In Makinen & Taube [2021] FCCA 1878 (16 August 2021) Judge Taglieri heard a father’s application to have sole parental responsibility in respect of decisions regarding the immunisation and vaccination of the parties’ 12 and 8 year old children.

Save for the issue of immunisation and vaccination, the parties had agreed to final orders, whereby the children would live with their mother; spend substantial and significant time with the father; and that the parents have equal shared parental responsibility.

The mother opposed the children being immunised or vaccinated in any way and relied on literature as to “the harm vaccinations can bring to children”; and opposed the orders sought by the father as she had historically had primary care of the children; the parties had agreed to the children remaining in her primary care; and that the father had not previously expressed a wish to care for the children’s health ([20]).

As part of her argument, the wife quoted the Australian Immunisation Handbook, arguing that “it is usually not possible to predict whether an individual group will react to a vaccine, or whether a reaction will be mild to serious” meant that a vaccine was not safe for her children ([22]). She also said that as she suffered from disease of the thyroid, her children were particularly susceptible to adverse effects from a vaccine ([23]).

The independent children’s lawyer (‘ICL’) relied upon government publications together with the family report, which stated the children not being vaccinated was “contrary to the State and Federal Government health recommendations. Non-vaccinated children and adults can be excluded from services and travel opportunities due to the risk they pose to other people. [The mother] holds a firm opinion about the issue of vaccination based on the literature she has read but there seems to be no medical information to suggest [the children] are at any escalated risk of negative vaccine outcomes” ([12]).

The Court said (from [48]):

“The mother admitted in cross-examination that there was a pandemic relating to COVID-19 in Australia currently. Although no specific evidence has been adduced about COVID-19, I take notice of the following facts: …

(a) That it is a disease affecting adults and children which causes personal suffering and illness and, at worst, death; and,

(b) That it is a contagious disease (particularly the Delta strain).

[49] These facts have been regularly broadcast to the Australian public by State and Commonwealth government health officers since 2019 and are common knowledge. …

( … )

[52] I have reviewed the literature relied upon by the mother, which is extensive and dense. The themes of many of the articles are that:

(a) Vaccines contain various concentrations of aluminium;

(b) Research and studies of various patient cohorts, mainly in France, have shown some potential association between the injection of vaccines containing aluminium into the deltoid muscle and the incidence of macrophagic myofasciitis (MMF), a condition understood to be an inflammatory mechanism affecting various parts of the body;

(c) The association between aluminium in various products/vaccines and neurological disorders is being studied, but is not yet well understood. Further research is required and there remain considerable unknowns;

(d) Some literature is to the effect that autoantibodies, inflammatory conditions and overt auto-immune disease can be caused by vaccines but are rare;

(e) Vaccination might trigger auto-immune, inflammatory or neurological disorders;

(f) Greater caution is recommended when approaching the vaccination of children as compared to adults because they are potentially more vulnerable; and,

(g) Most studies have involved limited epidemiological assessment and found inconclusive evidence of clear association between various vaccines and particular adverse events/diseases, and results of studies identify genes and variables other than vaccine as potential contributions to the occurrence of the diseases.

( … )

[54] The Commonwealth government’s recommendations about vaccination contained in the Australian Immunisation Handbook along with advice on its website can be seen to have developed and compiled over many years. It relies on published medical and scientific literature … This literature includes publications from widely known, reputable and leading scientific and medical journals … The recommendations/advice are also referenced to the World Health Organisation (WHO). WHO is commonly known to be a United Nations body responsible for international public health and I take judicial notice of this fact.

[55] In my view, the literature which forms the basis for the Australian Immunisation Handbook ought to be given greater weight than the opinions expressed in the articles and literature annexed to the mother’s affidavits. The former are the basis for public health policy of the Commonwealth and State governments for the benefit of the community. In any event, the literature relied upon by the mother does not materially differ and certainly does not support a contention that no children should ever be vaccinated.

( … )

[59] I find that on the basis of the mother’s evidence that she has firm and strong bias against vaccination of any kind. On the evidence, I find that she initially developed a belief about harm of vaccination from hearsay information from a friend/acquaintance prior to the children’s birth. This belief has become entrenched consequent to her own interpretation of various publications which she has sought out and read.

[60] Although she is a professional, she is not a medical practitioner or impartial expert witness. Her interpretation of the scientific and medical literature annexed to her affidavits in my view are not wholly supported by the literature itself when read in context and overall. … The literature she relies upon also does not support the view she appears to hold that generally her children should not be vaccinated against any disease because vaccines are harmful to them.

[61] By her own admission, the mother accepted that adverse effects from vaccinations are rare and that the vast majority of the population in Australia is vaccinated against many previously widespread and infectious diseases. …

( … )

[63] While the mother may be more vigilant, active and diligent towards some matters relating to the children’s health and hygiene, her entrenched views against vaccination demonstrate that she will likely push back and reject having the children vaccinated, even if it is deemed necessary or recommended by a medical professional.

