Property – Court erred in double counting premature distribution of matrimonial property – Transfer from joint account to wife’s personal account was of historical interest only, whereas her dissipation of amounts transferred to her account were of critical importance

In Zao & Lee [2023] FedCFamC1A 232 (20 December 2023), the Full Court (McClelland DCJ, Jarrett & Riethmuller JJ) heard a wife’s appeal against property orders made by Altobelli J that included notional add-backs totalling $636,712 ([5]).

The $636,712 was comprised of withdrawals made by the wife from a joint account, a deposit for a real property and an add-back for gambling ([7]). The wife appealed and argued that the add-backs included $403,930 of funds already on the balance sheet – that the Court had “double-dipped” ([5]).

The respondent husband agreed that the adding back of the deposit ($57,330) was sourced from the withdrawals made by the wife from the joint account, such that the inclusion of both in the balance sheet was an error.

As to $145,570 of the controversial withdrawals, the Court said (from [11]):

“As to the balance of $145,570, the evidence was that the [wife] transferred these funds from [a joint account] … to her own account … excluding the [husband] from the use of these funds … The [husband] also accepts that this amount has been included twice in the balance sheet. It should only be included once. However, the concession that this amount ought to be an ‘add-back’ at all is curious. The balance of the [wife’s] … account as at the date of the trial was in the balance sheet as found by the primary judge … The transaction simply moved the funds from one account (a joint account) to another in the [wife’s] sole name. The funds were not otherwise dissipated by that transaction and without subsequent transactions dissipating them, they would have been available for distribution in these proceedings as part of the balance of that account. It is not so much the transaction moving the $145,570 from one account to another which is objectionable, but rather it is any subsequent disbursal of those funds for the [wife’s] own purposes, rendering them unavailable for division between the parties that is the evil.  ( … )

( … )

[13] … [T]he concession that $145,570 ought to be ‘added-back’ to the pool simply because it was a transfer from the parties’ joint account to the [wife’s] own account without more, was probably erroneous. … [T]he fact of the transfer from the joint account to the [wife’s] account is of historical interest only. What is of critical importance is the reason for the dissipation of amounts subsequently withdrawn from the [wife’s] account.

[14] … [The wife’s] case is that [amounts included as add-backs] … were made using the $145,570 transferred to her account from the joint account – an amount already taken up … This is a question of fact which depends upon the evidence led before the primary judge.

( … )

[25] … [T]he [wife] submits before us that the evidence before the primary judge was that the source fund for the transactions … were ‘a myriad of transactions spanning over some three years including the deposit of the amount of $145,570’ … Yet, save for the transactions forming the relevant items, the primary judge was given no assistance to identify how those statements and the myriad of transactions demonstrated what the [wife] now argues. Neither could the [wife] take us to any evidence or explanation other than that which we have set out above on this issue to demonstrate the fact of double counting.

[26] The question of whether the add-back items … were double counted is a question of fact to be determined on the evidence presented at the trial. The evidence to which we have been taken does not persuade us that the primary judge [erred] …”

The Court adjusted the sum payable by the wife to the husband to reflect the double-dip that was agreed. The wife’s appeal was otherwise dismissed. She was ordered to pay the husband’s costs of the appeal, fixed at $13,000.

Children – Mother and father restrained on an interim basis from removing their terminally ill child from Perth Children’s Hospital

In Executive Director Medical Services, Perth Children’s Hospital and Cutcheon & Anor [2023] FCWA 257 (14 November 2023) Cohen J of the Family Court of Western Australia heard an application by Perth Children’s Hospital for a 10 year old child (“Child A”) to remain in hospital to receive palliative care treatment. The respondent parents wanted the child discharged as soon as possible.

The father’s position was that the child should be given palliative care at home [7]. The mother’s position was that if the child was discharged from hospital, he would be cured by God [6].

Cohen J said (at [13]):

“Child A’s condition is a rare genetic disorder that affects boys. Amongst other things, it affects the brain, which causes progressive neurological deterioration. …  Tragically, his condition is terminal, and Dr B has estimated, with the understandable caveat that predicting life expectancy is not done with any degree of certainty, that Child A has approximately 6 months left to live.”

After considering the deterioration in the mother’s mental health, Cohen J continued (from [37]):

“Before turning to the preliminary issue, namely, whether I should proceed with making orders in circumstances where the parents received the documents shortly before the hearing, and where self‑evidently, they have not had an opportunity to similarly put evidence before the Court, I want to highlight some concerns that I have about the position seemingly adopted by the Department.

[38] The Department’s present position, as I understand it, is that it is satisfied that should Child A be medically fit for discharge, it would be safe for Child A to return home to the care of his parents with safety planning in safe. The Department advised that the safety plan will be finalised by close of business the day after the hearing.

[39] I agree with submissions made by the Independent Children’s Lawyer (“ICL”), that it is somewhat vexing to understand how the Department have come to this position in circumstances where its safety planning has not yet been finalised. Further, it is unclear on the information provided by the Department as to who has been consulted as part of the safety planning process, whether the safety plan will involve other family members and if so, who. … I also do not know what consideration the Department has given to information it has about the circumstances that gave rise to the interim family violence restraining order in place between the parents, particularly noting, on the Department’s own information, the mother grabbed the father around the throat and Child D was required to intervene. Of further concern, there is an open child safety investigation on foot in respect of that particular issue. Until that is resolved, I cannot understand how the Department could conclude it is safe for a highly vulnerable little boy to return home.

