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Naslund & Oberlin [2020] FCCA 2295 (19 August 2020) 

This case is about a father seeking for increased time with child even when the latter suffers emotional stress when separated from the child’s mother  

Facts:  

The Court ordered that child X’s time with his father be gradually increased which was in addition to the time earlier agreed upon by the parties. It was the mother’s position that that X was suffering emotional stress as a consequence of the agreed parenting regime.  

She has deposed that the increase from one overnight per fortnight to four nights per fortnight is too dramatic for X.  It is her evidence that X is currently displaying unsettled behavior, which she associates with his current level of interaction with his father.  

It was the Doctor’s opinion that X is suffering some level of emotional dysregulation as a consequence of being separated from his mother, given the undisputed evidence is that she has been his primary provider of care up to this stage.  

Issue: Should the court allow the increased time of the child with the father if the child suffers emotional dysregulation as a consequence of the increased time and being separated from his mother?   

  

Law:  

  • 60CC-How a court determines what is in a child’s best interest  

(3) Additional considerations are:  

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  

(i) Either of his or her parents; or  

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;  

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;  

Analysis:  

The central issue at this stage, should be on the likely effects of any change in X’s circumstances [section 60CC (3)(d)] at this stage given his tender years [section 60CC(3)(g)] and given his probable emotional susceptibility, as identified by Dr. B, to being separated from his mother, whether this be because he was subject to too early a separation from her or because of the mother’s over intense emotional interaction with him.  

In these circumstances, the court not consider that it would be in X’s best interests to change the current arrangements, which, although not ideal from the father’s perspective, do enable him to maintain a meaningful level of relationship with X.  

Conclusion: Hence, the current parenting arrangement will not be changed. X’s time with the father will not be increased. 

Barnard & Welsby [2020] FCCA  1721  (1 July 2020) 

This case involves a mother asking for a higher spousal maintenance from the father  

Facts:  

Ms. Welsby (wife) and Mr. Barnard (husband) were married in 2008 but separated md-2015. The parties have three children, X, Y and Z, nine years, eight years, and four years of age respectively.  

The wife sought the husband to pay her spousal maintenance in the sum of $399.65 per week payable weekly for a period of five years whereas the husband seeks to pay $90 per week for a period of three years or until the wife achieves a gross annual income of $70,000.  

Issue: Is the mother entitled the spousal maintenance of $399.65 per week from the father?  

Law:  

  • 75(2)- Matters to be taken into consideration in relation to spousal maintenance:  

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and  

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;  

Analysis:  

In exercising jurisdiction under section 74 in relation to the making of a spousal maintenance order, the Court must take into account only the matters referred to in subsection 75(2).  

The wife’s ability to engage in appropriate gainful employment is affected by her current employment skill levels and her ongoing responsibility for the day-to-day care and control of the children of the marriage who are under 18, being eight, seven and three years of age at the time of hearing  

Furthermore, the husband’s income is $2,884. The court further accept that his expenses are $2,757 per week. Accordingly, the husband has an excess of income over expenses of $127 per week. The wife seeks for $399.65 per week. While the standard of living of the wife can be raised by the making of a spousal maintenance order, it can only do so to the extent that the husband has an ability to pay that spousal maintenance.  

Conclusion:   

The court finds that the husband is liable to maintain the wife by a payment of spousal maintenance in the sum of $127 per week. 

  

Raywood & Gelston [2020] FCCA 2200 (14 August 2020)  

This case is about a father seeking for joint parental responsibility over is children even if he has charged on multiple occasions for breaches of the Intervention Orders and has a long history of mental illness  

Facts:  

Father seeks joint parental responsibility over his children.  He requests that the children spend time with him from Friday until Sunday during term times and from Thursday till Sunday during school holidays.    

The mother seeks sole parental responsibility over the children contending that:  

  1. The father has been charged on multiple occasions for breaches of the Intervention Orders  
  2. The father has had a long history of mental health difficulties arising out of attention deficit hyperactivity disorder and other matters. He even had significant mental health episode and was significantly suicidal in his ideation  
  3. She experienced family violence during the relationship inflicted by the father.  

Issue: Is the father entitled to shared parental responsibility over his child regardless being charged with multiple breaches of Intervention orders, being mentally ill and violent?  

Law:  

  • 61DA- Presumption of equal shared parental responsibility when making parenting orders  

(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:  

(a) Abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or  

(b) Family violence   

Analysis:  

The presumption of equal shared parental responsibility is plainly rebutted.  The father has committed family violence against the mother and the court accepts her allegations in their entirety, despite the father’s denials. The long history of Intervention Orders and breach thereof by the father, in a sense, speaks for itself. It is clearly in the children’s best interests that the mother has sole parental responsibility.  