( … )

[66] The mother has not adduced any evidence that the risk of auto-immune disorders, disabilities or neurological disorders from vaccination (adverse outcomes) is greater than the risk of the children contracting any particular disease which vaccination is likely to prevent. Rather, the literature she relies on simply identifies a potential for auto-immune, inflammatory or neurological conditions and other adverse effects in certain cohorts when vaccinated. … The articles recommends further investigation and study of auto-immune and other reactions to vaccinations for the purpose of limiting the chance of persons developing adverse effects.

[67] While the mother’s attitude against vaccination is based on her genuine beliefs, I do not regard her attitude or beliefs to be reasonable on all the evidence before me, including the scientific and medical literature she has adduced.

( … )

[74] In the absence of expert medical evidence directed to the particular circumstances of the children, their individual health and condition, including whether they may suffer allergies or autoimmune conditions and the like, it would be wrong to make orders that particular vaccinations be given to the children. …

( … )

[76] In my view the orders to be made in the circumstances of this case should allow for effective decision-making concerning vaccination of the children both now and in the longer term. Orders that ensure a decision is taken about giving vaccines based on current medical advice is essential for the best interests of the children. This is consistent with maximising their welfare and being protective for the reasons above, also noting that qualified doctors owe professional duties of care that apply to giving vaccines as a form of treatment.

[77] As the father is likely to heed medical advice about vaccination, he ought to have sole parental responsibility concerning this specific issue. This will ensure that vaccinations are given when it is warranted, taking into account all relevant considerations effecting the child and contemporary mainstream medical and scientific knowledge. It ought to limit further proceedings also.”

Orders were made for the father to have sole parental responsibility as to decisions concerning vaccinations/immunisations, but only when in accordance with the National Immunisation Program or as recommended by the children’s general practitioner.

In Safar & Malouf [2021] FamCA 445 (1 July 2021) Wilson J heard a wife’s application in a case seeking a costs order in respect of the parties’ arbitration that the arbitral award be varied pending an agreement or determination as to such costs.

After a 17 year marriage that produced five children, the arbitrator found the wife’s entitlement was 70 per cent of a $799,005 net pool, the wife to pay the husband $194,944 to facilitate his receiving 30 per cent overall.

Upon the registration of the award, the wife sought an order for costs on the basis that she had made an offer whereby the husband receive a cash adjustment of $225,000, such that she had done better than her offer; arguing the award should also be varied so that the $194,944 amount could be reserved in part for costs.

The Court said (from [19]):

“Here, the offer made by the applicant involved the applicant paying the respondent the sum of $225,000. The applicant deposed to the respondent not responding to that offer. It was made on 20 November 2020. The arbitration then proceeded. In the course of making orders in the arbitration the arbitrator ordered the applicant to pay an amount less than the sum the applicant offered. Had the respondent accepted the offer, it is likely that the entire proceeding would have been compromised.

[20] The applicant deposed to having been put to considerable expense in the conduct of the arbitration, especially in being required to borrow amounts totalling $66,535.31. She sought the recovery of a portion of that amount by adjusting the sum the arbitrator ordered her to pay to the respondent.

( … )

[22] When closely examined and its terms compared with the arbitrator’s orders, the offer corresponded almost precisely to the arbitral orders save for – the sum the applicant was required to pay to the respondent; … and

the declaration as to legal and beneficial ownership of items of personal property. …

[23] In those circumstances it was readily apparent that pursuant to the orders of the arbitrator the applicant bettered the terms she offered the respondent. It follows that on its proper construction, the offer was more favourable to the respondent than was the outcome of the arbitration. He failed to accept the offer and thereby put the applicant to the trouble and inconvenience of pursuing the arbitration which, had the respondent accepted the offer, would have been unnecessary.

[24] Costs should flow from that.”

The Court continued (from [30]):

“The power to vary the arbitral award

[30] Section 13K applies to registered awards. The award in this case was registered pursuant to my order made on 24 May 2021. Section 13K(1) allows the court … to, among other things, vary the award by decree. Section 13K(2) provides that a decree varying the award may only be made if one of the grounds set out in subsections (a) – (d) apply. Section 13K(2)(c) is of present relevance. It provides that the award may be varied by decree ‘if the court is satisfied that…in the circumstances that have arisen since the award or agreement was made it is impracticable for some or all of it to be carried out’.

[31] The relevantly applicable ‘circumstances that have arisen since the award was made’ are the making of the costs order that the respondent is unlikely to satisfy, meet or pay. …

[32] Here, it seems to me that in the circumstances that have arisen since the award was made, circumstances have in fact arisen making it impracticable for paragraph 1 of the arbitrator’s order to be carried out. In my view, it is appropriate to make a decree pursuant to s 13K(1) of the Family Law Act varying paragraph 1 of the arbitrator’s award in the manner sought.”

The husband was ordered to pay the wife’s costs of the arbitration. The award compelling the wife to pay $194,944 was varied so that $50,000 of that sum was to be paid to the trust account of the wife’s solicitor, pending agreement or determination of costs.

In Lim & Zong [2021] FamCAFC 165 (27 August 2021) Tree J, sitting in the appellate division of the Family Court of Australia, heard an appeal from Judge Coates’ dismissal of a father’s application to discharge an independent children’s lawyer (‘ICL’).

The father’s complaints primarily related to a chronology document filed by the ICL and its content, the father arguing that information in the document did not reflect the evidence; or that other descriptions contained within the document omitted reference to evidence that favoured the father’s case.