( … )

[49] Having regard to the seriousness of the issues before the Court today, and the potential consequences for Child A that could follow, which could be life-threatening if interim orders were not made as sought by the Applicant, I am satisfied that it is appropriate and in Child A’s best interests to proceed, notwithstanding the fact that his parents have not yet had the opportunity to properly be heard. … ”

Cohen J continued (from [50]):

“ … The legal principles in respect to the Court’s jurisdiction to make orders about medical treatment for children were cogently elucidated by Thackray CJ … in the matter of Director Clinical Services, Child and Adolescent Health Services v Kiszko & Anor [2016] FCWA 19 (‘Kiszko’) … I respectfully adopt his Honour’s summary.

( … )

[51] … [T]he Court’s power to deal with applications of this kind … are grounded in sections 67ZC and 68L of the Family Law Act 1975 (Cth). His Honour also provided extensive commentary on the Court’s parens patriae jurisdiction, in which he observed the Court’s powers to be exceptionally wide.

( … )

[53] When further considering this issue in Kiszko, his Honour had regard to comments made by the High Court in the matter of the Secretary, Department of Health and Community Services v JWB & Anor [1992] HCA 15 … (‘Marion’s Case’), where the Court commented on the implicit power for parents to consent to medical treatment for a child incapable of giving consent, as recognition of the fact that parents will act in a way that is best for the welfare of the child. The High Court concluded the overriding criterion of the child’s best interests to be, itself, a limit on parental power. However, as Thackray CJ sagely reflected:

Put another way, parental power is not unlimited. It is to be exercised in the best interests of a child.

( … )

[55] When reaching his decision in Kiszko, Thackray CJ was guided by the judgment of Pullin J in Minister for Health v AS & Anor [2004] WASC 286 … His Honour quoted Pullin J as follows:

The question is not whether to respect the parent’s wishes. The role of the court is to exercise an independent and objective judgment and balance the advantage or disadvantage of the medical step under consideration. While the parent’s wishes may be relevant, they are not determinative. The guiding principle upon which the exercise of the parens patriae jurisdiction is based is that the welfare of the child is paramount. Protection of the child should be elevated above all other interests, although those other interests are not completely disregarded. The welfare of the child encompasses the child’s physical wellbeing.

When faced with the stark reality that the child will die if lifesaving treatment is not performed which has a good prospect of a long‑term cure, it is beyond doubt that it is in the child’s best interests to receive that treatment. …

( … )

[57] The father disputes some of the evidence put forward on behalf of the Applicant and puts a different complexion on the mother’s behaviour, inviting me to view it from a lens of understandable grief and distress. As much empathy as I have for her and the father, the decision I must make requires me to consider the impact (actual or potential) of her behaviour on Child A and his emotional and physical wellbeing.

( … )

[59] I am proceeding on the basis that I am making short-term orders, which will give the parents and the ICL an opportunity to put evidence before the Court, so that a more fulsome consideration of what is in Child A’s best interests moving forward can take place. … ”

Interim orders were made restraining the mother and father from removing or attempting to remove Child A from the Perth’s Children’s Hospital.

Property – Lottery win prior to marriage was not a joint contribution – No adjustment under s 75(2)(o) for husband’s support of wife’s children, considering financial contributions of wife’s son and husband’s sexual conduct towards her daughter

In Volmer & Krauze [2023] FedCFamC1F 869 (17 November 2023) Riethmuller J heard a wife’s application for property settlement.

Both parties were born in Country K. The husband migrated to Australia in 2000. The parties met in or around 2003. The wife travelled to Australia in April 2004 and stayed with the husband. She brought $9,750 with her, banked it but later withdrew $9,000 to purchase engagement rings and paid some to the husband before returning to Country K in mid-2004. There was disagreement as to how the money in the wife’s account was applied [9]-[13].

The parties continued a long-distance relationship that included the husband travelling to Country K. The husband won a lottery prize in 2006, after which the parties married in Country K and the wife and her four children moved to Australia to live with the husband [14]-[16]. A home was purchased with the lottery winnings and the balance was put in a term deposit.

The husband worked during the relationship and the wife worked from time to time. They never had a joint bank account [17]. The wife’s son moved out once he was earning an income and his siblings went to live with him too. The parties subsequently separated.

After saying that the husband’s evidence was “most unimpressive” and that he preferred the wife’s children’s evidence [22], Riethmuller J said (from [36]):

“Considerable argument was addressed towards whether or not the husband’s lottery win should be taken up as a joint contribution or a contribution on his part. The case was argued on the basis that the parties were in a de facto relationship prior to the marriage. I do not accept this argument. There are a number of circumstances of the parties that do not tell in favour of the parties being in a de facto relationship at that time. Primarily, the parties were not cohabiting as the husband lived in Australia while the wife lived in Country K. They never cohabitated until after marriage. It is not a case where circumstances beyond their control kept them apart … The parties did not have any joint bank accounts at that point. Their relationship, whilst an arranged one, was relatively short and premised upon the proposition that they would ultimately marry, which they did at a later date. Whilst they had a sexual relationship during the periods when they were together for visits, it was a modest number of nights they spent together over the years prior to marriage.

