Property – No jurisdictional error in wife’s application for enforcement of final property orders, which was both pursuant to the Rules and to s 105 of the Act – Court was not functus officio – Application granted

In Pacek & Saltzer (No 3) [2024] FedCFamC1F 680 (17 October 2024) Wilson J, sitting in the Major Complex Financial Proceedings List, heard the wife’s application for enforcement of consent orders made in April 2022. Ten companies were also parties to the consent orders. The husband was to retain those entities ([4]-[6]).

Following the consent orders, the husband and five other plaintiffs commenced proceedings in the Supreme Court of Victoria against the wife, alleging that she breached various fiduciary duties she owed to the plaintiffs. Those proceedings had stalled. The wife filed an enforcement application in the FCFCA on 18 June 2024 ([16]).

Considering the jurisdiction of the Court to enforce the 2022 orders, Wilson J said (from [58]):

“The husband contended that this court had no jurisdiction to hear and determine the wife’s enforcement application because … upon proceeding MLC 2954 of 2020 being comprised by the consent orders … the court was functus officio having no power in respect of any aspect of the s 79 application thereafter.

( … )

[71] … I reject that contention for the following several reasons –

(a) specific express jurisdiction is conferred by the provisions of the Family Law Act, especially in the definitions of “matrimonial cause” to an application to enforce orders already made;

(b) while some superficial attraction may exist to the proposition that upon a s 79 proceeding being compromised, the whole of the court’s power under the s 79 application is spent, in my view the mere entry into terms of settlement or even consent orders for the alteration of property interests does not have the effect of exhausting the court’s s 79 power;

(c) the entry into terms of settlement for the compromise of a s 79 proceeding effects an executory accord and satisfaction but not an executed accord and satisfaction;

(d) only upon parties actually performing au pied de la lettre their obligations under the accord and satisfaction will they be regarded as having compromised their s 79 application; and

(e) when the parties actually fully and exhaustively perform their obligations in accordance with their executory accord and satisfaction will they be regarded in law as having exhausted the court’s power under s 79 of the Family Law Act.

[72] In this litigation the parties remain in dispute about whether each has complied with the terms of the consent orders. The wife has brought an enforcement application in a proceeding … which the husband says is the subject of the doctrine functus officio. In a related proceeding (MLC 7293 of 2024) the wife seeks similar relief. The husband wants … any application by the wife to compel performance of the consent orders stopped yet he wants continuation of a damages claim against the wife for her allegedly breaching fiduciary duties to various companies. He wants leave to pursue that damages claim against the wife despite his application to halt the wife’s enforcement application.

( … )

[119] On the facts of this litigation, the wife … elected to apply to enforce the consent orders in two ways. First, she sought enforcement of the provisions of the consent orders making application under chapter 11 of the [Federal Circuit and Family Court of Australia (Family Law) Rules 2021] … To my mind, in doing that the wife did no more than was authorised by chapter 11 of the rules. Had the husband failed to pay the sum he was required to pay under the consent orders, on his erroneous agreement about the court being functus officio, the wife had no remedy. That was an absurd proposition.

[120] A more interesting question (although one not raised by the husband) was whether the relief sought in proceeding MLC 7293 of 2024 represented a duplication of the relief sought in proceeding MLC 2954 of 2020. It was true that in both, the wife sought enforcement of the consent orders made on 14 April 2020. As Mr Coleman SC explained in the wife’s written submissions, the wife sought enforcement orders in proceeding MLC 2954 of 2020 in pursuance of rights conferred on the wife under the rules yet the wife sought enforcement orders in reliance upon the jurisdictional basis of s 105 of the Family Law Act in her application in proceeding MLC 7293 of 2024. There was no error in so doing, one jurisprudential basis existing for relief in one case and another jurisprudential basis existing for relief in the other case. …

[121] In short, I detected nothing improper or even inappropriate in the wife having on foot at the same time two separate proceedings in this court in which she pursued aspects of the enforcement of the consent orders. Her jurisdictional basis for seeking enforcement of the consent orders was reposed in chapter 11 of the rules, as was sought in proceeding MLC 2954 of 2020 as well as s 105 of the Family Law Act as was sought in proceeding MLC 7923 of 2024. It must not be overlooked that the husband and the companies he controlled at no stage filed court process in either proceeding MLC 2954 of 2020 or in proceeding 7293 of 2024 contending that one of those proceedings should be stayed pending the hearing and determination of the application in the other proceeding by reason of an alleged duplication of the subject matter falling for determination in each proceeding.”

Orders were made for the joinder of the husband’s entities and that the husband be restrained from commencing any further proceedings in any court against the wife arising out of the subject matter of the proceedings in the FCFCA.

Children – Orders for time that were conditional upon father’s engagement in psychological therapy and completion of courses were an improper divestiture of judicial power

In Miyajima & Mikkelsen [2024] FedCFamC1A 208 (7 November 2024) Aldridge J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a mother’s appeal from parenting orders made in relation to three children born in 2009, 2012 and 2015.

In 2021, the father assaulted the middle child twice and pleaded guilty to a charge of common assault. The mother argued that the father should not spend any time with the children due to his unresolved anger management issues ([6]).

The trial judge said “ … I consider that it is not necessary for the children’s protection, or in the best interests of the children, that the father is eliminated from their lives. I consider that upon the father demonstrating that he has taken the steps required to address his issues, then the children’s relationships with him can be safely resumed under supervision and that there is no need for the children’s time with the father to be supervised on an ongoing basis. Curtailment of the length of the time that the children spend in the unsupervised care of the father is sufficient to ameliorate the risk that the father’s coping capacity might be exceeded”.

