FLC 93-759] … the Court … did not suggest that comparable cases could or should be used to set a range     or a norm by which cases should be determined. However, if the aim in the use of comparable cases is ‘to promote consistency in results’ or for similar cases to be treated similarly, then we respectfully suggest that is, in fact, the identification of a norm of some kind.

( … )

[132]  In addition to rejecting the concept of establishing a norm or a range, the [cases such as Planet Fisheries Pty Ltd v Rosa [1968] HCA 62] … seem to us to speak directly against the express consideration of comparable judgments at all.

( … )

[137]  There is thus a significant and well-established line of cases that point firmly away from the direct comparison of cases said to be alike in some way but that permit a court to be ‘aware of and give weight to current general ideas of fairness and moderation’ (Planet Fisheries at 125).

( … )

[154]  … [C]omparable cases cannot be used to set a norm or a range and cannot control the exercise of discretion.

( … )

[158]  In our opinion, the fact that two different judges acting upon the same evidence may properly reach different conclusions greatly diminishes the value of comparable cases. … The concern is amplified when the Court is proffered just a selection of cases said to be comparable as opposed to an analysis of all cases that could be said to be comparable.

( … )

[164]  To the extent that Wallis permits a judge to have regard to comparable cases for a purpose other than to achieve consistency in the application of principle, we will simply repeat that this is merely the impermissible setting of a norm or range by another name.

( … )

[176]  If the authorities, including Wallis, do not impose any obligation on a trial judge to consider comparable cases then it follows that a judge cannot be in error in finding that any such cases cited to them were not of assistance.

( … )

[179]  … [W]e do not accept that a trial judge, or indeed an appeals court, is obliged to trawl through a slew of cases cited to them as comparable cases so as to identify a list of factual similarities and differences and then weigh these against the facts in the immediate matter so as to determine whether they are, in fact, ‘comparable’. Such an approach is contrary to authority and an unjustifiable burden on trial judges.

( … )

[181]  If the point is that, where there is a short marriage, where there are no children and where the parties’ contributions to their assets and to the welfare of the family from the commencement of the relationship to the time of the hearing is equal, any disparity in initial financial contributions is of critical importance in determining the overall contributions of the parties, then such a position is easily arrived at by the application of principle alone.”

The appeal was allowed and the matter remitted for rehearing.

Editor’s note – Not discussed in this case was Hoffman [2014] FamCAFC 92, a decision of a differently constituted Full Court (although it included Murphy J) in which the Full Court said at [59]:

“The facts of each case are, of course, unique to it and the discretion wide. But, that does not mean that like cases ought not provide a path to consistency in the exercise of the discretion. [cases cited]”