[37] Counsel for the wife pressed an argument that there was a financial interdependence based on the proposition that the wife had left some money in Australia and the husband had returned part of that to her to assist her in Country K and had used the balance. The amount was minor in comparison to the period and it does not indicate that there was any financial interdependence by the two of them as each clearly principally supported themself prior to the wife coming to Australia.

[38] They never owned property together. … Their commitment to a shared life was, at least until marriage, only a promise to marry and become a couple, which they ultimately did. The parties had no children together. …

[39] The reputation and public aspects of the parties’ relationship is more complex. It appears that the relationship was well-known to the husband’s family but not so well known to the wife’s family, or at least resisted by the wife’s family. The wife’s family did not attend the parties’ wedding and she stated that they were unhappy with her seeing the husband when he was in Country K.

( … )

[43] Contributions prior to cohabitation can be taken into account, as occurred in L & L [1994] FamCA 60 and Hsiao & Fazarri [2020] HCA 35 … However, in none of the cases did the law go so far as to suggest that a windfall obtained by a party prior to cohabitation should be considered a joint contribution as opposed to property contributed by one to the other of the parties, when assessing the property settlement. On the material in this case, the husband’s contribution of his lotto winnings must be taken to be a contribution by the husband and not a joint contribution by him and the wife.”

Riethmuller J continued (from [58]):

“Counsel for the husband submitted that the husband ought to receive an adjustment under s 75(2)(o) of the Act in accordance with the principles from Robb & Robb [1994] FamCA 136 … as a result of having provided, at the very least, accommodation, but also food and other benefits for the wife’s children living in his household for the period between when they arrived in Australia and moved out. An adjustment under Robb & Robb … is a matter of considering the circumstances of the family as a whole.

[59] In this case, the eldest child was working to contribute money to the household for the other children. The wife was also working during the period.

[60] In her affidavit … the wife’s eldest daughter described sexual assaults she suffered by the husband between 2007 and 2009, when she was living at his residence … There were numerous instances where the husband would approach the daughter from behind and grab her breasts. … On another occasion, she said that the husband grabbed her crotch … When she went to console the husband on the day of his own older daughter’s death, he forcefully kissed her, causing her to flee the room … In her affidavit, the daughter also sets out that the husband sent her a text message containing a picture of his genitalia …

( … )

[68] Having regard to the nature of the relationship of the husband with the children, the support that the wife’s son provided both in monetary terms and in providing a residence for the other children to move out of the matrimonial home, together with the conduct of the husband towards the daughter, I am not persuaded that any adjustment ought to be made under s 75(2)(o) of the Act, for support by the husband of the wife’s children of the former relationship (see generally: Robb & Robb [1994] FamCA 136 … ).”

Orders were made for a 67.5:32.5 per cent division in favour of the husband, who was to pay the wife $325,000.

Property – Husband’s participation as a witness in his brother’s successful litigation against the wife was not conduct that diminished the asset pool – Husband’s application to commence property proceedings out of time dismissed, where his alleged contributions indicated criminality and non-disclosure to his trustee in bankruptcy

In Krueger [2023] FedCFamC1A 203 (21 November 2023) Christie J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a husband’s appeal from dismissal of his application to commence property proceedings out of time.

The parties married in 2008 and separated on a final basis on 1 February 2018. They had two children aged 10 and 11 who lived with the wife. A divorce order was made in July 2019. The husband issued proceedings seeking property orders on 1 December 2022 (over 2 years’ out of time).

The husband was a bankrupt between 2013 and 2022 [7]. He was imprisoned in October 2013 and 2014-2015 [8].

The husband’s brother brought civil proceedings in the New South Wales Supreme Court against the wife in relation to building work undertaken by him on the former matrimonial home, which was in the wife’s name [7], [9]. The husband gave evidence on behalf of his brother. Orders were made for the wife to pay $185,000 to the husband’s brother. Her legal costs were $433,846 [9].

The matrimonial pool was $740,000 which was proceeds of sale of the former matrimonial home held in a solicitor’s trust account [10].

Considering the husband’s application for leave to proceed out of time, Christie J said (from [31]):

“… [A] Justice in the Supreme Court proceedings found that the nature of the agreement between the [wife] and the [husband’s] brother was such that it would be inappropriate for the [wife] to receive the whole of the benefit of the work on the home without any corresponding payment to the [husband’s] brother. ( … )

( … )

[33] The [husband] contends that it was the primary judge’s approach to the [husband’s] participation in the Supreme Court litigation which led the primary judge to make errors of fact and draw conclusions adverse to the [husband] which were unavailable on the evidence before the court.

( … )

[35] The primary judge concluded that the [husband’s] action (in participating in his brother’s litigation) had the effect of reducing the pool of assets available for adjustment as between the parties. As a matter of fact, the [wife] was required to pay money to the [husband’s] brother. The participation of the [husband] in that litigation may have assisted his brother but only because the judge found that monies were payable. The decision of the Supreme Court, in that sense, only crystallised the quantum – it did not create the liability.

( … )

[38] In circumstances where a judge of the Supreme Court has made findings imposing an obligation on the [wife] to pay monies to the [husband’s] brother and no appeal was filed, it was not open on the evidence before the primary judge to conclude, as he did, that somehow the husband’s participation in those proceedings improperly diminished the assets available for adjustment as between the husband and wife.”