The Court said (from [21]):

“A number of authorities have considered the removal of an independent children’s lawyer, and specifically, the circumstances which may justify such a course. From those, the following points may be discerned:

  • It is not inconsistent with the independent and professional discharge of an independent children’s lawyer’s obligations for her or him to advocate that a particular course of action adverse to, or inconsistent with, the position of a party, ought be taken by the court …
  • Whilst in a unique position, the independent children’s lawyer owes the same professional obligations to the Court as does any licenced legal practitioner …
  • On occasion, the independent children’s lawyer will be in an invidious position, but nonetheless they should be no less courageous, no less firm and no less cogent, in advocating for results or findings …
  • Inevitably the role of the independent children’s lawyer involves an exercise of professional judgment which may, on occasion, be precarious and difficult …
  • It is not appropriate for a litigant to endeavour to micro-manage the independent children’s lawyer, or critique every step that they take …
  • It is certainly not the case that, even if an independent children’s lawyer does make a mistake, the Court will necessarily accede to an application to have them discharged. Significantly more than that is required …
  • It is inevitable that the high standards of competence which the Court expects of independent children’s lawyers are not always met. independent children’s lawyers are, like anybody, liable to human frailty …
  • A court should be slow to discharge an independent children’s lawyer on the basis of largely unsubstantiated complaints of one of the parties …

( … )

[34] … [E]ven if it be that the independent children’s lawyer was mistaken as to whether or when the father had purchased a ticket for the child, and acting upon that mistaken belief, misinformed the Court via her … chronology, that is not conduct which would justify her discharge, unless it could also be shown that it was done either deliberately, or recklessly. The evidence falls far short of that.

( … )

[54] The father’s complaint is that on that occasion the mother also said that she did not feel threatened by the emails which she was referring to the police. He says that by not including that material, which was favourable to him, in the chronology, the independent children’s lawyer misconducted herself. …

[55] Correctly, counsel for the mother identifies that the chronology referred to the source document, and plainly the independent children’s lawyer was not obliged to put in that document detail beyond that which she considered relevant.

( … )

[63] It is important to remember that a chronology is simply an aide, and is not evidence. It is simply too long a bow to draw to say that, by omitting to put in the chronology that the father was not a person of interest to the Western Australian Police, the independent children’s lawyer thereby misconducted herself in a way which justifies her removal. No error is discernible in the primary judge’s conclusion or reasoning in this respect, which was patently correct.”

The father’s appeal was dismissed.

In Samper [2021] FamCAFC 140 (5 August 2021) the Full Court (Ainslie-Wallace, Watts & Austin JJ) heard an appeal from a decision of Judge Smith involving a 26 year marriage that produced three adult children, where each party owned and operated a business.

The husband’s business was a health care practice, which operated from rented premises, but not pursuant to a signed lease. A single expert valuer opined that the business had no goodwill without a signed lease, but the business would have goodwill of between $100,000 to $150,000 if the husband obtained a lease with a minimum term of 5 years ([18]). The valuer also found the plant and equipment of the business was worth $45,624.

The Court found the business was worth a total value of $162,093 being: i) the plant and equipment value of $45,624; plus ii) $125,000 for goodwill (being the average between the $100,000 and $150,000 range); with a 5 per cent discount to reflect there being no signed lease.

The husband appealed, arguing the Court had made findings outside its expertise or role. The Full Court said (from [22]):

“It was within the ‘specialised knowledge’ of the forensic valuer to provide his opinion of a high and low figure by way of a range of the value of the business if a new lease was entered into, or otherwise available to a prospective purchaser (Dasreef Pty Ltd v Hawchar [2011] HCA 21 … ).

[23] Counsel for the husband during the hearing before the primary judge, and senior counsel for the husband before us, argued the primary judge should have selected a mid-point of $75,000, (being a mid-point between $150,000 and nil) rather than a mid-point of $125,000 (being a mid-point between $150,000 and $100,000). Given the primary judge found the opportunity for the husband to obtain a new lease was ‘very likely’, it was open to his Honour to adopt a range of values that assumed that likelihood.

[24] In circumstances where a valuer has provided a range of values, the court is free to form its own view as to the proper value of an asset. It is usually inappropriate to simply select the mean of two valuations (see the decision of Dixon CJ and Kitto J in Commonwealth v Milledge [1953] HCA 6; … ). However in this case, both parties submitted that the primary judge pick the mid-point, albeit of different ranges. In those circumstances, the husband cannot legitimately complain when that is what the primary judge did.”

As to the 5 per cent discount, the Full Court said (from [25]):

“The husband argues that, having selected the mid-point figure, the percentage reduction then made by the primary judge raised an issue which involved the evidence of an expert and it was not within the primary judge’s expertise to make an allowance for a lease being available or unavailable on the basis of probability, particularly when there was no evidence from the landlord as to his intention to continue the lease or whether the landlord may decide to increase the rent to an unacceptable level to a prospective tenant.

[26] The husband also submitted that the primary judge failed to give adequate reasons for determining the likelihood of a lease being available was 95 per cent.

