ANISON V ANISON [2019] FAMCAFC 108

In the case of Anison v Anison [2019], the court again considered the question of costs.

An appeal was allowed in part.

The decision is an extempore judgment by Kent J.

This is a case where, at the time of judgment, the husband was 84 and the wife 80. 

The wife received 22.5% as a result of a 10% adjustment to her under section 75(2).

The contribution-based entitlement was 87.5% to the husband, 12.5% to the wife.

The parties began to cohabit when the husband was 66 and the wife was 62.

The husband had between $8M and $9.6M and the wife had a total of $88,000.

The case then reviewed the nature of the discretion to award costs.

Harris v Harris, Browne v Green, Robinson v Higginbotham, were all referred to.

A central challenge in the husband’s appeal was that the trial judge was wrong to conclude, “That the husband was wholly unsuccessful in the proceedings within the meaning of paragraph (e) of section 117(2A) of the Act“. 

That is, “The husband contends that Her Honour exercised the discretion to make the challenge costs order on wrong principle, relying on the conclusion that the husband was wholly unsuccessful within the meaning of the paragraph”.

Justice Kent determined that there was substance in the husband’s grounds resting upon this central contention and concluded that the appeal must be allowed.

In this case, the Trial Judge had to determine costs applications on three different matters. One was the wife’s involvement of third parties in the proceedings.

On 6 November 2015, the Trial Judge acceded to the application and struck out all of the wife’s proceedings which sought relief from the company.

The husband had opposed that application. The wife had sought to establish the trust of which the company was the trustee was a sham and that therefore, the property held within it should be included in the parties’ property pool. The Trial Judge disagreed. The husband had sought the costs of the pleadings being exchanged.

The concept of “˜wholly unsuccessful’ is of significance. The Trial Judge said:

“Whilst the husband’s position that the company be disjoined from the proceedings succeeded on the 6^th of November 2015, his position thereafter was wholly unsuccessful for the reasons already explained.”

The Appeal Court then referenced paragraph 32 of the cost reasons and quoted the Trial Judge’s position.

In relation to the issue of spouse maintenance, the Trial Judge said:

“Whilst the wife was not wholly successful in obtaining the relief sought, the husband was wholly unsuccessful in his opposition to the applications for the payment of funds to defer litigation expenses and spousal maintenance.”

The husband had also been unsuccessful at trial in his contention that he owed his son considerable sums of money.

The Full Court then provides a useful discussion of section 117(2A)(e).

Readers are referred to Bant v Clayton (Costs) [2016] FAMCAFC 35, which was a decision of May, Strickland & Tree JJ.

In that case, the court considered a situation where the husband submitted that by filing a Notice of Discontinuance, the mother had been wholly unsuccessful, and the mother had said that because it was never heard or determined, she wasn’t wholly successful, the Court said:

“There is an element of truth in both submissions, but it is apparent to us that this paragraph does not apply to the facts of this case; it is designed for cases where an application is heard and determined and the applicant is wholly unsuccessful”.  [Emphasis added]

The Full Court considered the Trial Judge had adopted an incorrect interpretation of paragraph (e) and had applied that misinterpretation.

The Full Court said further:

“That the husband cannot be characterised as being wholly unsuccessful in the proceedings on the proper interpretation of the paragraph would seem obvious”.   

The Full Court re-exercised its discretion.

Austin J and Aldridge J agreed with the reasons of Justice Kent.

With respect to Order 3 of the Orders, which was the issue of the husband being wholly unsuccessful.

Bircher & Bircher (2019) FamCA 890

In 2006, there were major amendments to the Family Law Act.

The case of Bircher & Bircher provides a very good example of the application and expositon of the legislation.

In this case, the court provided very detailed orders (there are 41 orders) and five notations.

The children are described in the first sentence of the judgment as “B, C and D are three children who have lived their entire lives in what at least one of them has described as a war”.

There was a shared care arrangement as a result of a final parenting order made in 2014 which was amended in 2015 and in 2017.

The mother commenced proceedings in January 2018. She sought sole parental responsibility. The father also sought sole parental responsibility and different care orders.

At the end of that trial, the mother contended for a continuation of the current arrangements but pressed for sole parental responsibility.

This case provides a very good summary of the applicable legal principles.  I refer you to paragraphs 36 to 50.

I am going to consider in this case note the issue of parental responsibility. Parental responsibility is defined at paragraph 45 where each parent has parental responsibility for a child subject to any order made by the court pursuant to section 61C.

