Subpoena – Subpoena to banks had a legitimate forensic purpose despite compelling documents beyond the date of the parties’ financial agreement

In Luna [2021] FedCFamC1F 343 (23 December 2021) Hogan J heard a wife’s objections to a subpoena issued at the request of a husband, where the husband sought bank statements to establish non-disclosure by the wife in their financial agreement.

The financial agreement disclosed the wife’s interest in a law firm at a “nominal” value, the husband’s case being that the wife had engaged in non-disclosed dealings that were such that he accepted that value; his ultimately seeking that the agreement be set aside.

The wife objected to the subpoena and argued that the subpoena was superfluous; that it was too wide by seeking documents beyond the date of the financial agreement; and that provision of particulars as to clients of the law firm would result in her breaching s 118 of the Evidence Act 1995 (Cth) and the Australian Solicitors Conduct Rules 2012.

The matter came before Hogan J by way of Review of a Registrar’s decision, where the Registrar had upheld the wife’s objections.

The Court said (from [15]):

“There is … a legitimate forensic purpose, given the husband’s … case. I am not persuaded that there is a lack of apparent relevance in the documents sought. Whether they, in fact, of course, assist the husband to establish the contentions he makes in the substantive proceedings is a matter for the trial. …

( … )

[18] [Queens Counsel for the wife] … focused upon the assertion that, given the contents of the Financial Agreement, the husband agreed that he had the opportunity to seek disclosure; he had a three-month period of time within which he could negotiate; that the obtaining of valuations and the assertion of value is ‘not a science’; and that he had agreed the value of the entity and the trust was ‘nominal’. In essence [Queens Counsel for the wife] … emphasised that, having regard to these terms recorded in the Financial Agreement itself, the husband ought not be entitled, having had what was described as ‘buyer’s remorse’, to now seek the production of further documents.

[19] As already noted … it is clearly established by authority that documents sought in a subpoena must have some relevance to the issues in the proceedings in which the subpoena have issued, and that a lack of apparent relevance will be a sufficient ground to set aside a subpoena. It has also been said … that as long as a subpoena have a legitimate forensic purpose, they will not be set aside. Whilst various authority have outlined a variety of formulations in an attempt to try to more clearly articulate the meaning of ‘legitimate forensic purpose’, that terminology seems to me to be sufficient …

[20] I am not persuaded by the submissions that the documents sought by the husband via the subpoena that had issued, which relate to or post-date the signing of the Financial Agreement, are, by virtue of the fact alone, irrelevant to the proceedings. … [G]iven at least one of the substantive grounds asserted by the husband in support of an order to set aside the Financial Agreement – being that the wife has allegedly engaged in fraud – and that he has allegedly entered into the agreement in circumstances which render the same unconscionable, a legitimate forensic purpose exists in relation to him being able to explore the possibility of transactions which occurred shortly after the Financial Agreement was signed.

[21] … I am not persuaded that there is a legitimate forensic purpose in the husband seeking documents that extend, in a temporal sense, far after the Financial Agreement was executed. Rather, it seems to me that the legitimate forensic purpose could be satisfied if the husband were able to seek the production of documents [up until] … the conclusion of the financial year in which the parties entered into the Financial Agreement.”

As to the wife’s objections as to the law firm’s clients, the Court said (at [24]):

“ … [I]t is appropriate … that the wife be permitted, either personally or via the actions of her legal representatives, to redact from the documents produced by the entity and also from the documents produced by each of the banks, in answer to subpoena if they are subsequently issued, the names of the clients of the practice.”

The Registrar’s orders were discharged; the subpoenas were set aside to the extent that they sought documents beyond 30 June in the financial year that the agreement was signed; and the wife was given liberty to redact the client names of the law firm.

Property – Court erred by not providing reasons when rejecting a valuation that was not from a single expert

In Cantoni [2022] FedCFamC1A 11 (7 February 2022) the Full Court (McClelland DCJ, Williams & Wilson JJ) heard an appeal from a decision of Foster J, reviewing an interim order for the sale of a dilapidated property made by a Senior Registrar.

The property had been subject of construction that had stalled, to the extent that it was “unattractive” and “rat infested” ([9]).

The husband sought interim orders for the immediate sale of the property, whereas the wife sought the appointment of a single expert as to value and orders for a builder to complete the construction, and for the property to be sold upon completion. The wife contended that an immediate sale would generate insufficient sale proceeds to pay creditors, whereas a sale after completion of the works would result in the payment of all creditors, with a surplus for the parties.

After the Senior Registrar ordered an immediate sale; the matter came to the Court for review, where Foster J refused the wife’s solicitor’s oral application for leave to rely upon adversarial evidence as to value, the only reason given being “she’s not a single expert” ([18]).