[27] It was not a matter of contention before us that it was open to the primary judge to take into account the hypothetical chance of the husband obtaining a future lease. The High Court in Malec v J.C. Hutton Pty Ltd [1990] HCA 20 said … ‘… unless the chance is so low as to be regarded as speculative – say less than 1 per cent – or so high as to be practically certain – say over 99 per cent – the court will take that chance into account …’ (see also Sellars v Adelaide Petroleum N.L. and Ors [1994] HCA 4 …).

( … )

[29] Given the primary judge concluded that there was a high probability that there could be a new lease, it was open for the primary judge to select the discount his Honour did.

[30] Even if that is incorrect and an appropriate discount should have been say 20 per cent, that additional 15 per cent discount would be a sum of $25,594, an amount which is de minimis in a pool of net assets of $5,806,567.”

The husband’s appeal was dismissed with costs.

In Khalif [2021] FamCAFC 123 (23 July 2021) the Full Court (Ryan, Aldridge & Tree JJ) heard an appeal by the husband’s brother, after the Court had declared that a 61.5 per cent share of his property was held by way of a common intention constructive trust for the benefit of the husband.

The trust was declared where the husband had paid his brother $892,500 towards the purchase and found there was an agreement that the property be solely registered in the brother’s name, and where the husband, wife and their children had lived in the home since its acquisition.

The Court’s findings included that notwithstanding the brother’s position that payments made by the husband towards the property were rent, the brother had not declared rental income in his tax returns; and that he had not declared the property as an investment property when obtaining a bank loan ([17]).

The brother contended on appeal that the wife’s Points of Claim document did not plead a constructive trust, such that the Court could not determine the wife’s claim on this basis, or that he otherwise did not have procedural fairness as to the Court’s findings ([37]).

The Full Court said (from [38]):

“ … [I]t needs to be understood that before the proceedings were transferred to the Family Court, a judge ordered that the wife file and serve such a document. However, neither the appellant nor the husband was ordered to file Points of Defence and neither of them did. Without Points of Defence the issues in dispute were not identified. Plainly it was intended that the wife gives the other parties the elements of her case, however inexplicably the direction did not enable the full purpose of pleadings and particulars as discussed in Dare v Pulham [1982] HCA 70 to be achieved. Furthermore, Points of Claim are generally concerned with the facts and do not necessarily address contentions of law. The significance of these matters is that the wife’s Points of Claim set out her case as far as she was required by the order but notice of the case to be met by each of the parties was reflected in a wider suite of documents which included the affidavits filed and their case outlines.

( … )

[41] Properly understood, the wife’s Points of Claim plainly asserted the facts required to establish, inter alia, a common intention constructive trust. …

[42] The appellant’s case outline presented at trial shows that the appellant well understood the factual matters that the wife sought to establish and the relief ultimately sought by her. …

[43] … [N]either counsel made opening addresses and relevantly, senior counsel for the wife did not limit the wife’s case to an express or a resulting trust and, as mentioned earlier relied on authorities concerning constructive trusts.

( … )

[48] The statement of the law as to express trusts propounded by the appellant’s senior counsel was incomplete and wrong. The exchanges … demonstrate that the participants held the mistaken view that s 23C(1)(b) of the Conveyancing Act was an insurmountable obstacle to the wife being able to establish an express trust. However, it is uncontroversial in the appeal that given the primary judge’s findings meant there had been part performance of the express agreement, by the application of s 23E of the Conveyancing Act, the provision was avoided. It is also accepted, as it must be, that the statutory prescription that express trusts of land are unenforceable without writing could have been overcome by the principle that equity will not allow statute to be used as an instrument of fraud (Rochefoucald v Boustead [1896] UKLawRpCh 180 … ; Cadd v Cadd [1909] HCA 59 … at 187; Malsbury v Malsbury [1982] 1 NSWLR 226). …

[49] Senior counsel for the wife’s remarks about her case as set out in her Points of Claim were inapt and do not post eventum change the case that she had, in fact, presented. Given their timing in the closing moments of the trial, they can have played no role in how the appellant perceived or conducted his case and do not establish that it was only in closing addresses that the appellant first learned that the wife also asserted a constructive trust.”

The brother’s appeal was dismissed with costs.

In Valder & Saklani [2021] FamCAFC 142 (6 August 2021) the Full Court (Ryan, Aldridge & Watts JJ) heard an appeal from a decision of Rees J dismissing an application by a creditor of a husband to set aside consent orders, on the basis that the husband’s discharge from bankruptcy released him from any claim owed to creditors.

The history of litigation between the creditor and the husband included proceedings before the High Court, with the husband ultimately owing the creditor $594,028.25, plus costs in excess of $250,000.

During that litigation, the husband and wife entered into consent orders, pursuant to which the husband transferred all of his interest in a real property to the wife. Each spouse represented to the Family Court that there was no other person entitled to become a party to the proceedings, nor was any creditor put on notice of the proposed order.

After the assessment of costs, the husband declared himself bankrupt. In response, the creditor obtained leave from the Federal Court of Australia (pursuant to s 58(3)(b) of the Bankruptcy Act) to issue a s 79A application in the Family Court and brought that claim.

The Full Court said (from [19]):

“A discharge from bankruptcy operates to release the bankrupt ‘from all debts (including secured debts) provable in the bankruptcy’ as per s 153(1) of the Bankruptcy Act.