Christie J proceeded to redetermine the application for leave to proceed out of time and said (from [84]):

“The [wife] submits that the husband’s evidence would not satisfy the Court that his claim was viable for a number of reasons. These include:

(a) While the bankruptcy of the [husband] has ended his bankruptcy is not annulled. …  The evidence in this case therefore did not exclude the possibility of there being outstanding (and unenumerated) demands on any funds to which the husband may be entitled;

(b) The husband did not provide adequate documentation concerning income to his trustee in bankruptcy raising significant questions about how he would demonstrate that he had made the financial contributions he now asserts.

[85] To those issue I would also add:

(c) The husband explicitly indicates that contributions made by him were made [by] ‘[criminal activity]’. It is difficult to conceive how the husband might demonstrate those contributions. This evidence also raises a real issue about whether any funds to which the [husband] may otherwise be entitled would be vulnerable to a claim under the Confiscation of Proceeds of Crime Act 1989 (NSW) … ; and

(d) The husband explicitly indicates that his brother diverted wages, which would otherwise have been payable to the husband, to the mortgage over B Street, Suburb F throughout the period of the husband’s bankruptcy. This evidence would appear to indicate on its face that whatever information was provided to the trustee in bankruptcy concerning income may not have been a true representation of the husband’s income … ( … )”

Christie J concluded (from [86]):

“The husband may … have an arguable case for recognition of financial and non-financial contributions made by him but its strength is not plain given the identified evidentiary difficulties. Further, the size of the pool, the childcare arrangements, the child support history and arrears and the wife’s income all speak to the wife having an entitlement to recognition of matters pursuant to s 75(2) of the Act. Finally, the costs of the litigation are such that the Court could not be satisfied that hardship would be caused to the husband by failure to pursue the claim with its attendant costs.

[87] Because I have not determined that the [husband] would experience hardship from refusal to grant leave, other matters which may be relevant to the exercise of discretion do not arise since the finding of hardship functions as a preliminary or gateway step in the process.

[88] … [E]ven if I had been persuaded that the evidence supported a conclusion that hardship would be caused to the [husband] if leave were not granted, I would nonetheless have exercised the discretion created by s 44(3) of the Act because of the matters set out at [84]-[85].”

The husband’s application for leave was dismissed and costs certificates were ordered.

Children – Court informed itself of extraneous material as to parenting practices that were not in evidence – Error of law where no procedural fairness accorded to the parties

In Alkaios & Shams [2023] FedCFamC1A 212 (30 November 2023) Schonell J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a father’s appeal against orders that permitted the mother to relocate 10 and 7 year old children from Victoria to Queensland.

After a 5 year relationship, the parties separated in February 2017 and the children initially lived with the mother and spent time with the father. Time progressed to an equal shared arrangement [9]. In November 2021, the mother proposed relocation and then issued proceedings seeking permission to relocate.

In December 2022, a family report was in favour of the proposed relocation [13]. After travelling to Queensland for a holiday with the children in 2023, the mother stayed there, resulting in orders being made for the return of the children to Melbourne [16]-[17]. A further family report issued in June 2023 that was in favour of the children remaining in Melbourne with the father [18]. The trial judge permitted the relocation [19].

The father’s appeal argued that there was a denial of procedural fairness.

Schonell J said (from [22]):

“The appellant submitted that the primary judge relied upon ‘opinions and evidential sources that were not in evidence’ … that were not raised with the single expert, and for which it was not possible for the appellant to respond as they were raised for the first time in her Honour’s judgment. … [T]he appellant’s Summary of Argument also referenced the primary judge’s finding as follows:

106. Neither party provided any evidence to the court about the advisability or otherwise of children having COVID vaccinations. However, a quick Google search indicates that about 38% of children aged five to 11 years have had two doses of the COVID vaccine. There is a general view that COVID is usually very mild in children.

( … )

[25] The parties were given no prior notice by the primary judge that she would be informing herself of expert evidence about parenting practices that was not before the Court … the causes of suicide and depression in gay men … reliance upon statistics that were not before her … the benefits of a vegan food in relation to climate change and life on earth generally … that vegan diets are healthier than diets that include red meat … or in undertaking google searches …

[26] If there is no evidence of a particular fact and that fact vitiates the ultimate decision, then there is an error of law, and the appeal must be allowed (see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139).

( … )

[28] A court is entitled to take judicial notice of certain matters that are common knowledge such as asbestos is dangerous, clocks may run at slightly different times and that driving a car carries a degree of risk (see R v Magoulias [2003] NSWCCA 143; Kent v Wotton & Byrne Pty Ltd [2006] TASSC 8 … Capic v Ford Motor Company of Australia Pty Ltd [2021] FCA 715 … The common law position is encapsulated in s 144 of the Evidence Act.

[29] Section 144 of the Evidence Act provides as follows:

144 Matters of common knowledge

(1) Proof is not required about knowledge that is not reasonably open to question and is:

(a) common knowledge in the locality in which the proceeding is being held or generally; or

(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.

(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.

( … )

(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

[30] … [P]roof is not required about matters that are not reasonably open to question, of common knowledge in the locality or capable of verification through documents the authenticity of which is not open to question. However, the rider to the use of such evidence is qualified by the proviso in s 144(4). Here, no party was given the opportunity to make submissions about the matters the primary judge relied upon.