The Full Court said (from [22]):

“The obligation to give reasons varies with the circumstances of the case (Police Federation of Australia and Another v Nixon and Another [2011] FCAFC 161 … at [67]). The obligation to provide adequate reasons nonetheless applies both to final decisions and also to rulings made in the course of a trial including, relevantly, the admissibility of evidence. While there is generally no need to give detailed reasons when exercising a procedural discretion such as, whether in the context of this case the affidavit of [the adversarial expert] … should have been admitted into evidence, the reasons provided must nonetheless disclose the process of reasoning and allow a party and, indeed, an appellate court, to assess whether the judge has made an error of law …

[23] The primary judge in this matter was placed in an invidious position as a result of the appellant not having complied with the requirements of the then applicable Family Law Rules 2004 (Cth) (‘the Rules’). First, the appellant did not file a formal application seeking leave to rely on an adversarial report. Second, the appellant failed to support such an application with an affidavit addressing the requirements of the Rules as required of a party seeking to rely upon an adversarial report. …

[24] It is entirely understandable that, in the absence of evidence addressing each of those matters, the primary judge would have been reluctant to accede to the application by the appellant to rely upon the report of [the adversarial expert] …

( … )

[26] … [P]ermitting the appellant to rely upon the [adversarial] report … in the circumstances of the interim hearing would have deprived the respondent of rights that the respondent had, to ask questions of the witness … and to seek a conference with the witness …

[27] Nonetheless, it remains the case that … the primary judge did not, in giving reasons for rejection of the report … refer to those matters. Instead, the reason provided by the primary judge for rejecting the report … was solely that she was not ‘a single expert.’

[28] Those reasons were, with respect to the learned primary judge, inadequate.

[29] The failure of a trial judge to provide adequate reasons makes it impossible for the party aggrieved by the ruling and for an appellate court to determine whether the ruling was based on an error of law and, in those circumstances, the failure to give reasons will itself constitute an error of law …

[30] We are satisfied that such an error of law occurred in this case. In that respect we note that on one construction of that ruling it could be inferred that the primary judge rejected the tender on the basis of admissibility, namely, that a report from an expert other than a single expert was inadmissible in the proceeding. Such a construction would, of course, have been an error of law because r 15.51(1) of the Rules specifically stated that a party ‘must apply for the court’s permission to tender a report … from an expert witness, except a single expert’.

( … )

[34] [As to leave to appeal a] … relevant consideration is … the consequences to the appellant if leave is not given. That consequence is significant. If leave to appeal is not granted the subject property will be sold in which event there will be little if any residual assets for distribution to either party. This would have grave consequences for the appellant.

[35] In those circumstances and in circumstances where we have found error on the part of the learned primary judge, we give leave to appeal and uphold the appeal.”

The appeal was allowed and the matter remitted for re-hearing.

Children – Hague Child Abduction Convention – Father declared child’s guardian by an Irish court after mother abducted the child – Issue estoppel prevents mother arguing that the father had no rights of custody

In Barnett & Secretary, Department of Communities and Justice [2022] FedCFamC1A 20 (18 February 2022) the Full Court (Aldridge, Hogan & Hannam JJ) considered an order for the return of a child to Ireland pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

The mother was Australian but had moved to Ireland and had a child with the father there. Without the knowledge of the father, the mother left Ireland with the child on 30 August 2020 and commenced living with her family in Australia.

Within five days of the mother’s departure (5 September 2020), the father sought orders from an Irish court. An interim order appointing him as guardian was made in Ireland on 29 October 2020 and a declaration of guardianship was made in April 2021 pursuant to the Guardianship of Infants Act 1964 (IR).

At first instance, the Court relied upon the guardianship orders to the effect that the father had rights of custody as to the child on the day the child was abducted. The mother appealed, arguing that as the child left Ireland on 30 August, the father’s application on 5 September was brought when he had no rights of custody when the child was removed from Ireland.

Aldridge & Hannam JJ said (from [18]):

“In finding that the father had rights of custody in relation to the child, the primary judge relied upon the declaration made by the [Irish Court] …

[19] In particular, her Honour inferred from the declaration itself and the fact that any cohabitation between the parties ceased on 30 August 2020, that the [Irish Court] … must have been satisfied that the circumstances set out in [the Irish Guardian Act] … were met as at that date.

( … )

[21] … [H]er Honour concluded that the decision of the District Court gave rise to a res judicata and issue estoppel which bound the parties and thus could not re-determine any factual issues …

( … )

[35] … [W]hatever rights the father held amounted to rights of custody for the purpose of the Convention and Regulations, was a matter for the Australian courts …

( … )

[40] [The wife argued] … that the primary judge was entitled, if not obliged, to determine, for herself, whether the circumstances and the application of Irish law meant that the father had rights of custody as at 30 August 2020. …

( … )

[44] The mother submitted … [that neither res judicata nor issue estoppel] applies because:

(a) The declaration is only prospective and does not determine the position as at 30 August 2020;

(b) The facts that were found that led to the declaration being made are not known as there are no reasons …

(c) In the [Irish] … Court the father relied on events which occurred after 30 August 2020 … ; and

(d) The father sought an interim guardianship order … which indicates that the father did not have any rights at that time or, at least, he considered that he had no such rights.

