Welcome to Family Law Australia Support & Training

FLAST is a network and community focused on Family Law in Australia and providing support and training for members with current family law matters.

FLAST helps improve access to justice for it's members with:

  • Free Daily Court Digests of Cases Coming out of the Family Courts.

  • Private Members area where members can communicate with legal professionals, ask questions, engage in discussions all with an anonymous profile.

  • Mentoring Services to help guide you through the quagmire that is Family Law working collaboratively with your lawyers.

  • Document Drafting Services with review by Legal Practitioners.

  • Case Management Services with review by Legal Practitioners.

  • Ad-Hoc legal services for advice when you need it, keeping costs down.

    AN OVERVIEW OF THE FLAST NETWORK



Join FLAST as a subscribed member for added services.


CLICK HERE TO JOIN



CLICK HERE TO JOIN

 

Book a Free Consultation 

 

Be part of our Facebook Group

New Discussions
  •  · 
Can parenting orders prevent a step parent being present at child school events etc? If so, on what …
  •  · 
  •  · 
  •  · Essentially you are seeking an injunction.Here is a cases to read up on how the Courts have viewed i…
  •  · 
I emailed easternappeals@fcfcoa.gov.au The email attached the document of "Notice of Appeal" from t…
  •  · 
  •  · 
  •  · Here is some further information. Family Law Act 1975 (Cth) Pt VII, s 70NBA - exists to enable the …
Orders handed down by a judge late May2022. FCFOA.  Date that orders were handed down was Fri 27May2…
https://bit.ly/relationshipsurveyuow Hi, My name is Kirsten, I am a part of a research program at…
  •  · 
  •  · 
  •  · Susan Edwards I can’t, in any way, see how the act of anyone, male or female, fleeing a violent…
Our Final hearing was heard very recently, Financials and Parenting matter, NSW FCCOA. 5 yrs since i…
  •  · 
  •  · 
  •  · The most obvious question raised is: "What is the incentive for a lawyer or representative to act in…
  •  · 
Hi, Just joined site. I will get straight to the point if anyone can assist. Please note I will like…
  •  · 
  •  · 
  •  · Sorry to see what you are going through unfortunately at this time of year in an ordinary year would…
Latest Posts (Gallery View)

Essentially you are seeking an injunction.

Here is a cases to read up on how the Courts have viewed it.

https://flast.com.au/page/view-post?id=653 



Here is some further information.

Family Law Act 1975 (Cth) Pt VIIs 70NBA - exists to enable the variation of a primary parenting order which is revealed to be deficient in some way during the contravention dispute between the parties; typically because it is shown to be ambiguous or to suffer from some form of lacuna. 


Hi I sent you a direct message using "Conversations" you should have received an email notification of it, but otherwise click on your name in the top right and then click on Conversations in the menu to see it.

Generally speaking to answer your question above: 

Part E, Question 9 – your proposed grounds of appeal are not drafted as grounds of appeal and must be re-drafted. Commentary, explanation and expansion must be removed. The grounds of appeal must be short, succinct statements of the legal errors contended that the primary Judge made resulting in the defects in the orders alleged."

What it means is what it says, "Commentary, explanation and expansion must be removed".

Where you might be getting confused is you are inserting into the "Notice of Appeal" information that should be in the supporting Affidavit.

The Notice of appeal ought to show the basis of appeal, which must be either and "error of law" (the judge got the law wrong) or an "error of fact" where the judge got the facts wrong and therefore misapplied the law.

In this case it sounds like the error is that the orders are ambiguous and unenforcable. 


Added a Digest 

Martin & Commissioner of Police (No 2) [2022] FedCFamC1A 76 (20 May 2022)

An appeal from an order that the child be returned to Hong Kong (“the return order”) was dismissed by the Full Court.  The applicant filed an application in the Family Court of Western Australia seeking a stay of the original return order pending the finalisation of her application to the High Court of Australia for special leave to appeal from the Full Court’s decision.  The primary judge dismissed the application, from which order the proposed appeal lies.

Facts:

On 19 November 2021, a judge of the Family Court of Western Australia made orders for the child’s return to Hong Kong.  On 28 April 2022, although beyond the time period allowing her to do so, the applicant filed an application in the High Court of Australia (“the High Court”) seeking special leave to appeal from the Full Court’s decision.  She now needs permission from the High Court to bring the application for special leave to appeal out of time before the application is even substantively considered, but neither application has yet been determined.  On 5 May 2022, the applicant filed an application in the Family Court of Western Australia seeking orders to stay the original return orders made on 19 November 2021 until after the matter is finalised in the High Court of Australia.

On 11 May 2022, that application was entertained and dismissed by the same primary judge.  Without deciding whether her Honour was even seized of power to grant the relief sought by the applicant, the primary judge decided the application upon the presumption that such power existed.  On 13 May 2022, the applicant filed a Notice of Appeal, wherein she applied for leave to appeal from the orders made by the primary judge on 11 May 2022 dismissing her stay application.  On 16 May 2022, the applicant filed an Application in an Appeal and supporting affidavit (together with exhibits, marked as Exhibit A on the application). 

The applicant seeks: that the appeal for a stay be expedited; that interim orders be made preventing [the child] from being removed from Australia on the 22nd May 2022 until after this appeal is decided; and that the mother not be held responsible for costs lost by the father due to the stay application being refused by [the primary judge]. 

Issue:

Whether or not the appeal should be granted. 

Applicable law:

Family Law Act 1975 (Cth) - relied upon in holding that there are no proceedings presently pending before any court seized of original jurisdiction.

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32 - provides that the appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) is to be exercised by Full Court in relation to a judgment of any other court. 

Commissioner of Police & Martin [2021] FCWA 211 - where a judge of the Family Court of Western Australia made orders for the child’s return to Hong Kong.
 
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681[1986] HCA 84 - provides that it is always open to the applicant to make an application to the High Court for an order staying the primary judge’s return orders, though the exercise of that power too is “seldom invoked and rarely exercised”.
 
Langley & Tarelli (No.3) (2021) FLC 94-060; [2021] FedCFamC1A 67 - provides that the Full Court would have the power to stay the orders it made on 3 March 2022 dismissing the applicant’s appeal, pending the determination by the High Court of her application for special leave to appeal, though compelling circumstances are needed to justify the use of such power.

Analysis:

This expedition application is being heard today (Friday 20 May 2022).  The child is being flown to Hong Kong on Monday 23 May 2022.  It would be exceedingly difficult to convene a Full Court to hear the application for leave and the appeal tomorrow (Saturday 21 May 2022) or the day after (Sunday 22 May 2022), as would be necessary since the prospective appeal lies from the judgment of a judge of the Family Court of Western Australia and cannot be heard by a single judge.  Even if a Full Court could be convened as soon as tomorrow or the day after, the prospects of success of the application for leave to appeal and the appeal do not appear sufficiently strong to warrant expedition of such velocity.

The primary judge’s power was exhausted once the return orders were made under the Regulations on 19 November 2021, disposing of all outstanding applications.  Her Honour had power to stay those orders pending the determination of the appeal to the Full Court, but that power evaporated when the appeal was dismissed on 3 March 2022.  In all probability, the primary judge was functus officio thereafter, absent some new application being brought by the applicant within the primary judge’s original jurisdiction – and there was none.  Even if persuaded to exercise the sparingly-used power, the stay of the order dismissing the appeal would leave the underlying return orders made by the primary judge in November 2021 intact and operable, so serving no useful purpose.

The evidence led and the submissions made by the applicant in support of this expedition application do not evince any basis upon which to conclude there is an arguable case to be made in the prospective appeal from the dismissal order.

Conclusion:

The Application in an Appeal filed on 16 May 2022 is dismissed.

Added a Digest 

Harford & Spalding [2022] FedCFamC1A 78 (26 May 2022)

The wife filed an appeal from orders dismissing an application for summary dismissal.  Her application sought to summarily dismiss the husband’s claims.  The Court, in making its final orders, assessed whether the primary judge erred in not having regard to the relevant transcript. 

Facts:

The parties commenced cohabitation in 1988, were married in 1990 and separated in February 2017, albeit remaining under the one roof until December 2019.  

Following an unsuccessful mediation conducted on 23 March 2020, the wife commenced property settlement proceedings on 15 May 2020.  Thereafter the parties continued to engage in settlement negotiations which, on 28 May 2020, resulted in them signing proposed property settlement consent orders, entering into a Binding Financial Agreement (“BFA”) and the husband signing a release.   The consent orders provided for the wife to pay the sum of $700,000 to the husband, and for a superannuation split of $205,000 from the wife to the husband, but otherwise each party would retain the assets held in their name or possession.

The BFA essentially provided for mutual releases in respect of claims for spousal maintenance.  On 29 May 2020, Loughnan J made orders (“the 2020 orders”) in accordance with the proposed consent orders signed by the parties, after hearing submissions from each party’s counsel and the tender of a joint balance sheet.  

On 27 November 2020, the husband filed an Initiating Application (subsequently amended on 11 March 2021) seeking to set aside or vary the 2020 orders pursuant to s 79A of the Act and to set aside the BFA pursuant to s 90K(1) of the Act on a number of different bases.  On 22 January 2021, the wife filed an application seeking to summarily dismiss the husband’s Initiating Application, which was heard on 23 June 2021.  On 27 August 2021, the primary judge dismissed the wife’s application for summary dismissal.

Issue:

Whether or not the primary judge erred in dismissing the wife's application for summary dismissal of the husband's application.

Applicable law:

Family Law Act 1975 (Cth) s 79A - relied upon in holding that the materiality errors is clear, in that the transcript directly bears upon the arguability of the husband’s claims of the wife’s potential misleading of the Court, or non-disclosure, leading to a miscarriage of justice.

Succession Act 2006 (NSW) s 95 - provides that a release by a person of the person's rights to apply for a family provision order has effect only if it has been approved by the Court and to the extent that the approval has not been revoked by the Court.
 
Bennett and Bennett (1991) FLC 92-191[1990] FamCA 148 - provides that the adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; (b) justice is not seen to have been done.
Boensch v Pascoe (2019) 268 CLR 593[2019] HCA 49 - where it is not appropriate for the Court to consider the balance of the grounds which deal with the issue of whether the husband had an arguable case under either statutory provision.
 
Ebner & Pappas (2014) FLC 93-619[2014] FamCAFC 229 - provides that leave to appeal the order dismissing the wife’s application for summary dismissal is required.
 
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 - provides that the test adopted in this Court provides that leave to appeal will only be granted where the decision of the primary judge was attended by sufficient doubt to warrant its reconsideration and a substantial injustice would ensue if leave were refused.
 
Northern Territory v Sangare (2019) 265 CLR 164[2019] HCA 25 - where whilst that is likely so, it does not in this case tell significantly against an order for costs, as even impecuniosity is no bar to a costs order.

Analysis:

The primary judge discussed the balance sheet listing the parties’ assets and liabilities, including designer clothing owned by the wife, which had been before Loughnan J and, in particular, the difference in the values which each party contended should be attributed to that clothing; the husband contended a value of $1,162,000 whereas the wife contended a value of nil.   

Her Honour noted the parties’ respective explanations for their contended values of the designer clothing as contained at note 2 to the balance sheet.  Her Honour considered the husband’s claim that at the time of the 2020 orders, the wife misled the Court as to the value of her designer clothing which, potentially, both caused a miscarriage of justice in the Court’s making of the consent orders and comprised fraud inducing him to enter into the BFA.   The husband claimed that because he had sold some of the wife’s clothing which he had retained under the 2020 orders, for about $28,000, it followed that the clothing retained by the wife could not have been of no value in 2020.