Conclusion:  

Hence, the mother shall have sole responsibility over the children. 

 

Access is Reserved or Access was Reserved.

Access being reserved means it is yet undecided by the Court.  It can apply in different ways. 

For instance here it was reserved as the court felt the parties could work it out themselves.

The question of  access was reserved  by consent in the Magistrates Courts because the parties believed that they could arrange between themselves all matters of access.  (Armstrong and Armstrong [1983] FamCA 57).


In another matter it was reserved, pending the court receiving more information.
access were reserved 
; a sec. 62A welfare report order was granted; a special fixture in February was ordered; the only procedural order was that not less than seven days before the commencement of the hearing of the application each party was to file and serve any further affidavits sought to be relied upon at the hearing and any amendment to any pleading. ((1987) FLC ¶91-810).

The term is not often used, according to the austlii database the last published case was 1996 for the Family Court. 

Damgard & Abrola [2020] FCCA 2194 (21  July 2020) 

This case is about a father who took his child from the mother since the latter allegedly inflicted physical harm to their child 

Facts

The parties are already separated. On 30 June, the father went unannounced to the mother’s home and while the child was at home with the mother’s housemate, the father took X and has since not returned him.  The father says that the reason he acted in that way was because he is concerned about the child’s welfare. He said that once he had the child in his possession, he noticed that there were sores that looked suspiciously like cigarette butts in three places on the child’s body 

He took the child to a clinic wherein the report stated that “X has sores and rhinorrhoea” and then goes on to talk about the child’s treatment. There is no mention in the certificate that the sores look suspiciously like cigarette burns. The court asked the father whether there was any other investigation of what he had suspected may be cigarette burns.  He told me there was not any other investigation. 

Issue:  

Whether the mere suspicion that a child has been deliberately harmed is sufficient cause for the father to unilaterally take his child from the mother’s care 

Held

The court is not satisfied that there is any proper basis for the conduct of the father in removing the child unilaterally from the mother’s care.  He has had the child medically examined and there is nothing to suggest the child has been subjected to deliberate harm by any person.  There is nothing whatsoever to suggest that there was urgency of a kind which would require the immediate removal of the child from the mother’s care, and I am satisfied that the child ought to be returned to the mother’s care until all these matters can be properly explored and examined. 

Conclusion:  

Hence, the court orders that X should be returned and live with his mother. 

Adema & Hambleton (No.2) [2020] FCCA 2279 (23 June 2020) 

This case is about the arrangement of a 3 year old child where the mother is a drug addict  

Facts: The proceedings relate to parenting arrangement of X, a three year old child. It was the father's position that Ms Hambleton was in the grip of a serious addiction to methamphetamines, which had led to episodes of psychosis and hospitalisation on her part. The court ordered that X live with his dad and spend time with his mother regularly, with the time to take place at the home of the maternal grandmother and subject to her supervision. Mother asserts that the father had acted unilaterally and had deprived X of the comfort of the care of his primary carer by not allowing the child to interact appropriately with her. She also contended that the child is at risk of being sexually abused by his father. 

Issue: Whether or not the three year old child should be represented by an Independent Children’s Lawyer with respect to its parenting arrangements 

Law

  • Pursuant to Section 68L  of the  Family Law Act 1975 , an Independent Children’s Lawyer be appointed to represent the best interests of the child. 
  • According to 60CC, the primary considerations in determining the child’s best interest are: 
    • 1. the benefit  to  the  child of  having  a  meaningful  relationship with both of  the child’s  parents;  and 
    • 2. the need  to protect  the  child  from  physical  or  psychological harm  from  being  subjected  to, or  exposed  to, abuse,  neglect or  family  violence. 

In applying  the considerations set  out  in  subsection  (2), the court  is to give greater  weight  to  the consideration set  out  in paragraph  (2)(b). 

Analysis: Clearly he must know his mother very well.  However, The court need to protect him from the physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and I have to give greater weight, pursuant to  section 60CC(2A)  to protective concerns. 

Conclusion: Given the issues of child protection raised in the case and the significant levels of mistrust between the parties, it is appropriate that X be independently represented in the proceedings. 

The Risk Screening  Protections Bill will amend the  Family  Law Act 1975  to establish a Family Safety Risk Screening  Process which is to be carried out by a family safety risk screening person in relation to a party to family law proceedings, in order  to identify  persons at risk of family  violence, children at risk of abuse,  neglect or family  violence, or other risks  to the  safety of persons.  The process includes protections for sensitive information generated and confers immunity on court workers involved in family safety risk screening in the federal family law courts.