( … )

[48] The parties accept that the declaration was prospective only and was not a declaration as to the father’s status on 30 August 2020. The father’s claim to be a guardian was recognised by the declaration. His right to seek such a declaration merged into the order which was made so that the declaration itself was the source of his rights thus giving rise to a res judicata. That declaration, however, was only as to the position from 12 April 2021 and did not determine the father’s claim that on 30 August 2020 he had an automatic right to seek such a declaration.

[49] We consider that the primary judge was not correct in relying upon res judicata.

( … )

[55] It is to be recalled that the declaration was founded on a satisfaction that … the definitions in [the Irish Act] … had been met. The periods of cohabitation referred to in them, which the declaration recognised had occurred, must have taken place before. They are the essential elements of the claim to be a guardian and must have been established for it to be made.

[56] It follows that the mother’s submissions have not been made out and the primary judge was correct in applying the principles of issue estoppel.

[57] … [I]t appears that the general requirement [of the Irish Act] is that the court shall regard the best interests of the child as paramount …

( … )

[59] The mother did not seek to challenge those findings but asserts that … [by making an application for interim guardianship] … the father accepted that, at that time, he did not have the rights that would entitle him to [guardianship] … The father’s subjective opinion cannot be relevant to the question of the effect of that order once made.”

Hogan J gave separate reasons but agreed with the dismissal of the appeal.

Property – Erroneous dismissal of the parties’ countervailing applications for sole occupation – Husband ordered to vacate property registered in the wife’s sole name

In Sarto [2022] FedCFamC1A 16 (10 February 2022) Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard countervailing applications for sole occupation of the former matrimonial home.

The wife had vacated the home upon separation, but sought an exclusive occupation order to move back in. She sought the order despite being the sole registered owner of the property. The husband had lived in the property since separation and sought a sole occupation order to continue living there.

At first instance, the Magistrates Court of Western Australia dismissed both applications. The wife appealed.

Austin J said (from [11]):

“… Being the sole legal proprietor of the property, absent an injunction to the contrary, [the wife] … is entitled to exclusive possession … There was and is nothing to prevent her from ejecting the husband from the property as a trespasser – forcibly and with police assistance if necessary. She could have initially remedied her grievance in that way without the need to bring her interim application, since the magistrate’s imprimatur was not needed to exercise the full measure of her legal rights in whatever lawful way she sees fit.

( … )

[14] Regardless of whether or not persons are married, property law governs the ascertainment of their property rights and interests (Wirth v Wirth [1956] HCA 71 …). Spouses do not enjoy communal interest in property which they happen to own individually (Stanford v Stanford [2012] HCA 52 … ).

[15] In any proceedings between spouses for property settlement under s 79 of the Act, the first task is to identify the parties’ existing legal and equitable property interests and consider whether it is just and equitable to make any property settlement order at all. …

[16] Here, the wife owns the property as … sole registered proprietor …

( … )

[19] The husband … seeks to obtain a property settlement order which substitutes him as the exclusive legal proprietor of the property, which the wife resists. But the success of the husband’s claim depends upon an eventual exercise of discretion in his favour under Pt VIII of the Act adjusting the spouses’ existing property interests. Unless and until that adjustment occurs, he has no proprietary interest at all in the property (Lin & Ruan [2021] FamCAFC 90 … ) and, in the meantime, his occupation of it is only lawful whilst ever the wife consents.

[20] In the face of the wife’s withdrawal of consent, the only way in which the husband could evade ejection from the property was by securing an injunction to restrain the wife from exercising the rights which attend her legal title. …

[21] … Evidently, the magistrate concluded it was not proper to do so, because the injunction sought by the husband was refused.

( … )

[24] However, the magistrate also refused to make the orders sought by the wife … The magistrate decided no order was necessary, but that conclusion was reached on the false premise that making no order at all would then permit the husband to continue residing in the property …

( … )

[26] The factors which the magistrate recited at the outset as being material considerations were either not relevant in this situation at all and were wrongly taken into account or, alternatively, were far outweighed by other factors which were influential but wrongly disregarded. For example:

(a) the magistrate identified the needs of the parties’ children as a relevant factor, but it was an irrelevant consideration because they are adults and have no proprietary interest in the parties’ assets … ;

(b) the wife’s exclusive legal title in the property and her immediate right to sole possession of it were overwhelmingly important considerations, but was mentioned only in passing by the magistrate because it was yet to be determined ‘who will retain the property on a final basis’;

(c) the magistrate found that, despite the wife living with her parents, she had paid ‘most of the expenses associated with [the property]’ since separation, because she owned it and the husband was unemployed, but the wife’s subsidy of the husband’s occupation of her property then made no difference to the outcome;

( … )

[27] Notwithstanding the magistrate’s errors of principle, both parties’ applications were dismissed. As the husband correctly acknowledged in the appeal, there has not yet been any alteration of the parties’ existing property interests … and so the wife’s legal rights remain intact. …

( … )

[30] The wife is the sole legal proprietor of the property. At this stage, the husband has not proven an existing equitable interest in the property. The husband is well able to live elsewhere and, for the discretionary reasons already canvassed, he has not demonstrated it would be ‘proper’ to grant an injunction depriving the wife of her legal entitlement to possession of the property. An order should be made requiring the husband to immediately vacate the property and restraining his return to it. That will enable the wife to enjoy her existing legal rights.”