Section 61DA provides that the court must apply a presumption it’s in the best interest of a child for a child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent is engaged in abuse of the child or another child who, at the time, was a member of the parents’ family or where there are reasonable grounds to believe the parent has engaged in family violence as defined in section 4AB.  In addition, the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interest.

Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.  Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, change of living arrangements which make it significantly more difficult for a child to spend time with a parent.

The court decided to split the application of parental responsibility between the parents. The mother has been ordered to have sole parental responsibility for choosing which high school the children, C and D would attend, and the father has joint parental responsibility in relation to all health issues relating to the children and the order provided that unless he agrees in writing, the mother is restrained from making any decision relating to the children’s health or making appointments or attending appointments.

These orders in relation to parental responsibility are set out below.

Parental Responsibility

(2)     The parents have equal shared parental responsibility for major long term issues (as that term is defined in s 4(1) of the Family Law Act 1975 (Cth)) for the children B born … 2007, C born … 2008 and D born … 2009 (“the children”) save that:

(a)      The mother has sole parental responsibility for choosing which high school C and D attend;

(b)      The father has sole parental responsibility in relation to all health issues relating to the children and, unless the father agrees in writing beforehand, the mother is restrained from making any decision relating to the children’s health and from making any appointments or attending any appointments (unless the father is unable to attend) for the children with any medical practitioner, therapist or allied health professional and from taking the children (or causing the children to be taken) to any appointments with any medical practitioner, therapist or allied health professional and, in particular, the mother is restrained from taking any of the children for further assessment in relation to any health issues including but not limited to Autism Spectrum Disorder (“ASD”). This injunction against the mother does not prevent her from taking the children for treatment or assessment in cases of a genuine health emergency;

(c)      Unless the father provides his written consent beforehand, the mother is restrained from administering any prescribed medication or any homeopathic treatments to the children, unless provided to her by the father, and in circumstances where the father provides medication or treatment to the mother she shall administer it in accordance with the instructions provided.

(d)      Unless the father provides his written consent beforehand, the mother is restrained from commencing the children on any diet unless in accordance with written advice obtained by the father from a dietician or medical practitioner treating the children. In the event a diet is recommended, the mother shall comply with its requirements until informed otherwise.

APPLICABLE LEGAL PRINCIPLES  This is extracted from the case for ease.

36. When considering what parenting order is proper I am obliged to apply Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.^[5]

37. A “˜parenting order’ is defined in s 64B of the Act and may deal with matters including:

a. The person or persons with whom a child is to live;

1. b. The time a child is to spend with another person or other persons;

1. c. The communication a child is to have with another person or persons; and

1. d. The allocation of parental responsibility for a child.

38. The objects and principles of Part VII of the Act are set out in s 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.

39. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).

40. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).

41. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

42. Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.

43. The Court is not required to make findings of fact on every factual dispute raised by the parties.^[6] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.^[7]

44. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

45. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).

46. Section 61DA provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

47. Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).

48. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

49. Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.^[8]

50. I turn now to consider the significant issues in the context of the evidence and applicable legal principles.

^{Footnotes
[5]} Family Law Act 1975 (Cth), s 65D.

^[6] Baghti & Baghti and Ors [2015] FamCAFC 171.

^[7] M & M (1988) 166 CLR 69.

^[8] Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637.

Britt & Britt (2019) FamCA 982

The case of Britt & Britt [2019] FamCA 982 (19 December 2019) is a single Family Court Judge Decision of Cleary J.

It is another case where the Kennon and Kennon principles have been considered.

The wife is 53. The husband is 69.

The wife was 14 and in her second year of high school when the parties began to cohabit on the husband’s rural property. The husband was a divorced man of 31 and had two children from his first marriage.

The parties lived together for more than 30 years in total until final separation in November 2011. There are four adult children of the marriage.

The wife has re-partnered.  Her new partner is 72 years of age.

The wife is in receipt of a disability support pension as a result of lower back issues.

The husband, at 69, has re-partnered with a woman aged 42 who has known the parties since she was a child of seven.

His new partner suffers from bipolar disorder and epilepsy. He and his new partner, Ms K, have two preschool aged children.

The wife seeks 65% of the property and 35% to the husband. The husband seeks dismissal of the wife’s application.

The Trial Judge said: “Both positions are in my view unrealistic.”