( … )

[33] It is questionable whether any of the extraneous matters relied upon by the primary judge could be described as matters of common knowledge. In each instance, the asserted expert opinion, statistics or research were not in evidence. In each instance, the extraneous material was relied upon to draw an inference or buttress a finding adverse to the appellant. There was no capacity for any party to question the admissibility of such opinions or research, test its veracity or determine whether it was even reliably sourced.

[34] It is a fundamental requirement of natural justice that parties be given an opportunity to controvert or comment upon the evidence to be relied upon. Courts do not undertake enquiries or investigations without notice or consent or in secret. It is not in issue that the primary judge failed to bring to the attention of the parties’ legal representatives the extraneous matters she relied upon in the above paragraphs. It is impossible to discern what effect, if any, these matters had upon the primary judge’s determination. In those circumstances, it cannot … be categorised as irrelevant to the determination or merely obiter. I cannot safely conclude that the primary judge would have reached the same conclusion had she not had regard to the above matters. …

[35] I am satisfied that the reference by the primary judge to this extraneous material that was not in evidence constitutes appealable error.”

The appeal was allowed and the matter remitted for rehearing. Costs certificates were ordered.

Property – No error in 80:20 division in husband’s favour – Short marriage, one child – Significant direct financial contributions by husband and his parents

In Cheng & Mong [2023] FedCFamC1A 196 (15 November 2023) the Full Court (McClelland DCJ, Tree & Curran JJ) heard a husband’s appeal from a decision of Henderson J in a property case.

The marriage subsisted for six and a half years [2]. There was one child of the relationship [5]. The parties purchased a property (“the Suburb H property”) on 2 November 2016 in the husband’s sole name by paying $279,250 from the husband’s father, a mortgage of $1,356,000 and the parties’ savings of $138,485 [8]-[9].

The husband received total contributions from his parents of $2,384,124.

The parties separated on 14 February 2020 when the wife left Australia for Country B (the birth country of both parties) on a temporary basis. The husband withdrew his support for her visa and she has not remained to live in Australia since that date. The child has remained living with the husband [12].

The trial judge made orders dividing the asset pool 80:20 in the husband’s favour. This was reached by a 75:25 contributions adjustment in the husband’s favour and a 5 per cent adjustment based on a consideration of s 79(d)(d)-(g) [1]. The husband appealed, arguing that the contributions assessment was “manifestly inadequate” [18].

The Full Court said (from [25]):

“The [husband’s counsel’s] oral submissions … referred to a ‘fairly’ or ‘relatively’ short relationship. … [T]he primary judge accepted it spanned approximately seven years and noted that was uncontested. However, there was no submission made by the husband to the primary judge as to what should have been the consequence arising from this fact.

[26] It is evident that the primary judge accurately and uncontroversially recorded the period of cohabitation of the relationship. There is no reason to think she failed to properly weigh it as a relevant consideration.

( … )

[27] Throughout her reasons, the primary judge specifically made findings as to the direct financial contributions of the husband and his parents. Particularly, her Honour acknowledged the overwhelming financial contribution from the husband and his family ( … )

( … )

[29] … [H]er Honour accepted that the husband’s parents had ‘also made significant contributions to the ongoing conservation and maintenance of the Suburb H Property’ by reference to s 79(4)(b) of the Act and expressly acknowledged in her reasons their direct financial contributions in having ‘provided significant monies’ and acknowledging it as ‘a relevant contribution by the husband via his parents’.

[30] Given the extensive reference to the various contributions in the reasons, there is no basis to conclude that the primary judge failed to appreciate the significance of the direct financial contributions, or other contributions made by the husband or his parents, or that she failed to give these factors weight.

[31] That the primary judge did not adopt the percentage adjustment as contended for by the husband in the exercise of her discretion, does not establish a failure to give sufficient weight to the direct financial contribution of the husband and his family.”

The Full Court concluded (at [36]):

“The ‘ambit’, as referred to above in Norbis, in this case was always liable to be wide. Other judges may have reached different conclusions having regard to the weight appropriate to be given to the countervailing factors revealed by the evidence, but that does not establish error. Significantly, the adequacy of the primary judge’s reasons and findings themselves have not been challenged in this appeal. It has not been shown that the primary judge failed to have regard to any relevant fact or circumstance in the exercise of her discretion. No relevant fact or circumstance has been shown to have been given excessive or inadequate weight. We are not persuaded that the 75 per cent contribution-based finding in the husband’s favour was manifestly inadequate, unreasonable or plainly wrong.”

Procedure – Father permitted to use single expert reports in criminal proceedings – Section 121 not engaged where publication is to a court, not to “the public or to a section of the public”

In Littlefield & Pemble [2023] FedCFamC1A 198 (17 November 2023) the Full Court (Tree, Christie & Strum JJ) heard a father’s appeal from a decision of McGuire J dismissing his application to release single expert reports prepared in parenting proceedings for use in criminal proceedings.

The father and mother’s parenting proceedings were listed for final hearing in December 2023 [4]. The father was charged with sexual offences in relation to the child who was almost eight years of age. The criminal proceedings were listed in the Magistrates Court of Tasmania in November 2023 [5].

The father sought permission to produce two single expert reports in his criminal proceedings. The application was dismissed and he appealed.

The Full Court said (from [27]):

“Quite apart from the effect of the orders of the Court restricting release of the single expert reports, in certain circumstances, there is a separate obligation which restrains parties from releasing or publishing confidential court documents beyond the immediate litigation, commonly referred to as an ‘implied undertaking’.