The appeal was allowed and orders were made requiring the husband to vacate the property.

Property – Registrar erred when an application for consent orders was dismissed after husband’s death when wife withdrew consent – Whether an appeal is competent also discussed

In Hullet & Benton [2022] FedCFamC1A 13 (11 February 2022) the Full Court (Austin, Tree & McEvoy JJ) heard an appeal from Macmillan J’s decision in Hullet & Benton [2021] FamCA 449 (a summary of which is at our archived case notes – property under “death of a party”).

Upon a review of his decision, a Registrar was held by Macmillan J to have erred when an application for consent orders was dismissed following the husband’s death and the wife’s withdrawal of consent. Macmillan J held that the proceedings were not discontinued in such circumstances but could continue where the rules enabled the husband’s executor as legal personal representative to apply as to the future conduct of the proceedings.

The wife appealed, arguing that when determining the review application, Macmillan J’s power was limited to either granting the application for consent orders or dismissing it; the latter being the only option in the absence of the wife’s consent. She argued that an application for consent orders was a “different species of application to an adversarial application … and had to be treated differently” (at [10]).

The Full Court said (from [15]):

“… The existence of a ‘judgment’ is the pre-requisite for a competent appeal (s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘the FCFCA Act’)), for which purpose a ‘judgment’ is defined to include an order or decree, whether it be final or interlocutory (s 7 of the FCFCA Act).

[16] … [A] ‘judgment’ does not include a mere ruling on a question of law which is not decisive of the parties’ rights in the justiciable dispute, even if it is expressed in the form of an order …

[17] … [N]one of the orders amount to a ‘judgment’ since none is decisive of the parties’ rights under Pt VIII of the Act. The orders do no more than achieve the continuity of the proceedings. …

[18] Leave to appeal must be refused once it is understood that no appeal validly lies. However, since the incompetency of the appeal was not contemplated by either party … it is nonetheless worthwhile to briefly explain why it lacked merit.

( … )

[28] We … accept, as the executor contends and the primary judge found, that the wife’s submissions tend to conflate the concepts of ‘proceedings’ and ‘applications’.

[29] The Court is empowered under Pt VIII of the Act to make property settlement orders between spouses, but the power only derives from the existence of jurisdiction in a matrimonial cause, which jurisdiction does not necessarily exist simply because an application is filed.

( … )

[32] In this instance, the matrimonial cause was of the type prescribed in paragraph (ca)(i) of the definition and jurisdiction was enlivened under s 39 of the Act.

[33] Once jurisdiction exists and is regularly invoked, as was the case here, the proceeding comprises the matrimonial cause and is not determined until discretionary power under Pt VIII of the Act is exhausted. The proceeding is not comprised of merely the application which initiates the cause, nor determined by merely the grant or dismissal of that particular application.

[34] Whatever prescribed form the original application takes to invoke jurisdiction and petition the Court for the exercise of power, the power wielded under Pt VIII of the Act is exactly the same. The order made by the Court in the exercise of such power then finalises the matrimonial cause between the parties; not merely the application which initiates the proceeding, nor the various amended applications the parties subsequently make during the course of the proceeding. After the proceeding is validly commenced, the Court is enjoined to make such property settlement orders as are just and equitable; not just grant or dismiss the suites of orders for which the spouses individually apply.

[35] Due to the wife’s withdrawal of consent, neither the registrar … nor the primary judge … could make the orders for which the spouses originally jointly applied, but the dismissal of the proceeding was not then the only remaining option for the primary judge … The specific application for consent orders which started the proceeding had to be declined, but the proceeding for property settlement could not then be summarily dismissed without a hearing on the merits when one party still pressed for orders to be made under Pt VIII of the Act.

[36] The review conducted by the primary judge was a hearing de novo and, by then, the executor sought an order substituting him for the deceased, pursuant to the power reposing in s 79(8) of the Act, so he could then prosecute an application for property settlement orders, even if the wife might by then have been content with no orders at all being made.

[37] Given the wife expressly conceded these points in the appeal:

(a) she could not ‘unilaterally discontinue the proceeding’;

(b) her withdrawal of consent to the originally proposed orders ‘did not in and of itself end the proceeding’; and

(c) the Court had power to substitute the executor for the deceased in the proceeding;

it was puzzling that she persisted in submitting the property settlement proceeding could not be validly continued and ultimately concluded by different orders from those originally proposed by the spouses consensually.

[38] The incompatibility of the wife’s admissions and submissions can be easily demonstrated in this way: there would be no point in substituting the executor for the husband in the pending proceeding, as the wife admitted could occur, if the Court was then bound to simply dismiss the original application for consent orders, as the wife asserted must occur. …”

The appeal was dismissed and the wife ordered to pay costs of $15,000.

Children – Interim orders where eldest child estranged from mother; two middle children estranged from father; and younger twins spending regular time with father

In Regan & Regan (No. 2) [2021] FedCFamC1F 199 (16 November 2021) Baumann J heard competing applications where each parent sought orders to vary a previous interim order made by consent in respect of the parties’ 5 children, being V (14), W (12), X (10) and twins, Y and Z (4).