Purpose of the Bill: To protect the sensitive information generated through the  risk screening  process.

The Bill would amend the Family Law Act to provide that:

  1. family safety risk screening information is CONFIDENTIAL and cannot be disclosed, except in limited circumstances
  •      Disclosure of family safety risk screening information would be allowed in the following circumstances:  
  • to protect a child from the risk of harm
  • to prevent or lessen serious threats to the life or health of a  person, or to the property of a person.
  • to report the commission or likely commission of an offence involving  violence against  a  person or intentional damage  to property, or
  • to assist an independent children’s lawyer.
  •      Disclosure of family  safety  risk screening  information would also be authorised  where disclosure  was made:
  1. in order to comply with a  Commonwealth, state or  territory  law
  2. to the party  who undertook the relevant  risk screening
  3. with the consent of the  party  who undertook the  risk screening  or,  if the  party  is a child, with the  consent of  a  court
  4. to another risk screening person, or
  5. in order to provide non-personal information for the purposes of  research  relevant to families.

    2. family safety  risk screening  information is  INADMISSIBLE, except in limited circumstances

  • amendments would ensure  that family  safety  risk screening  information is inadmissible  in any  court  or  legal proceedings
  • It would also  ensure  that evidence  of anything  said, or any  admission made,  by  or  to a person to whom a  family  safety  risk screening  person refers a  party  is inadmissible  in  any  court  or  legal proceedings.  
  • An exception would apply where  family  safety  risk screening  information or  evidence indicates that a child has  been abused  or is at risk  of 

    3. court workers, for  example  registrars  and family  counsellors, have  IMMUNITY  when involved in risk screening 

  • The amendments would  also ensure  that a  family  safety  risk screening  person, when performing  his or her functions as a family  safety  risk screening  person, has the same protection and immunity  as that afforded to a judge  of the  Family  Court of  Australia  in performing  the functions of a 

 

Conclusion

 

Hence, The  Bill will ensure  that  parties to family  law proceedings  can freely  and  confidently participate in the  risk screening  process, without fear of  their responses being  used  against them in their family  law  (or  other) proceedings. This is particularly  important for  protecting family  violence  victims in high-risk  cases,  and for  maintaining  the accuracy  and  reliability  of the risk screening  information used to triage  matters.  

 

This case is about a father which seeks to reopen a case due to the incompetence of his former counsel and introduce new evidence on  

Khadem & Penk [2020] FamCAFC 211; (27 August 2020) 

Facts:  

Counsel for the father sought to reopen case recalling the mother, the Family Consultant and the child’s psychotherapist and cross examining them again. It was the father’s position that his former counsel had failed to comply with the father’s instructions as to how cross-examination of those three witnesses was to take place. The father also sought that he give further evidence by way of examination about an incident on 23 February 2015 and the text messages that had passed between the parties at that time. 

Issue:  

  1. Whether or not the alleged incompetence of the counsel of the father during cross-examination is a sufficient cause to reopen the case 
  2. Whether or not the father may adduce receive further evidence on appeal 

Legal Basis:  

  • The Full Court in OP v TP (Conduct of Counsel)  [2002] FamCA  1155;  (2002) 30 Fam LR 281 at [124] stated: 

 ...from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made. 

  • Section 93A(2) of the Act provides for a discretion in an appeal for the Court to receive further evidence upon questions of fact. 
  • Rules 1.10 and 10.12(d) of the Family Law Rules 2004 (Cth), allow this Court to make an order on its own initiative in circumstances where an application has no reasonable likelihood of success. 

Analysis: 

1. the father must be able to establish on appeal not only the decisions were wrong or incompetent, but their effect was likely to have brought about a different result if they had not been made. The father did not assert what difference the further cross-examination of the witnesses (on issues already canvassed) would have made to the outcome of the case. 

2. On the face of the father’s application and his affidavit evidence in support, the criteria for admission of further evidence on appeal is not met. Taken at its highest, we are of the view that the further evidence, if accepted, would not demonstrate that the orders under appeal are erroneous. We are not satisfied that had this evidence been available it would have produced a different result. 

Conclusion: 

Further examination of the witnesses and additional evidence will unlikely change the result of the case. Hence, the appeal shall be dismissed. 

 

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Mara Yamat
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Halcott & Halcott

[2020] FCCA 2175

 

This is a case regarding the parental responsibility over two children. The mother wants full parental responsibility and claims that the father is violent and has mental health issues. The father wants equal shared parental responsibility and claims that his mental health issues have already been solved.