( … )

[29] … [T]he enquiry as to whether the single expert reports are within the scope of the implied undertaking is whether ‘the circumstances under which [the father] obtained’ them mean that he cannot disclose them without leave of the court. …

[30] At this point it is convenient to deal with s 121 of the Family Law Act 1975 (Cth). ( … )

[31] The release of the single expert reports to the Magistrates Court of Tasmania is not publication or dissemination ‘to the public or to a section of the public’ and hence s 121 is not engaged (Re W: Publication Application [1997] FamCA 8 … )

( … )

[34] We then turn to consider the relevant considerations which are engaged where a party seeks leave to use material impressed with the implied undertaking for a purpose other than that for which it was given or created. …

( … )

[35] As to that, in Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 … the Full Court of the Federal Court said:

31. In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show “special circumstances” … In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 Wilcox J identified a number of considerations which may, depending upon the circumstances, be relevant to the exercise of the discretion. These were:

    • the nature of the document;
    • the circumstances under which the document came into existence;
    • the attitude of the author of the document and any prejudice the author may sustain;
    • whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;
    • the nature of the information in the document …
    • the circumstances in which the document came in to the hands of the applicant; and
    • most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.

( … )

[39] … [T]he primary question is whether the circumstances under which the father obtained the single expert reports mean that, either by virtue of the orders releasing them to him, or because they are subject to an implied undertaking, he cannot disclose them without leave. The primary judge’s rejection of the implied undertaking … was misconceived. At the very least, as we have explained, both single expert reports relied on material which had been produced pursuant to subpoena, and hence itself subject to an implied undertaking. … The appeal therefore has merit … ”

Re-exercising the discretion, the Full Court said (from 45]):

“… Here it seems to us that the pre-eminent consideration is whether there is a real possibility that the expert reports may contribute to the administration of justice in the father’s criminal proceedings.

[46] The father points to the potential use of statements by the mother to both [experts] in the cross-examination of her in the criminal court, as satisfying the relevant test, particularly given the considerable overlap between the issues in the criminal proceedings and the parenting proceedings. As but one example, Dr E notes that the mother withheld significant relevant mental health history from her, which is a matter upon which the mother might legitimately be cross-examined. There is also the possibility that the professional opinions expressed by the authors may be in some way relevant to the criminal proceedings.

[47] It is in the public interest that there be the proper administration of justice in the criminal proceedings, and we were satisfied that the opportunity to rely on the two single expert reports may assist in that.”

Children – Orders requiring father to engage in cognitive behavioural therapy with a clinical psychologist as pre-condition to unsupervised time tantamount to divestiture of judicial power – Orders aspirational and unenforceable, not prescriptive and enforceable

In Lainhart & Ellinson [2023] FedCFamC1A 200 (20 November 2023) the Full Court (McClelland DCJ, Aldridge & Austin JJ) heard a mother’s appeal from a decision of Judge Morley in a parenting matter relating to a child born in 2017.

At trial, the parties agreed that the child would continue to live with the mother. Parental responsibility and paternal time arrangements were disputed. The mother alleged the father posed a risk to the child due to his inability to manage his anger and his propensity for violence [8].

Judge Morley ordered the mother have sole parental responsibility [9] and that the father’s time with the child be confined to three and a half hours every Saturday, supervised at a contact centre [11].  Subject to the father complying with specific conditions, that time was to increase over a period of about 15 months to alternate weekends, school holidays and other special occasions [12].

The conditions included that the father engage in a course of cognitive behavioural therapy with the therapist to ultimately provide a report confirming that the father had “understood and accepted that during and after their relationship he had significant anger management problems that led to him perpetrating physical and psychological family violence upon the mother” and that he had “gained understanding of the need to manage his anger so as to eliminate any unacceptable risk to [the child] of outbursts of anger by the father while she is in his care for any period of time”.

The mother appealed.

Austin J said (from [24]):

“The orders presume that the psychologist’s opinion will be dispositive of the issue and, hence, govern the expansion of the time the child spends with the father and the dispensation of their professional supervision. But why should a psychologist, chosen by the father, be vested with power to determine when it is safe for the child to spend more unsupervised time with the father? …

( … )

[27] … [T]he orders are beset by two … defects: first, their operation is tantamount to the divestiture of judicial power and the unlawful conferral of such power upon a third party to determine the proper future parenting arrangements for the child; and secondly, the orders are aspirational and unenforceable, not prescriptive and enforceable.

[28] Courts exercising jurisdiction under the Act must decide justiciable disputes, by conventional adversarial procedure, between imperfect litigants on the available evidence according to law by making prescriptive and enforceable orders within statutory power to quell the controversy. That is the unique and essential function of judicial power (Rizeq v Western Australia [2017] HCA 23 … ; Fencott v Muller [1983] HCA 12 … ; Harrington v Lowe [1996] HCA 8  … ). The judicial function cannot be delegated to others, apart from to registrars in limited circumstances…

[29] Courts must take the litigants as they find them when determining causes of action under Pt VII of the Act. Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences.