The primary judge recorded at [51] that her Honour “[did] not have the transcript of the proceedings before [Loughnan J] before [her] as the husband did not rely upon this transcript” and hence the only possible inference is that the primary judge therefore had no regard to it.  However, the wife’s counsel tendered the relevant transcript before her Honour without objection, and both counsel for the wife and husband thereafter made submissions on its contents.  Whilst the wife acknowledged that the usual approach adopted in such proceedings for summary dismissal required the Court to only have regard to the husband’s material, she argued that did not preclude the Court from having regard to other material which is properly before it, and her Honour seemed to accept this argument.

It was incumbent upon the primary judge to adequately expose the reasoning by which her Honour concluded that the evidence established sufficiently arguable claims under either s 79A or s 90K(1)(a), the latter being particularly fraught given that it was the husband who needed to show he was induced to enter the BFA by the wife’s fraud, given the finding at [95].  However there is no sufficient disclosure of the reasoning.

Conclusion:

The Court allowed the appeal.  The orders of the primary judge made 27 August 2021 are set aside.  The matter is remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.  Within 28 days of these orders, the husband is to pay the wife’s costs of the appeal in the sum of $38,342.90. 

Added a Digest 

Allison & Tripp [2022] FedCFamC1F 309 (10 May 2022)

The father seeks leave to disclose material produced on subpoena in this Court to legal representatives and a foreign court for the purposes of parenting proceedings in Country B.  The Court, in determining whether or not a grant of leave would be in the interests of justice, assessed the applicability of the power to grant leave.  The mother made the decision to remain in Country B with the child due to work opportunities while the father returned to Australia.  The father commenced proceedings seeking parenting orders. 

Facts:

These are proceedings between the Applicant Father, Mr Allison (“the father”) and Ms Tripp (“the mother”) concerning their child, X, born in 2011 (“the child”).  In January 2019, the mother relocated to Country B, having taken what was intended to be a one-year secondment with her company.  The father and child joined the mother in around March 2019.  The mother was offered permanent, full-time employment in Country B in December 2019, which she accepted.  In July 2020, the parties entered into an interim agreement concerning the child.  The father returned to Australia shortly after as he had no income nor family support to enable him to remain in Country B.  Due to restrictions on travel caused by the Covid-19 pandemic, the child was unable to accompany the father.

The child is an Australian citizen, although he was issued a residency permit for Country B which expires on 1 February 2025.  The parties’ had an interim parenting agreement which expired on 30 June 2021.  Accordingly, the father commenced parenting proceedings in the Federal Circuit and Family Court of Australia (Division 2) on 8 September 2021 seeking orders for the child to return and live in Australia.  The child has been residing in Country B since April 2019, which has led to a possible issue of jurisdiction. 

On 14 December 2021, the ICL filed an application in a proceeding raising the issue of the child’s habitual residence under s 111CD of the Act, and thus, whether this court has jurisdiction to make orders concerning the child.  Initially, the father argued that the court did have jurisdiction because the child was habitually resident in Australia, and alternatively that the court had jurisdiction under ss 111CD(1)(c)(v) and 111CD(3) of the Act due to concurrent divorce proceedings.  In the alternative, he argued the court should assume jurisdiction.  The mother disputed that the child was habitually resident in Australia and sought dismissal of the father’s application.

During the interim hearing, the parties made consent orders for the father to discontinue his Initiating Application filed on 8 September 2021, as well as for all extant applications and responses in relation to that application to be dismissed.  However, it was anticipated that there would be proceedings commenced in the Country B courts concerning the child.  The parties therefore raised a new dispute, namely whether the father should be permitted to utilise documents produced on subpoena in these proceedings, in proceedings that are anticipated in a Country B court. 

Orders were made by consent on 18 March 2022 for a document setting out proposed Consent Orders and notations marked as Exhibit "A".  Orders and notations were ordered to be made in accordance with Exhibit "A".  By no later than close of registry filing on 21 March 2022, the applicant father was to file and serve any written submissions of no longer than 3 pages in support of an order permitting utilisation of documents produced on subpoena in these proceedings, in proceedings that are anticipated in a court of Country B, with such submissions to include a precisely formulated form of order which is proposed.  By no later than close of registry filing on 28 March 2022, the respondent mother was to file and serve any submissions in response.

The father points out that there are a number of legal restrictions on the release of material used in proceedings in this Court.  The father argues that it is in the interests of justice for leave to granted because the critical forensic importance of the Subpoenaed documents as discussed herein and commonality in subject matter between the Australian Proceedings and future Country B’s proceedings and interested parties, ought weigh heavily in favour of acceding to the application.  It is submitted the making of the order(s) sought, given the special feature involving an international dispute, and where there appears to be no international treaty or means by which an Order or subpoena issued in Country B would be binding here in Australia on an Australia Government Department such as C Organisation.

Issues:

I. Whether or not the limitations on the use of the material are appropriate.

II. Whether the Court should make the orders sought by the father. 

Applicable law:

Family Law Act 1975 (Cth) s 111CD(3) - provides that a court may only exercise jurisdiction in accordance with subparagraph (1)(b)(vi) or (c)(v) for a Commonwealth personal protection measure relating to a child if: (a)  one or both of the child's parents are habitually resident in Australia when the proceedings referred to in that subparagraph begin; and (b)  one or both of the parents have parental responsibility for the child; and (c)  the jurisdiction of the court to take the measure is accepted by the parents and each other person with parental responsibility for the child; and (d)  the exercise of jurisdiction to take the measure is in the best interests of the child; and the proceedings on the application for divorce or separation of the child's parents or the annulment of their marriage have not been finalised.

Family Law Act 1975 (Cth) s 117(1) - provides that subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.

Family Law Act 1975 (Cth) s 117(2)c - provides that the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters. 

Family Law Act 1975 (Cth) s 121 - restricts the publication or dissemination of information and documents, save for specified exemptions or with approval of the Court.

Harman v Secretary of State for the Home Department [1983] 1 AC 280 - provides that there is an implied undertaking to the Court not to disclose documents or information for any purpose other than for which it was given, save where it has been received into evidence, or where the common law and the Rules provide that parties can be released from the undertaking with the permission or leave of the Court.

Hearne v Street (2008) 235 CLR 125[2008] HCA 36 - where the High Court made clear that the Court may grant leave for documentary material disclosed in this Court, to be used in a different Court.
 
R Pty Ltd (Trustee for Fletcher Trust) & Jones (2016) 56 Fam LR 445[2016] FamCA 928 - where Carew J found at [71] that it would be, notwithstanding the implied undertaking, “...plainly in the interests of justice that each party be at liberty to use the documents in the new Supreme Court proceedings”. 

Analysis:

The power to grant leave applies with respect to documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.  In proceedings to which the Act applies, the starting point is that each party shall bear his or her own costs.  If, however, the Court is of the opinion that there are justifying circumstances, the Court may make such order as to costs and security for costs as the Court considers just.  

Consent orders also provided for the parties to each pay 50 per cent of the ICL’s costs, fixed in the sum of $1,650 each.  The mother was to file written submissions in support of any application for costs within 14 days of 18 March 2022.  This time has now passed.  The father filed written submissions on 19 April 2022, together with a supporting affidavit.  However, the father merely sought an order consistent with the terms of s 117(1).  

There is no reason to depart from the general rule under s 117(1) of the Act.  Neither party sought an order for costs in their favour. 

Conclusion: 

The parties are granted leave to disclose the documents produced to the Sydney Registry of this Court to: (a) any legal representatives of either party; (b) any Court in Country B, and in relation to any family law proceedings commenced with respect to the child, X; and (c) any Country B Court appointed expert(s) in relation to any proceedings relating to the child, commenced in a Court in Country B for the limited purpose only of use in any family law proceedings commenced or anticipated to be commenced in Country B.  The parties are released from any implied undertakings not to disclose the Documents.  The Court directs that the Documents remain on the court file until the child attains the age of 18.  The leave granted in Order 1 is conditional upon: (a) the father and the mother providing a written undertaking to this Court prior to the release of any of the Documents, that except for the limited purpose in Order 1 above: (i) that they will not disseminate or otherwise distribute electronic copies of the Documents; and (ii) upon inspecting the Documents, each party and their legal representatives, including those in Country B, will ensure that the Documents held in their possession are destroyed and permanently deleted from any of their storage or retrieval systems (whether held by email, cloud storage or otherwise) on conclusion of the proceedings in Country B; and (b) the father and mother procuring a written undertaking to this Court prior to the release of any of the Documents from their legal representatives, including those in Country B, in the same terms as the undertaking set forth in Order 4(a).  The parties are to do all things and sign all documents necessary to obtain an order, direction or the equivalent from a Court in Country B, not to disseminate or otherwise publish the Documents except for the limited purpose in Order 1 above.

Conclusion in Allison & Tripp (No 2) [2022] FedCFamC1F 310 (10 May 2022)

There will be no order as to costs.  

Added a Digest 

Min & Orton (No 2) [2022] FedCFamC1F 302 (10 May 2022)

The primary judge made orders to rectify an agreement between the parties.  The wife seeks an order that the husband pay her costs of the application.  The Court, in making its orders, assessed each of the parties' earning capacities. 

Facts:

On 11 March 2022, the Court delivered reasons and made orders dismissing an application by Mr Orton (“the husband”) to rectify an agreement between himself and Ms Min (“the wife”) executed on 1 August 2013.  

The wife now seeks an order that the husband pay her costs of the application on an indemnity basis or, in the alternate, on a party and party basis.  Each party has been given the opportunity to file evidence in relation to the issue of costs and to make written submissions.  

The wife has modest means.  She has an income of $323 per week from investments and, in addition, she receives a job seeker allowance.  She owns an investment property which she estimates to be worth $550,000 and has about $198,000 in the bank.

Issue:

Whether or not the husband should pay the wife's costs. 

Applicable law:

Family Law Act 1975 (Cth) s 117(2A) - provides that in considering what order (if any) should be made under subsection (2), the court shall have regard to:

(a) the financial circumstances of each of the parties to the proceedings;

(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

(g) such other matters as the court considers relevant.

Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536(1993) 46 FCR 225 - relied upon when considering whether an order for indemnity or solicitor/client costs would be appropriate.
 
Preston v Preston ([1982] 1 All ER at 58) - provides that there should be some special or unusual feature in the case to justify the court in departing from the ordinary practice. 

Analysis:

The husband’s financial position is significantly superior to that of the wife.  The husband has an income of $6,644 per week and expenses of $2,322.  He has net property in excess of $4,000,000.  The only other part of s 117(2A) of the Act upon which the wife relied was that the husband was wholly unsuccessful in his application to rectify, and thus uphold, the agreement.

Conclusion:

The husband is to pay the wife’s costs of the application heard on 10 March 2022 as assessed or agreed, such costs to be paid within 28 days of assessment or agreement.

 

Added a Digest 

Newett & Newett (No 6) [2022] FedCFamC1A 70 (17 May 2022)

The wife filed an appeal from property settlement orders made by the primary judge.  The wife asserts that there was actual and apprehended bias.  The Court, in determining whether to grant the appeal, relied upon the Family Law Act 1975 (Cth). 

Facts:

The primary judge found that the parties had net assets available for division of $389,860 which consisted largely of a house at Suburb C (“the Suburb C property”) and the parties’ superannuation entitlements.  His Honour ordered that the husband’s superannuation entitlement of $156,826 be split by the allocation of a base amount of $50,000 to the wife pursuant to s 90XT of the Family Law Act 1975 (Cth) (“the Act”).  The effect was that the husband’s superannuation entitlements became $106,826 and the wife’s became $70,000.  As to the balance of the property, the primary judge ordered that the Suburb C property be sold with the net proceeds being divided so that the husband was to receive 60 percent of the net divisible property and the wife to receive 40 per cent. 