 

Facts: 

  • Mr. Halcott and Ms. Halcott began living together in 2009.
  • In 2012, their child, X, was born.
  • In 2014, they got married and their child, Y, was born.
  • In 2016, they finally separated. The father left the family home and moved in with his parents.
  • X and Y remained in the care of their mother and she has been their main provider of care in the next 4 years.
  • The mother is employed as a professional and has re-partnered to Mr. E. She and Mr. E had a child, F, in 2018.
  • The father is employed as a professional. After the separation, he attended upon a psychologist, Dr. G, and a psychiatrist, Dr. H.
  • Both parents attended a co-parenting mediation with Ms. J but failed.

 

The mother seeks sole parental responsibility although she is open to providing relevant information, to the father, about major long term issues to do with the children’s care, welfare and development. She alleges that there are issues concerning the father’s mental health and personality traits. She categorises him as an emotionally reactive person and therefore an individual who is likely to be an unreliable parent. She also claimed that he subjected her and the children to family violence during the parties’ relationship.

 

The father has been seeking to increase his time with the children. He seeks an order that the parties have equal shared parental responsibility for X and Y and to spend substantial and significant periods of time with them. He has deposed that his mental health has been restored. It is his position that the parties’ relationship was categorised by mutual incidents of poor behaviour and the mother is now attempting to restrict his relationship with the children unreasonably and in order to satisfy her own needs for control.

 

Issue: Should the mother have sole parental responsibility for the children or should both parents have equal shared parental responsibility for the children? Should the presumption of equal shared responsibility be applied in this case?

 

Law:

 

Whenever the court makes  a parenting order, in respect of a child, it is mandatory that it consider the  application of the  presumption of equal shared  parental  responsibility  be  applied  to  the  parents  concerned, given the  importance  the  legislature  places  on  both  parents  being closely involved in their child’s life [section  61DA]–so  long  as  this involvement  is  commensurate  with  protecting  the  children  concerned from harm.

 

The  presumption of equal shared parental responsibility is rebutted if it is found, on reasonable  grounds, that one of the child’s  parents has abused  the  child  concerned  or  exposed  him  or  her  to  family  violence [section 61DA(2)].

 

In deciding whether to make any particular parenting orders, in relation to  a  child,  the  court  must  regard  the  best  interests  of that  child  as  the paramount  or  most  important  consideration. Section 60CC of the Family Law Act 1975 lists down the matters which the court must take into account in deciding how a child’s best interests are to be served. This section creates two classes of considerations   which are relevant –primary  considerations  and  a  longer  list  of  additional  considerations.  Generally speaking, the court should give  greater weight to the primary considerations,   which  closely  tie  in   with  the   overall  objects  and principles of the Act set out in section 60B. There are two primary consideration:

 

  1. the  benefit  to  the  child  of  having  a  meaningful  relationship with both of the child’s parents; and 
  2. the  need  to  protect  the  child  from  physical  or  psychological harm,  from  being  subjected  to,  or  exposed  to,  abuse,  neglect  or family violence.

 

Other specific criteria, relating to how the court is  directed to consider how the best interests of any children concerned may be served, by any order which  is made,  are set out in section 60CC(3).

 

In  this  particular  case,  sub-paragraphs  (a) ;(b) ;(i);(j) ;  and  (k)  of section  60CC(3)  are  relevant. These  subparagraphs  deal  with  the following  issues: The  views  of  any  child  concerned  and  any  factors  impacting  on that  view,  particularly  the  maturity  or  level  of  understanding  of the child; The nature of the child’s relationship with parents and significant other persons, including  grandparents; The attitudes to the responsibilities of    being a    parent demonstrated by the parties concerned; Any family  violence  involving  the  child  or  a  member  of  the child’s family; Any family violence order applicable; The subparagraph    relevant    to  family  violence orders, subparagraph (k), directs that the court can take into  account the following  matters  arising  from  any  applicable  family  violence order: The  nature  of the order; The circumstances in which  the order was made; Any evidence admitted in proceedings for the order; Any findings made by the court in the relevant proceedings; Any  other relevant  matter.