( … )

[31] In this instance, the primary judge did not confine his role to simply deciding the case on its merits by reference to the evidence which the parties elected to adduce. His Honour tried, but failed, to formulate orders which would remedy the deficiencies in the evidence about the child’s future safety in the father’s care and dictate via the use of an intermediary how the child would be prospectively protected from the risk of harm, undoubtedly hoping that would prove beneficial for the child and the parties. …

( … )

[33] The future provision of the psychological report certifying the father’s understanding and acceptance of certain stipulated concepts (including the elimination of ‘any unacceptable risk’) marks the point at which the child’s time with the father expands and professional supervision is dispensed with. …

( … )

[35] Even if the father … fulfils all of the conditions [the subject order]  imposes, there is still no way for him to enforce the ensuing orders enabling the child to spend more expansive unsupervised time with him. If the mother refuses to comply with the extended orders then, in determining any contravention application brought against her by the father, the Court could not conceivably reject her defence of ‘reasonable excuse’ for the breach because she is denied any way of verifying the reliability of the psychologist’s opinion that the father no longer poses any risk of harm to the child. The orders unreasonably compel the mother to accept and act upon the subjective opinion of an unknown therapist chosen by the father.

( … )

[40] In the face of the inculpatory findings made about the father’s perpetration of family violence and the adverse repercussions of it, which entailed rejection of his exculpatory denials, it must inexorably follow that the past therapy and courses in which he engaged were not enlightening for him. One is therefore left to wonder about the utility of making orders for the father to undertake even more therapy in the hope of him experiencing an epiphany by finally understanding and accepting how his ‘significant anger management problems’ adversely affected the mother and why his behaviour is liable to pose an ongoing risk of harm to the child. … ”

Aldridge and McClelland DCJ agreed with Austin J.

The appeal was allowed and the matter remitted for rehearing as to paternal time arrangements.

Procedure – Duty of formality before the Court – Correspondence from Law clerk to the Court was “informal and presumptuous” – Inappropriate for non-legal staff to make substantive representations or seek orders in written communication with the Court

In Amirbeaggi (Trustee), in the matter Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949 (23 October 2023) Judge Given heard a bankruptcy application in Division 2 of the Federal Circuit and Family Court of Australia. The judgement related to procedural orders “necessary to address an apparent deterioration in the standard of conduct before the Court, which should not be allowed to endure” [1].

In September 2023, the Court had directed the respondents to file and serve a Notice of Opposition and listed a directions hearing after its due date. No Notice was filed. Rather, in October 2023, an e-mail was sent from a law clerk to the Court with further directions as agreed between the parties. The e-mail read “Please have the Directions hearing relisted in accordance with the Orders” [1] – [3].

Focusing on communication by legal practitioners to the Court, Her Honour said (from [4]):

“Upon receipt of the October email, I listed the matter … and required that the legal practitioners for the parties appear in order to address:

(a) …

(b) on what basis, and by which authority, the Court could be directed by a law clerk to make orders and relist proceedings.

( … )

[7] The Court was informed that the October email was sent by the law clerk (who was … not … admitted as a legal practitioner) having been settled by a solicitor in the employ of the same firm … In the context of these proceedings, it was the latter upon whom responsibility for the sending of the October email ultimately rests …

[8] The solicitor for the first respondent made submissions to the effect that there were medical issues encountered by his client which had led to the inability of the respondents to comply with the September orders. If that be so, it is not addressed at all by the October email nor … was it the subject of any evidence (let alone medical evidence) before the Court.

( … )

[10] Orders made by the Court, whether by consent or otherwise, must be complied with.

[11] Any party who apprehends an inability to so comply should approach the Court in advance (and in accordance with the terms of any specific liberty to apply) proffering an explanation for the foreshadowed inability to comply. It should be a rare state of affairs indeed in which the Court is approached for dispensation after orders have been breached. In such a circumstance, an explanation is not only warranted, but essential, to explain to the Court why the orders have been breached and to seek any further indulgence … When exercising a liberty to apply, the terms of that liberty should be observed: it is a liberty to ‘apply’ for relisting, not a liberty to submit alternate orders for automatic processing.

[12] Legal practitioners in Australia (whether solicitors or barristers ) have a duty of formality before the Court …

[13] Correspondence to Chambers which will necessarily be read by the Judge is a communication before the Court. As such, an email sent to Chambers becomes a communication with the Court itself.

[14] There is arguably nothing so informal, or possibly arrogant, as to approach a Court with orders which have been agreed amongst the parties and simply presume, or in the instant case direct, that they will be made … The concluding use of ‘Kind regards’ … or similar expressions, in correspondence with a Court, is also not appropriate, and falls foul of the obligation to avoid informality.

[15] Where a party is represented, submissions should not be made to the Court by anyone other than a legal representative. … [N]on-legal staff in law firms should not write to the Court to make substantive representations and/or seek orders. Supervision arrangements for lawyers who do write to the Court should also be stringent …

[16] The underlying origin/s of this spate of informal and presumptuous correspondence is unknown, although it does seem heightened since the COVID-19 pandemic restrictions which forced a number of Courts to conduct hearings using online technologies … Lest there be any doubt, parties and practitioners should not interpret the use by Courts of a medium which can also be used for meetings and entertainment, as somehow informalising the solemnity of Court proceedings.