There were proceedings in the Federal Magistrates Court.  The wife appealed the outcome of the Federal Magistrates Court.  The Full Court upheld the appeal and made orders remitting the matter for rehearing in the Federal Circuit Court.

The matter was transferred from the Federal Circuit Court to the Family Court for trial.

Meanwhile, the husband’s mother had died and in March 2018, probate was granted on her estate.

The parties had a seven-day trial in May 2019.

At paragraph 46, the Trial Judge described the trial in this way:

“A good deal of the evidence was irrelevant to the issues to be determined. Cross-examination was driven by not just animosity between the parties but a desire by both to be vindicated. This intense focus on historical matters, which evidently involved great emotional pain and anger for the parties and the two adult sons who gave evidence, had the effect of obscuring relevant information.”

The Trial Judge went on to say:

“I came to the conclusion that both parties were untruthful on many points and simply did not care.”

During the course of the relationship, the wife’s social gambling moved “from a form of escape to being a habit”. The husband “concedes heavy drinking and going into town to drink”.

During 2006/2007, the parties paid $100,000 plus in fines to the ATO. The wife had overstated the GST in the 2006/2007 BAS statement.  The wife “asserted that she did this under pressure from the husband, and he told her what figures to put on the form. She feared physical abuse if she did not”.  The husband blamed the wife and “denied any prior knowledge of her actions”.

The court detailed various elements of the parties’ conduct and circumstance and then moved to consider the alteration of property interests.

The court reviewed the balance sheet. The parties had property of $3,012,378 and including the inheritance of the husband, the wife, at the time of trial, held 30% of the net assets. Excluding the inheritance, the wife would hold 36% of the assets.

The wife had, including the costs of the trial, spent between $330,000 and $350,000 in legal fees. The husband had legal fees of approximately $310,000. The court excluded the amounts from consideration.

In considering the question of whether it would be just and equitable to make an adjustment to interests in property, the Trial Judge said at paragraph 176:

“The wife asserts that the length of the marriage, 30 years plus, and her contributions throughout, justify a further substantial cash sum by way of adjustment. She also submits for an additional payment to address the impact family violence had on her ability to make contributions to assets.”

At paragraph 177:

“The Full Court in its reasons for upholding the appeal of the wife directed a further consideration of that issue.”

The court then entered into an exercise of analysis of the initial contribution and at paragraph 186 said:

“The initial contribution of the husband must be given significant weight.”

The court then considered contributions during the marriage.

The court said at paragraph 198:

“The marital relationship was characterised by insult, threat and a dangerous mutual desire to provoke the other to anger.”

The court gave to the husband an acknowledgement of the enduring benefit of his initial contribution, a source of income and “a windfall sale price” and made a 15% differential in favour of the husband.  That was 57.5% versus 42.5%.

Post-separation contributions produced an adjustment in favour of the husband of a 65/35 payment in favour of the husband by date of trial.

The court then considered s.75(2) factors.

The only evidence the court had about the husband’s health was referred to in paragraph 215 of the Judgment:

“I suffer physically from age related illness and I cannot work as hard as I once did. I need to take regular rest breaks whilst working on the farm.”

At paragraph 239, the court said:

“The fact of his age moderates the adjustment to the wife in respect of income disparity.”

At paragraphs 261, 262 and 263, the court said:

“261. This factor, the impact of the marriage on the earning capacity of the wife, is most significant. The endless incidents of cruelty, taunting, threat and physical violence throughout the marriage involving both parties as perpetrators and as victims and at least the two elder children as victims are a reflection of the frustration and powerlessness of the mother from the outset.

2.62. The husband denies violence. The wife describes being abused routinely and sometimes beaten …..

2.63. Even if such abuse occurred once only, and not “50 times a year” as the wife alleges, it reveals the powerlessness of the wife, of having nowhere better or safer to go. The wife accepted her life the way it was.”

The court looked at the impact of violence as a s.752(o) factor.

The parties gave two different versions of an incident. The court’s summary at 279 is as follows:

“The two versions although different in some factual respects, tell the same story. The wife was overburdened, unhappy and trapped. The husband showed no respect for her, provoked her deliberately, and assaulted her in certain moods.”

There are incidents involving guns.

At 291, the court concludes:

“I have come to the conclusion although family violence was a feature of daily life for most of the parties’ relationship, no such adjustment should be made. It is simply not just, to attempt to extract the truthful elements of so many allegations and to attempt to analyse the impact on the contributions made by the wife.”