The consent orders provided for the eldest child (V) to spend time per his wishes, with the remaining children to live with the mother and spend time with the father each alternate weekend. Despite those orders, the eldest child was living with his father and refusing to see his mother, with the middle two children (W & X) living with their mother and refusing to see their father.

The Court said (from [6]):

“These apparent ‘alignments’ by the three older siblings must be somewhat confusing to the twins [Y & Z], who apparently happily pass from one home to another, every alternate weekend. …

( … )

[8] … On an interim basis, the Court must be cautious to make findings in such circumstances, save that I am easily satisfied that V’s relationship with the mother, and W and X’s relationship with the father, is currently (and hopefully temporarily) estranged.

( … )

[15] The mother’s immediate solution … is for V to live with her and … spend time with the father each alternate weekend from 8.00am Saturday to 5.00pm Sunday. The father says, in short, V’s wishes as expressed to Mr O and repeatedly, he says, expressed to him, to remain living with his father, should be respected, with V to spend time with the mother as he wishes.

( … )

[18] The mother says … that the wishes expressed by W and X should be respected and does not contend for any prescribed order compelling her to make the children available to spend time with the father (other than by FaceTime if the mother’s encouragement achieves that to occur). …

( … )

[23] Both parents say they wish all the siblings, to spend time together, however that has been stymied to a large extent by the inability for the father to so encourage V, that he spend time in the mother’s home (with the maternal grandmother) where his four siblings live. Furthermore, the inability of the mother to encourage W and X to spend time with the father (even at the same time as the twins happily attend) has prevented V from spending time with all siblings in his father’s rented unit.

[24] Courts should not be prepared to make orders they are not prepared to enforce, and at this stage, defined orders for V to either live with, or spend time with the mother are likely to be problematic. Similarly, the pressure on the younger children, W and X, both of whom are exhibiting anxiety and reluctance to spend time with the father, needs to be relieved for a period.

[25] Although … engagement [of a family therapist] is a positive development, there is an apparent need for the parents to demonstrate to the children, through actions and words, that the relationship with their siblings and with the parent they do not currently living with, is safe and beneficial to them. It is difficult to be confident, despite the assurances each parent gives in their affidavits, and their comments to [the family report writer] …  that since separation, both the parents have consistently delivered this important message to their children. I hope that the family therapy provides the forum to do so.

[26] Whilst I accept that if nothing changes, there is a chance that the alignments now demonstrated will get stronger, both these intelligent parents know such issues will be a disaster for their family.

[27] On balance, at this early stage where final separation occurred only five months ago, and the children (if not both parents) are grieving and adjusting to the loss of the intact family union they tried to create, I am not prepared to make any prescribed orders for either V, W or X.

( … )

[31] Finally, the mother sought to vary the interim consent order where an order was made that the parents have equal shared parental responsibility. There needs to be a principled basis to depart from the statutory presumption (see Vallans & Vallans [2019] FamCAFC 260 … ) and there is no evidence since the order was made in August 2021, to indicate an inability to make a sensible major long term decision. To the extent the mother relies upon the difficulties in continuing the private school enrolment, this issue seems to be related more to the payment of school fees, rather than any change of view that the parents hold towards the benefit of the children staying at their current school into the 2022 school year. …”

The interim orders were varied so that V was to live with his father and spend time with the mother in accordance with his wishes; and W & X live with the mother and spend time with the father in accordance with her wishes. Family counselling was also ordered.

Children – Subpoena – Children’s treating practitioners successfully object to subpoena – Risk of damage to the therapeutic relationship

In Alba and Alba & Ors [2021] FCWA 188 (18 October 2021) Duncanson J of the Family Court of Western Australia considered subpoenas to both attend Court and produce documents, issued by the mother against the treating therapists of 14 and 12 year old children.

The mother and father had been in “parenting proceedings since 2013” ([1]), the litigation also involving the children’s aunt and grandparents.

The therapists objected on the basis that the possible repercussions of their producing documents and giving evidence would “include negative long-term or irreparable damage to the therapeutic relationship and trust between the children” and the therapists ([4]). A therapist also contended that she did “not believe there is anything new these documents or my testimony could provide that would make the risk to [Child A’s] continued positive engagement in psychological services either justifiable, or ethically responsible” ([5]).

The Court said (from [8]):

“I turn to s 69ZN of the Family Law Act 1975 (Cth), which contains the principles for conducting child-related proceedings. The first principle is that: The court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

[9] I am of the view that until further order, the therapists should not be required to give evidence and there is to be no inspection of the documents produced by each of them.

[10] I have come to this view for the following reasons:

In 2019, [Ms F] reported at a time when there were difficulties in the children’s therapy: In 28 years of practice I cannot recall children more desperately in need of therapy and support than [Child A] and [Child B]. I cannot state strongly enough how important I think it is that these [children] get urgent and frequent access to therapeutic support.

– The importance of the children’s therapy therefore cannot be underestimated and in circumstances where it is asserted that the therapeutic relationship will be damaged, that is a risk I am not prepared to take.

