The case of Featon & Featon [2020] FamCA 1061 is a case which gives us a typical use of the need to be released from the Harman undertaking.
The Harman undertaking is often called an “implied undertaking”.
At paragraph 6 of this decision, the court said:
“The scope of the implied undertaking was described by the High Court of Australia in Hearne v Street 235 CLR 125 at paragraph [96]:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.”
The court then went on to describe the types of documents that were disclosed pursuant to the principle.
In this case, the father had been charged with three counts of sexual and indecent offending in relation to the parties’ female child. The mother is to be a witness for the prosecution in the criminal proceedings.
In the family law proceedings, the mother has filed a number of affidavits, and subpoenas have been issued to medical practitioners, clinics, and counselling organisations for the production of their records of attendances with the mother.
The father wanted to be able to provide the affidavit sworn by the mother, and the documents produced in answer to the subpoena, in his criminal case.
The judicial officer in this case determined that the father would be released from the undertaking.
The case of Kong & Lendi [2020] FamCA 1091 is a case in which both parties’ applications in a contested interim application for part property settlement failed because the court determined that the evidence to support their applications was defective.
Cases like this where the court says that they’re not satisfied are often of great assistance to practitioners.
The husband’s application was returnable on 10 November. The parties were ordered to file and serve further material and submissions and after 1 December, the judge informed the parties that the application would be determined on the papers.
The synopsis at point (a) is:
“Neither party has persuaded me that he or she is entitled to the payment of the sum of $213,477.61 being the funds remaining in the B Lawyers Trust Account.”
The case was described as a contested interlocutory dispute.
Each party had sought interim orders dealing with the application of the net proceeds of sale of certain land.
The parties married and divorced in China. They have one son.
The E District Court in China had determined it did not have authority to make orders in relation to any assets in Australia.
The parties entered into a divorce agreement that the E District Court sealed.
The judge otherwise summarised various factual elements to the dispute.
Each party had sought orders for the payment of the whole of a sum in trust to him and to her.
The court accepted that the evidence was in a state of fluidity. The court made certain observations.
The court said:
“The wife made little attempt to bring herself within statement of principle in Strahan v Strahan beyond pointing out three times in her written submissions that she was not required to demonstrate the existence of compelling circumstances before an interim property order could be made.”
The wife’s submissions was there is no prejudice to the husband in the orders sought.
The court said:
“To contend that no prejudice will befall a respondent inverts the proofs. She was required to make out her case for the relief she sought. If she failed to discharge that onus, irrespective of prejudice to the respondent, she failed in her application.”
The wife’s contention had been that the husband had significant financial resources.
The court said:
“…if true [that] would not, in and of itself, make out the applicant’s case for an interim property order. Nor would proof, if true, that the wife is in a “dire financial position”, whatever that meant.”
The court said:
“The learning on point requires the court hearing the interim property application to assess the reversibility of the order.”
The judge found later in the judgment:
“Serious reversibility issues arise if those funds were disbursed to the wife.”
It is always useful to be aided by an analysis of the type undertaken in this case.
In the case of Kan v Aamer [2020] FamCA 1014, Wilson J made an order nunc pro tunc under section 13E referring the matter to arbitration. He then registered the arbitral award that had resulted from an arbitration and determined that the award would have the effect as if it were a decree made by the court.
The applicant had attempted to register an award made in her favour. The respondent opposed the registration alleging that the award is:
affected by fraud;
void, voidable or unenforceable;
the product of procedural unfairness and bias; and
is otherwise affected by error of law.
After service of the award and the accompanying Form 8, which has to be given pursuant to regulation 67Q of the Family Law Regulations, the respondent had 28 days in which to “bring to the attention of the court any reason why the award should not be registered“. That is as provided by regulation 67Q(3).
A Federal Circuit Court judge transferred this proceeding to the Family Court.
Directions were made for the respondent to file material. The respondent was given further time to file material, which he did. He then filed an affidavit and exhibits “spanning 126 pages”.
The court then considered regulation 67Q of the Family Law Regulations. The parties have to apply to register the award. An award doesn’t have any legal effect until it is registered. Once registered, a party can apply to vary, affirm or reverse the award.
That sequence is important, and it is also linked to timing.
A party opposing registration has 28 days to bring matters to the attention of the court and that party must bring to the attention of the court “any reason” why the award should not be registered.