At 292, the court continues:

“What is just is to recognise the losses suffered by the wife in entering into an adult relationship with the husband and becoming a mother when she was still a child. An adjustment to recognise the loss of opportunity for education, for satisfying work and to mature safely is the more appropriate course.”

The court determined to equalise the parties’ share in the current net assets.

This is an interesting and thoughtful analysis of the complexity of violent and long relationships.

Carney & Carney (No. 2) 2019 FCCA 1275

The case of Carney & Carney (No. 2) [2019] FCCA 1275 expands the jurisprudence surrounding the later life property settlement.

It was a case litigated by the wife’s litigation guardian and the husband’s estate.

The parties married in 1989, the separated when the husband was admitted to a nursing home.

The Applicant wife sought $490,000 from sale proceeds and the Respondent estate sought to pay $300,000 from the house proceeds.

The wife, at the time of the decision, was 93, and the husband was 93 at the time of his death.  The husband and wife had both been married before and he had six children from his first marriage, including the representatives of his estate litigating against the Applicant.

The wife had three children from her first marriage.

During the course of the relationship, the husband introduced a property and the wife owned a house in the same street.  She was a widow and he was a widower.

During the course of their marriage, the husband received an inheritance of $49,500 from his mother, and the wife said that she had received a gift of $30,000 from her brother. She received a further sum of $208,081 from her brother’s estate and placed $142,500 into a term deposit.

The husband’s Will provided the wife with a life tenancy in the former matrimonial home and upon her death, a distribution of the proceeds between his children.

The house was in the husband’s sole name and the wife registered a caveat on the title of the home. The wife commenced proceedings seeking that the husband transfer to her 50% of the former matrimonial home or the equivalent value.

The husband, at that time, sought the dismissal of the wife’s application on the basis that they were still married.

The wife applied the inheritance monies that she received from her late brother’s estate towards acquiring a place in a retirement village for a cost of $210,000.

The former matrimonial home was sold for $935,000.

The wife had deposed to spending monies from her inheritance on renovating within the former matrimonial home and spending between $8,000 and $10,000.

The wife sought to rely on Rule 15.29A of the Federal Circuit Court so that her material could be admitted into evidence without her being subject to cross-examination. The court referred to section 64 of the Federal Circuit Court Act.

The Trial Judge exercised a discretion in favour of the wife to permit reliance on the documents.

The court considered section 79(8) of the Family Law Act which deals with a situation where one party has died after the commencement of proceedings.

The Applicant carried the onus in such a situation.

The court has to consider whether it would have been just and equitable to make an order had the party not died and whether the party having died, it remained just and equitable. (Stanford & Stanford at paragraph [24]).

In the property pool, the wife’s legal fees were agreed to be an addback and the Respondents contended there was $52,000 of “unaccounted for monies” in the hands of the wife.

An area of contention which is certainly of interest to this writer is the court’s treatment of refundable component of the nursing home fees. It had been placed on the balance sheet as a financial resource.

The court referred to Hall & Hall, a 2016 High Court case, and said:

“The reference to financial resources in the context of section 75(2)(b) has long been correctly interpreted by the Family Court to refer to a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency.  The requirement that the financial resource be that of a party no doubt implies that the source of financial support be one on which the party is capable of drawing. It must involve something more than an expectation of benevolence on the party of another. But it goes too far to suggest the party must control the source of financial support.  Thus, it has long correctly been recognised that a nomination beneficiary of a discretionary trust who has no control over the trustee but who has a reasonable expectation that the trustee’s discretion will be exercised in his or her favour as a financial resource to the extent of that expectation.  Whether a potential source of financial support amounts to a financial resource of a party turns in most cases on a factual enquiry as to whether or not support from that source could reasonably be expected to be forthcoming were the party to call on it.”

The court determined that the refundable accommodation deposit was an asset and should be included in the asset pool but not as a financial resource.

There was a discussion about some unaccounted for funds, and then the court considered whether it was still just and equitable after the husband’s death to make adjustment orders.

The court determined overall that the contributions of the parties were equal, taking into account a long marriage, each had brought funds in, each sides of the family had improved the value of the home.

The court acknowledged that the death of a party generally results in a more favourable property settlement to the surviving party.

The court gave the wife an adjustment of 10%.

The writer instructed in a case on behalf of an estate in which there was no additional s.75(2) factor adjustments to the surviving spouse as a result of the income that was available to him from the assets that he retained.  There is not always an additional adjustment for s.75(2) factors.