The order took such form because the wife asserted that the property was worth significantly more than the existing valuation, which was not recent, and because the house was in the process of being sold by the mortgagee, who was in possession of the property.  The division took into account the fact that the parties’ three children were in the care of the husband and had been since March 2019 (noting that the final parenting proceedings are yet to be determined).  The wife has appealed against these orders and proposes that instead the proceedings be reheard, and notwithstanding the remittal, there be orders with the immediate effect that she receive all of the net proceeds of sale of the Suburb C property and payment, by way of restitution, from the husband’s solicitors for an amount equal to one half of the net proceeds of sale.

The wife further seeks reimbursement of the costs of her vehicle rental, removalists, relocation costs, accommodation and storage expenses for 2020–2022, together with compound interest at 20 per cent and the full cost of relocating her remaining personal items and the purchase of a replacement vehicle; payment of all her costs in the family law proceedings and related cases in other jurisdictions, together with compound interest at 80 per cent; payment of a sum equivalent to all revenue received by the husband’s solicitors in each of those matters, together with compound interest at 80 per cent; and the trust account statement, itemised transaction record and all contracts between the husband and his solicitors. 

Issue:

Whether or not the primary judge followed the legislative pathway in determining the property matter. 

Applicable law:

Civil Law and Justice Legislation Amendment Act 2018 (Cth) - intended to ensure consistency with equivalent provisions relating to other federal courts.

Family Law Act 1975 (Cth) s 90XT - provides that a court, in accordance with section 90XS, may make the following orders in relation to a superannuation interest (other than an unsplittable interest).
 
Family Law Act 1975 (Cth) s 102NA - applied to prevent each party from personally cross-examining the other. 

Bahonko v Sterjov (2008) 247 ALR 168[2008] FCAFC 30 - relied upon in holding that it is for the wife to identify error and not for us to follow the wife down every rabbit hole suggested by her on the chance such an error might present itself.

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337[2000] HCA 63 - provides that the critical point is to identify the link between the comments and the feared deviation from impartial decision making.
 
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 - relied upon in holding that things said and done by the primary judge since 25 February 2021, by themselves or when seen in the light of the earlier behaviour or comments, might cause a fair-minded lay observer to reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the question to be decided.
 
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 relied upon in holding that to establish actual bias the wife must establish that the primary judge’s mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”.
 
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 - provides that a finding is a grave matter, which should not be made lightly and requires cogent evidence. 
 
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 - provides that it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment.  

Analysis:

Contrary to the submission of the wife, the primary judge did: make findings as to the identity and value of the property, liabilities and financial resources of the parties; Identify and assess the contributions of the parties; Identify and assess the relevant matters referred to in s 79(4) of the Act; and consider the effect of the findings and resolve what order was just and equitable in the circumstances.  The wife’s real complaint is that the primary judge did not make the findings she sought.  The wife’s submissions merely identify a number of equitable maxims, each of which is followed by a series of broadly stated assertions, some of which betray a misunderstanding of the relevant principle.  At no stage did the wife identify a relevant finding made by the primary judge in the property determination (as opposed to other proceedings) which was said to be wrong on the correct application of a maxim, let alone explain why it was said to be erroneous.

The transcript relied on by the wife is part of the transcript where counsel for the husband deals with the orders the husband sought, which were based on the findings made by his Honour in the reasons for judgment of 8 April 2021.  That is an entirely unremarkable course.  The Court is unable to see where new evidence was adduced.  His Honour did not give judgment immediately and the orders were not exactly as sought by the husband.  On 8 April 2021, his Honour declined to make the orders sought by either the husband or the wife and instead proposed a superannuation splitting order.  Further, there was no “upward adjustment” in favour of the husband, all that happened was that the primary judge made orders that an aspect of entitlement be taken by way of superannuation split.

The wife does not identify the adverse finding that she contends should have been made. She simply refers to VV and the husband’s failure  “to adduce evidence of ...detailed transactions per the Order 17 of 26 October 2020”.  Order 17 required the husband to produce “any management statements or MYOB reconciliation prepared for [VV] Pty Ltd from February 2018”.  It did not require the husband to adduce evidence.

Conclusion:

The appellant is granted leave to rely on the written submissions dated 31 January 2022, which the Court accepts in lieu of oral submissions.  The VV Pty Ltd trial balances from the period of February 2018 to October 2021 be added to the Appeal Book and form part of Exhibit 4.  The appellant’s application on 31 January 2022 to file and rely upon a second appeal book, along with the five affidavits attached to it, is dismissed.  The appellant’s application to file and rely upon an affidavit dated 27 January 2022 is dismissed.  The respondent’s application on 31 January 2022 to rely upon an aide memoire is dismissed.  The appeal is dismissed.  The appellant should pay the respondent’s costs fixed in the sum of $14,113.50 and these costs should be paid from the share of the funds being held by the Court in this matter, prior to the payment to the appellant of the balance.

Added a Digest 

Hernandez & Cranage [2022] FedCFamC1A 68 (17 May 2022)

The mother sought for the Minister to be restrained from cancelling her and her child's bridging visa.  The primary judge reasoned no such order could or should be made and dismissed all outstanding applications by the mother. 

The mother seeks a coercive order pursuant to r 3.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to join the Minister for Home Affairs to the appeal.  The Court, in adjudicating this dispute, determined if the Rules does empower the Court to compel a party’s joinder to proceedings in either its appellate or original jurisdiction.

Facts:

The primary judge ordered that the child live with the mother.  Orders concerning the allocation of parental responsibility for the child and the time he must spend with the father were made in the alternative, thereby accommodating the child’s prospective residence with the mother in the Country J if she is forced to leave Australia, since she is from Country J and is only able to reside in Australia pursuant to a visa issued under the Migration Act 1958 (Cth).  The child and the father are Australian citizens, but the mother is not.  Neither the mother nor the father appeals from those orders.

To avert the prospect of the Minister for Home Affairs (“the Minister”) revoking the visas granted to the mother and the child’s older siblings, thereby thwarting their desire to continue living in Australia, the mother sought an injunction at first instance restraining the Minister from doing so.  The mother's application was for an order in these terms "The Minister for Home Affairs and subsequent holders of that office granted powers and responsibilities under the Migration Act 1958 (Cth), whether by himself or by a delegate, is restrained from cancelling or revoking: (i) the mother’s bridging visa; (ii) the bridging visa of the child B, born 2004; or (iii) the bridging visa of the child C, born 2005, until 21 September 2027."

The primary judge reasoned no such order could or should be made and dismissed all outstanding applications.  The mother did not join the Minister as a party to her appeal, though the Minister was aware of the appeal because she again appeared by legal representative at a directions hearing before the Appeal Registrar on 11 April 2022.  The Minister again appeared by counsel today to resist the mother’s application.  The mother filed an Application in an Appeal seeking an order in these terms: "the Minister for Home affairs be joined as a party to the Appeal proceedings pursuant to Rule 3.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021."

Issue:

Whether or not the orders sought by the mother should be granted. 

Applicable law:

Family Law Act 1975 (Cth) Pt VII - relied upon by the mother in submitting that the Minister for Home Affairs and subsequent holders of that office granted powers and responsibilities under the Migration Act 1958 (Cth), whether by himself or by a delegate, should be restrained from cancelling or revoking: (i) the mother’s bridging visa; (ii) the bridging visa of the child B, born 2004; or (iii) the bridging visa of the child C, born 2005, until 21 September 2027.

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32 -  empowers the Court to order the joinder of a party to an appeal.
 
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.03 - provides that a party to a proceeding may include any person as a party by:
(a) naming the person as a party in the application, response or reply; and

(b) serving on the person a copy of the application, response or reply and all other relevant documents filed in the proceeding.

Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365[2004] HCA 20 - relied upon in holding that the doubts about the Court’s jurisdiction and power to grant the substantive injunction sought by the mother against the Minister are too great to warrant it.

Analysis:

The Court is not empowered to compel a party’s joinder to proceedings, either in its appellate or original jurisdiction.  The mother’s application for the coercive joinder order on the premise of that rule is misconceived.  In the absence of any application by the Minister to intervene in the appeal, the proper course open to the mother is to file an Amended Notice of Appeal naming the Minister as a respondent to the appeal.  Since, the mother’s prospective joinder of the Minister to the appeal will occur after “the first court date”, leave is required to file any Amended Notice of Appeal joining the Minister (r 3.03(4)). Such leave should be granted, but the mother should only have a short period within which to avail of such leave.

There can be no prejudice to the Minister because she intends to participate in the appeal in the capacity of amicus curiae, taking advantage of Order 1 made by the Appeal Registrar on 11 April 2022 in these terms: "the Minister for Home Affairs be permitted to file written submissions and appear at any procedural or other hearing in the appeal including the final hearing of the appeal."

Conclusion:

The appellant is relieved from compliance with r 3.03(5) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).  The appellant is granted leave to file and serve an Amended Notice of Appeal joining the Minister for Home Affairs to the appeal within 7 days.  The Application in an Appeal filed on 26 April 2022 is otherwise dismissed.

Added a Digest 

Willmore & Menendez [2022] FedCFamC1A 73 (20 May 2022)

The trial judge made orders for the child to live with the father and spend time with the mother and for the father to have sole parental responsibility. The primary judge found the mother had factually changed events and fabricated allegations of sexual abuse to remove the father from the child’s life. 

The mother filed this appeal opposing such finding and orders. The Court, in determining whether to grant the appeal, assessed the adequacy of the primary judge's reasons. 

Facts:

The father, aged 45 at the time of the trial, and the mother, aged 37 at the time of the trial, commenced their relationship in 2013 and began cohabitation in 2015.  The child was born in 2015.  The child remained in the primary care of the mother.  The father commenced a relationship with Ms C in October 2019.  They have a child together, Child Y, born in 2021.

Until April 2019, the subject child spent overnight time with the father for up to three nights each week.  The mother suspended time between the father and child during the period April 2019 and May 2019.  The mother wished for time to be spent between the child and the father during weekdays, which the father was not able to accommodate because of his work schedule.  Thereafter, the child’s time with the father recommenced in June 2019, but during the day only.

Following the father seeking, on 13 January 2020, parenting orders in the then Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia), interim orders were made on 2 March 2020.  Those orders provided for the child to spend time with the father from 8.00 am to 7.00 pm Monday, Saturday and Sunday in week one, and from 8.00 am to 7.00 pm on Monday in week two. 

The mother, however, whilst complying with those orders until June 2020, continued to oppose the father spending any time with the child, with her opposition predating her allegations of sexually inappropriate behaviour by the father toward the child.  The Family Consultant, who conducted interviews with the parties in April 2020, recommended that the child spend two nights each week with the father.

The mother’s Notice of Appeal filed 8 September 2021 seeks to challenge a discretionary decision made by the primary judge, being a parenting decision made under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).

Issue:

Whether or not the appeal should be granted.

Applicable law:

Evidence Act 1995 (Cth) s 140(2) - provides that in a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

Federal Proceedings (Costs) Act 1981 (Cth) s 6 - provides that where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a father to the appeal, grant to the father a costs certificate in respect of the appeal.
 
Bennett and Bennett (1991) FLC 92-191[1990] FamCA 148 - observed that “in general, the appellate court should be able to discern either expressly or by implication the path by which the result has been reached.”
 
Blinko & Blinko [2015] FamCAFC 146 - provides that the authorities dealing with cases of unacceptable risk are replete with exhortations to trial judges to “consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard”.
 
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76 - provides that the process by which a risk is identified and its magnitude measured cannot in parenting cases, be subject to rigid mathematical or empirical assessment.
 