The mother appealed. Aldridge J said (from [16]):

“Whilst there is some doubt as to whether [the subject order] … achieved the aims set out by her Honour … there are two more fundamental difficulties.

[17] The first is that the father is required to have ‘engaged in psychological therapy’ and at the request of the mother is to provide ‘confirmation that [he] is currently undergoing, or no longer requires, psychological therapy’.

[18] It is quite unclear what the word ‘engaged’ means in that context. Presumably, from the form of the orders, it is different to successfully completing such a treatment, because that is encompassed in the words, ‘no longer requires psychological therapy’. Thus, the order is satisfied if the father engages in therapy, albeit entirely unsuccessfully. Further, does ‘engage’ simply mean employ a psychologist? Attend for a few minutes? Or something else? Its very uncertainty brings into play the principles identified in Lainhart & Ellinson [2023] FedCFamC1A 200 … The difficulty can be identified by postulating enforcement proceedings taken by the father who has asserted that he is ‘engaged’ with a psychologist and the mother does not accept that to be so.

( … )

[20] Secondly, to the extent that the psychologist is required to confirm that the father no longer requires psychological therapy, that must be a conclusion that the therapy has been such that the father no longer poses an unacceptable risk of harm to the children. It is to be recalled that the purpose of Order 13 is to cause the father to change his behaviour in order to ameliorate the risk of harm. Therefore, successful completion must be the same as no longer posing a risk of harm. So understood, that order to that extent is a devolution of the Court’s power to the psychologist, who is in effect making a finding, by necessary implication, as to the acceptability of the risk of harm posed to the children by the father. That is an improper divestiture of judicial power as explained in Lainhart at [26] and following.

( … )

[22] It may be accepted that the primary judge was in a difficult position. If, indeed, the father needed to demonstrate change before he should see the children, as seems to be the clear finding reading the judgment as a whole, then the father was faced with either orders for supervised time until he could show that his behaviour had changed or the primary judge could have adjourned the proceedings part-heard to enable the father to call appropriate evidence of that change. Whilst both may be unpalatable options, they are preferable to making an order that, respectfully, is not enforceable.

[23] It is to be recognised that the order made in this case is in a different form to that made in Lainhart and one of the problems is less starkly obvious, but nonetheless the principles set out there require the appeal to be allowed. It is therefore not necessary to consider the remaining grounds of appeal.”

The appeal was allowed and the matter was remitted for rehearing. Costs orders were made for the parties and the independent children’s lawyer.

Children – No error in final orders that did not extend beyond the child’s 6th birthday – Held (obiter) that s 65DAAA requires a significant change of circumstances to warrant reconsideration of parenting orders – Court had “grave misgivings about following” Rasheem [2024] FedCFamC1F 595 and Whitehill & Talaska [2024] FedCFamC2F 768   

In Sciacchitano & Zhukov [2024] FedCFamC1A 224 (2 December 2024) Aldridge J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a father’s appeal from parenting orders that provided for a 3 year old child to live with the mother and spend time with him, gradually increasing from 8 hours to each alternate weekend.

There was an airport watch list order and restraint on the father removing the child from Australia, which was to remain in force until January 2027. The trial judge said that “[i]t is not possible with certainty, to project further into the future at this time, what will then be in [the child’s] best interest” …

The father appealed.

Aldridge J said (from [4]):

“The appellant’s Summary of Argument submitted that the orders did not project past 2027 and, in particular, did not provide for school holiday time with the appellant contrary to the then provisions of s 60CC(3)(l) of the Family Law Act (1975) (Cth) (“the Act”). That subsection required the Court to consider ‘whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child’. The failure to make such orders was said, inevitably, to lead to further litigation.

[5] The fatal flaw in that argument is that the Court is not required to make orders that will avoid future litigation, but rather to ask ‘whether it would be preferable’ to make the order that would least likely lead to further litigation when determining which orders should be made. As is apparent from the passage already quoted, his Honour did just that.

[6] In the course of oral submissions, counsel for the appellant submitted that the terms of the order had the effect that the appellant would face the hurdle of having to demonstrate a relevant change in circumstances before he could seek orders as envisaged by the primary judge.

[7] Counsel for the respondent sought to counter this, submitting that as a result of the enactment of s 65DAAA of the Act, a change in circumstances was no longer required before final parenting orders can be reconsidered. She relied on Rasheem & Rasheem [2024] FedCFamC1F 595 at [64]–[68]. See also, to similar effect, Melounis & Melounis (No 4) [2024] FedCFamC1F 778 at [75]–[77] and Whitehill & Talaska [2024] FedCFamC2F 768 at [12].

[8] As the first decision expressly notes (at [59]), the clear express legislative intent for s 65DAAA was to codify the law as stated in Rice and Asplund [1978] FamCAFC 128 … which requires that there be such a change in circumstances as to warrant reconsideration of parenting orders.

[9] This intention is clearly given effect by reading ‘consider’ in s 65DAAA(1)(a) in its meaning of ‘to regard as or deem to be’, the second definition in the list of definitions of the word in the Macquarie Dictionary. Thus, the court must find a change in circumstances.

[10] Such an approach, namely to look to the context of the words in the section itself, the Act as a whole and the evident purpose of the section rather than focus on the literal meaning of a word is the modern method of statutory construction (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35 … )

[11] Further, if s 65DAAA did not require a finding that there had been a change of circumstances it would be otiose and the whole section pointless.