Carron & Laniga [2019] FamCAFC 115

In the case of Carron & Laniga [2019] FamCAFC 115, there were a number of matters raised on appeal and eventually the appeal was allowed on an issue of addbacks.  Of interest to the writer is a discussion about Military Superannuation. The court said:

“The husband contended without contradiction that the wife’s MSBS pension is paid under the Military Superannuation and Benefits Act 1991.“

The issue was that the husband had said that it was obligatory for a pension to be valued using the formula under the Family Law Superannuation Regulations.

The court found:

“In property settlement proceedings, there is no need to ascertain the capitalised value of a superannuation interest, much less one in payment phase being paid in the form of a non-commutable pension, unless a superannuation splitting order is sought in relation to the interest.

The Act only provides that a superannuation interest must be valued before it is amenable to a splitting order (s.90XT(2)) for which purpose the Family Law Superannuation Regulations 2001 (the Regulations) make provision for the manner in which the different superannuation interests are valued.”

The case is an interesting one in that in terms of contribution, the court determined that the division would be the husband’s contributions had warranted an entitlement to 55% of the net assets but under s.75(2) found that the final entitlements were 55% to the wife and 45% to the husband.

This type of flipping of contribution and need is not unusual in practice, but it is interesting to see in a case this very same alteration being made.

Jillet v Jillet (No. 2) 2019 FamCA 242

In the case of Jillet v Jillet (No. 2), the court set out for practitioners, and the parties of course, the principles relating to a costs order.

On 9 February 2018, final property settlement Orders were made following a trial.

On 27 November 2018, the wife filed an Application in a Case seeking an order that the husband pay her costs of and incidental to the proceedings and the costs of her slip rule application.

The husband sought, in return, that the wife pays her share of a single expert report.

The court determined there was nothing in the matter indicative of there being “any departure from the provisions of rule 15.47 that provides that the parties are equally liable to pay a single expert witness reasonable fees and expenses incurred in preparing a report”.

The court then considered the application for costs. Section 117 of the court provides that each party will bear his or her own costs.

The court acknowledged there was a discretion afforded to the trial judge and that if there are “circumstances that justify it in doing so”, the court can make other orders.

Penfold v Penfold [1980] 144 CLR 311 was provided as an authority for the proposition that although section 117(2) required a finding of justifiable circumstances as an essential preliminary, the Applicant has no special or additional onus.

The court referred to subsection 2A of that section.

Collins v Collins [1985] FLC 19-603 at 79877 was relied on to confirm the discretion conferred by section 117 is a broad one and that the factors set out in section 117(2A) are not to be read in a restrictive way.

The court then considered other authorities.  Hawkins v Rowe 112 FamCAFC 77 discussed the decision of Penfold v Penfold.

The court referred to rule 19.18(1) of the Family Law Rules 2004 as to the method of calculation of costs.

It is a capacity for the court to set a figure.

In Parke v The Estate of the Late A Parke (2016) FLC 93-748, Murphy J. was quoted as saying, “If the court is to fix a sum, it should be fixed broadly having regard to the information before the court”.

In this case, the wife contended she had made an offer of settlement that would justify a departure from the general rule and that would lead to the husband paying her costs of the primary proceedings.

In Robinson v Higginbotham (1991) FLC 92-209 at p.78,417 discussed offers. The discussion was as follows:

“It’s quite clear that the purpose of that provision is to ensure that offers to settle, if made seriously, are considered seriously, to ensure that the cost of litigation is avoided, the workload of this court is lightened, and one other consideration is certainly that a party with greater wealth is not placed in a position whereby he or she can wear out the other by simple attrition.”

In Pennisi v Pennisi (1997) FLC 92-774 with reference to 117 to A(f), the court said:

“Offers must be seen in the context of the case…in the family law jurisdiction it is not uncommon to find relationships where one party, often the wife, has significantly less grasp of the parties’ financial arrangements or the financial circumstances are so complex that it would be premature to accept an offer.  There are also cases where the contents of the offer are themselves the subject of disputed value and legitimate subject matter for determination. These and other features of the context of offers must be taken into account….”

In Browne v Green [2002], the court further discussed the question of offers.