 

Analysis:

  • The family reports by Dr. D are important pieces of evidence. He was able to meet both X and Y and observe each of them interacting with their parents on two distinct occasions, separated by a period of approximately a year.
  • On 26 March 2018, Dr. D observed X and Y with their father and paternal grandparents. Both children were pleased to see their father. X greeted their father with a hug. On that day, the father played with the children.Dr. D  described the  children as  being comfortable and responsive to their father,  whilst Mr  Halcott was relaxed    and    attentive in    how  he    interacted    with    them. 
  • In the court’s view, Dr. D was not able to observe any fear or apprehension towards their father.
  • In February 2019, Dr. D interviewed X and Y. When asked if mum or dad did anything that made him upset, X said ‘that we can’t just be with each other all the time. I just want to be with dad a bit more.  I only get one weekend every two; it doesn’t feel right.” When Y was  asked  if  she  liked  spending  time  with  her  father,  she simply  answered  in  the   affirmative, without specification.    She   was asked to delineate anything at  her father’s house which  upset her, to which she responded  with  a shake  of her head,  in a negative  manner.  
  • Dr. D recommended that the children should spend increased time with the father.
  • In Deiter &  Deiter, the  Full  Court  has  directed that, in  assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future  and  what  will  be its severity, to  any individual, particularly any child, who  will be potentially affected by  it. Essentially,  the  court  is   required  to   assess  risk  and  put  in  place  a proportionate  response  to  the  degree  of  risk  involved. Risk  arises  in every  aspect  of  human  endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk.  In this court, as with life, it is a  question of  balancing  and  assessing the  degree of risk arising,  on an objective basis. 
  • The  father  submits  that  his  previous  violent  behaviour  was  situational in   nature and  a  response  to  the  stresses  implicit  in  the  parties’ relationship  at the time.In this context, it is important to  note that the mother  does  not  raise  any  recent  complaints  of  misbehaviour  and  she has not recently sought  any  intervention  from outside sources. 
  • it is  also  significant  that Dr  D did  not  characterize  the current  relationship  between  the  parties  as  being  one  characterised  by issues of power  imbalance arising from coercion  and control.   Rather, the level of obvious dysfunction in the parties’ relationship appears to relate to issues of communication  between  them. The nature  of  the  dispute  between  the  parties  focuses on the father’s  perception that  he is excluded from relevant  decision making; whilst the  mother perceives  the father  will not heed her advice and  those of relevant  experts.

 

Held: The evidence available from the father’s treating psychiatrist indicates that his  mental  health is  well-managed and  any symptoms suffered by him  are  in  remission.    Accordingly  there is  no  unacceptable  risk, arising  for the children from this aspect of the father. Given the two reports of Dr. D, the Court considers that both X and Y will benefit from extending their relationship with their father. Clearly  the  children  love   their  father  and  are  each  comfortable  in  his care. Hence, the court orders that the parents have equal shared parental responsibility.for the children, X and Y.

Mara Yamat
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Bhanot & Bhanot

[2020] FCCA 2015

 

This is an ex tempore ruling regarding the property settlement of a couple. The wife claims that the sale of her husband’s business to his brother is a sham and therefore, there is a clear necessity for the addition of the brother to the proceedings. The couple also wants the Court to determine which property should be sold to provide interim funds.

 

Facts: Mr. Bhanot owns all 10 shares in an entity known as F Group Pty Ltd. F Group Pty Ltd owns three properties including one at D Street, Suburb E. After separating from his wife, Mr. Bhanot executed an agreement purporting to sell G Pty Ltd to his brother, Mr. C because it had a debt of $457,000 to Mr. C. Ms. Bhanot filed an application to join Mr. C as a party to the property settlement proceedings. She alleges that the sale agreement was a device to alienate a marital asset. Mr. Bhanot claims that the sale was bona fide. Ms. Bhanot also sought for spousal support from Mr. Bhanot. Both Mr. Bhanot and Ms. Bhanot sought for the sale of property to provide interim funds, however, they do not agree on which property should be sold. Mr. Bhanot wants the matrimonial home to be sold because he can no longer pay the mortgage.

 

Issue: Is the sale a sham? Should the brother be joined as a party to the proceeding? Should Mr. Bhanot pay for spousal support? Which property should be sold for interim funds?

 

Law: 

 

Federal Circuit Court Rules 2001 Rule 11.01: 

Necessary parties

  1.  Subject to any order of the Court, a person whose participation is necessary for the Court to completely and finally determine all matters in dispute in a proceeding must be included as a party in the proceeding.
  2.  The Court may require a person to be included as a party.
  3.  A person required to be included as an applicant who does not consent to be included may be included as a respondent.
  4. The Court may decide a proceeding even if a person is incorrectly included or not included as a party.

 

Federal Circuit Court Rules 2001 Rule 11.02: 

Party may include another person as a party

  1. A party to a proceeding may include any person as a party by:
    1. naming the person as a party in the application, response or reply; and
    2. serving on the person a copy of the application, response or reply and all other relevant documents filed in the proceeding.
  2.  A party may not include a person as a party after the first court date without the leave of the Court.
  3. The Court may at any time order a party who has included a person as a party to file and serve on each other party in the proceeding an affidavit setting out the basis on which the person has been included.