[12] Also, it is not to the point that in a different section of the Act, in an entirely different context, the word ‘consider’ means something else.

[13] I therefore would have grave misgivings about following these decisions but do not need to come to a concluded view, and as I have not received submissions on the question, it does not need to be determined to resolve the appeal.”

Considering the remaining grounds of appeal, his Honour dismissed the father’s appeal and made a costs order in favour of the mother for $15,000.

Children – Orders that permitted international relocation after 1 June 2026 subject to either child’s wishes set aside – The orders were defective in not being prescriptive and enforceable by divesting judicial power to the children as to future parenting arrangements – The orders were also procedurally unfair and contrary to a family report writer’s accepted evidence

In Sujatha & Gutierrez [2024] FedCFamC1A 223 (2 December 2024) the Full Court (Aldridge, Carter & Curran JJ) heard an appeal and cross appeal from final parenting orders of Berman J regarding two children, X and Y.

The orders provided for equal shared parental responsibility, and that the children live primarily with the mother who may relocate to the United States of America (“USA”), but not before 1 June 2026 and “subject to the wishes of the children (or each of them)” ([1]).

The Full Court said (from [15]):

“The decision of the primary judge to make relocation orders that were subject to the children’s wishes, fell outside both parent’s proposals. The [mother’s] primary position at trial was for her and the children to relocate to the USA on or before 25 April 2024. The [father’s] primary position was in opposition of relocation and for the children to remain in Australia. The [father’s] alternate position, only to be considered if relocation was granted, was that relocation should not occur until 1 June 2026. Neither party proposed that relocation should be subject to the wishes of the children or that the children be split, which is an inherent possibility under the orders.

[16] There was no contemplation by any party or any indication by the primary judge that the wishes of the children in relation to the potential relocation could become determinative.

[17] The primary judge did not afford the parties the opportunity to make submissions on these matters and they were, accordingly, denied procedural fairness. …

[18] It is uncontroversial that judicial authority cannot be delegated to third parties. The Full Court in Lainhart & Ellinson [2023] FedCFamC1A 200 … found that orders made must be ‘prescriptive and enforceable’ and that an order will be defective if it divests judicial power onto a third party to determine the proper future parenting arrangements for a child …

[19] In appropriate cases parenting orders are valid when made subject to the wishes of children. In such cases the Court may, in giving weight to the maturity and often express wishes of children, make orders subject to the children’s wishes so as to provide children autonomy in respect of some decisions, such as the time that they spend with each parent. These types of orders are valid and enforceable as a determination has been made as to the justiciable issue that time will be spent, and it is the implementation of that time that is to be subject to the wishes.

[20] In this case the justiciable dispute is the determination of the orders that are in the best interests of the children, including whether it is in the best interests of the children for the appellant to be permitted to relocate their residence to the USA.

[21] The primary judge cited the family report writer’s evidence … that ‘[i]t is not the responsibility of children to guide decisions about relocation, nor do they have the developmental capacity to consider all the relevant factors, but in any case, neither [X] nor [Y] expressed a strong view either way’. The primary judge referred to the opinion of the family report writer’s evidence …: ‘At present, the evidence of the report writer was such that less weight should be given to any views expressed by the children at this stage of their development. As they get older, their views may well change’.

[22] Despite this, the primary judge … delegated the decision of relocation to the children, albeit at a time in the future. This divested judicial power to the children to determine this issue at the future time nominated and is therefore an error.

( … )

[24] The primary judge anticipated that the parties would implement this order by facilitating the views of the children. However, the mechanism for implementation is not specified, other than that it in some way falls to the parties to ‘facilitate the views’.

[25] The order presumes that the wishes of one or both children, expressed to an unknown party at a future time, will be dispositive of the issue as to whether the children (or possibly either of them) should be permitted to relocate to live in the USA. On one reading, the order empowers the children (or either of them) to determine whether or not their mother is permitted to relocate their residence to live in the USA.

[26] The order as made:

(a) fails to grapple with the prospect of only one child expressing the wish to relocate and what that might mean for the children or the possibility that the children might not wish to make the decision;

(b) provides no clarity as to whether the order is intended to be time limited as it is unclear from the order or from the reasons whether it was intended that relocation occur at any time after 1 June 2026 if at a time after that date one or the other child indicates such a wish;

(c) provides no mechanism for ascertaining the wishes.

[27] There can be no doubt that more litigation will ensue if the cross-appellant disputes the contention that a wish has been expressed and should be acted on.

[28] All of these questions in respect of what the orders mean and how and when they are intended to be implemented are incapable of being satisfactorily answered. The order is not capable of being implemented given there are no mechanisms to give it effect. The order is not prescriptive and enforceable … This is a legal error.”

The proceedings were remitted for rehearing and the order providing for the current care arrangements was ordered to remain in force pending the rehearing. Costs certificates were granted for both parties in respect of the appeal and the new trial.

Property – Wife granted sole occupancy – Husband was home less often, wife had medical conditions that made it untenable for her to live in her previous home and where $200 million asset pool meant that both parties had capacity to find satisfactory alternate accommodation

In Valentini [2024] FedCFamC1F 602 (11 September 2024) Schonell J heard a wife’s application for sole use and occupation of the former matrimonial home (the “Suburb C property”). The husband opposed the order, arguing that the parties could occupy the property together ([3]).

The interim application was part of broader property proceedings seeking to divide an asset pool which was no less than $200 million ([9]). The parties married in 1984 and separated in August 2022. There were no children under the age of 18. The parties had been living separately since 2021 ([8] & [10]).