[20] However, in each case, the Bankruptcy Act continues to refer to the person who simply has a right to prove as a creditor. The Bankruptcy Act goes on to provide such creditors (who are described in that way) with various rights and entitlements including rights to lodge proofs of debt and to receive dividends which continue after any discharge of the bankrupt from his or her bankruptcy.

[21] It follows that the release of a debt, by way of the bankrupt being discharged from his or her bankruptcy, does not mean that his or her creditors cease to be ‘creditor’” for all purposes, especially where the relevant statute points in a different direction.

( … )

[23] Since 2005, s 79A(4) of the Act has provided that a creditor of a party is taken to be a person whose interests are affected by the order if the creditor may not be able to recover his or her debt because the order has been made. This is a statutory acknowledgment of the well-established principle that a person whose right to recover a debt has been affected by the transfer of property by a property settlement consent order, is a person affected by that order …

( … )

[28] The appellant sought and obtained leave to commence her proceedings in the Family Court. …

[29] At the time the appellant commenced the proceedings in the Family Court she was entitled to do so. She was the creditor of a bankrupt estate which had been diminished by the operation of the consent orders. She had the requisite leave to commence the proceedings. As well as being ‘a person affected by an order’ for the purposes of s 79A(1), the appellant is also a ‘party’, a ‘creditor’ and a ‘person whose interests would be affected by the making of the instrument or disposition’ for the purposes of s 106B(4AA)(a), (b) and (c) of the Act.

( … )

[43] The effect of the discharge of the second respondent from his bankruptcy on 7 March 2018 is that ‘the discharge operates to release him or her from all debts’ (s 153(1) of the Bankruptcy Act) except for those identified in the following subsections. However, a discharge does not operate to revest in the bankrupt the property that had been vested in the trustee …

[44] Although, after discharge the bankrupt has been released from his debts, the creditors whose debts have been released, retain their rights under the Bankruptcy Act. They remain entitled to lodge proofs of debt and to receive dividends, for example. They continue to be described as ‘creditors’ in the Bankruptcy Act.

[45] Thus, even after discharge the appellant remained a ‘creditor’ for a number of purposes and provisions of the Bankruptcy Act. Importantly, any dividend that she might receive remained diminished by the consent orders which had the effect of removing property from the bankrupt estate which would otherwise have been available for the second respondent’s creditors, including the appellant. So long as her right to receive a dividend remained on foot, the appellant remained a person affected by the consent orders. Similarly, the leave granted by the Federal Court remained. We see no reason at all to limit the word ‘creditor’ in s 58 of the Bankruptcy Act to a creditor whose debt has not been released by the operation of s 153 of the Bankruptcy Act. That would unduly restrict the operation of the Bankruptcy Act for no good purpose.

( … )

[47] … The court is empowered by s 79A(1) of the Act to ‘vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside’. Section 80(1)(k) of the Act allows the court to ‘make any other order… which it thinks it is necessary to make to do justice’. If it was found that the consent orders had been entered into with the intention of defeating creditors, we do not see why an appropriate variation or substituted order could not see the provision for the payment of those creditors, either directly (in which case here, the appellant would be obliged by the terms of the leave granted to her by the Federal Court to pay the funds to the trustee in bankruptcy) or indirectly by a payment or transfer of property to the trustee. The court would be astute to make orders to overcome fraud on it, on creditors or on persons whose interests would be affected by the property settlement order. The court also has the power to protect the interests of third parties where there has been a miscarriage of justice in any of the other forms described in s 79A(1)(a) of the Act.

( … )

[52] … [W]e see no reason to limit the meaning of creditor in that section to a creditor of a non-bankrupt or undischarged bankrupt. As we have explained, creditors retain some rights after discharge, including those under s 58(3) of the Bankruptcy Act.

[53] Thus, we are satisfied that the appellant remained a person affected by the consent orders, notwithstanding the second respondent’s discharge from bankruptcy.”

The orders dismissing the creditor’s application were discharged and the s 79A application was remitted for further hearing.

In Denham & Newsham [2021] FamCAFC 141 (6 August 2021) the Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) considered a decision of Carew J to permit the mother to relocate with the parties’ three year old from Australia to Belgium from March 2022.

The hearing occurred in February 2020 before “the COVID-19 pandemic … commenced and no one contemplated the health disaster that would unfold. There was no restriction on Australian citizens’ ability to travel freely between Australia and, relevantly, Belgium. Both these countries’ borders were open and the trial proceeded on the understanding that the parties and child would be able to move freely between them” ([8]).

The orders included provision for the father to travel to Belgium at least three times a year and that the child would return to Australia during the Australian summer each year, the Court finding that such arrangements would maintain a meaningful relationship between the father and child ([3] and [8]).

The appeal was based upon the single expert psychologist’s recommendation that relocation not occur, or if it did, that it occur when the child was “much older” ([27]); the father’s evidence at trial that he could not afford the costs of travel; and that the orders did not contemplate the logistics associated with the Covid-19 pandemic.