Section 13K sets out the grounds upon which a court is entitled to affirm, vary or reverse an award.
When His Honour Judge Middleton ordered the parties “to engage in the arbitration process in accordance with the arbitrator’s practice”, no order was made under section 13E of the Family Law Act.
This arbitration was described as a section 13E arbitration as defined in section 10L(2)(a) of the Family Law Act and was not a relevant property or financial arbitration as defined by section 10L(2)(d).
Because of the operation of section 13E(1), the section 13E order was required.
The absence of the order doesn’t, in the opinion of the court, invalidate the arbitration and an order was made nunc pro tunc under section 13E referring the matter to arbitration.
The court then considered the respondent’s reasons as set out in his affidavit. He needed to tell the court any reason why the award should not be registered as required by regulation 67Q(3). The allegations he relied on were not relevant to the application to register the award. Those matters are relevant to the capacity and consideration of the court to vary, affirm or reverse the award.
The court then considered each of the matters.
The court determined to register the award. Then, the respondent had the opportunity to seek orders under section 13K.
The case of Mynatt v Siddall, a decision by Watts J, Judgment dated 31 January 2020, is a further modern interpretation of the Kennon & Kennon rule.
Many practitioners have been aware that the bar placed by the Kennon decisions have made it a very difficult application to successfully execute on behalf of a client.
During 2019, there have been judgments that have indicated a change in the approach taken by the Full Court, in particular, in relation to such applications.
This was a case where both the de facto wife and the de facto husband had case guardians appointed.
The wife did not give evidence as she was so unwell that she was not able to give evidence or attend the hearing. The Applicant was described by the Judge as giving “her evidence in a forthright manner”. In relation to the husband, the Trial Judge said, “I observed many occasions where the husband said that he did not know something or where he was unable to remember something and I concluded that he was being evasive”.
Technology was provided which included reference to the wife having called the police on a number of occasions:
June 2004;
30 July 2010 the police attended;
14 November 2010 the husband was charged by the police with assaulting the wife and her son;
28 January 2011 the husband was convicted of assault and was fined, and an ADVO was issued against him for a period of 12 months;
3 May 2011 the husband was charged by police with assault of the wife and breach of ADVO and was denied bail;
9 June 2011 the husband was convicted of assault and breach of ADVO;
10 June 2011 the husband was released from gaol;
19 August 2011 the wife says the husband punched her in the face knocking her front tooth out and continued to assault her over the next four days;
24 August 2011 the husband was charged with assault occasioning actual bodily harm, common assault and contravening the DVO;
October 2011, the husband was convicted of assault contravening his DVO and received an eight month suspended term of imprisonment. The DVO was extended to 28 January 2013;
23 December 2011, the husband was charged by police with assault.
The court made a finding that because of the wife’s mental health she had no earning capacity and that that was not likely to change. They made the same finding in relation to the husband.
This case note is focussed on the contributions assessment by the Trial Judge.
Emphasis of the Kennon claim starts at paragraph 178.
Counsel for the Applicant (the wife’s litigation guardian), sought a finding that “in assessing the respective contributions of the parties pursuant to section 90SM of the Act, the wife’s contributions were made significantly more arduous as a result of the family violence perpetrated by the husband”.
The Applicant was able to give evidence that during the wife’s relationship with the husband, she often observed physical injuries on the wife. Given these statements were made by the wife contemporaneously with the Applicant observing physical injury, I put some weight on them.
The police referred the wife to a domestic violence follow-up service after the 10 August 2014 attendance.
The Judgment contains an extract from police reports.
At paragraph 216, the court begins the conclusions in respect of contributions.
At paragraph 221, the Judge said: “Both the husband and wife respectively struggled with issues relating to their mental health. The relationship was also blighted by serious drug taking by both parties and systematic family violence perpetrated by the husband against the wife”.
At paragraph 226, the Trial Judge said: “As I found above, relevant contributions made by the wife were made significantly more arduous as a result of the family violence perpetrated on her by the husband”.
There was no adjustment made for care of a child because the child was in the care of the mother’s mother.
At paragraph 237, the Judge determined there would be a further adjustment of 12.5% in favour of the wife as a result of the section 90SM(4)(d) to (g) considerations.