The wife suffered from various medical conditions that included symptoms of chronic pain and fatigue ([17]). The wife said that she temporarily moved out of the Suburb C property in 2021 and into a property at suburb G, her return being delayed by COVID-19 restrictions and her medical needs ([24]). She adduced evidence from her medical practitioner as to the impact of living in the Suburb G property, which she said was run down, contained black mould and had inadequate heating and cooling.

Interim orders were initially made for the husband to occupy the bottom level of the home and the wife to occupy the top level, the parties to share the laundry facilities, and neither party was to invite third parties to the home without prior written consent of the other.

The Court said (from [24]):

“In Naylen & Naylen [2021] FamCA 392, McEvoy J canvassed the authorities relevant to this type of application and observed:

29.The principles to be applied in making an order for sole use and occupancy of the former matrimonial home pursuant to s 114(1) of the Act … may be summarised as follows:

(a) the Court may make such an order as it thinks proper: Davis & Davis [1976] FamCA 38 …

(b) there are no words of limitation in s 114(1) other than the requirement that the grant of an injunction must be ‘proper’. …

(c) an injunction that prohibits a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances: S & S, [38];

(d) it would be unlikely that the mere existence of tension in the home, short of evidence of unacceptable conduct, would lead the Court to grant an exclusion order …

(e) the Court does not need to make a finding that the situation in the former matrimonial home is ‘intolerable’ or ‘impossible’, it must simply be satisfied that it would not be reasonable or sensible or practicable to expect both parties to continue to reside in the premises …

(f) the matters which should be considered include the means and needs of the parties, including the availability of alternative accommodation and the suitability of that accommodation along with the financial circumstances of the parties …

( … )

[38] I am satisfied in light of the medical evidence and the wife’s medical conditions it is untenable for her to return to live in the Suburb G property.

[39] … [T]he circumstances are such that there is a necessity to make an exclusive occupation order. I reach that conclusion in circumstances where it is clear that despite orders made on 28 June 2024 that were designed to regulate their living arrangements, these parties do not have the capacity to live together in accordance with a regime of orders they agreed to. It is clear from the husband’s affidavit that he seeks to access various parts of the home to be enjoyed by the wife. The wife contends that he failed to comply with the orders by entering into aspects of the home he was not meant to enter. It is further clear from the husband’s proposals that he wishes to be able to continue to access parts of the home for the purposes of accessing his personal possessions and clothing.

[40] It is inexplicable as to why it is that these parties, who have so much money, are simply not able to arrange their living arrangements such that they do not come into contact with each other in a home of the proportions and size described by the husband. It was well within the husband’s financial capacity to buy himself a table, to remove his clothing and, if necessary, buy further furniture to ensure that he did not come into contact with the wife. …

[41] In circumstances where one party seeks to continue an arrangement that would continue to bring the parties into contact in the knowledge that it causes the other at times to feel intimidated is unfathomable and leads me to be comfortably satisfied that it would not be reasonable, sensible or practicable to expect both parties to continue to live together in the same home and that an order for exclusive occupation is necessary.

[42] There is not, nor could there be, any issue where the parties have net assets of at least $200 million that issues such as financial hardship or prejudice have any part to play. I am satisfied that each have the financial means to accommodate themselves in alternate homes. …

( … )

[45] As between the husband and the wife, it appears that it is the husband who is less often in the home than the wife and therefore requiring him to move to another property provides less of an imposition upon him than it would upon the wife who obviously spends more time in the property than him.

( … )

[47] I note that each party seeks to retain the Suburb C property on a final basis. The making of an order for exclusive occupation does not defeat an order being made. …

( … )

[49] … On balance I am satisfied for the above reasons that it is proper that an order be made for the wife to have exclusive occupation of the Suburb C property.”

 

Children – Order for no time – Father carried out “retributive attempted suicide” at mother’s place of work and used the trial process to inflict further psychological harm on mother – Father was “devoid of the capacity for reflection, insight and remorse”

In Batas & Gaire (No 2) [2024] FedCFamC1F 672 (18 October 2024) Kari J heard a father’s parenting application for time with the parties daughter born in 2011 (“X”). The father was a perpetrator of significant family violence, coercive and controlling behaviour and had carried out a “retributive attempted suicide” at the mother’s place of work ([3]).

The mother said that the father presented an unacceptable risk of harm to X and that there should be no ongoing paternal relationship. She sought orders for sole parental responsibility, no time and injunctive relief ([3]). The independent children’s lawyer (“ICL”) initially sought supervised time with the father however changed their position during the trial to support the mother’s application. The father originally sought equal shared parental responsibility and alternate weekends, but shifted to supervised two hourly periods during the trial and conceding sole parental responsibility in favour of the mother ([6]).

Kari J said (from [8]):

“ … I am satisfied that the father used the trial process itself to inflict further psychological harm on the mother. I have made findings throughout these reasons about the serious family violence perpetrated by the father and endured by the mother, quite separate from the retributive attempted suicide. Those findings include that from the earliest days of the relationship the mother lived in constant fear that the father would self-harm if the relationship did not endure. That the mother had to further endure the father’s oral evidence during the final hearing, which included flippant denials or attempts to minimize and explain away his very serious conduct, was particularly troubling. …

( … )

[55] … There are two stages involved in assessing risk and understanding whether any assessed risk is unacceptable:

(a) Firstly, the fact-finding exercise, which may include findings about any allegations that have been made, together with any admissions made; and

(b) Secondly, the predictive exercise which involves the assessment of the evidence and circumstances, including but not limited to any findings/lack of findings/inability to make findings.