Cheadle & Pointer [2020] FamCA 327 - observed that "Authorities also recognise that the advantage enjoyed by a trial judge extends to 'inferences drawn by a trial judge from findings of fact, as distinct from findings of fact'. That advantage by a trial judge 'includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts'."
 
Gronow v Gronow (1979) 144 CLR 513[1979] HCA 63 - provides that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.
 
House v The King (1936) 55 CLR 499; [1936] HCA 40 - provides that the manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 
 
M v M (1988) 166 CLR 69[1988] HCA 68 - provides that it is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient.
 
Reeves & Grinter [2017] FamCAFC 19 - held that numerous authorities of the Full Court of this court make it plain that the ultimate decision is for the trial judge and it is a matter for the trial judge’s discretion as to what weight is to be given to expert evidence in the context of all the evidence to be considered.
 
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550[2016] HCA 22 - where it is well established that appeal courts do not lightly interfere with the findings of fact made by a trial judge “unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’”.

Analysis:

Her Honour clearly outlined her view that the mother fabricated a story that has “blown [the evidence] out of all proportion in an attempt to bolster her case against the father and portray herself as a victim”.  The mother conceded that there was no evidence of any injury to her nose and that no such bruising as she alleged ever resulted from the incident. 

The finding by the primary judge that the allegations made by the mother were “with the intention of removing or at least limiting the [father’s] relationship with the child.”  The fact that the mother changed her evidence, in significant respects, to suit her case was a factor, which was given significant weight by her Honour.

The primary judge commenced the trial by explaining to the self-represented mother the procedures adopted at trial.  Her Honour further noted that the mother herself had made no application for legal representation pursuant to s 102NA in the six month period following the listing of the matter for trial, and that the mother could have “brought the matter [back to Court] if [she] thought that was something that should occur”.

Conclusion:

The appeal is allowed in part.  Orders 4(b)–(f) and (5) which went to what time the child would spend with the mother and in what circumstances and the extent to which there would be communication between the mother and the child be set aside.  The matter is remitted for rehearing before a judge other than the primary judge in respect of the issue of what time the child will spend with the mother; in what circumstances and upon what conditions (if any).  Cost certificates are granted to the parties.

Added a Digest 

Moon & Moon (No. 2) [2022] FedCFamC1A 69 (18 May 2022)

The primary judge made interim parenting orders and refused the dismissal of interim applications.  The father appeals from the primary judge's orders alleging that there is apprehended bias and inadequacy of reasons.  The Court, in adjudicating this dispute, assessed the grounds for appeal.

Facts:

The parents commenced their relationship in 2007, were married in December 2009 and separated on a final basis in December 2019.  Their three children are presently aged nine, six, and four.  The children lived with the mother and initially spent time with the father during the day, before commencing to spend overnight time with him on weekends.  Following mediation, this time increased to the point where the children spent four nights and one afternoon per fortnight with the father.

In August 2020, a Temporary Protection Order was made in the Suburb A Magistrate’s Court listing the mother as the respondent and the father as the aggrieved.  On 11 August 2020, the father commenced these proceedings.  On 3 February 2021, the father filed an Application in a Case seeking orders for equal shared parental responsibility other than in respect of education and health matters, and that the children be enrolled at a particular school and day care.  The mother responded to the application seeking that she have sole parental responsibility and that the children continue to be home-schooled.

On 7 July 2021, the parties’ competing interim applications came before a senior registrar for hearing, however those applications were adjourned on the application of the mother and the ICL in order to await the publication of a family report.  The senior registrar made interim orders in the same terms as the then current parenting arrangements.  On 14 July 2021, the father filed an application to review the senior registrar’s decision.  He also sought that leave be granted to him to arrange a private family report, and that the children spend equal time with each parent.

On 16 July 2021, the father filed an Application in a Case seeking that the ICL be discharged, the solicitor for the mother be restrained from acting further in the proceedings, and that he be given leave to privately arrange a family report.  On 30 July 2021, the primary judge heard and dismissed the father’s application to review a registrar’s decision on 26 May 2021 to grant a divorce order in relation to the parties, which order became absolute on 27 June 2021.  The primary judge required the father to undergo a psychiatric assessment, submit to CDT alcohol testing, dismissed the father’s application to review the registrar’s decision filed 14 July 2021 and his Application in a Case filed 16 July 2022, and refused to recuse herself from further involvement in the proceedings. 

On 28 April 2022, the father filed an Application in an Appeal seeking that the family report “be struck from evidence” in the proceedings, that the proceedings be referred to the Director of Public Prosecutions and that he be given leave to publish the proceedings.

Issues:

I. Whether or not there has been a denial of procedural fairness.

II. Whether or not the primary judge failed to take into account a relevant consideration.

III. Whether or not the decision was unjust or plainly wrong.

Applicable law:

Evidence Act s 140(2) - provides that without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged.

Federal Circuit and Family Court of Australia Act 2021 (Cth) 35 positively mandates that a court exercising appellate jurisdiction “must have regard to the evidence given in the proceedings out of which the appeal arose”.

Bennett and Bennett (1991) FLC 92-191[1990] FamCA 148 - observed that “in general, the appellate court should be able to discern either expressly or by implication the path by which the result has been reached.”

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337[2000] HCA 63 - provides that the inquiry comprises two steps: first, the identification of what it is said might lead the judge to decide a case other than on its legal and factual matters, and secondly, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.
 
Gronow v Gronow (1979) 144 CLR 513[1979] HCA 63 - provides that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.
 
House v The King (1936) 55 CLR 499; [1936] HCA 40 - provides that the manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 
 
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 - provides that the test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is “whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.
 
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447[2003] HCA 48 - provides that it is not incumbent upon a judge to mention every fact or argument relied on by the losing party as relevant to an issue.

Analysis:

There is simply no reason to suspect that there was any impediment whatsoever placed on the father as to the presentation of his case before the primary judge.  The primary judge did produce reasons for her orders pronounced 19 November 2021, and the father did not explain their alleged inadequacy.  In any event, the pathway by which the primary judge reached her several decisions in those reasons is readily discernible.  The reasons given on 30 July 2021 for the primary judge’s inability to extend the time until the divorce order became absolute are adequately expressed in the transcript of the hearing on that day.  Whilst the primary judge’s reasons did not expressly advert to the subpoenaed material referred to in this ground, it is not incumbent upon a judge to mention every fact or argument relied on by the losing party as relevant to an issue.

There was no obligation on the primary judge to respond to requests from the father for the relevant notes, and at least on one view, his direct communication with the primary judge’s chambers was inappropriate. No Application in a Case was filed seeking the production of the notes.  The interim parenting orders made by the primary judge were clearly open on the evidence. 

Conclusion:

The Application in an Appeal filed 28 April 2022 is dismissed.  The appeal is dismissed.  

 

Added a Digest 

Kantor & Jeong (No 2) [2022] FedCFamC1A 61 (12 May 2022)

Mr Kantor (“the father”) appeals from final parenting orders made by the primary judge on 8 September 2021 in proceedings between him and Ms Jeong (“the mother”) relating to their four children.  The appealed orders provide for the children to primarily live with the mother, and to spend time with the father for four nights per fortnight during school terms, and half of the school holidays.  The Court, in resolving this dispute, considered the best interests of the children.

Facts:

The parties formed their relationship in 2005, commenced cohabitation in 2008 and were married later that year.  They finally separated in July 2018.  After separation, the parties were able to agree on the parenting arrangements for the children, which saw them live primarily with the mother and spend ad hoc time with the father.  On 30 January 2019, the mother commenced these proceedings.  Subsequently, various interim orders were made and a family report and psychiatric report in relation to the mother were completed.

As a result of the current interim orders at the time, the children lived with the mother, with the older two children spending time with the father four nights per fortnight and the younger two children two nights per fortnight.  

The father’s proposal at trial was for the children to live with him and, subject to them being “safe” in the mother’s care, to spend equal time with each parent.  The mother sought orders that the children live with her and spend each alternate weekend with the father, being a reduction of the children’s time with him that was occurring at the time.  The primary judge ultimately made orders for equal shared parental responsibility, for a continuation of the current arrangements for the children’s time with the father (four nights per fortnight, albeit that applied to all four children under the final orders), and for half school holiday time together with some ancillary parenting orders.

The father filed his original Notice of Appeal on 6 October 2021.  Consequently on 3 November 2021, Austin J made orders striking out the grounds of appeal and allowing the father a short time frame to file an Amended Notice of Appeal pleading competent grounds, in the absence of which his appeal would be summarily dismissed.  On 1 December 2021, the father filed an Amended Notice of Appeal.  The father claims  that he was denied procedural fairness and natural justice by the primary judge who was likewise tainted with bias. 

Issue:

Whether or not the primary judge denied the father procedural fairness and/or natural justice.  

Applicable law:

Family Law Act 1975 (Cth) s 60CC - pursuant to which his Honour addressed the relevant factors relating to the children’s best interests.

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337[2000] HCA 63 - provides that the inquiry into an apprehension of bias requires two steps: first, the identification of what it is said might lead the judge to decide a case other than on its legal and factual matters, and secondly, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.
 
Gronow v Gronow (1979) 144 CLR 513[1979] HCA 63 - provides that “an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight”.
 
House v The King (1936) 55 CLR 499; [1936] HCA 40 - provides that the primary judgment is presumed to be correct unless it can be established that the discretion of the primary judge miscarried.
 
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 - provides that the test to be applied in determining whether a judge is to be disqualified by reason of the appearance of bias is “whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.
 
Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2[1989] VR 8 - provides that the adequacy of the reasons will depend upon the circumstances of the case.

Analysis:

The father was permitted to file and rely upon two affidavits of himself, one affidavit of his adult son, to cross-examine witnesses, to tender subpoenaed material which became exhibits in the trial, and was allowed to make submissions regarding the case.  It is clear from the transcript that the father agitated for his adult son to “speak to” certain evidence contained in the family report, and to other issues about his relationship with the mother.  The primary judge denied this course and correctly stated that the witness should have included that evidence in his affidavit, and to allow further oral evidence without notice to the mother would be a denial of procedural fairness to her.  The primary judge was critical of the father not standing behind his submissions which sought to disparage the Court and the mother’s lawyers, however, contrary to the father's assertion, that is quite distinct from directly calling the father a coward.

The father has failed to demonstrate the logical connection between his Honour’s comments and the feared deviation of his Honour deciding the case on its merits.  The father does not clearly identify which part of the evidence he asserts the primary judge failed to consider, although in oral submissions he referred to some material he tendered on the last day of trial.   It is clear from his Honour’s reasons that he considered the expert’s opinion of the mother’s mental state in the psychiatric report.  The primary judge did not accept all of the factual matters contended for by the father, and thus as the expert himself said, his Honour was not obliged to give those recommendations which were adverse to the mother any substantial weight.

Conclusion:

The Court concluded that no ground is established.  The Court dismissed the appeal.  No order is made as to costs. 

 

Added a Digest 

Barlow & Sellers (No 2) [2022] FedCFamC1A 62 (12 May 2022)

Parenting orders were made for the respondent to have sole parental responsibility for the applicant and the respondent's children.

The appellant seeks for the Court to purchase the transcript for the purpose of her appeal.  The Court, in determining whether to grant the appeal, assessed if there is an exceptional circumstance to justify the Court funding the provision of transcript.

Facts:

The applicant and the respondent have two children who were born in 2010 and 2012.

On 20 December 2021, a judge of the Federal Circuit and Family Court of Australia (Division 1) ordered that the children live with the respondent who was to have sole parental responsibility for them.  The children are not to spend any time with the applicant, save for some limited and prescribed Skype communications.  