The case of Gairola & Lakmali and Ors [2020] FamCA 55 is a decision of McMillan J heard on 14 January 2020.
The applicant, Mr Gairola, did not appear and the first and second respondents appeared in person. The third respondent, B Lawyers, appeared with counsel, but acting on their own behalf.
This case involved an application pursuant to section 79(10) of the Family Law Act in which B Lawyers sought to intervene in the property settlement proceedings.
There was an Application in a Case before Her Honour by the husband’s former solicitor seeking to intervene in the proceedings to secure and ultimately affect payment of outstanding costs.
The solicitors had a judgment in the County Court of Victoria with respect to the payment of those costs.
There were difficulties by the applicant in effecting service of the County Court of Victoria proceedings on the husband. The lawyer obtained an order for substituted service. The husband was served with the Writ and Statement of Claim. The husband did not file a Defence and did not otherwise participate.
The wife’s solicitor is also a party to the proceedings.
In this case, at paragraph 7:
“The applicant also believed, as advised or promised by the husband, that his legal fees would be paid out of monies held in trust on behalf of the husband and the wife upon application to the Court for part property settlement.”
The wife’s solicitor had obtained judgment in the Magistrates Court of Victoria in August 2019.
At paragraph 11:
“The orders that are sought by the second and third named respondents are to secure payment of the outstanding costs, pending the further determination of this matter. The proposed order is by way of an injunction restraining the husband and the wife from withdrawing funds from a bank account in their joint names. That account requires them both to sign for any withdrawal.”
At paragraph 19:
“The Court has an obligation to bring proceedings to an end and in my view, orders need to be made which keep this matter on track, moving towards a hearing and some finality in the event that the parties do not reach agreement. Even more so where there are third party creditors who have not been paid whose claims must also be addressed, the orders that are being made not determining whether or not the second and third named respondents will be paid, or from what source. The orders I propose to make, which will include an order restraining the parties from dealing with a sum sufficient to cover the judgment debts and the possibility of any further costs, in the sum of $145,000, will protect the claims of the third parties and will prevent husband and wife reaching an agreement, settle the matter, leaving their costs unpaid.”
Mabb & Mabb and Anor [2020] Fam CAFC 18 (31 January 2020)
The case of Mabb & Mabb and Anor [2020] FamCAFC 18 (31 January 2020) is a Full Court decision discussing elements of contribution.
This is a case that resulted in property alteration orders including both the husband, the wife and the husband’s mother.
The parties lived with each other for approximately 15 years. The husband had four children from previous relationships who lived with the parties from time-to-time. The parties themselves have two children.
The significant facts are these.
The husband’s parents subdivided land into several blocks.
In August 2001, during the relationship and within two years of their marriage, the husband’s parents transferred 60 acres of the property to the parties jointly.
The wife’s evidence, which the primary judge accepted, was that “the property was given to the parties on the basis that the husband’s parents would eventually build a house on the property and the husband and wife would look after them if they needed it”.
In 2003, the husband’s parents indeed built a house on that property where they lived until July 2017. The husband’s father had moved to supported care before July 2017. The husband’s parents and the wife have maintained the good relationship they have always enjoyed.
The parties had a processing business and over a period of time, it largely devolved to the wife to operate it.
In 2016, “the crop could not be processed because the husband complained wrongly to the government department that the processing business had been moved and the government department prohibited the commencement of production”.
Later in that same year, the crop could not be harvested because of a fire on the property which meant there was no power to the property and the crop could not be chilled after picking.
At paragraph 22:
“Her Honour found that during the marriage the parties’ contributions were equal. However she found that since separation the wife had made the overwhelmingly greater contributions. Her Honour found that these contributions were made more difficult by the husband’s actions such as complaining to the local government department which stopped production in 2016 and freezing the bank accounts.”
The wife’s contributions were assessed at 60% and there was a further s.75(2) adjustment of 10%.
The husband’s case at trial was that the property had been given to him by his parents long before the relationship with the wife commenced. This was found to be inconsistent with the husband’s parents’ actions as they subdivided the land before transferring it to the parties.