( … )

[68] … Dr B prepared a written Family Report dated 14 January 2022. The unredacted Family Report was before the Court for the trial.

( … )

[70] The Family Report is detailed and considered, particularly as to matters pertaining to family violence, their sequalae and the need to protect X from harm in the future, which in large part centres around the mother’s security and safety. During his oral evidence, Dr B’s opinions and recommendations were equally considered, detailed and carefully put.

[71] Dr B’s observations, opinions and recommendations were undisturbed by cross examination, and they are unreservedly accepted. …

[72] Where findings have been made in relation to incidences of family violence throughout these reasons, regard has been had to the expert opinion of Dr B in contextualising those incidences as episodes of family violence and/or coercive and controlling behaviour within a pattern of family violence perpetrated by the father towards the mother throughout the relationship.

( … )

[85] The father’s oral evidence was at times difficult to reconcile. I am satisfied this is because he was guileless and devoid of the capacity for reflection, insight and remorse for his own conduct and its impact; other than perhaps as to the impact upon himself, his current circumstances and his relationship with X …

[87] I am satisfied that throughout his evidence the father attempted to minimise his conduct constituting family violence. This included the father asserting that he did not remember certain matters. What is not clear however is the extent to which the father’s minimisation of his behaviours was as a result of an overt attempt to do so, or because he genuinely had an inability to understand the impact of his behaviour on others. On balance, however, I am satisfied that it was as a result of a combination of the two.

( … )

[89] In all, the father impressed as a person incapable of taking responsibility for his actions and the impact his actions have had upon the mother.

[90] Importantly the father provided little evidence of substance to the Court as to the work that he has done in the post separation period, and importantly since the release of Dr B’s report to address the significant risks presented by the family violence he has perpetrated.

( … )

[102] I am satisfied from all of the evidence that the mother continues to suffer from PTSD, anxiety and depression, which presents with symptoms that are intrusive and significantly debilitate and impact the mother’s functioning.

[103] I am satisfied that the mother’s symptoms have not improved in the post separation period, despite the significant assistance she has obtained from Dr E.

[104] I accept that the mother’s symptoms are amplified when she has to encounter the father in any way, shape or form, but particularly associated with time spending or communication between the children and the father.

[105] I also accept that the mother is unable to cope with any form of communication or time spending between the father and X.

( … )

[114] I am satisfied from the evidence that the retributive attempted suicide was not an impulsive and isolated incident. Rather, I am satisfied from the evidence that from the earliest days of the relationship the mother was subjected to coercive and controlling family violence all aimed at threatening and intimidating the mother to be in a relationship with the father and to continue that relationship with him.

( … )

[125] In light of these findings, I am satisfied that the father presents an unacceptable risk of harm to the mother and X and particularly if there was to be any form of time spending between the father and X.”

Orders were made as sought by the mother and supported by the ICL.

Property – A finding that wife’s parents sold a farming property to the parties for less than market value held to be in error where wife had failed to obtain a retrospective valuation of the property

In Perna [2024] FedCFamC1A 183 (15 October 2024), McClelland DCJ, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a husband’s appeal from property orders.

The parties were married in 1991 and separated in 2019. There were two adult children of the relationship ([6]). The major assets were two rural farming properties (“Property C” and “Property D”) which were intergenerationally farmed by the wife’s family. Property D was sold by the wife’s parents to the parties and other family members during the relationship ([2]).

No retrospective valuation was obtained of Property D. The trial judge found that Property D was sold to the parties at 20 per cent below market value. The wife received an adjustment in the property division largely as a result of contributions from the wife’s parents ([2]-[3]). The husband appealed.

McClelland DCJ said (from [28]):

“ … I accept … the contention of senior counsel for the husband that it was necessary for the primary judge to accurately identify the nature of the financial benefits provided by the wife’s parents to the parties. …

( … )

[31] … I commence by noting that the husband accepted that the contract for the sale of the property specified the sale price as $1,462,156.

[32] It is also the case that the husband accepted that the amount the parties were required to pay the wife’s parents was the lesser sum of $1,169,725, which is 20 per cent less than the amount of $1,462,156.

( … )

[34] … [T]he market value of Property D, at the time of its sale from the wife’s parents to the wife and her siblings, was a contested issue in the proceedings.

[35] The wife carried the onus of establishing that price was 20 per cent below market value. This necessarily meant being in a position to prove the market value of Property D at the time of its sale in 2009. The husband was under no onus to disprove the assertion as to market value.”

After reviewing the leading case law on evidence of value of real estate (at [38]), his Honour continued from ([39]):

“ … [T]he primary judge was not in a position to determine the market value of Property D at the time of its sale from the wife’s parents to the wife and her siblings in 2009 in circumstances where the primary judge had not been provided with evidence from an appropriately qualified expert with specialised knowledge of the valuation of farming properties. …

[40] I accept the submission of counsel for the wife that, ordinarily, in undertaking the task of assessing contributions, it is unnecessary to place a precise value on any particular contribution, however it was necessary to do so in respect to Property D in this case. This is because the finding by the primary judge that the property was sold to the wife and her siblings at 20 per cent less than market value was a significant finding in respect to his ultimate conclusion that the appellant and the respondent had benefited from the generosity of the wife’s parents…. ( … )

[41] In those circumstances, the error was material to the assessment of the primary judge that the wife was entitled to a 4 per cent adjustment in her favour in respect to the first property pool as a result of contributions (at [62]), including the generosity by her parents as so found. On the agreed net assets of the first pool, being $11,819,409, that finding represented the amount of $472,776 or a differential between the parties of $945,553. Accordingly, I am satisfied that the error was material to the outcome of the proceedings, and on that basis, the appeal must be allowed.”