The court, at paragraph 39, said:

“In circumstances where the ultimate monetary payment to the wife was founded to a great extent on the significant revaluation of the husband’s rural interests immediately preceding trial, the significance of the wife’s offer to settlement falls away.“

That case reminds us to be aware of the general rule, the fact that there is no special or additional onus and that the context of the offer is all important.

Pointer & Cheadle 2019 FamCA 452

The case of Pointer & Cheadle [2019] FamCA 452 is a good case to have to hand when your client has “new information” about the property pool, the other party’s circumstances, or anything where you might question the providence of the information.

It was a preliminary issue in parenting proceedings that led to the extempore judgment.  The issue is the admissibility of a message left as a result of a pocket call on a phone. The message was left by the mother on the father’s phone.

The transcription of the telephone voicemail messages was sought to be tendered by the husband. He also wanted the actual recordings to be admitted into evidence.

The mother opposed it because she said two of the recordings were inadvertently left by her. The mother contended further that one of the messages was a recording that had been made by the father while the mother was speaking to one of the parties’ children on the phone. The child was speaking to the father.

Although the points are narrow, the decision takes us through the pathway that will be followed in determining the admissibility of evidence:

1. Relevance – section 56 of the Evidence Act provides “except as otherwise provided by this Evidence Act, evidence that is relevant in a proceeding is admissible in the proceeding”. The court determined that two of the three annexures were relevant. The next step was to consider the words “except as is otherwise provided in the Act”.
2. The court referred to section 138(1) of the Evidence Act which says:

             “(1)  Evidence that was obtained:

                     (a)  improperly or in contravention of an Australian law; or

       (b)  in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.”

As can be seen, subsections (a) and (b) are to preconditions.  The Judge was inclined to accept the father’s version as more probable than the mother’s.

It became relevant to consider whether the recordings had been unlawfully or improperly obtained.

3. Was it unlawfully or improperly obtained?
4. The next relevant legislation to be considered was section 108 of the Telecommunications (Interception and Access) Act 1979 (Cth). That section provides as follows:

“108  Stored communications not to be accessed

             (1)  A person commits an offence if:

(a)   the person:

(i)      accesses a stored communication; or

(ii)     authorises, suffers or permits another person to access a stored communication; or

(iii)     does any act or thing that will enable the person or another person to access a stored communication; and

(b)   the person does so with the knowledge of neither of the following:

(i)      the intended recipient of the stored communication;

(ii)     the person who sent the stored communication.”

There is a notation to that section which is:

“This section does not prohibit accessing of communications, that are no longer passing over a telecommunications system, from the intended recipient or from a telecommunications device in the possession of the intended recipient.”

5. What is the definition of stored communication and how relevant is it? Section 5 of the Act provides:

“stored communication means a communication that:

• is not passing over a telecommunications system; and
• is held on equipment that is operated by, and is in the possession of, a carrier; and
• cannot be accessed on that equipment, by a person who is not a party to the communication, without the assistance of an employee of the carrier.”

The Judge was satisfied that the messages were no longer passing over the internet and they were not stored communications for the purposes of the Act.  The Judge found at paragraph 10:

“It’s my view that the evidence has not been improperly obtained or unlawfully obtained in either of paragraphs 138(1) to which he had referred”.

The Judge permitted the tendering of two.

An issue of the authenticity, accuracy or the significance of the recordings or transcripts was not a matter upon which the Judge had made a finding.

In relation to the third annexure which the Judge had not been as confident of the relevance of, he relied on section 57 of the Evidence Act to provisionally admit evidence subject to its relevance being established.

This is a very helpful reminder of the pathways, the issues to be considered, and the tools to be employed by practitioners.

Oswin & Oswin 2019 FamCAFC 164

The case of Oswin & Oswin [2019] FamCAFC 164 provides a great deal of guidance about the concepts of contravention and joint parental responsibility.

The case arose as a result of an appeal from a Federal Circuit Court Decision. The primary judge imposed a sentence of seven days’ imprisonment suspended for a period of two years upon the mother of three children aged 14, 12 and 10. The mother was unrepresented.

The trial judge had determined the mother was guilty of committing three contraventions without reasonable excuse.

The contraventions were that the respondent:

“…did not consult with the Applicant prior to enrolling the child [Y] born [2006] at [M school] and applying for a scholarship;

…the Respondent enrolled the child [Y] born [2006] at [P school]”

and thirdly:

“the Respondent failed to do all acts and things necessary and sign any documents necessary for a passport to be renewed for the children [X] born [2004], [Y] born [2006] and [Z] [2008] (“the children”).”