There was discussion of the case Gosper and Gosper [1987] FamCA 43. Fogarty J said at 76,167-76,168:
“Where there has been a gift or advance by a relative to one or both of the parties to the marriage the first step is to determine the ownership of that benefaction. Confusion often arises at this point because, particularly with gifts of money or in kind, the evidence about it is confused and imprecise and the actual intention of the donor (the critical issue) may have been ill-defined. However, where the evidence enables the Court to determine that it is a gift to one or other or both of the parties, that is an important finding.”
The husband contended on appeal that the wife had to prove the intention of his parents. The Full Court did not agree. They said:
“Each party bore an evidentiary onus to establish the facts to support their respective contentions.”
The trial judge had accepted the evidence that the husband’s parents transferred the land on the basis that the husband and wife would support them if needed. This expressed intention was followed through with actual action and the wife continued to support the husband’s parents post-separation.
Paragraph 43 of the appeal and paragraph 74 of the trial judgment, Her Honour concluded:
“I accept the intention of [the husband’s] parents was the property be gifted to both [the husband] and [the wife], and they both receive the benefit of that gift, and both also had the obligation to support the parents if they needed. [The wife] had a good relationship with [the husband’s] parents, which relationship continued after separation, and also after [the husband] vacated the property. Therefore I am satisfied the gift was to both parties.”
The important takeaway from this case which perhaps should be obvious, but clearly is not always obvious, is that each party bears the onus to establish the facts of their own case.
That may be a disclosure issue and perhaps they will contend the other party controls the disclosure. If they believe as part of their case there is a disclosure issue, then they have to prove the disclosure issue, not just the original fact.
Each party has the responsibility to run their own case.
Corson & Corson [2020] FamCAFC 311 is a Full Court Decision dealing with an appeal from an interim parenting order. It canvasses the issues associated with unacceptable risk and supervision of time, how to manage a parent who might be considered a risk but ensuring they have unsupervised time and how the court managed the need for therapeutic assistance for the other parent.
The first orders were made on 11 December 2018. The children were to spend two periods of 3 and 9 hours respectively of unsupervised time with the father each week. In addition, “a suite of injunctions were ordered restraining the father from, amongst other things, accessing pornography, exposing himself or sending or receiving sexually explicit messages when the children were in his care”.
Child X, who was 7 years of age, made disclosures of being sexually abused by the father. The mother withheld the children and on 15 October 2019, a second set of orders were made by consent without admission of any wrongdoing by the father. There was a contested hearing on 1 July 2020 and a third set of orders were made with a second set of reasons.
The third set of orders reverted to the arrangement of 12 hours unsupervised time each week but extended the supervision of the father’s time with the children for a further eight weeks to allow the mother to “obtain therapeutic assistance to adapt to the order for unsupervised time”. The mother appealed the order granting the father unsupervised time notwithstanding that the suite of injunctions remained.
In the reasons, the Full Court found that the Trial Judge had “explicitly, on several occasions, identified in the second reasons that the task confronting him was one of risk assessment”.
The mother also argued “that supervision would allay her fears that the father may sexually abuse the children when spending time with them and so would mitigate against the risk she might “˜emotionally collapse'” or “that her hypervigilance might result in her questioning of the children, or otherwise undertaking investigations, after they returned from the father”.
The father and the Independent Children’s Lawyer contended consistent with the opinion of a single expert that the mother’s emotional distress and hypervigilance “ought to be addressed by therapy“.
The Court then went on to consider the authorities that give guidance as to what constitutes an unacceptable risk and the relationship “between any such risk and the orders that the court is contemplating“.
The Full Court started with N and S and The Separate Representative(1996) FLC 92-655 quoting a passage in which Fogarty J said:
“Thus the essential importance of the unacceptable risk question as I see it is it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall and to explain adequately their findings in this regard.”
The Court considered M v M (1988) 166 CLR 69, a High Court Decision and said:
“It is a mistake to think the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it was trying the party for a criminal offence.
…
The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make, the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s best interest to maintain the filial relationship with both parents.”
“The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”
The Court then set out some background information.
The father disputed the characterisation “of his behaviour as inappropriate towards his children”. His case was that the mother’s resistance was based on her anxiety and depression.
The Court at paragraph 36 said:
“There is a difference between a parent undertaking conduct that another parent might find to be unacceptable, and indeed possibly repulsive, and that same activity presenting an unacceptable risk of harm to children.”