– The information sought by the mother concerns the children’s day to day routine and activities. This evidence can readily be given by other parties including the father and the children’s teachers.

– The information available to these therapists has been provided with the children’s consent to Dr G. In other words, he will report on what he has been told by the therapists. The ICL indicated that Dr G will be asked to speak again to the therapists to update his information …

– While the information sought by the mother regarding the children’s day to day routine and activities and their reaction to the letter is important and relevant, it is only one of many aspects to this case, all of which will be taken into account in determining the children’s overall best interests and specifically their living arrangements.”

The Court ordered that there be no requirement for the therapists to give evidence and that there be no inspection of the documents produced.

Financial agreements – Solicitor acted for both parties such that the wife’s legal advice was not independent – Agreement set aside

In Bachman & Donohoe [2021] FedCFamC1F 240 (30 November 2021) Rees J heard a case where a de facto wife had transferred a half interest in a property to the de facto husband for $2,500,000, with the parties then signing a s 90UC financial agreement in 2016. The parties separated in 2019.

The de facto wife sought that the agreement be set aside, where although she had received advice from solicitor, “Ms D”, Ms D had acted for both parties in the transfer of real estate; Ms D and the parties to the financial agreement were friends socially and also owned interests together in a boat. Ms D had advised both parties in conference together, with the de facto husband being referred away to another solicitor for advice, five days before the agreement was signed.

The Court said (from [8]):

“… [I]t is not necessary to consider the nature and extent of the advice which was given [to the de facto wife] because I have concluded that the applicant did not receive any independent advice.

( … )

[16] In cross-examination, the respondent agreed that he had met Mr F, who is Ms D’s partner … and that Mr F had become a good friend. The respondent met Ms D in about 2008 and he attended social occasions with both of them from time to time.

( … )

[21] It is agreed that Ms D acted for both parties in relation to both the refinancing of the mortgage and the transfer of the interest in the Suburb J property.

( … )

[23] … [I]t is likely that instructions [to Ms D] were given informally and at a social event rather than in a formal conference in her offices.

( … )

[25] On 22 September 2015, a solicitor in Ms D’s firm sent an email to Ms D detailing the stamp duty exemption available to de facto couples transferring property between themselves. …

( … )

[37] The respondent agreed that Ms D provided legal advice to both of the parties in relation to the proposed Financial Agreement and that Ms D took instructions from both of them about the terms of the proposed agreement.

( … )

[41] … [I]t is clear that, by 26 October 2015, Ms D was acting for both parties in relation to the mortgage and the transfer of the Suburb J property and also discussing the proposed Financial Agreement with them.

( … )

[45] Ms D’s attention was drawn to Rule 11 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW). It was clear from her answers in cross-examination that she had not considered the possibility that there was a conflict of interest in advising both parties on the proposed Financial Agreement and, relevantly, the applicant had not given informed consent to her acting for both parties.

( … )

[53] The respondent conceded that, as at 14 April 2016, Ms D’s firm was still acting for both parties.

( … )

[76] A solicitor who acts for both parties cannot give independent advice to one of them, even if the other party has been referred to another solicitor.

[77] In the present case, Ms D acted for both of the parties from 23 October 2015 until the respondent instructed Ms B on or about 17 June 2016, some five days before the Financial Agreement was executed on 22 June 2016. Whether Ms D, in fact, continued to act for the respondent after that date need not be determined here.

[78] The applicant did not receive independent advice from Ms D.

[79] Although no submissions were addressed by either party to the provisions of s 90UJ(1A), I will give my reasons for declining to find that the Financial Agreement is binding by virtue of those provisions.

( … )

[82] The applicant asserts that she would suffer an injustice if the Financial Agreement were held to be binding. It is clear from the email of the applicant to Ms D of 29 October 2015, that the final form of the Financial Agreement signed on 22 June 2016 did not represent the applicant’s instructions given in that email. Further, the applicant asserts that the value of the Suburb J property at the date of the Financial Agreement or at the date of the transfer was understated and that she was not advised by Ms D to obtain a valuation.

[83] I do not consider that the mere fact that the parties’ respective entitlements to the division of their joint and several property will now be determined by a Court pursuant to the provisions of the Act creates an unjustness or any inequity in circumstances where a fundamental requirement of the ouster of the jurisdiction of the Court has not been satisfied.

[84] The Financial Agreement executed by the applicant and the respondent on … is not a Binding Financial Agreement.”

The Court set aside the financial agreement and sought submissions as to the matter being referred for prosecution in respect of non-payment of stamp duty.

Children – Father unsuccessfully appeals order authorising mother to vaccinate child against COVID-19

In Dacombe & Paddison [2021] FedCFamC1A 103 (23 December 2021) Austin J (sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia) considered a father’s appeal against a consent order, which authorised the mother to arrange vaccinations of the parties’ daughter, on the conditions that:

i) the child’s age was within the age groups approved by the Commonwealth Department of Health (“the Department”);

ii) the ‘Novavax’ vaccine was approved by the Department and was not contrary to the child’s medical advice; and

iii) in the event that ‘Novavax’ was not approved, the father be at liberty to select an approved vaccine, save that the mother select a vaccine in the absence of a selection by the father ([2]).