The Full Court said (from [28]):

“[The single expert psychiatrist] …   gave evidence that the child was too young to sustain significant separations from his father …

( … )

[30] [The expert answered] … questions about a child’s capacity to form memories and the age at which a child might be expected to sustain memories and connection to an absent parent. …

[31] This is powerful evidence which weighed against relocation and, if relocation was contemplated, that it should not take place before the child was eight or nine years of age. If it did there was a very real risk that the child’s relationship with the father would fracture. …

( … )

[34] It can be seen that … the primary judge accepted the single expert’s opinion that relocation should not take place until the child was older and had acquired the developmental capacity to cope with significant gaps between face-to-face contact with the father. …

[35] However, the single expert went further than to simply recommend that relocation not take place immediately and did not give evidence that the child would develop the memory capacity to sustain significant gaps of contact if there was an additional two years of regular contact with the father before relocation. Her evidence was to the effect that he would not and if the relocation proceeded before the child developed that capacity there was a real risk that the child’s relationship with the father would fracture and thus relocation should not be considered before the child was eight or nine years of age. This evidence was of prime importance to the father’s case. Even if it was not, it was of signal importance to the central question and had to be considered. Thus as Muldoon [ed. full citation: Muldoon & Carlyle [2012] FamCAFC 135] makes plain, if the primary judge determined that for whatever reason this evidence should not be accepted, it was necessary to explain why not. Alternatively, to show that it was accepted but to explain why other more pressing aspects of the child’s welfare meant that notwithstanding the damage which would be wrought to the child’s relationship with the father, relocation was in the child’s best interests. This did not occur and the challenges … against the approach taken to the single expert evidence have been established.”

After also finding that the Court had “incomplete consideration” of the father’s financial circumstances when ordering paternal time that necessitated air travel, the Full Court said (from [48]):

“ … [The] evidence established that Australian citizens (the father and the child) and permanent residents are prohibited from leaving Australia unless they are given permission. The list of circumstances which might secure permission does not obviously identify travelling to spend time with a child who lives abroad. The only category which might apply is for travel on compassionate or humanitarian grounds. On the assumption (which is not made) that the father obtained permission to travel as often as the orders provide, on return he must quarantine at a designated facility in his port of arrival for 14 days. The cost of quarantine would be his responsibility. Thus, the father would be unable to work for an additional six weeks annually.

[49] The Australian government advises against travel to Belgium and Belgium has prohibited non-essential travel for persons whose primary residence is located in another country. This ban applies to the father and requires consideration of the types of travel that are regarded as essential. The list includes travel for compelling family reasons and it is inferred that provided the father satisfied health requirements, he may be given permission to enter Belgium. However, as the documents issued by both countries demonstrate, the situation is fluid and the conditions are subject to change. Depending on the state of the pandemic, relevantly, in Australia, on arrival in Belgium the father might be required to quarantine.

[50] Furthermore, assuming that the mother and child were given permission to enter Australia they must quarantine on arrival for two weeks.

[51] Returning to the documents issued by the Australian Department of Home Affairs, these record that the availability of regular air travel should not be assumed and, in effect, that flights have reduced.

[52] Had this evidence been placed before the primary judge, it compelled a finding that the mother’s proposals for the child’s time with the father could not be assured and that any prediction for face-to-face contact between the child and the father if the child lived in Belgium would be no more than mere speculation. In other words, the Court could not be satisfied as to when, how and with what frequency the child and the father might see each other. This in turn undermined the findings to the effect that the child and the father would maintain a meaningful relationship if the child moved to Belgium in 2022.”

The orders for relocation were set aside and the matter was remitted. Parenting orders were made pending the re-hearing.

Property – Registrar erroneously dismissed application for consent orders following the husband’s death and the wife’s withdrawal of consent

In Hullet & Benton [2021] FamCA 449 (29 June 2021) MacMillan J considered an application for consent orders filed by a 72 year old husband and a 65 year old wife, who had divorced after their 36 year marriage.

After filing the application on 4 December 2020, the husband died in early 2021. The wife’s lawyer wrote to the Court that day, noting the husband’s death and stating that it had caused “a material change in circumstances … such [that] our client no longer consents to orders” being made by consent ([7]).

On 18 January 2021, the Registrar dismissed the application for consent orders, the executor of the husband’s estate then filing an application in a case, seeking a review of that decision, and further seeking an appointment to be substituted for the husband as a party pursuant to s 79(8) of the Family Law Act.

The Court said (from [19]):

“Item 7 of r. 2.01 of the Rules provides that a person seeking to have orders made by consent, where there are no proceedings on foot, to file an Application for Consent Orders. Rule 10.11(2) provides that when the case relates to the property of the parties and one of the parties dies before the case is determined a party must apply to the Court for permission to discontinue the case. Rule 10.11(3) of the Rules provides however that even when one party discontinues their case, the other party’s case is not discontinued.

( … )

[21] Pursuant to r 6.15 of the Rules, ‘if a party dies the other party or the legal personal representative must ask the court for procedural order for the future conduct of the case’. The Executor of the husband’s estate seeks both an order appointing him as the husband’s legal personal representative and orders with respect to the future conduct of the proceedings.