The appeal was allowed, the final property orders set aside and the proceedings remitted for rehearing. A costs certificate was granted to the husband.  No costs certificate was granted to the wife as “it was the wife’s failure to present admissible expert evidence as to the value of Property D at the trial that led to error on the part of the leaned primary judge and where the consequence of that failure to do so was not acknowledged in this appeal.” ([47]).

Financial Agreement – Wife’s solicitor’s advice was an “outline of the law” that failed to specify what the wife was giving up by entering the agreement – Court erred by finding that s 90G(1)(b) was satisfied, but correctly upheld the agreement pursuant to s 90G(1A)

In Dragomirov [2024] FedCFamC1A 187 (17 October 2024) Campton J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a wife’s appeal from a declaration that a financial agreement between her and the husband was binding and enforceable. The lawyer who provided the wife with legal advice (and signed the section 90G certificate) was joined by the wife as second respondent (Ms Wojda). The wife sought damages from her.

The husband and wife commenced cohabitation in 1992, married in 1993 and separated by March 2020 ([9]). The husband and wife’s section 90C financial agreement was dated 19 May 2020, prepared by the husband’s lawyer. It provided for the wife to receive about $28,000 less than one half of the $1,433,083 asset pool ([16] & [19]).

The trial judge held that s 90G was satisfied or alternatively, that it would be unjust and inequitable if the financial agreement was not binding per s 90G(1A). The trial judge also held that the wife failed to establish non-disclosure of a material matter, undue influence or unconscionable conduct ([25]).

Campton J said (from [37]):

“ … At trial the wife contended that Ms Wojda did not provide ‘independent legal advice’. The primary judge found … that the advice the wife received was independent for the purposes of s 90G(1)(b).

( … )

[49] It is trite to record that there is no requirement that the terms of a financial agreement be just and equitable (Hoult & Hoult [2013] FamCAFC 109 … (“Hoult (2013)”) … ). Parties are perfectly free to enter into a bad bargain by way of a financial agreement.

[50] The heart of the ground are two aspects of the rights identified in s 90G. The first is the ouster of the s 79 jurisdiction of the court by entry of agreement. Advice on this subject matter was provided by Ms Wojda … The second is the entitlements or rights pursuant to Act. As to the second, the keys to the heart of this ground of appeal are themselves twofold.

( … )

[55] It is an incontrovertible fact that Ms Wojda did not discuss the contributions of the husband and the wife to the marriage or any of the factors in s 75(2) of the Act … [T]his was a requisite integer in the circumstances of this case of the advice prescribed by s 90G(1)(b). The wife did not receive advice as to what she was giving up on entering the agreement other than an unknown or undefined right. She did not receive advice, even in imprecise terms, as to what she might achieve by way of her entitlements or rights relying on s 79 of the Act at the time of entering the agreement to enable its comparison with what she would achieve by way of the provisions of the proposed financial agreement.

[56] The absence of this advice did not allow the wife to consider or weigh ‘what would be [her] rights but for entering the agreement and those advantages and disadvantages after having entered the agreement. No doubt each would have its advantages and disadvantages, and they need to be compared’ …

[57] The proper conclusion to be drawn from these incontrovertible facts lead to only one outcome in the Fox v Percy sense [ed. full citation: Fox v Percy (2003) 214 CLR 118], being that necessary advice prescribed by s 90G(1)(b) of the Act was not given … The shortcomings of Ms Wojda as to making specific enquiries as to the contributions of the husband and the wife to the marriage or any of the factors in s 75(2) went to whether the requisite advice was given, as opposed to the ‘quality and accuracy’ of the advice. This makes it apparent that the primary judge’s determination as to the wife not discharging the onus of proof as to the provision of advice to fulfill the requirements of s 90G(1)(b), by application of the principles identified in Abrum [ed. full citation: Abrum [2013] FamCA 897], is in error and cannot stand.”

Considering the trial judge’s finding that she would have upheld the agreement pursuant to section 90G(1A), the Court continued (from [63]):

“The husband’s recourse to relief by way of s 90G(1A) of the Act is not limited to technical breaches …. Upon the preconditions of s 90G(1A) being satisfied, there is a broad discretion as to whether a declaration is made that the financial agreement is binding and there are no restrictions on what matters inform that finding … A failure to receive legal advice as prescribed by s 90G does not preclude the operation of s 90G(1A) … The nature and extent of non-compliance is an important consideration … When considering whether to exercise the discretion, regard is to be had to the facts and circumstances surrounding the making and the performance of the agreement …

[64] The term unjust and inequitable does not refer to justice and equity as identified in s 79 …. The contents of the bargain have no relevance to the exercise of discretion under s 90G(1A) …

( … )

[67] The wife said that the ‘principal error’ underpinning this ground was that the primary judge failed to consider the wife’s submissions as to the ‘nature and extent of the non-compliance’ with s 90G(1) Act. The contention is hollow. As recorded earlier in these reasons, that subject matter was comprehensively considered by the primary judge. …

[68] As to considering an irrelevant matter, the wife focused on the use of language; citing the failure to advise the wife of all her rights ‘precisely’. It was difficult to distil the contention as to an absence of relevance or how this materially influenced the judgment. The complaint at the hearing of the appeal was more directed to a weight consideration in the exercise of a broad discretion. For the purposes of a discretionary determination, a complaint as to weight alone is not a competent ground of appeal (Hedlund & Hedlund [2021] FedCFamC1A 84 … ).