The applicant filed a Second Further Notice of Appeal on 8 March 2022 and on 7 March 2022, amongst a number of other orders, an appeal registrar directed the applicant to file a consolidated digital transcript on or before 12 April 2022.  The applicant submitted that the Court should obtain the transcript on her behalf because she had been advised that it was the “usual appeal custom and process” and because the Court prepared the electronic Appeal Book on behalf of the applicant, it is therefore also obliged to provide the transcript.

Grounds 1 and 2, contend that the primary judge made findings on important issues not supported by the evidence, and that her Honour failed to consider all of the evidence.  Ground 4 alleges that the primary judge denied procedural fairness to the applicant by preventing her from questioning expert witnesses using evidence relied upon from the files of the Department of Child Protection and by refusing to permit the applicant from presenting documents to an expert witness for questioning.  Ground 5, asserts bias and an unfair refusal of a motion to dismiss a Family Assessment.

Issue:

Whether or not the appeal should be granted.

Applicable law:

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.19(4) - requires the appellant to obtain the transcript of the hearing relevant to the appeal, regardless of who prepares the Appeal Book.

Forbes v Bream (2008) 222 FLR 96[2008] FamCAFC 189 - provides that the Court can provide the transcript if the interests of justice require it; but normally, that would only occur in exceptional circumstances.

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 - provides that an assertion of bias would require the applicant to demonstrate that the primary judge’s mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”.
 
Sampson & Hartnett (2013) FLC 93-542[2010] FamCAFC 220 - provides that the Court provided some guidance as to the factors that the Court may take into account in determining whether or not to provide the transcript.

Analysis:

The Court is not funded to provide the transcript for appellants, however it is clear from a number of authorities that the Court can provide the transcript if the interests of justice require it; but normally, that would only occur in exceptional circumstances.  The applicant did not give any information as to her financial position or the costs of obtaining the transcript.  The only material before the Court are the primary judge’s reasons and the Second Further Amended Notice of Appeal.  The grounds of appeal do not identify the findings on important issues which are said not to be supported by the evidence.

Whilst the outcome may not be that for which the applicant contended, there are likely to be some difficulties facing her in successfully submitting that these matters were not considered.  There is no reference in the primary judge’s reasons to any application that she disqualify herself from the proceedings.  

Conclusion:

The Application in an Appeal filed on 12 April 2022 is dismissed.  Orders 2, 3 and 4 made by the appeal registrar on 7 March 2022 are discharged.   Any requirement under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) for the appellant to file in the appeal, a transcript of the proceedings before the primary judge, is dispensed with.

Added a Digest 

Halstron & Halstron [2022] FedCFamC1A 65 (13 May 2022)

This matter concerns an appeal from final property orders made by the primary judge.  The respondent was allowed to adduce updated valuation evidence.  On the other hand, it is asserted that the primary judge erred in dismissing the appellant’s application to adduce updated valuation evidence.

Facts:

The parties married on 18 October 1994 and separated on 22 April 2016.  The respondent has continued to live in the Suburb J property in the period subsequent to the parties’ separation.  The respondent retained the Suburb J property as part of the property adjustment effected by the orders made by the primary judge on 24 June 2021.  The contention of both parties was that, subject to the capacity of the respondent to make an appropriate cash adjustment to the appellant, the respondent should retain the Suburb J property. 

There are three children of the marriage.  Ms B, who is 27 years old, has an autism spectrum disorder and has resided with the appellant since July 2017.  The parties’ two younger children, Ms C who is 21 years of age and Mr D who is 19 years of age, reside with the respondent and have spent little, if any, time with the appellant in the period subsequent to the parties’ separation.  The appellant also has a son from a previous marriage, Mr E, who is 36 years old. 

His Honour found that the respondent was the primary breadwinner while the appellant was the primary homemaker and, although both parties undertook parenting responsibilities, the appellant primarily carried out such duties.  It was acknowledged by the respondent that, in addition to his income, he also received sizeable distributions from his parents’ family trust totalling $323,244 between 1999 and 2005, and a further $2,834,040 in distributions in the period 2007 to 2015 from his mother’s estate after both his parents passed away in 2006.  In 2007, the parties purchased two properties in Town Y in New South Wales.  One property was put in the appellant’s name and the other was registered under the name of Halstron Investments Pty Ltd.

The respondent contends that from 2007, his brother lent him what his Honour summarised as being “significant amounts of money, personally and through his entities".  It was likewise contended that a loan of $330,000 extended to the respondent by his brother on 20 July 2007 remains outstanding.  On 27 March 2018, the respondent and his brother entered into an agreement regarding what they contended were the outstanding loans between them.  In 2009, the respondent was made redundant from GG Corporation and received a severance payment of approximately $400,000.   

The proceedings which are the subject of this appeal were commenced by the appellant in May 2016.  The primary judge requested that the parties prepare an updated consolidated balance sheet.  On 30 April 2021, the primary judge requested that the parties provide details of their updated share values and sought clarification of various items that appeared on the consolidated balance sheet.  On 19 May 2021, the respondent’s solicitors wrote on behalf of the parties requesting a further listing of the matter on 28 May 2021 to address submissions made by the parties on the points of clarification requested by the primary judge.

On 28 May 2021, the respondent was permitted to provide evidence in the form of a statement updating the value of the shares held by him, the G Investment Trust and the Mr Halstron Superannuation Fund as at 26 May 2021.  Also on 28 May 2021, the appellant made an application for leave to provide evidence regarding an updated value of the Suburb J property.  The primary judge rejected that application.  According to each party’s proposal, subject to the respondent making an appropriate cash adjustment to the appellant, the respondent was to retain the Suburb J property.  In challenging the primary judge’s dismissal of her application to call evidence regarding an updated valuation of the property, the appellant places significance on the fact that each parties’ respective case anticipated the respondent receiving the Suburb J property.

Issue:

Whether or not the primary judge erred in dismissing the appellant’s application to adduce updated valuation evidence.

Applicable law:

Family Law Act 1975 (Cth) Pt VIIIs 79 - provides that an order made under subsection (1) in property settlement proceedings may, after the death of a party to the marriage, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

Limitation Act 1969 (NSW) s 64 - provides that subject to subsection (2), on the expiration of a limitation period fixed by or under this Act for a cause of action for an account founded on a liability at law to account in respect of any matter, the right and title of the person formerly having the cause of action and of a person claiming through the person in respect of that matter is, as against the person against whom the cause of action formerly lay and as against the person's successors, extinguished.
 
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478[2002] HCA 22 - where the first two arguments of the respondent are rebutted by the appellant’s entitlement to challenge, in an appeal from final property settlement orders, any earlier interlocutory order which affected the final result.
 
Gilligan & Addison [2018] FamCAFC 211 - provides that unless an appeal can be categorised within those recognised grounds concerning the appropriate exercise of discretion by a trial judge, as identified by the High Court in House v The King, the appeal will be futile. 
 
Manifold & Alderton [2021] FamCAFC 61 - observed that the first task of a trial judge considering an application pursuant to Pt VIII of the Act is “to identify and value, as far as the evidence would allow, the parties’ existing legal and equitable property interests”. 
 
R v Powch (1988) 14 NSWLR 136 - relied upon in arguing that the decision to deny the appellant’s application was an evidentiary ruling which is not amenable to appeal.
 
Rigby & Olsen [2021] FedCFamC1A 46 - provides that the requirement for the giving of reasons is a fundamental requirement of the exercise of the judicial function, as it both demonstrates that justice has been done, and enables the proper challenge of a decision. 
 
Smith v New South Wales Bar Association (1992) 176 CLR 256[1992] HCA 36 - where the primary judge appropriately gave consideration to the potential prejudice to the respondent if that application was granted.
 
Stanford v Stanford (2012) 247 CLR 108[2012] HCA 52 - where no issue has been taken with the primary judge’s finding that it was “just and equitable” to make orders adjusting the parties’ property interests.

Analysis:

The primary judge permitted the respondent to present updated evidence regarding the value of the respondent’s shareholding in circumstances where he recognised there had been an increase in the value of the shareholdings in the period of recovery subsequent to the COVID-19 isolation measures.  His Honour distinguished the positions regarding the value of the parties’ shares and the value of the Suburb J property.  However, that was not, with respect, a valid point of distinction in the circumstance of this case.  The application to re-open and adduce updated valuation evidence in respect of the Suburb J property took place against the background that the trial had already taken a year to hear, and would take another year thereafter for judgment to be delivered. 

His Honour accepted that there had been a significant increase in the parties’ share values due to unique factors associated with the COVID-19 pandemic, but failed to give the same opportunity to the appellant to present similar evidence in respect to the most significant asset in the parties’ property pool: the Suburb J property.  

Conclusion:

The Court allowed the appeal.  The parties’ respective applications for financial relief under Pt VIII of the Family Law Act 1975 (Cth) are remitted for re-hearing.  The respondent shall pay the appellant’s costs of and incidental to the appeal, fixed in the sum of $30,000.  

Added a Digest 

Pascoe & Larsen [2022] FedCFamC1A 64 (13 May 2022)

The primary judge made interim parenting orders for the child to live with the respondent.  The appellant filed an appeal alleging that the primary judge's reasons were inadequate.  The Court, in adjudicating this dispute, relied upon the guidance provided in SS & AH.

Facts:

The parties commenced their relationship in 2015 and cohabited for approximately two years prior to their relationship ending in or about 2018.  The appellant father has two children from a previous relationship aged 13 and 17.  The latter resides with the appellant whilst the former resides with the appellant’s former partner and spends five nights per fortnight in the appellant’s care, together with half of the school holidays.  The respondent mother is of Aboriginal descent and has one child from a previous relationship, aged 11, for whom she is the primary carer.

In May 2021, the respondent unilaterally relocated with the child from City C to City B.  The child did not spend any time with the appellant between May and August 2021.  In June 2021, the appellant filed an application in the Federal Circuit Court of Australia (as it then was) seeking interim orders for the child to be returned to live in the City A region and to spend time with him.  The senior judicial registrar made orders for the child to live with each parent on a week about arrangement.   

The primary judge determined that it was impracticable for the child to spend week about time with each parent if he rejected the appellant’s application for the child to be returned to live in the City A region.  The primary judge noted the desirability of the child maintaining her connection to culture, as well as her right to do so in accordance with s 60CC(3)(h) of the Family Law Act 1975 (Cth) (“the Act”).  The primary judge determined that this connection was best maintained by the child living with her mother, who is an Aboriginal woman of the D People.

On 13 August 2021, the respondent filed an application for review of the senior judicial registrar’s decision.  On 3 December 2021, the father filed a Notice of Appeal against the orders of the primary judge and, on 15 December 2021, the father filed an Amended Notice of Appeal.  The appellant asserts that the primary judge did not follow the statutory pathway and, as a result, did not discharge the statutory preconditions to enable him to make the orders, therefore erring at law.

Issues:

I. Whether or not the primary judge erred in rejecting appellant’s proposal for the child to be returned to the City A region.

II. Whether or not the primary judge's reasons were adequate. 

Applicable law:

Family Law Act 1975 (Cth) s 61DA - provides that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

 Family Law Act 1975 (Cth) s 65DAA(5) - requires a practical assessment of whether equal time parenting is feasible. 

Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) - strengthened the language of the provisions in relation to the cultural needs of indigenous children. 

 AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 - observed that relevant to that consideration may be the impact of a proposed order on a parent, including that parent’s ability to enter into a new relationship.  

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 - where the Full Court made it clear that the principles adumbrated in Goode did not require a trial judge to engage in a ritualistic incantation of noting and addressing each and every consideration set out in s 60CC of the Act.