 

Family Law Act 1975 Section 81

Duty of court to end financial relations

In proceedings under this Part, other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.

 

Analysis: 

  • The sale agreement was allegedly entered into in order to get rid of the indebtedness of Mr. Bhanot. However, upon careful reading of the document, it appears that the indebtedness still exists. 
  • Mr. Bhanot is still required to pay the debt although the deadline of payment is not clear. 
  • The subject of the sale was G Pty Ltd, however, it mentions in detail the three properties owned by F Group Pty Ltd including D Street, Suburb E. 
  • The debt of Mr. Bhanot is not actually extinguished but rather purports to be secured against the three properties owned by the F Group Pty Ltd. 
  • The agreement also provides that Mr. C will have complete and full fledged rights charge/lien/pledge/mortgage/caveat over the three properties of F Group Pty Ltd. 
  • On the matter of spousal support, Mr. Bhanot claimed on his oath  that he has no money. His sole source of funds has stopped.
  • With regard to which property should be sold, if the D Street, Suburb E property is sold, there is a surplus of about $180,000. Mr. Bhanot claims that because of the sale agreement, his brother has a caveatable interest in the property. However, money debts do not of themselves, per se, give rise to interests in land and in any event, the Court has the power to order sale and removal of caveats as provided for in section 81D of the Family Law Act. D Street, Suburb E should be sold for interim funds. From the proceeds, Mr. Bhanot and Ms. Bhanot will each receive the sum of $50,000 and the balance will be held on trust for them.

 

Held: Due to the fact that the sale agreement is actually a document that makes the three properties of the F Pty Ltd a guarantee to the debt of Mr. Bhanot, it is clear that Mr. Bhanot’s brother, Mr. C, is part of the overarching single dispute. It is imperative to enjoin him to the proceedings either pursuant to rule 11.01(2) or rule 11.02.

Mara Yamat
 added a Digest 

ADACOT & SCOWLE 

[2020] FamCAFC 215

 

This is an appeal of a judge’s order in a family law case. One of the parties is accusing the judge of bullying and for abusing his judicial position. He alleges that the judge’s excessive judicial intervention prevented him from getting a fair trial.

 

Facts: Judge Andrew of the Federal Circuit Court made parenting and property settlement orders in proceedings between Ms. Sowle (“the mother”) and Mr. Adacot (“the father”). The father appealed the order alleging that the judge’s conduct towards the father’s legal representatives in the trial gave rise to an apprehension of bias and robbed the processings of any semblance of fairness. It was contended that during the trial, which lasted for three days, the judge was critical, dismissive, sarcastic and rude to the father’s Queen’s counsel and solicitor.

 

Issue: Is there excessive judicial intervention amounting to an unfair trial? Did Judge Andrew bully the solicitors? Did he abuse his judicial position?

 

Law: Everyone is entitled to a fair trial. The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside.

 

Analysis:

  • During the first day of the trial, the primary judge concluded the day complaining that the father’s Queen Counsel had wasted the day when in fact, according to the transcript, at almost no time did Queen’s Counsel for the father speak more than about three sentences before being interrupted by the judge. 
  • On the second day of the trial, the primary judge required the father’s lawyers to file a written application dealing with some procedural matters. These were filed by the father’s lawyers but the judge regarded it as unsatisfactory and he stood the matter over until the third day. 
  • On the third day of the trial, the primary judge took issue with the presentation and appearance of the father’s Queen’s Counsel. The father Queen’s Counsel sought a leave to withdraw which was granted. The father’s solicitor took over and he was also bullied by the judge. The primary judge kept interrupting him during the hearing and he was also criticised as a waste of the primary court’s time.
  • The court also gave specific examples of the primary judge’s behaviour towards the father’s lawyers which demonstrated judicial bullying. 
  • First, the primary judge impugned the honesty of the father’s Queen’s counsel by characterising a mistake made by the father’s Queen’s Counsel as an untruth. This accusation by the judge was the subject of several jibes addressed to the father’s Queen’s Counsel during the rest of the hearing. Judge Andrew kept questioning the integrity of the father’s Queen’s Counsel and referred to the dishonesty he committed in the beginning of the hearing.
  • Second, the primary judge criticised the professionalism of the father’s Queen’s Counsel not only for the preparation and presentation of the matter, but also the Queen's Counsel’s conduct in court, dress, and demeanour. The primary judge criticised the father’s Queen’s Counsel for not speaking when he was only waiting for his turn to speak, however, he was reprimanded by the Judge during those times when he was about to speak. He was also criticised for not bowing when his Honour entered the courtroom.He was also criticized for his preparation. Judge Andrew kept saying “keep assisting me, Mr. Page” in a sarcastic tone which was repeated on a number of occasions throughout the trial. 
  • On a number of occasions, the primary judge was apparently affronted by the behaviour of the father’s Queen’s Counsel,although it is difficult to understand quite what the problem was and it is quite apparent from Queens Counsel's responses that he too was unsure what transgression he had committed. The court found it difficult to understand what transgressions were committed by the father’s Queen’s Counsel because the primary judge’s criticisms were couched in oblique terms such as “that’s a further amplification of your behaviour”, “you’re running very close” and “you know exactly what you just did.” 
  • Third, the primary judge used rude and intemperate language towards the father’s Queen’s Counsel. When the father’s Queen’s Counsel submitted an application and an affidavit to the primary judge, the primary judge referred to it as garbage, absolute garbage. Judge Andrew has also said “pathetic” referring to the father’s Queen’s Counsel.
  • On three occasions when attempting to make submissions, Queen’s Counsel took his Honour to a particular place in a document and read the commencing words aloud –and hisHonour remarked “I can read English”.36On another occasion his Honour referred to a paragraph in an affidavit,and in response Queen’s Counsel attempted To read out part of the paragraph to the primary judge and his Honour interrupted to instruct Queen’s Counsel not to read the passage to him.
  • On a number of occasions his Honour asked Queen’s Counsel to “[a]ttend”. 
  • Fourth, Judge Andrew hectored, bullied, insulted, and demeaned the father’s solicitor. After the withdrawal of the father’s Queen’s Counsel, the solicitor replaced him. In one occasion, the primary judge and the father’s solicitor had a miscommunication  and his Honour asked the father’s solicitor whether he was “attending.” 
  • On one occasion, his Honour announced to the court in general that “[t]here’s a cognition issue somewhere here, and it’s not on this side of the bench.” referring to the father’s solicitor. Apparently, this statement was made because there had been an internal error in the numbering in one paragraph to a reference to another paragraph in some draft orders. However, this is not an uncommon error.
  • When the father’s solicitor attempted to explain the circumstances of the father’s non-attendance, he was constantly interrupted by the primary judge and claimed that “the father has just been swanning around down the Gold Coast”.

 

Held: The nature, intensity, frequency and content of Honour ’s interruptions, criticisms and ad hominem attacks on Queen’s Counsel for the father drive the conclusion that the fair-minded observer might apprehend that the primary judge might not bring an impartial mind to the determination of the issues as they impacted the father’s case. The court concludes that the primary judge, by his conduct, squarely raised an apprehension of bias and failed to afford the father a fair trial. Hence, the court allowed the appeal and remitted the proceedings to the Federal Circuit Court for a rehearing by a judge other than Judge Andrew.

Mara Yamat
 added a Digest 

SUTTON & LASKO & ANOR (No.5)

[2020] FCCA2183

 

This is a case involving property settlement between two women and one man. The man is accused of failing to make financial disclosure, of concealing his  assets, and of falsification of bank records. The man and one of the women is also thought to be still together despite claiming that they are already separated.

 

FACTS: 

 

Mr. Sutton and Ms. Lasko:

  • They met in 2009.
  • They started cohabitation in 2011.
  • In 2012, their first child, OO, was born.
  • In 2016, their second child, PP, was born.
  • On July 2017, they separated
  • On September 2017, Mr. Sutton commenced Court proceedings seeking parenting and property orders in relation to Ms. Lasko.

 

Mr. Sutton and Ms. Thompson:

  • They met in 2013.
  • They started living together in 2015.
  • In 2016, they got married and their first child, QQ, was born.
  • In 2017, their second child, RR, was born and they separated but briefly reconciled.
  • In 2018, they entered into a Deed of Settlement and Release.
  • In 2019, they separated on a final basis.
  • Ms. Thompson is then included as a respondent to Mr. Sutton’s application.

 

The properties involved in this case is the $1,500,000 worth of shares held by Q Pty Ltd in W Pty Ltd and the sum of $225,200 held in trust by Ms. Lasko’s solicitors. Ms. Lasko wants it to be transferred to her entirely, meanwhile, both Ms. Thompson and Mr. Sutton wants it to be sold and be divided equally between Ms. Lasko and Ms. Thompson.

 

ISSUE: How should the property be divided? Did Mr. Sutton give the correct estimate of his financial assets? Are Mr. Sutton and Ms. Thompson still together?