[69] The written letter of advice to the wife identified with precision the process the court would adopt to assessment of the adjustment of property as between she and the husband.

[70] … Ms Wojda, by way of the letter of advice, informed the wife in writing that if the court were to adjudicate, then the parties’ respective contributions and the s 75(2) factors would be relevant. Hence, the wife had both her own knowledge of these matters and the legal advice that they would be relevant. She could not be thought to be ignorant of the relevant factual matters personal to she and her husband.

[71] Armed with this outline of the law, the wife chose to enter the agreement knowing that the process which had been explained to her in writing would not apply and in its place, she would have the bargain she had struck with her husband. Given that s 90G(1A) permits a declaration that an agreement is binding notwithstanding a failure to receive legal advice as prescribed by s 90G(1)(b), the primary judge was well within the bounds of the statutory discretion to find that it should appropriately invoked in this case.”

The wife’s remaining grounds of appeal failed, the appeal was dismissed and the wife ordered to pay the husband’s costs of $15,000 and the second respondent’s costs of $13,514.

Children – Family report was admissible despite report writer’s unavailability for cross-examination due to ill health – “General” findings of fact and “very brief” reasons of State court in family violence proceedings did not give rise to issue estoppel

In Adler & Parrow [2024] FedCFamC1A 192 (21 October 2024), Riethmuller J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a father’s appeal from parenting orders made in relation to an 8 year old child.

The trial judge ordered the child to live with the mother and spend time with the father, commencing with supervised periods each week, building to alternate weekends ([5]). The father had been charged with criminal offences against the mother which were subsequently dismissed ([2]). The trial judge found that the child needed to be protected from unacceptable risk including the father’s inability to manage his behaviour, his need to coerce the child and the child’s exposure to parental conflict ([8]).

Riethmuller J said (from [23]):

“At the hearing it became clear that the Family Report Writer had become ill and was not expected to recover sufficiently to ever give evidence in the matter, even if the final hearing was adjourned … The appellant argued that the Family Report should not have been admitted into evidence, and alternatively, that it should have been given very little weight as the Family Report Writer could not be cross-examined to test the evidence (at [17]). The primary judge concluded that the appropriate course was to admit the Family Report …

( … )

[25] The Family Report was admissible in the parenting proceedings as a result of s 69ZT of the Family Law Act 1975 (Cth) removing the prohibition against hearsay in the Evidence Act 1995 (Cth). No application was made to the primary judge pursuant to s 69ZT(3) of the Act for orders that the provision not apply with respect to this evidence.

[26] Whilst the evidence was admissible it was open to the primary judge to refuse to admit the evidence for one of the reasons set out in s 135 of the Evidence Act …

( … )

[30] The appellant relied upon statements of the Full Court in Hall and Hall [1979] FamCA 73 … to the effect that it would be surprising if cross-examination of a report writer were not permitted ‘on proper grounds’. However, the primary judge did not refuse to permit cross-examination as this was not a case where cross-examination of the Family Report Writer was possible. The inability to cross-examine the Family Report Writer, of itself, cannot be sufficient to satisfy s 135 of the Evidence Act, as both s 69ZT of the Family Law Act and s 63 of the Evidence Act contemplate that hearsay evidence may be admitted. … ”

Concluding with a consideration of the father’s argument that the trial judge erred by giving no or little weight to the findings of the District Court of NSW, Riethmuller J continued (from [47]):

“The police had brought a number of criminal charges against the appellant for assaults upon the respondent. At the same time that the criminal proceedings were heard by the Magistrate, an Apprehended Domestic Violence Order (an “ADVO”) was also sought against the appellant for the protection of the respondent. The Magistrate in the Local Court who heard the case was not satisfied beyond reasonable doubt that the appellant had assaulted the respondent but was persuaded on the balance of probabilities to make an ADVO protecting the respondent. The ADVO was set aside by a District Court judge on appeal.

[48] … [The appellant argued] that the primary judge ought to have accepted the findings of the State Courts, thus preventing the primary judge from making findings of family violence against the appellant.

[49] There are three different ways that the judgments of the State Courts could be relevant:

(a) If the appellant establishes an issue estoppel, based upon the findings of the State Courts;

(b) If the State Court judgments are adopted (in whole or in part) pursuant to s 69ZX of the Family Law Act; or

(c) If the State Court judgments are otherwise relevant (as the prohibition upon State Court judgments being placed in evidence by s 91 of the Evidence Act does not apply in parenting proceedings as a result of s 69ZT(1)(c) of the Family Law Act).

[50] For the appellant to establish that an issue estoppel arose it was necessary to demonstrate:

(a) That the previous proceedings were between the same parties (or at least their ‘privies’); and

(b) That specific findings that were made were necessary for the determination of the previous proceedings.

( … )

[51] If the appellant established an issue estoppel at common law, the Court is not bound by the issue estoppel when determining parenting cases …, although it remains open to a trial judge to rely on the issue estoppel … For example, in some cases there may be no purpose served by re-hearing the evidence and cross-examination on an issue in the subsequent proceedings, having regard to the evidence and reasons before the previous court and the considerable burden upon litigants of traversing an issue again …

( … )

[53] The Local Court … Magistrate’s reasons do not set out any specific findings of fact on any of the issues, only making a general finding that he was not satisfied beyond reasonable doubt as to the claims with respect to the criminal charges. ( … )

[54] The appellant’s appeal against the making of the ADVO order by the Magistrate was allowed by a District Court Judge. The District Court Judge’s reasons are also very brief. …

( … )

[56] On the material before the primary judge, the appellant had not established a finding of fact upon which an issue estoppel may arise.”