BKL15 v Minister for Immigration and Border Protection (2016) 241 FCR 450; [2016] FCA 802 - provides that the standard to be applied, particularly in the context of a busy Court considering numerous interim applications, “is not a standard of perfection.” 

 Bolitho & Cohen (2005) FLC 93-224; [2005] FamCA 458 - the Full Court confirmed at [72] that the proper approach to be adopted in relocation cases.

Davis & Davis and Anor (2007) 38 Fam LR 671; [2007] FamCA 1149 - observed that the 2006 amendments imbued the notion of ‘connection’ with a stronger and more active meaning.

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1386 - provides that a common sense approach should be taken, having regard to the issues raised by the parties in the proceedings.

MRR v GR (2010) 240 CLR 461; [2010] HCA 4 - where the High Court considered the interrelationship between ss 61DA and 65DAA in the context of the Court’s obligation to regard the child’s best interests as the paramount consideration, pursuant to s 60CA of the Act.

SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42 - provides that it is important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion.

Sheldon & Weir [2011] FamCAFC 212 - provides that a child of Aboriginal heritage also has the right to ‘develop a positive appreciation of that culture’. 

SS & AH [2010] FamCAFC 13 - provides that the intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. 

U v U (2002) FLC 93-112; [2002] HCA 36 - provides that the burden of such injustices will ordinarily fall, as here, on the wife. It will be she, not the husband, who will usually be confined, in effect, in her personal movements, emotional environment, employment opportunities and chances of remarriage, repartnering and reparenting.

Analysis:

An examination of the primary judge’s reasons indicates that his Honour did take a common sense and practical approach in giving appropriate weight to relevant considerations.  Most relevantly, where each parent wishes to continue living in a different city, the primary judge fulfilled his legislative responsibility of determining what orders are in the best interests of the child in the particular circumstances of this case.  His approach was entirely consistent with authority.  Honour states that it is important for the child to live with her mother “in order to maintain and promote her connection with her Aboriginal culture”, in circumstances where it was not disputed that the child is an Aboriginal child.  His Honour’s consideration of that issue was entirely consistent with his obligation pursuant to s 60CC(3)(h) of the Act.

The adequacy of primary judge’s reasons must be considered in the current context, being an application for interim parenting orders.  His Honour was required to exercise a broad discretion with a view to making such orders as he considered to be in the best interests of the child.  His Honour’s approach and the reasons he provided were consistent with the guidance provided in SS & AH that “findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”

Conclusion:

The Court dismissed the appeal.  The respondent mother and the Independent Children’s Lawyer may, if they so choose, within 14 days, file and serve written submissions of no more than two (2) pages in support of an order for costs.  In the event of the respondent mother and/or the Independent Children’s Lawyer filing submissions in support of an order for costs, the appellant father may, within a further 14 days, file and serve written submissions of no more than two (2) pages in reply.

Added a Digest 

Blass & Blass [2022] FedCFamC1A 63 (13 May 2022)

Ms Blass appeals from a parenting order made on 16 July 2021 by the primary judge of the Federal Circuit Court.  The primary judge ordered for the respondent to have sole parental responsibility.  The Court, in determining whether or not the appeal should be granted, relied upon the Evidence Act 1995 (Cth).

Facts:

The parties commenced a relationship in 2007 and married in 2008.  The appellant had two daughters from a previous relationship.  She performed the role of primary carer for all the children, including the two born in the marriage between the parties.  

In 2015, the parties separated on a final basis and, following contested proceedings before the primary judge, final orders were made on 12 October 2018 providing for equally shared parental responsibility and for the children to live with the appellant and spend weekend and holiday time with the respondent.  The primary judge made findings of family violence against the respondent.

The primary judge was confronted by further allegations of family violence against the respondent, with assertions by the appellant that child X was behaving abusively toward the appellant and in a sexually aggressive manner toward child Y (which was described as “problematic harmful sexual behaviour”). 

The primary judge was also faced with a history of serious non-compliance with the previous final orders of 12 October 2018 by the appellant.  This non-compliance had resulted in the appellant being placed on a bond, a step that did not stop her continued non-compliance in the lead up to the trial.  The respondent and the Independent Children’s Lawyer (“ICL”), both sought the reversal of residence that was ordered by the primary judge. 

The primary judge concluded that the appellant’s account as to the problematic harmful sexual behaviour was untruthful.  In reaching this conclusion, the primary judge relied, in part, upon the failure of the appellant to call either the maternal grandmother or her adult daughter Ms E in support of her descriptions of child X’s behaviour.  

Issue:

Whether or not the appeal should be granted.  

Applicable law: 

Evidence Act 1995 (Cth) s 140 - provides that in a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

Federal Proceedings (Costs) Act 1981 (Cth) s 6 - provides that where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal. 

Federal Proceedings (Costs) Act 1981 (Cth) s 8 - where in a Federal appeal that succeeds on a question of law, the court that heard the appeal grants a new trial in a cause of a civil nature, the court may, on the application of a party to the cause, grant to the party a costs certificate in respect of the new trial. 

Federal Proceedings (Costs) Act 1981 (Cth) s 9 - provides that the certificate that may be granted under subsection (1) by a court to an appellant to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

ASIC v Hellicar [2012] 247 CLR 345; [2012] HCA 17 - provides that disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led.

 Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 - provides that it is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

 Boensch v Pascoe [2019] 268 CLR 593; [2019] HCA 49 - emphasized the importance of judicial economy in considering whether to deal with grounds that are not dispositive of the appeal. 

 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 - provides that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. 

Analysis:

Although the primary judge subsequently identified that she was not satisfied that the appellant had been malicious in doing so, the primary judge treated the appellant’s assertion of sexualised conduct as a fabrication, and thereby abusive of the children, particularly in her engagement of the children in counselling for such and in the labelling of child X as having engaged in such conduct. 

While the failure to accept a witness’s evidence is a necessary component of a finding of untruthfulness or fabrication, such mere failure is less than a finding of untruthfulness; untruthfulness is a further fact that is required to be found.  The grave allegation of untruthfulness and its concomitant finding of abuse of child X as essential aspects of the determination of the case constituted, in accordance with s 140 of the Evidence Act 1995 (Cth), a factual conclusion that required persuasion, itself, on the balance of probabilities.  It was not established on the mere failure by the appellant to prove that the behaviours had in fact occurred to that same standard.

Conclusion:

The Court allowed the appeal.  The orders of the primary judge will be set aside from the point at which a judge of Division 2 of the Federal Circuit and Family Court of Australia makes further orders.  The matter is remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.  The Court grants to the parties, including the ICL, a costs certificate.

Susan Edwards

I can’t, in any way, see how the act of anyone, male or female, fleeing a violent partner could be perceived as an act of indulgence.

Thank you. I hope, this is taken in an unbias context and broadcast in a public realm without toxic shaming and abusive language. Specifically, its time the male perspective on how distressing and scarring the process has become made public. 

Many married and men who cohabitate with women ARE victims of DV and there is nothing they can do that will offer them relief without putting them in the worst position of hardship their life will ever encounter. Loss of motivation, work ethic, trust, ambition, hope. Some men wake to see the next day, others do not. 

I can understand why the prospect of self deletion comes across as the only viable solution to the pain and anguish men deal with each day - everyday when presented with a woman partner who abuses them knowing that if a man walks he is at a savage loss. The rationale magnified when children involved. 

The impulse of women 'fleeing' a violent partner is not an act of indulgence that any man could ever seriously consider without dire consequences to themselves and their children.

The public should not kid themselves. Women now know their exclusive rights in the world. They have an abundance of resources online which can lead them on a destructive path - all most without due consequence.

Socially, professionally - though not religiously yet - there is no stopping the juggernaut of women who lie to disadvantage. And the repercussions for a women who lies to advantage? None. Women have no incentive to be accountable for their actions, lies or misleading emotional interpretations of events.

Yet, men get abused and suffer every day in silence. Men put on brave face, face the world of work, cannot talk to anyone about their problems. At home (and in public realms) men get stereotyped, ridiculed, avoided, outcast, yelled at, ordered, bullied, entrapped, mislead, deceived, exploited into acting a certain uncomfortable way - why? Because a female knows she cannot be prosecuted for such actions. All behaviors that are forbidden towards the opposite sex without consequence apply to women, but do not apply to men. Yet even with the equality narrative at its highest, the hunger by women for a mans resources is at the highest it has ever been. 

Todays men have to be prepared to lose everything to set themselves free from pain and suffering from the hands of an abusive partner, especially where children witness it.

Importantly, a marriage contract is unconscionable in every sense. From a mans perspective, it is the worst contract to ever sign where a party gets rewarded to break that contract and the other party at a gross disadvantage from day of signature. Amplified with the addition of children, a mans life is forever at ransom - even after divorce.

Not a day goes by where I preach to men to excel themselves for their own greater good to become the best version of themselves and to avoid relationships and cohabitation only exasperated by a grossly bias narrative and family court realm.

Finally, I teach my daughters to respect boys just as they want to be respected as girls, as people for the greater good of society - equally without prejudice. 

Why is the family law realms attitude still lagging so far behind?

Added a Digest 

Nevins & Urwin [2022] FedCFamC1A 57 (6 May 2022)

The parties are in dispute over the original jurisdiction of Division 1 to hear legacy cases.  It is asserted that the Parliament’s intention that Division 1 would retain original jurisdiction to finalise legacy cases is readily inferred from the context of the reform legislation when viewed as a whole.  The Court, in resolving this dispute, assessed the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth). 

Facts:

The Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”) and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) (“the Transition Act”) both commenced operation on 1 September 2021, effecting structural reform to the manner in which family law proceedings are instituted and allocated between the courts seized of jurisdiction.  The Family Court of Australia (“the FCoA”) and the Federal Circuit Court of Australia (“the FCC”) were both preserved as federal courts by the reforms, but their respective names were changed to the Federal Circuit and Family Court of Australia (Division 1) (“Division 1”) and the Federal Circuit and Family Court of Australia (Division 2) (“Division 2”).  Before 1 September 2021, the jurisdictions of the FCoA and the FCC were largely, though not entirely, concurrent.  The two courts maintained common registries, but litigants could choose the court in which they filed their causes of action. 

The Explanatory Memorandum to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (Cth) which preceded enactment of the new legislation explained how the reform was designed to provide a “single point of entry into the family law jurisdiction”, requiring all initiating process to be filed in Division 2, but enabling the transfer to Division 1 of all causes of action more appropriately determined by it as the superior court of record.  That objective was achieved by the removal of original jurisdiction from Division 1 and, in lieu thereof, its investiture with original jurisdiction in only those causes of action transferred to it from Division 2.  The literal terminology of the legislative reform package has caused some disquiet about the preservation of jurisdiction enabling Division 1 to hear and determine those causes of action which were still pending in the FCoA as at 1 September 2021 (“the legacy cases”).

On 31 March 2021, a judge of Division 1 stated a case to the Full Court pursuant to s 34 of the FCFCA Act posing these questions:  Firstly, "Does the Federal Circuit and Family Court of Australia (Division 1) have original jurisdiction to hear and determine proceedings which were commenced before 1 September 2021 in the court previously known as the Family Court of Australia?" and secondly, "If the answer to Question 1 is “No”, does the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) have the jurisdiction to transfer proceedings which were commenced before 1 September 2021 in the court previously known as the Family Court of Australia to the Federal Circuit and Family Court of Australia (Division 2)?"

The Court accepted that the questions should be reformulated as such: First, "Does the Federal Circuit and Family Court of Australia (Division 1) have original jurisdiction to hear and determine this proceeding which was pending before 1 September 2021 in the court previously known as the Family Court of Australia?" and second "If the answer to Question 1 is “No”, did the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) have the jurisdiction to transfer this proceeding which was pending before 1 September 2021 in the court previously known as the Family Court of Australia to the Federal Circuit and Family Court of Australia (Division 2)?"