( … )

[19] Approaches to the Court, even for case management events such as a directions hearings, must comply with the duty referred to … above. The proposal of consent orders should be undertaken in terms which properly acknowledge that the Court retains a full discretion as to whether they will be made, and in which terms. Consent orders are proposed consent orders unless, and until, the Court makes them. No correspondence to the Court should be in terms to the effect that the parties have reached agreement and are simply informing the Court of a change to the orders. … ”

Maintenance – Where husband’s affidavit was 92 pages and filed less than 48 hours prior to enforcement hearing, the Court’s refusal to allow wife to rely upon further affidavit was procedurally unfair – Husband’s unemployment insufficient to warrant variation of maintenance orders as his sporadic employment was considered when maintenance orders were made

In Macarthur [2023] FedCFamC1A 166 (29 September 2023) the Full Court (Aldridge, Jarrett & Strum JJ) heard a wife’s appeal against orders of Christie J, that dismissed her application to enforce an interim spousal maintenance order.

The Court also reduced the maintenance payable by the husband, where he had filed an affidavit that sought to vary the maintenance orders. The wife was not permitted to rely upon her affidavit in response.

After considering the wife’s contentions as to orders which required a suspension of payments if the husband received no income, the Court varied the maintenance orders so that the husband was to pay spousal maintenance of $400 per week if he was employed on site; and $200 per week if he was employed otherwise. The wife appealed.

The Full Court said (from [45]):

“ … The thrust of [the wife’s] submissions is that [she] ought to have been permitted to respond to the [husband’s] case by being permitted to rely upon her second affidavit, or perhaps another affidavit.

[46] We consider that there is merit in this complaint.

[47] The primary judge prevented the [wife] from relying upon her second affidavit because it was not filed at least 48 hours prior to the hearing date as required by r 5.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Whilst much of that affidavit was submission … she also attempted to put into evidence through the affidavit, a document from Services Australia dealing with a JobSeeker payment to the [husband]. This was relevant because she wished to make an argument that the [husband’s] claims about his income and assets could not be correct having regard to the information in the JobSeeker statement. The [wife] was unable to do so because the document was not in evidence … and when she attempted to rely upon the document in submissions, the primary judge prevented her from doing so …

[48] The evidence about the [husband’s] income or assets was relevant because it was the [husband’s] application to vary the amount of the maintenance orders on the basis that his income was either nil or likely to be less than it was when the orders for maintenance were varied.

[49] Whilst the [wife] can make no complaint about her Honour’s direction that the [husband] was permitted to file his affidavit material less than 48 hours prior to the commencement of the hearing given that she had asked for an urgent hearing of her application, the [husband’s] response did more than simply respond to the relief sought by the [wife]. He took the opportunity to himself apply for a variation to the maintenance order by a reduction in the amounts payable under it …

[50] His supporting affidavit was 92 pages in length (including annexures). …

[51] … [T]he [wife] had less than two days’ notice of the basis upon which the [husband] was applying to vary the amount payable pursuant to the maintenance order. She sought to meet his case by relying upon evidence that she provided through her second affidavit which she later unsuccessfully sought to tender. That she was not permitted to rely upon that evidence in those circumstances … was a denial of procedural fairness.

[52] … [H]er Honour’s reference … to r 5.08(1)(a) of the Rules which only permits one affidavit per witness and r 5.07 of the Rules, which requires filing two business days before the hearing is problematic. It fails to recognise the very different nature of the [wife’s] application and the [husband’s] application. …

( … )

[54] … [T]he primary judge did not bring to the attention of the [wife], a self-represented litigant, that the orders sought by the [husband] required her Honour to consider again the [wife’s] need for maintenance and the [husband’s] capacity to pay maintenance to her. The [wife] had not filed any evidence that bore upon her financial circumstances. She did not file a Financial Statement. Given the nature of the relief that she was seeking in her application, one could not be critical of the applicant for not filing that evidence …

[55] … [U]pon the filing of the response seeking a variation to the quantum of the maintenance orders, that evidence became relevant and necessary. The [wife] was also entitled to put on evidence that bore upon the [husband’s] capacity to pay maintenance … ”

The Full Court continued (from [61]):

“Her Honour, quite properly, dealt with the relief sought by the [husband] pursuant to s 83(2) of the Family Law Act 1975 (Cth). By force of that subsection, the Court shall not vary an earlier maintenance order unless it is satisfied of changed circumstances which justify the variation: Caska and Caska [2001] FamCA 1279 …

[62] The primary judge found that there had been ‘a number of changes in circumstances since the spouse maintenance order was made’ … Her Honour thought those changes warranted ‘the Court examining the existing order to determine whether variation, increase, decrease, discharge or suspension are appropriate’ … The primary judge specified two changes – that the parties’ daughter had commenced formal education because she was now in ‘Kindergarten’ and that the [husband] had experienced a few periods of unemployment.

[63] … The fact that the parties’ daughter had commenced Kindergarten is at best a neutral matter especially given that the [wife] was not applying to increase the amount of maintenance to be paid by the [husband].

[64] … [T]he orders made on 3 September 2021 were made on the basis that the [husband]’s employment was sporadic and there were times when he would earn no income …

( … )

[68] … [W]e consider that her Honour has erred by misapplying the requirements of s 83(2) of the Act. The changes in circumstances found by her Honour could not on any reasonable view justify any variation to the orders made on 3 September 2021 when those orders expressly contemplated and made provision for the circumstance that the respondent might find himself without income.”

The appeal was allowed, the orders of Christie J set aside and the hearing of the applications were remitted to be heard at the trial. No order was made as to costs.