 

LAW: The preferred four-step process in property matters under the Family Law Act 1975 which was identified by the Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143.This approach was approved in the High Court decision of Stanford & Stanford (2012) HCA 52. It requires the Court to do the following:

  1. Identify the pool of assets and liabilities generally, and usually at the time of the hearing;
  2. Assess the relative contributions of both the financial, non-financial, direct and indirect nature as specified by section 79(4) of the Act;
  3. Consider the factors as are relevant contained in section 75(2) of the Act; and
  4. Determine whether the order that the Court proposes to make is just and equitable to both parties.

 

The Full Court in Chang v. Su [2002] FamCa 156 stated the  Court should not be ‘unduly cautious’ about making findings  in  favour  of  the  innocent  party  and in  circumstances  where there has  not been full and frank  disclosure of financial circumstances by   a   party,  it  is   open  to   a  Court  to  find  that   an  indeterminate undisclosed amount is  held  by one of the parties and to  make  property orders  without  reference  to  the  overall   pool.

 

ANALYSIS: 

 

  • Mr. Sutton has deliberately underreported his asset pool in order to prevent Ms. Lasko from getting her fair share. 
  • Mr. Sutton has consistently failed to comply with his obligations for full and frank disclosure despite numerous Court orders. 
  • There are legitimate concerns that Mr. Sutton has or may have transferred significant sums of money out of his accounts and/or accounts of his organisations to Ms. Thompson to dissipate the asset pool. 
  • Mr. Sutton has been charged with criminal offences, including fraud, delivering documents containing false information, acting as an agent without being registered and driving offences. 
  • Mr. Sutton also deliberately falsified bank records by altering  the date of a $9,000,000 bank deposit made into his account in order to hide money from Ms. Lasko. He admitted that the document about the bank deposit was indeed altered, however, he denied altering them and blamed it on Mr. A, a bank employee. However, Mr. A submitted an affidavit containing emails between him and Mr. Sutton showing that Mr Sutton has never requested bank statements from him. 
  • Mr Sutton never questioned this affidavit nor cross-examined the bank employee. Mr. A also submitted evidence that he was aware that both Ms. Thompson and Mr. Sutton created false invoices and false documents in their businesses. This was also not challenged by both Mr. Sutton and Ms. Thompson.
  • It also appears that Mr. Sutton and Ms. Thompson are still together, contrary to what they have claimed. The evidence given by them regarding their relationship and separation is confusing and ultimately unconvincing. 
  • They gave contradictory evidence where Ms. Thompson and her children live and how much time they spend with her and Mr. Sutton. Mr. Sutton claimed that their children spend every night at his house, meanwhile, Ms. Thompson claimed that Mr. Sutton sees the children everyday but they only spend some nights with him. 
  • Ms. Thompson also lied about her residence in a different proceeding. 
  • In said proceeding, she stated that she shares a home with Mr. Sutton and her children. 
  • She later on retracted and said that they are actually renting places separately. 
  • She has not actively sought to ascertain the amount of the asset pool. 
  • Ms. Thompson and Mr. Sutton’s business interests appear to be closely intertwined. 
  • Mr. A submitted evidence that Ms. Thompson was very involved in the running of businesses associated with Mr. Sutton.
  • This evidence was not challenged by either Mr. Sutton or Ms. Thompson.

 

HELD :

Given the serious discrepancies in the evidence given by Mr. Sutton and Ms. Thompson as to the conclusion of their relationship and the fact that their business interests are so closely intertwined, it is concluded that they are still in a relationship. Ms. Thompson will benefit from the nondisclosure of Mr. Sutton’s assets and the alleged separation is designed to undermine the claims of Ms. Lasko. And because they are still married, it will not be appropriate for there to be a property division in her favour and no separation of property is required between them. 

 

Due to the fact that Mr. Sutton has deliberately failed to make full and frank disclosure of his financial circumstances and has put Ms. Lasko to a substantial expense in seeking to either ascertain the relevant assets or to restrain Mr. Sutton from disposing of them, the case of Chang v Su is applied in favour of Ms. Lasko. The Court also notes that Ms. Lasko and her two young children with Mr. Sutton has significant future needs. M. Lasko is working as a customer service office and only receives a modest income. She has to provide for the needs of herself and her children on her own. And despite the large sums of money passing through Mr. Sutton’s hands, he does not provide financial support for his two young children with Ms. Lasko. Mr. Sutton is ordered to transfer the entirety of the shareholdings of Q Pty Ltd in W Pty Ltd  to Ms. Lasko and the funds held in trust by Ms. Lasko’s solicitors are ordered paid to Ms. Lasko as partial satisfaction of a cost order. These are the only available assets.

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