The mother’s appeal raised the issue that the sentence was contrary to law, reflected the trial judge’s failure to “observe and apply mandatory provisions of the Family Law Act and was a sentence which was manifestly excessive and not one supported by the provision of adequate reasons”.

The Full Court concluded the appeal should be allowed.  The Full Court said:

“The primary judge:

• Found that the mother had contravened orders on three occasions when she had not;
• Incorrectly treated the alleged contraventions in the category of a more serious disregard for orders;
• Failed to follow mandatory provisions of the Act;
• Did not explain the applicable standard of proof;
• Led the mother to plea to the charges in a way which denied her procedural fairness;
• Failed to explain to the mother the meaning and effect of the relevantly applicable law;
• Allowed the father to rely upon inadmissible evidence without telling the mother she had the right to object to it;
• Failed to invite the mother to make submissions on whether the father had established a prima facie case;
• Inappropriately interfered with the mother’s oral evidence and her cross-examination;
• Led the father to change his evidence;
• Made disparaging remarks about the mother which had no basis in the evidence before His Honour;
• Prejudged what sentence should be imposed upon the mother;
• Failed to allow the mother to make any submission about penalty and the proposed order for imprisonment;
• Imposed a sentence upon the mother which was plainly excessive; and
• Failed to give adequate reasons.”

The court then provided a discussion of the standard of proof which will be helpful to practitioners.

In essence, the standard is beyond reasonable doubt and that must be established before an order for imprisonment can be made.

The court has to consider that the contravention is a more serious contravention so that Subdivision F of Division 13A will apply and it is inappropriate to consider other available sanctions.

Subdivision E of Division 13A applies to less serious contraventions and provides the various powers for dealing with contraventions in that category. Those powers do not include imposing a sanction of imprisonment.

Section 70NFG(2) of the Act provides that a court:

“must not sentence a person to imprisonment … unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention under any of the other paragraphs of subsection 70NFB(2)“.

Subsection NFG(4) provided that the failure of a court to comply with subsection (3) didn’t invalidate a sentence, but that proviso didn’t protect the subsection against appealable error.

The Full Court found that:

“Nothing in the transcript of the proceedings, nor in the primary judge’s reasons for judgment, evidences that the primary judge explained to the mother or was attentive to the fundamental distinction between Subdivision E and Subdivision F of Division 13A of the Act.”

The court referred to Caballes & Tallant [2014] FamCAFC 112 which is a case which set out the fundamentals to be applied when self-represented parties are involved in contravention applications.  The judge has to ensure they receive sufficient information about the procedures to be followed and the law to be applied.

At paragraph 30, the Full Court noted:

“The obligations upon the primary judge were also heightened by the feature that it was the primary judge’s own notion, rather than that of the applicant father, that a sentence of imprisonment ought reasonably be in contemplation.”

The court found that the primary judge had failed to meet the mandatory requirements of section N70NFG(3) as to the reasons to be provided.

The Full Court considered the trial judge’s behaviour towards the mother to be unnecessarily intimidatory.

The Full Court reflected that in the case of McClintock & Levier [2009] FamCAFC 62, the Full Court had emphasised that in dealing with a contravention under Division 13A, the aim will be to make orders that will enforce future compliance with the order.

The idea that you would make an example of a party would be an error of law. The focus of the statutory provisions is upon the individual party and the individual orders. There is no place for a general policy of deterrent.

The Full Court set out a discussion of parental responsibility and section 61D.

The court reminded practitioners that the effect of section 65DAE is that where a parent shares parental responsibility for the child with another person, the order does not require the parent to consult about decisions that are made in relation to the child on issues that are not major long-term issues.

The definition section of the Act provides the following definition for “major long-term issues means:

“issues about the care, welfare and development of the child of a long”‘term nature and includes (but is not limited to) issues of that nature about:

• the child’s education (both current and future); and
• the child’s religious and cultural upbringing; and
• the child’s health; and
• the child’s name; and
• changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.”

At paragraph 59, the Full Court said “Decision” as it appears in s 65DAC and s 65DAE is not a term defined in the Act.

The Full Court considered that:

“We are unable to see how either parent acting to investigate possibilities for schooling could conceivably constitute a contravention of the subject orders.”

The court then discussed sections 70NAC and NAE.