Issue:

Whether the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) (together, “the reform legislation”) could be construed as removing the original jurisdiction of Division 1 to hear legacy cases.

Applicable law:

Acts Interpretation Act 1901 (Cth) s 15AA - provides that when interpreting legislative provisions, the interpretation which would best achieve the purpose or object of the statute is to be preferred.
 
Family Law Act 1975 (Cth) Pts VII, VIII s 69H - relied upon in holding that the parties had standing, and therefore the right, to commence and contest the parenting proceedings under the Family Law Act (ss 65C(a) and 69C(2)(a)), which were being validly entertained by the FCoA.
 
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Pt 2, Item 229 - stipulates that the amendments to the Family Law Act apply in relation to proceedings commenced before, on and after 1 September 2021.
 
Federal Circuit and Family Court of Australia Act 2021 (Cth) s149 - pursuant to which, aside from legacy cases which are in question here, the original jurisdiction of Division 1 is now entirely dependent upon the transfer to it of causes of action validly before Division 2. 
 
Judiciary Act 1903 (Cth) s 78B - provides that a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court
 
Explanatory Memorandum, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (Cth) - preceded enactment of the new legislation explained how the reform was designed to provide a “single point of entry into the family law jurisdiction”, requiring all initiating process to be filed in Division 2, but enabling the transfer to Division 1 of all causes of action more appropriately determined by it as the superior court of record.
 
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364[2006] HCA 32 - provides that courts are empowered to determine whether they are seized of jurisdiction and to make ancillary procedural orders, dismissal orders and costs orders, even when lacking substantive jurisdiction. 
 
Esber v Commonwealth (1992) 174 CLR 430[1992] HCA 20 - provides that the former iteration of s 7(2) of the Acts Interpretation Act was employed to similar effect in analogous circumstances.
 
Federal Commissioner of Taxation v Tomaras (2018) 265 CLR 434[2018] HCA 62 - provides that the use of the “stated case” procedure should be used only in exceptional circumstances.
 
Fisher v Minister for Immigration and Citizenship (2007) 162 FCR 299[2007] FCA 591 - provides that courts may also transfer proceedings to another court when they lack jurisdiction.
 
Mineralogy Pty Ltd v Western Australia (2021) 393 ALR 551[2021] HCA 30 - provides that the Full Court giving judgment on a special case has had occasion to remind parties that they have no entitlement to expect an answer to a question of law they have agreed in stating in a special case unless the Full Court can be satisfied by reference to the facts and documents they have agreed in the special case that “there exists a state of facts which makes it necessary to decide [the] question in order to do justice in the given case and to determine the rights of the parties”.
 
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 - provides that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. 
 
Public Transport Commission (NSW) (formerly Commissioner for Railways) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336[1975] HCA 28 - provides that in instances of ambiguity, the construction avoiding irrational and unjust consequences should be adopted.
 
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; [1984] HCA 82 - provides that the conferral of original jurisdiction upon the FCoA flowed from the combined effect of those provisions.
 
Secretary, Department of Health & Community Services v JWB & SMB (Marion’s Case) (1992) 175 CLR 218[1992] HCA 15 - provides that although the parties do not have anything akin to proprietary rights over their children, their status as parents invests them with duties, powers and responsibilities pertaining to the children.
 
Shergold v Tanner (2002) 209 CLR 126[2002] HCA 19 - provides that statutes should not be interpreted as withdrawing or limiting the conferral of jurisdiction upon courts unless the implication to do so is clear and unmistakeable.
 
Sino Iron Pty Ltd v Mineralogy Pty Ltd (2019) 55 WAR 89[2019] WASCA 80 - provides that courts may also transfer proceedings to another court when they lack jurisdiction.
 
Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531[2014] HCA 9 - provides that if it were considered necessary, it is permissible to imply words into legislation which go beyond correcting obvious printing or drafting errors if it is apparent the text of the legislation does not conform to the actual intention of the Parliament. 

Analysis:

Despite the literal interpretation of the Transition Act leading to such absurdity, it is the premise for the case stated to this Court. The Attorney urged a quite different interpretation, advocating for an interpretation of the reform legislation which accommodates Division 1’s retention of original jurisdiction to entertain and decide legacy cases.  The parties and the Independent Children’s Lawyer (“the ICL”) renounced their former doubts and vigorously supported the conclusion about the retention of jurisdiction by Division 1.  In this instance, the Parliament’s intention that Division 1 would retain original jurisdiction to finalise legacy cases is readily inferred from the context of the reform legislation when viewed as a whole, in the manner urged by the High Court.  The meaning of Sch 1, Pt 2, Item 229 of the Transition Act is susceptible to ambiguity. The terms of ss 25(1)(c), 43 and 74 of the FCFCA Act appear sufficiently wide to provide that, from the moment of the legislation’s inception, Division 1 is conferred with ongoing original jurisdiction in legacy cases.

The Transition Act (Sch 5, Pt 5, Item 37) and the FCFCA Act (s 30(2)) provide that the new case management provisions of the FCFCA Act governing the conduct of proceedings before Division 1 will also apply in relation to legacy cases.  The Transition Act (Sch 5, Pt 2, Item 7) preserves the validity of anything done by the FCoA in proceedings before 1 September 2021.  The Transition Act provides for the Minister to make rules, by legislative instrument, which prescribe transitional arrangements concerning the FCFCA Act and the amendments to the Family Law Act (Sch 5, Pt 5, Item 38).  The application of s 7(2) of the Acts Interpretation Act, which relevantly provides that, subject to clearly expressed contrary intention (s 2(2)), the repeal or amendment of any statute does not affect an accrued right or privilege or any legal proceedings in respect of such right or privilege.

Conclusion:

The Intervener has leave to rely upon their written submissions, which exceeded the page limit stipulated by rule 13.23(2)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).  The Federal Circuit and Family Court of Australia (Division 1) has original jurisdiction to hear and determine this proceeding.

Added a Digest 

Kavran & Vinko [2022] FedCFamC2F 193 (28 April 2022)

The Father refused to return the child to the applicant mother, being the primary care giver.  The Mother seeks interim application for recovery orders.  The Court, in determining whether the recovery orders are in the best interests of the child, considered the Father's issues of mental health and family violence. 

Facts:

These proceedings were commenced on 10 February 2022 by way of an Application in a Proceeding, in which the Applicant Mother sought, relevantly, recovery orders in relation to the child of a relationship with the Respondent Father, born in 2012 (“the Child”), now being nine years of age.  

The Court proceeded with the contested interim hearing at 1:00 pm and pronounced orders for the Child, effectively, to be returned to the Applicant Mother, to live with the Applicant Mother, and for the Applicant Mother to have sole parental responsibility, pending the Respondent Father putting on satisfactory evidence of his mental health regime and insight as to the best interests of the Child.  The Mother is the primary carer for the Child. 

The Father visits the Child at the Mother’s house, under the Mother’s supervision.  Each visit is only a few hours.  By December 2012, the parties ended their relationship, and the visiting schedule ends.  In April 2013, the Child commenced spending time with the Father at his home in Suburb B supervised by the Father’s parents.  The usual routine is that the Father would collect the Child from the Mother’s house every second Sunday and the Father would drop the Child off at the Mother’s house the following Monday afternoon.

On 18 November 2013, the Father refused to return the Child to the Mother due to arguments about Child Support payments.  The Child was subsequently returned to the Mother’s care on the same day.  The parties attended a Family Dispute Resolution Conference to come to an agreement about parenting consent orders but are unable to reach an agreement.   The Applicant Mother requested urgent recovery orders requiring the Respondent Father to return the Child into her primary care. 

Issues:

I. Whether or not the recovery orders are in the best interests of the child. 

II. Whether or not denying the recovery orders imposes an unacceptable risk of harm to the child.

Applicable law:

Family Law Act 1975 (Cth) s60CC, 65AA(3) - provides that the Court must consider making an order for the Child to spend substantial meaningful time with the Respondent Father, as defined under s 65AA(3) of the Act, unless contrary to the Child’s best interests as a result of a consideration of one or more of the matters in s 60CC of the Act.

Barnham & Timbrell [2021] FedCFamC1F 36 - relied upon by the Court in holding that whilst this is an Interim Hearing only, there is sufficient evidence of coercive behaviour by the Respondent Father as would amount to child abuse and fall within the meaning of family violence as defined in s 4AB of the Act, so as to displace the presumption referred to earlier, and by reason of which it is in the best interests of the Child for the Court to make the orders identified.

Goode & Goode [2005] FamCA 1346 - relied upon by the Court with respect to its observations regarding interim hearing. en

Analysis:

The Applicant Mother indicated that she noticed that, in her interactions with the Child since 1 January 2022, including Facetime, the Child does not seem herself and seems less lively and more cautious and reserved.  The Applicant Mother identified concern that the Respondent Father has told the Child something to make her fearful for her role in her life or something that has happened to overburden her psychologically.  The Applicant Mother then addressed the Respondent Father’s capacity to care for the Child and made reference to his diagnosis of schizophrenia, and that the Respondent Father struggles to accept his diagnosis and does not always take his medication.  The mental health issues identified, the ones touched upon in the Notice of Risk of Family Violence filed by the Applicant Mother on 10 February 2022, refer to the holding of the Child, and that the same amounts to family violence that exposes the Child to an unacceptable level of psychological harm.

The Notice of Risk also refers to the Child being removed from regular school and that the Child is believed to have been giving the Respondent Father his medication for schizophrenia.

Conclusion:

The Applicant Mother has sole parental responsibility of the child X (DOB in 2012, aged 9) (“the Child”).  The Child live with the Applicant Mother.  The Applicant Mother is to collect the Child from Suburb B School by the end of today’s school day.  The Respondent Father, by himself his servants or agents, is restrained from attending Suburb B Public School or in any way interfering with the Applicant Mother’s collection of the Child today.  The Applicant Mother, if she sees fit to do so, is at liberty to re-enrol the Child at Suburb C Public School immediately.  

 

Added a Digest 

Fairbairn v Radecki [2022] HCA 18 (11 May 2022)

The appellant and respondent had been in de facto relationship and resided in the appellant's home.  The appellant subsequently suffered rapid cognitive decline and was diagnosed with dementia.  The Trustee moved appellant into an aged care facility permanently and resolved to sell appellant's home to fund aged care facility costs.  However, the respondent opposed the proposed sale of the home.  The Court, in adjudicating this case, assessed whether or not the de facto relationship had broken down.

Facts:

In late 2005 or early 2006, the appellant and the respondent commenced a de facto relationship.  They agreed to keep their assets strictly separate but lived in a house owned by the appellant ("the home").  The appellant was subsequently diagnosed with dementia.  By 2017, the appellant's capacity to make long-term decisions was largely, if not completely, absent.

In January 2018, the NSW Civil and Administrative Tribunal ("NCAT") appointed the NSW Trustee and Guardian ("the Trustee") to make health and welfare decisions on behalf of the appellant and, subsequently, to be her financial manager. In March 2018, the Trustee decided to move the appellant into an aged care facility, where she has since resided. The Trustee wished to sell the home to fund the appellant's ongoing care. The respondent opposes this.

The Trustee, on behalf of the appellant, sought property settlement orders from the Federal Circuit Court of Australia, including for the sale of the home.  

The primary judge found that the respondent's conduct during the demise of the appellant's mental capacity was inconsistent with a "fundamental premise" of their relationship, namely the strict separation of their assets.  