( … )

[25] Although neither party referred the Court to any authority directly on point in Bolt and Williams [1996] FamCA 147 Wilczek J dealt with a review of the decision of a Registrar dismissing an Application for Consent Orders following the death of the husband in that case. His Honour having considered the parties submissions and having been referred to Strelys [ed. full citation: In the Marriage of Strelys [1988] FamCA 1] said at page 313 as follows:

In my view, when there is reference to ‘the proceedings’, or reference to ‘same proceedings, including as to subject matter’, or ‘the proceedings on foot at the time of the death …’, what is being referred to is the concept of ‘proceedings between the parties to a marriage with respect to property of the parties or either of them…’ …

To that end a Form 12A Application relates to proceedings between the parties to a marriage with respect to property, as does a Form 7 Application seeking orders with respect to property. The fact that there are different form to cater for different procedure, is no more than the Court’s response to sneering that the parties have avenues to resolve their difference in the most cost efficient and time saving way….

It follows that I consider the proceeding that were pending between the parties at the time of the husband’s death, were proceedings with respect to property and were therefore capable of being, ‘continued’ after the husband’s death, albeit that the original intention of the parties may have been to seek consent orders, whereas now the wife seeks different orders, including orders that bring into account superannuation that has vested, whereas prior to the husband’s death the husband’s superannuation entitlements were not property but, rather, were a financial resource …

[26] I am satisfied that the proceedings in this case are the property proceedings as between the husband and the wife. Although prior to the husband’s death the husband and the wife were seeking to have the Court exercise its power pursuant to s 79 of the Act to make consent orders using the procedures provided for in the Rules for that purpose, following the husband’s death the Court is exercising the same powers albeit the process may be different. It is these proceedings pursuant to s 79 of the Act that the husband’s Executor seeks, acting as the husband’s personal legal representative, to continue.

[27] In my view the [wife’s] submissions that the Court’s powers are limited to either making the [consent] orders, requesting further information or dismissing the Application for Consent Orders similarly confuses the proceedings and the Court’s practices and procedures. In my view the Rules make it clear that if a party to the proceedings dies either the other party or the deceased party’s legal personal representative must ask the Court for procedural orders for the future conduct of the case.

[28] I am satisfied that the property proceedings were not discontinued as a consequence of the wife having withdrawn her consent to the orders, the Application for Consent Orders should not have been dismissed and that orders are required for the future conduct of the matter.

[29] The wife did not take issue with the husband’s Executor being appointed as his legal personal representative for the purposes of the proceedings nor was it the wife’s case that the Court would not have made an order if the husband had not died or that it would not be appropriate for the Court to make orders pursuant to s 79 of the Act in the event that the Court did not accept the wife’s submissions with respect to the Application for Consent Orders being different to an application for final property orders. In all of the circumstances I am satisfied that the husband’s Executor should be appointed as his legal personal representative for the purposes of continuing the property proceedings. I propose in these circumstances to make orders in the terms sought by the applicant.”

Property – Application for interim sale of shareholding denied where no evidence of urgency – Evidence that such a sale would cause irreversible prejudice to the wife’s ongoing financial position

In Maggio & Turner [2021] FamCA 466 (1 July 2021) Hartnett J heard a husband’s interim application for the winding up of a trust and sale of a shareholding interest, in which he argued that neither party sought to retain the interest such that a sale was inevitable, and where it had been over two years since separation he wished to buy a property instead of continuing to rent.

The shareholdings were held in a trust which had produced annual dividends of about $1.3 million ([5]). A single expert had valued the shareholdings as being worth $280,612 per share, whereas another shareholder in the group had offered the husband $150,000 per share, contending that price reflected the economy and the pandemic ([13], [15] and [16]). The husband sought to accept the offer, while the wife rejected the offer.

The Court said (from [19]):

“The value of [the] … offer to the parties’ is 54% of the value attributed to the … interest … as determined by the single expert Mr M. No evidence is before me as to how Mr P reached his discounted valuation. There is, before me, no adversarial valuation. Neither party has put to the single expert, any specific questions in respect of his valuation report received by the parties in July 2020.

( … )

[21] There appears no disagreement between the parties that the sale of the shareholding as sought by the husband, will deprive the parties of between $415,000 and $420,000 a year …

[22] The husband’s argument for selling the shareholding interest as proposed by him is to allow him to obtain finance to purchase a home in the sum of approximately $2 million. The wife continues to occupy the former matrimonial home, owned jointly by the parties, and has done so since the parties’ separation in January 2019. The husband continues to occupy rental accommodation nearby at a cost in excess of $700 each week, and he accommodates the children when they reside with him in that rental accommodation. … He notes that in excess of two years have passed since the parties separated. The husband does not however, set out in his evidence before me, any urgent need to sell the interest … That interest also provides the parties with a significant income stream, from which to meet their living and other expenses. The sale, as proposed by the husband, will decrease that income stream for each of the parties in a significant way, in particular and relevantly, by comparison with any interest the husband may pay in borrowing costs for the purchase of a new home. The wife has indicated her preference that the husband access any additional monies needed by him by further loan taken out by the parties jointly, and paid by them equally, providing equity in the former matrimonial home as security for the advance of that loan, up to $500,000. The husband has the necessary income stream from the parties’ shareholding interest to purchase a home as proposed by him, being a home in his sole name with a mortgage encumbrance in his sole name, and meet repayments of principal and interest by application of that significant income stream. That was for him, in the last financial year, approximately $650,000.