Despite the order being made by consent, the father argued that he never agreed to it and that the Court lacked power to make the order, where s 51(xxiiiA) of the Constitution disempowers legislation as to medical and dental services to the extent that it authorises “any form of civil conscription” ([17]).

The Court said (from [8]):

“An appeal may be summarily dismissed if the appellant has no reasonable prospect of successfully prosecuting it (s 46(2)) [ed. of the Federal Circuit and Family Court of Australia Act 2021 (Cth)], even if it is not hopeless or bound to fail (s 46(3)) …

[9] The question, therefore, is whether the appeal grounds have any reasonable prospect of success.

[10] The father’s first contention – that he did not consent to the order – is false. …

[11] While it was the legal practitioners who confirmed the parties’ agreement, the father did not demur when the primary judge was informed of the compromise. …

[12] When the primary judge sought to formulate an order to properly reflect the parties’ agreement, the father even helped with the drafting …

[13] There were other controversial issues to be resolved aside from the child’s vaccination. One such issue was the manner in which she should be tested for COVID-19. The father wanted her subjected to only rapid antigen testing and he objected to the use of a PCR test on her. …

[14] [The father] … only disagreed with any form of government-imposed immunisation or treatment for the child, but the appealed order did not deal with any form of immunisation or treatment mandated by government because the parties agreed the child should be immunised…

[15] It being clear the appealed order was made with the father’s consent, his ability to appeal from it is limited. As the Full Court said in Allan and Ors & Allan and Ors [2014] FamCAFC 162:

  1. The fact that an order is made by consent does not, of course, make the order of any different nature from an order made otherwise. The order derives its force from the circumstance that it is a valid order made by the court in question, not from the agreement of the parties. Therefore, save for an important qualification, an order made by consent may be the subject of an appeal in the same way as any other order (see Gilbert v Estate of Gilbert (1990) FLC 92–125 at 77–839).
  2. However, the ‘important qualification’ referred to in Gilbert is of present significance: the correctness of an order may not be appealed on its merits by a party who consented to the order. Rather, that party’s right of appeal is limited to vitiating grounds, such as fraud, mistake, fresh evidence, or the absence of jurisdiction. So, if by having consented to the orders made by Watts J, Mr Senne could not appeal to challenge the merit of the orders, nor can Mr CC. …

[16] Here, Ground 1 of the father’s appeal depends entirely upon his false contention that he did not consent to the appealed order. He did and now he cannot appeal the order on merit in the teeth of such consent. …

[17] The Constitution of Australia proscribes the legislative power of the federal parliament. Relevantly, s 51(xxiiiA) of the Constitution enables the parliament to make laws about the provision of medical and dental services (but not so as to authorize any form of civil conscription) …

[18] The term ‘civil conscription’ in s 51(xxiiiA) is interpreted to mean the legislative compulsion of persons to perform particular medical or dental services, which compulsion is forbidden, but the prohibition does not invalidate legislation which only regulates the manner in which those services, and anything incidental thereto, are performed …

[19] … It has long been accepted that provisions of the Family Law Act amply afford the Court discretionary power to make orders about the medical treatment of children …

( … )

[21] … [T]he Constitutional impediment only affects the validity of federal legislation which enables the civil conscription of medical and dental services, upon which field the Family Law Act does not play. An order made under the Family Law Act which ensures a child’s receipt of certain medical treatment is not caught by the prohibition. Secondly, the appealed order binds only the parties; not the child as the recipient of the medical service, nor the State authorities who provide the service. Thirdly, the parties agreed the child should be vaccinated and the appealed order only governs the manner in which that will occur. Even if they had not agreed, any deadlock in their exercise of parental responsibility for the child over a decision about her vaccination could be broken by an order made under the Family Law Act in the child’s best interests.”

The father’s appeal was summarily dismissed.

Property – Applicant’s equitable trust claim fails as purchase of luxury vehicles and transfer of $913,015 were gifts – Respondent’s de facto property adjustment claim fails as there was no de facto relationship

In H, AW v K, S [2021] SASC 128 (11 November 2021) Bochner J of the Supreme Court of South Australia considered a 4 year relationship between a 63 year old dual citizen of Australia and the USA (“the applicant”’) and a 37 year old single mother who lived in Adelaide (“the respondent”).

The applicant sought a declaration that the respondent’s Mercedes Benz vehicle and bank balances were held on trust for him, alleging his purchase of the vehicle in her name, together with transfers of $913,015 throughout the relationship, were advanced for a specific purpose, such that they remained beneficially his ([4]).

The respondent argued the dealings were gifts; that the applicant promised to financially support the respondent such that he was estopped from seeking restitution; and also sought a declaration that the parties were in a de facto relationship within the meaning of s 4AA of the Family Law Act.