That inconsistent conduct, all of which occurred while the appellant was "labouring under an incapacity", comprised:

  • the entry into a new enduring power of attorney that "favoured [the respondent's] rights over hers";
  • the respondent instructing solicitors to prepare an updated will "on terms vastly more favourable to him";
  • the respondent's "unwillingness to cooperate" with the appellant's children in the administration of her affairs;
  • the respondent's "persistent" refusal to permit the Trustee to sell the home to cover the RAD while "neglecting to pay any of the [appellant's] care costs", thus depleting her estate;
  • the respondent's proposal that the appellant's "super be used in the first instance to meet her costs";
  • and then his subsequent proposal that "he pay the DAP fees in the first instance and be reimbursed by the [appellant's] estate";
  • and the respondent's "ongoing and deliberate frustration" of the Trustee's lawful administration of the appellant's financial affairs. 

    The primary judge found that this conduct was "unequivocally indicative of and consistent only with ... the cessation of the de facto relationship as it previously existed".

His Honour held that the relationship had ceased at the latest by 25 May 2018, when the respondent suggested that the DAP be paid for in the first instance from the appellant's superannuation while he remained in the home.  On an objective assessment of the respondent's conduct, the primary judge imputed an intention to separate from the appellant.  It followed that there had been a breakdown in the de facto relationship.

Issue:

Whether or not the de facto relationship had broken down.

Applicable law:

Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 - provides that the jurisdiction of the federal family law courts to make property settlement orders for de facto relationships arises from a series of referrals made to the Parliament of the Commonwealth by several States.

Family Law Act 1975 (Cth), s 90SM(1)(a) relevantly provides that "[i]n property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate" and "in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them" may alter "the interests of the parties to the de facto relationship in the property". 

Family Law Act 1975 (Cth) s 90SM(3) provides that the court must not make an order under s 90SM unless it is satisfied that, in all the circumstances, "it is just and equitable to make the order". 

Family Law Act 1975 (Cth) s 4AA(4) - provides that consistently with the reality that human relationships are infinitely mutable, in determining whether a de facto relationship exists a court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate.

Family Law Act 1975 (Cth) s 44(5)(a)(i) - provides that a party to a de facto relationship may apply for an order under s 90SM if the application is made "2 years after the end of the de facto relationship".

SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69 - provides that "living together" must be construed to take account of the many various ways in which two people may share their lives together in the modern world.

Migration Act 1958 (Cth), s 5CB(2)(a) - where for the purposes of the definition of "de facto relationship" in s 5CB(2).  Section 5CB(2) provides, amongst other things, that a person is in a de facto relationship with another person if: "they have a mutual commitment to a shared life to the exclusion of all others".

Hopes v Hopes [1949] P 227 at 234 - provides that a husband and wife could live "separately and apart" where "there is such a forsaking and abandonment by one spouse of the other that the court can say that the spouses were living lives separate and apart from one another".

Stanford v Stanford [2012] HCA 52; (2012) 247 CLR 108 - held that the "bare fact" of involuntary separation would not demonstrate, for the purposes of s 79(2) of the Act, that it was "just and equitable to make a property settlement order".

Stanford [2012] HCA 52; (2012) 247 CLR 108 at 122 - observed that when both parties are competent it can be assumed that any "necessary or desirable adjustment" to their previous financial arrangements will be made consensually.

FO v HAF [2006] QCA 555; [2007] 2 Qd R 138 at 149 - relied upon in holding that Section 4AA does not prescribe any way by which a couple may share life together.  Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. 

Yesilhat v Calokerinos [2021] NSWCA 110 - provides that a de facto relationship cannot exist if two people have never lived together.

Analysis:

The appellant's primary argument was that a de facto relationship breaks down when the parties stop "living together".  The appellant submitted that the phrase "living together" in s 4AA(1)(c) requires cohabitation at some place and in some way, and that this is an irreducible minimum of what a de facto relationship, as defined, must continuously display.  

The appellant's alternative argument was that the de facto relationship between the appellant and the respondent had broken down by no later than 25 May 2018 and that "breakdown" does not necessarily mean "end".  However, it would be productive of injustice if two people who live apart (including for reasons of health) were incapable of remaining in a de facto relationship.  

Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA.  "Living together", consistently with authority, should be construed as meaning sharing life as a couple.  Section 4AA does not prescribe any way by which a couple may share life together.  Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist

Conclusion:

The Court allowed the appeal.  The Court set aside orders 2, 3 and 4 of the Full Court of the Family Court of Australia made on 11 December 2020 and, in their place, order that the appeal to that Court be dismissed.  The NSW Trustee and Guardian pay the costs of both parties of the application for special leave to appeal and of the appeal.  

Added a Digest 

Rusena & Rusena [2022] FedCFamC2F 472 (14 April 2022)

The mother seeks a restraint on the father from facilitating the children to be vaccinated against the COVID-19 virus without her consent.  On the other hand, the father seeks sole parental responsibility with respect to having the children vaccinated against the COVID-19 virus.  The Court, in making final parenting orders, relied upon expert evidence which informs risk-benefit analysis.

Facts:

The parties commenced cohabitation in 2011 and were married in 2013.  They separated on a final basis on 15 February 2018 and a divorce order was made on 9 April 2019.  On 22 January 2019 Judge Henderson (as she then was) made, with the consent of the parties, parenting and property orders on a final basis.  Those orders provided that the children were to live with the mother and spend six nights each fortnight with the father.  The parents agreed to equally share parental responsibility for the children. 

On 17 August 2021 the mother left the children in the care of the father and travelled to Queensland.  Upon the mother’s return from Queensland the parties participated in a mediation on 22 December 2021.  On 23 December 2021 the legal representative for the mother wrote to the father seeking his undertakings not to allow the children to receive the COVID-19 vaccination upon them becoming eligible to do so on 10 January 2022.  On 29 December 2021 the mother, having received no response to her letter of 23 December 2021, filed an Initiating Application in the COVID-19 list seeking an urgent injunctive order to restrain the father from facilitating the children receiving the COVID-19 vaccination.

On 6 January 2022 the father had both children examined by their local General Practitioner Dr B who produced a medical certificate confirming that the children had no underlying health conditions which would prevent them from being vaccinated against COVID-19.  The parties consented to an order restraining the parties from causing or facilitating the children receiving the COVID-19 vaccination pending further order.  The vaccination application was set down for final hearing on 30 March 2022.

There was controversy about the school that the children were to attend and which parent they should live with.  Interim orders were made varying the orders of 22 January 2019.  In accordance with the orders of 15 March 2022 the children now reside with the father and spend time with the mother six nights each fortnight.  On 21 March 2022 X tested positive for COVID-19 and has since recovered. 

The mother seeks that the Respondent be and is hereby restrained from causing or facilitating or allowing the children, X born in 2014 and Y born in 2016 (“the children”) to receive the Covid-19 vaccine, absent the prior written consent of the Mother.  The father seeks sole parental responsibility with respect to the specific issue of the children, X born in 2014 and Y, born in 2016, receiving any vaccinations against the COVID-19 virus. 

Issues:

I. Whether or not the father should have sole parental responsibility to determine whether the children should receive COVID-19 vaccinations. 

II. Whether or not the Court should make orders restraining the parties from facilitating the children being administered the COVID-19 vaccine, as sought by the mother.

Applicable law:

Evidence Act 1995 (Cth) s 140 - sets out that the standard of proof in these proceedings is the balance of probabilities and in what follows statements of fact constitute findings of fact. 

Family Law Act 1975 (Cth) s 60CC(l) - obliges the Court to make an order that would be least likely to lead to the institution of further proceedings.
 
Family Law Act 1975 (Cth) s 65DAE - requires the parties to consult on major long-term issues.
 
Family Law Act 1975 (Cth) s 69ZT - relied upon in determining the admissibility or otherwise of material annexed to affidavits and tendered.
 
Baghti & Baghti and Ors [2015] FamCAFC 71 - where the Court is not required to specifically address or respond to each submission individually.
 
Covington & Covington [2021] FamCAFC 52(2021) 63 Fam LR 173 - provides that there is no jurisdictional concern about this Court’s ability to make orders for the vaccination of children.
 
Dyquiangco Jr. v. Tipay 2022 ONSC 1441 - where advice from public health authorities have informed the decisions of foreign courts when deciding on vaccination issues concerning children.
 
Lamos & Radin (No 2) [2022] FedCFamC2F 167 - where similar public health advice to that adduced in these proceedings have been summarised by, and have informed the decisions of courts within, and superior to this jurisdiction, on the issue of vaccinating children between the ages of 5-11 years.

Analysis:

The mother argues that she has not previously resisted the children being vaccinated but is concerned about the adverse impact of the COVID-19 vaccine.  She makes it clear that she does not describe herself as an “anti vaxxer” but says that she is “gravely concerned about the long-term and immediate health risks to the children” if they were to receive the vaccine.  

She relies upon the expert opinion of Professor Dr D, who in his expert report has undertaken a risk-benefit analysis of the mRNA vaccine for children and cautions that it is not wise to assume that mRNA vaccine are safe in children without access to more complete and long-term human safety data in children and more research into the potential effects of the delivered mRNA on human cellular function.  He is currently not convinced that the mRNA Covid-19 vaccines meet the requisite requirement of benefit over risk to be recommended for use in healthy children, so this should be a personal choice of the parents and/or the child upon receiving all relevant information so they can make an informed decision, which would then be called informed consent.

The father deposed that the children are in good health and have no underlying health conditions that would preclude them from receiving the vaccine.  He deposes that he and his new wife suffer from asthma putting them at higher risk of severe health consequences should they contract COVID-19.  He argues that, as an employee of a Consulate in Sydney, he is obliged to take appropriate steps to protect the services provided by the Consulate.  He relies upon the expert evidence of Dr C who gave evidence that the risks of not vaccinating children is far outweighed by the benefits of vaccination and the risks of not vaccinating children exposes children to the extensive list of complications from the Covid infection which many laypeople may not be aware of. 

No medication is without side effects.  There is clear evidence that the COVID-19 vaccines carry with them a risk of harm.  Professor Dr D’s evidence was useful on this issue.  However, there is no evidence that conclusively establishes that the risks of harm identified are unacceptable.

Conclusion:

Order 1 of the Orders of 22 January 2019 is varied by allocating sole parental responsibility to the Father with respect to the specific issue of the children X born in 2014, and Y, born in 2016 (“the children”), receiving any vaccinations against the COVID-19 virus.  The Father will provide the mother with seven days’ notice of his intention to have the children vaccinated against the COVID-19 virus, and the Mother will have 72 hours to communicate to the Father any views that she may wish to appropriately express.  

Added a Digest 

https://bit.ly/relationshipsurveyuow

Hi,

My name is Kirsten,

I am a part of a research program at the Univeristy of Wollongong, Australia that is looking at the mental health outcomes of divorce within Australia.

Currently, there is limited data and research on the impacts of divorce of mental health outcomes, especially looking at family court experiences. We are particularly interested in the mental health outcomes for women. We are exploring the unique and lived experiences of those who have experienced, or currently experiencing divorce or separation within Australia. as a research team, we are exploring the impacts of child custody, financial strain, history of domestic violence, perceived social support and experiences within the family court system, and how they can impact the mental health outcomes of these individuals. 

To do this we have developed an online survey. We are trying to recruit women who are either in the process of their divorce or the divorce has been finalised within the last decade. However, we are happy to hear about everyone who has been divorced previously.

We really need help with recruitment and to get in contact with separated or divorced women. If you or you know anyone would we be interested to expressed their experience, please feel free to share. 

The survey is anonymous and will take 10-20 minutes to complete. I am happy to discuss this further if anyone has further questions. 

The survey can be found through the link bellow: 

https://bit.ly/relationshipsurveyuow

Thank you. 

Latest Products
New Organizations
New Spaces