Considering s 67ZX, His Honour concluded (from [64]):

“This provision was inserted by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). It is a modified version of section 86 of the Commonwealth Native Title Act 1993 (Cth). The provision permits the court to adopt or all or part of the findings of another court (even if there is not identity of parties (or privity) in the sense required by the common law with respect to issue estoppel) …

[65] The appellant did not rely upon this section at the hearing and no argument was made that the primary judge ought to ‘adopt’ the findings of the State Courts pursuant to s 69ZX. ( … )

[66] Finally, the prohibition against relying upon judgments of other courts contained in s 91 of the Evidence Act does not apply as a result of the effect of s 69ZT(1)(c). The judgments of the State Courts were in evidence before the primary judge. … It is difficult to see how the very brief findings of the State Courts would be relevant (in the sense required by s 55 of the Evidence Act), or of any real weight in the circumstances of this case, when the primary judge was proceeding to determine the facts on the evidence before her Honour …”

The appeal was dismissed and a costs order made against the father for the mother’s costs of $16,735.18. No costs order was made in favour of the ICL.

Children – Contravention – Conflation of different burdens of proof borne by the parties – Family Law Amendment Act 2023 (Cth) only applies to contraventions that occurred on or after 6 May 2024 – The repealed Division 13A of Part VII applies to pre- 6 May contraventions

In Hatfield & Rivas [2024] FedCFamC1A 202 (31 October 2024) Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a father’s appeal from a dismissal of his contravention application against the mother for multiple breaches of parenting orders.

Final orders were made in March 2023 for equal shared parental responsibility, the children to live with the mother and spend substantial amounts of time with the father ([4]). The orders provided for the parents to provide notice to one another in relation to injury or medical condition, school absence or late attendance and jointly engaging with a psychologist to improve their communication ([5]).

At the hearing the father alleged five counts of breach by the mother. The trial judge dismissed each count and found that the father’s evidence did not establish that the mother either intentionally breached the orders or made no reasonable attempt to comply ([7], [10]). The father appealed.

Austin J said (from [28]):

“The primary judge … fell into error because his Honour conflated the different burdens of proof borne by the parties.

[29] The father bore the onus of proving the mother’s contravention of the order, which burden was discharged by proving she either intentionally failed to comply with the order or made no reasonable attempt to do so.

( … )

[31] If the father discharged his burden by proving the mother’s contravention as defined and, if she then sought to assert her contravention was reasonably excused (s 70NAD(1) and s 70NAD(2)), she bore the burden of proving the reasonable excuse (s 70NADA).

[32] His Honour confused the father’s initial obligation to prove the lack of any reasonable attempt by the mother to comply with the orders (s 70NAC(1)(a)(ii)) with the mother’s separate subsequent obligation to prove a reasonable excuse for breaching the order (s 70NADA). There is a material difference between, on the one hand, no reasonable attempt to comply with an order and, on the other, a reasonable excuse for not having complied with it.

[33] It was not open for the primary judge to find the father failed to prove the mother made no reasonable attempt to comply with [the relevant order] … On the evidence, she failed to choose one psychologist from the list of three provided by him, as [the order] required of her. She either intentionally failed to comply with the order or made no reasonable attempt to do so. The contravention was therefore proven.

[34] The mother advanced an unverified reason why she did not comply with the order during her cross-examination of the father – she asserted she could not afford any of the private psychologists offered by the father and wanted to instead use a public psychologist. But that could only ever be a ‘reasonable excuse’ for the contravention, which the mother bore the burden of proving. She was not called upon to do so because the primary judge wrongly dismissed Count 1 on account of the father failing to discharge his initial burden of proving the contravention. The error was patent from the mother’s admission, made before the hearing started, that she conceded the contravention but asserted a reasonable excuse for it.”

His Honour continued (from [67]):

“The contraventions alleged against the mother were confined to the period between April 2023 and December 2023. The contravention application was heard in June 2024. In the interregnum, on 6 May 2024, the provisions of Pt VII, Div 13A of the Act were substantially amended by the Family Law Amendment Act 2023 (Cth) (“the Amendment Act”).

[68] The Amendment Act did not contain any transitional provision to regulate the timing of the operation of the old Pt VII, Div 13A or the new Pt VII, Div 13A of the Act, but did provide this at item 36(1) to Schedule 2:

The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Part.

[69] So far as can be discerned, the Minister has not exercised such power to make any such rules by legislative instrument.

[70] That being so, the situation is governed by s 7(2) of the Acts Interpretation Act 1901 (Cth) ( … )

( … )

[72] It logically follows then that, absent express legislative intention for the new provisions of Pt VII, Div 13A to apply to contraventions alleged to have occurred whilst the old Pt VII, Div 13A was operable, the old provisions must still apply to such historic contraventions.

[73] … [T]he primary judge expressly applied the new, rather than the old, provisions of Pt VII, Div 13A of the Act (at [14]). That error precludes the contravention proceeding from now being concluded within the appeal, either by hearing the mother’s evidence of ‘reasonable excuse’ in defence of Count 1 or by determining the penalties imposed upon her for the proven contraventions.”

The appeal was allowed and the dismissal orders set aside. The matter was remitted for rehearing and a costs certificate was granted to the father.