As to the parties’ relationship, the Court said (from [30]):

“ … [T]he respondent did not change her address with any government institutions, nor did she advise Centrelink or the Australian Tax Office that she was in a de facto relationship. …

( … )

[52] The applicant agreed that [his] … communication [to the respondent] amounted to representations that he would provide for her, that she could charge whatever she wanted to his Amex card, that he would pay her household expenses and he would provide for her in his will. He denied … that the provision of financial support would be unconditional, or that any other gifts to her would be unconditional. …

( … )

[58] Over the course of the relationship, the applicant gave the respondent four rings …

[59] During the relationship, the parties did not acquire any assets together. The leases for the properties were in the respondent’s sole name, as were the motor vehicles. They did not open a joint bank account … The respondent never visited the applicant’s house in Pebble Beach California, or in Point Piper, nor was she invited to do so.

( … )

[68] … [T]he parties had separate bedrooms at the North Adelaide property and never slept in the same bedroom …

( … )

[151] The applicant came to Adelaide [where the Respondent lived] between five and nine times each year during the relationship. The length of the visits varied, from less than twenty-four hours, to seven days. …

( … )

[162] On balance, I find that the parties shared a common residence, albeit infrequently.

( … )

[164] It is clear that, while he was at [the respondent’s rented premises] … the applicant treated them as if he was ‘at home’ … He came and went as he pleased. …

( … )

[165] It is clear that a sexual relationship existed between the parties. …

( … )

[171] I conclude that the respondent became financially dependent on the applicant within a very short time of the commencement of their relationship. I further conclude that this was the applicant’s intention; he was aware that he was encouraging the applicant to embark on a lifestyle that she was unable to afford independently of his financial support. …

[172] There is no suggestion of any financial interdependence. The applicant always made it clear that the sums of money that he transferred to the respondent were a drop in the ocean of his wealth.

( … )

[180] Even when they were together in Adelaide, it is difficult to find any evidence of a commitment to a shared life. …

( … )

[193] On the basis of all of the factors set out above, I consider that the parties’ relationship was not that of a couple living together on a genuine domestic basis. The evidence does not demonstrate ‘the merger of two individual lives into life as a couple’ … Rather, it demonstrates two individuals living their separate lives and coming together seven or eight times each year for some shared time. It my view it is the time that was shared, rather than the lives.”

As to the trust claim, the Court said (from [207]):

“I am of the view that the black Mercedes, like the white Mercedes, was an unconditional gift, and so remains the property of the respondent. This is for two reasons.

[208] First, as the white Mercedes was a perfected gift to the respondent, the applicant had no power to demand its return. Thus, by trading in the white Mercedes without her knowledge or consent, the applicant has done no more that substitute one vehicle for another, each to be held on the same terms by the respondent. As the white Mercedes was hers absolutely, any vehicle substituted for it by the applicant must also be hers absolutely. …

[209] Second … I am of the view that the circumstances in which the black Mercedes was given to the respondent make it clear that it was an unconditional gift to her.

[210] The … black Mercedes was given to the respondent on Valentine’s Day, a traditional day for exchanging gifts between lovers; it was accompanied by red roses, chocolates and two cards; it was decorated with a large bow on delivery; it was a surprise for the respondent. …

( … )

[211] The applicant conceded in cross-examination that he was aware that the respondent believed that the black Mercedes was a gift … There was no evidence that he sought in any way to disabuse her of this belief.

( … )

[216] The effect of a gift is that legal and beneficial interest in property is transferred absolutely from the donor to the donee. Once a gift has been perfected, the donor has no right to the property; it becomes part of the general assets of the donee. The relief that would be open to the applicant if the moneys were a gift is an action for restitution, but only in circumstances where the moneys were given to the respondent for a particular purpose, and that purpose has failed.

( … )

[221] A Quistclose trust is a special purpose trust, whereby property is given to a donee, on the basis that it does not become part of the general assets of the donee, but is to be used for a specific purpose. In the event that the purpose fails, the property is returned to the donor.

( … )

[230] There are a number of factors which point to the conclusion that the moneys that the applicant gave to the respondent were intended to become part of the respondent’s general pool of assets. The first of these is that the moneys were paid into the bank account into which the respondent also had her salary and Centrelink payments paid, and so were intermingled with her own resources.

( … )

[241] All of this evidence leads me to the conclusion that the moneys given to the respondent … were a gift. I consider that any statements made by the applicant that the moneys should be used for rent, clothes and other expenses were no more than indicative of his motive or expectation. They did not serve to impress the funds with a trust.

[242] Further, the purpose for which the applicant says the moneys were given is so vague that, in my view, it is insufficiently articulated to support a finding that a trust was created. …

[243] Even if I was of the view that a trust had been created, one further problem would face the applicant. The moneys paid by the applicant were paid into the same account into which the respondent’s salary and Centrelink payments were paid. The applicant is entitled to recover only those moneys attributable to the payments that he made. Thus, even if the respondent held the moneys on trust for him, he would not be entitled to all of the moneys remaining in her account at the conclusion of their relationship. He would only be entitled to the amount that is attributable to the moneys that he paid in. While this is not fatal to his claim, I note that it is not actually his case.”

The Court dismissed both parties’ applications.