At paragraph 84, the Full Court said:

“The primary judge was plainly wrong about what does, or does not, constitute a “decision” about a major long-term issue and the effect of s 65DAE.“

The court considered that it was a “denial of procedural fairness to the mother that her cross-examination of the father, entirely relevant to the central issues, was interrupted (by the judge).”

The court concluded there had been no contravention. They then considered the issue of a lack of procedural fairness.

Re F: Litigants in Person Guidelines [2001] FamCA 348 was referred to and the guidelines were discussed.

It is a useful case to review the relevant concepts.

Conlon and Conlon (2019) FCCA 2195 (13 August 2019)

Conlon and Conlon (2019) FCCA 2195 (13 August 2019) provides a discussion of the grant of a s 60I exemption.

In July 2019, the husband filed orders in relation to a child. He did not file a s 60I Certificate and he asked that time limits and rules be abridged and/or dispensed with to bring the matter on, on an urgent basis.

The solicitors had provided a letter to the court pointing out paragraphs of the husband’s affidavit and informed the court the mother had unilaterally relocated a child’s residence which was a 2½ hour drive North of the parent’s home.  The child was 5 months old.  

The Registrar declined to list the documents and refused a s 60I exemption and refused leave for short service.

As the Registrar was not obligated to provide reasons, no reasons were given.

The court has the power to review a decision made by a Registrar as it is a delegated power.

The father filed an application for a review of the Registrar’s decision. The court referred to the fact that r 20.03 of the Federal Circuit Court Rules meant that the review had to be by way of a hearing de novo.

In the context of the judgment, the court commented at paragraph 25:

The father gave no evidence about having sought any mediation to resolve the parenting issues. When I asked the father’s solicitor why, he replied to the effect of “˜Do you have any idea how long that takes?’

The court said:

The answer is “˜No, I don’t’, and the father gave no evidence about it in his affidavit’.

The court then went on, beginning at paragraph 27 to engage in a discussion of s 60I.

At paragraph 33, the court said:

Absent the unilateral relocation, the case described by the father is the kind of case where the parents should be making a genuine effort to resolve their dispute before coming to court.

The court considered the issue of urgency and whether the requirement for the s 60I was appropriate in this case. 

The court said, from paragraph 39, in summarising:

The father and the mother are communicating. The father has seen the child face to face at least once and the mother has sent him photos and has arranged for him to see the child via Skype.  It is not clear on the father’s material that no resolution is possible outside the court system, for example by the father allowing the mother to return to the home. I am not satisfied that circumstances of urgency are made out and I intend to dismiss the Application for Review.

Earlier, the court had said this at paragraphs 37 and 38:

Every case of unilateral relocation is different and there are many which would justify an exemption on the basis of urgency. They may involve a parent who disappears, potential risk of harm to children because of concerns about the relocating parent or a new partner of the relocating parent, a relocation which involves a parent also removing children from the care of the parent with whom they have been living for some time or evidence that the relocating parent has given a clear indication that they intend never to return to the former area. The fact that children have been taken a great distance away and that no time has been facilitated since the relocation may be another factor justifying the case being treated as urgent.

However the court must be mindful in every case of the object of s 60I, the benefit of creating space for parties to talk about their parenting matter before the ill-will so often caused by allegations and counter-allegations takes hold and the need to relieve pressure on court resources.

In this case, because of the gaps in the husband’s evidence, he was unable to establish that the need for the benefit of creating space for the parties to talk about their parenting matter outweighed urgency.

It was clearly not enough to simply say there’d been a relocation.

Tsiang & Wu and Ors 2019 FamCAFC128

In the case of Tsiang & Wu and Ors [2019] FamCAFC128, the court considered the matters that may result in an injunction issuing.

The trial judge had concluded that the husband failed to identify the risk upon which he would base his need for an injunction.

The Full Court decided that the trial judge had failed to take into account “all of the evidence on which the husband relied”.  There was:

• his own application;
• the husband’s evidence that the parties had always acted consistent with them being beneficial owners of property;
• the parties’ daughter’s comments, while given no weight by the trial judge, were a factor to be taken into account “in considering whether or not to make the injunction”.

The Full Court considered the trial judge had to be aware of the value of the controversial entity in the context of the parties’ assets as a whole and as no harm or detriment was contended for by the wife, and finally that the wife had not contended that she would suffer harm or detriment.

The court later referred to the issue as to whether a substantial injustice “would result if leave was not granted” and allowed the appeal to the extent that it dealt with the dismissal of the injunction.