( … )

[25] The single expert, Mr M, attributed a value of $5,500,000 to the parties’ entire interest …

( … )

[30] The husband submitted that in circumstances where neither party seeks to retain the shares … that the shareholding should be sold.

[31] The only present offer to purchase the parties’ shareholding … is the earlier referred to $150,000 per percentage point … The wife claimed in respect of this offer that the husband was seeking to undersell a substantial asset of the parties. The husband disagreed. …

[32] There is no conclusive evidence before me at this time to indicate that the husband is attempting to deliberately undersell a substantial asset of the parties’. It is in his interests, as well as that of the wife, to maximise the sale price. … He has not sought to reduce the wife’s income from the dividends received by each of the parties, wherein the allocation of such payments remain equal as between the parties.

( … )

[39] I am of the view that the shareholding need not be sold until the valuation is fully tested at trial …. The updated financial position of [the shareholding company] … will be known at that time. Such trial listing does not present a significant delay to the husband’s wish to purchase residential property in which to reside. …. Further, I am not satisfied that the husband needs to liquidate the parties’ shareholding interest with any urgency. This liquidation can occur once the matter has been determined at trial or resolved as between the parties by agreement on a final basis. An order allowing the shareholding interest to be sold would, as submitted by Counsel for the wife: ‘clearly cause irreversible prejudice to the wife’s ongoing financial position’ The proposed sale would significantly reduce the parties’ disposable income, a matter not disputed by them, pending their final property settlement. Permitting the interest to be sold at the undervalued offer made … (by reference to the single expert valuation report of Mr M) would have the effect of reducing the asset pool available for division at the present time by approximately 12%.”

The husband’s application in a case was dismissed with no order as to costs.

Property – De facto thresholds – Notice to admit powerful evidence of parties’ mutual intention and agreement that they were separated

In Lombard & Wamsley [2021] FamCAFC 124 (23 July 2021) the Full Court (Ainslie-Wallace, Ryan & Watts JJ) heard an appeal from a de facto property adjustment order of Judge Young, made after an eight year relationship.

The Court found the parties had separated in October 2014, such that the wife’s application had been brought within the 2 year time limit and leave was not required pursuant to s 44(6) of the Family Law Act (“the Act”). The husband appealed, arguing the parties had separated in March 2014, living under the same roof until October, such that leave was required.

The husband relied upon a Notice to Admit Facts that had been served by the wife, arguing that document had not been considered.

The Full Court said (from [24]):

“When did the relationship end?

To answer this question, it is necessary to consider what must be proved to establish the existence of a de facto relationship (Clarence & Crisp [2016] FamCAFC 157 … (‘Clarence’)) and to then consider what has changed to the extent that the relationship no longer exists (Herford & Berke (No 2) [2019] FamCAFC182 at [23]–[25]) …

( … )

[29] … [I]n finding that the de facto relationship ended in October 2014, as the husband contends, the primary judge overlooked important evidence. Namely, that in February 2017 the wife served on the husband a Notice to Admit Facts which asked that he admit that ‘in or about March 2014 [the husband] and [the wife] decided to separate but continued to live under the same roof’ … The admission sought was given. This was powerful evidence of the parties’ mutual intention and agreement that they were separated and their de facto relationship ended in March 2014. Analysed against that background, the changes that the parties then made to the way they lived take on a different complexion and demonstrate that not only did they agree to separate, they clearly acted on that decision. The effect of this is that the primary judge erred in failing to consider the wife’s Notice to Admit Facts … in failing to conclude that the de facto relationship ended in March 2014.

[30] It follows, that the primary judge was obliged, but failed to consider, whether the wife should be given leave pursuant to s 44(6) to bring her application out of time.

( … )

[41] The husband … contended that the wife was unable to establish hardship because the parties had already completed an informal property settlement from which she received an almost equal share of the parties’ property. On the husband’s case, and by reference to 2015 values, the wife received approximately $40,000 less than him. However, reference has already been made to the $70,000 which the husband sent to his father and of which the wife was unaware. This alone provides sufficient reason to reject the husband’s analysis of the nature and effect of the agreement reached in February 2015. … [T]he proposition that the wife has a prima facie claim worth pursuing is unarguable. It is at least as reflected in the primary judge’s assessment of her entitlement.

[42] As to discretionary matters, it was the husband’s submission at trial that the wife failed to provide any explanation for delay in seeking leave to proceed and he would be prejudiced if leave was granted. On the basis that the de facto relationship ended in March 2014, the delay is six months. Unsurprisingly, before us, counsel for the husband acknowledged that delay was not a significant issue. … [T]he wife’s explanation for the delay is obvious; on her case leave was not required because the de facto relationship ended later than we are satisfied is the case. The facts on which the wife relied to establish the later date included, for example, that the parties continued to live in the same residence, share their daughter’s care and maintained joint finances. That the wife proceeded under a mistaken belief as to the effect of these matters on the question of when the de facto relationship ended, is an adequate explanation for her failure to apply within the two year period.”

After granting the appeal, the Full Court granted the de facto wife leave to proceed and made the same property orders as the trial judge.