The mother had framed the risk in terms of being inappropriate boundaries. The Trial Judge had relied on the expert report of a forensic psychiatrist, Dr B. An important quote from that report is:
” In my mind, the mother’s views of the father have become so contaminated by her emotional repulsion at his actions, that his sexual behaviours have, in her mind, escalated risk to a degree that is not reality based.”
The Trial Judge relied on Dr B. The doctor had stated:
“It is important for the Mother to understand that the Court has, independently of Dr B, and based on the totality of the material before it, also meticulously considered the issues of risk to the children and has come to the same conclusion as Dr B. The Father’s past behaviour was disgusting and inappropriate. Even if it were the case that Dr B was not fully appraised of his misconduct whilst working as an educator, all of that evidence was before the Court and it does not change the Court’s assessment that there is no risk of harm to these children that warrants the continuation, let alone the perpetuation, of supervised contact.”
The Trial Judge had said:
“With great respect to the Mother, and those advising her, it is hard to make sense of her case.”
The appeal failed.
The interesting aspect of this case for me is that the Court considered it was important to introduce a suite of injunctions to manage the father’s behaviour but still was prepared to order unsupervised time, although limited in duration, and contemplated that before the order came into effect, the mother needed a period where she could get therapeutic try to have her accept assistance to the fact that the orders had been made.
Both reinforce for me how difficult a threshold unacceptable risk is to reach.
The family in Lancefield & Lancefield (No. 2) [2020] FamCAFC 312 have had their matter remitted for hearing. This decision was delivered on 22 December 2020.
The children were found to be able to live with either parent. The elder child sought the stability of remaining with the father and the younger child wanted to change his residence to reside with the mother.
The trial judge made findings that the father monitored the mother’s private information over a lengthy period of time and because of this, he was an unacceptable role model to the children of controlling behaviour.
The family report writer had said:
“The critical factor in the Court’s final determination will be whether the Court finds that the father has demonstrated controlling behaviour with regards to the mother.”
The trial judge said this:
“I have formed the view for the reasons given by the Family Consultant and also considering the mother’s mental health, that the greatest weight should be given to the risks to the children from the father’s established conduct in seeking to exercise sole parental responsibility and to control and minimise the mother’s involvement in the children’s lives, and in failing to actively promote their relationship with her.
The factors relating to the father’s coercion or control and failing to support the children’s relationship with the mother support a change of primary residence.”
The court determined that his inability or unwillingness to facilitate or promote a relationship with the mother or to allow the relationship to occur without attempting to control it and found:
“the problems inherent in him modelling a controlling domestic relationship with the mother through surveillance of her personal electronic communications…. constitutes a deficit in his capacity to provide for their emotional needs”.
The mother’s mental health deteriorated in the context of workplace bullying. She had been involved in a trial against another employee who the mother said indecently assaulted her in 2009.
By late 2015, the mother had commenced antidepressant medication and began to experience suicidal ideation.
By November 2017, the mother was suicidal and was admitted voluntarily to a mental health unit.
The father thought the children’s time with the mother needed to be supervised. She did not. She chose not to telephone the children nor see them under supervision.
The mother wrote the children a letter the trial judge described as entirely inappropriate.
It indicated “reduced parenting capacity”.
There was common ground that the father had accessed the mother’s emails in 2011.
The reactivation of the family’s iPad in February 2018 revealed the mother’s messages and internet searches, including the use of her phone. The iPad operating system was part of a family sharing application.
The father acted on searches such as:
How to tie a hangman’s noose;
How to disappear without a trace;
How to completely change your appearance; and
How to disappear from your husband.
The mother considered his looking at her information as stalking and intimidating. She asked the police to obtain an AVO against the father and they declined to do so.
The father sought a work transfer to be close to his family. The transfer meant the children would in fact be living closer to the mother, but she was angered by the father’s failure to consult her. The father enrolled the children in a school without discussion with the mother first.
The appeal is an appeal that is based on a challenge to the exercise of a discretion. In dealing with the iPad, the Full Court said:
“Contrary to the trenchant criticisms made by counsel for the mother and the ICL that the father failed to disclose that he accessed the data, the inconvenient truth is that he did disclose it, and the disclosure was made almost immediately after the iPad was switched on and the mother’s information popped up.”
The Full Court considered that the father seeking advice as a result of what he had seen in the searches was appropriate. The Full Court said:
“In any event, his Honour should have gone on to find that the father acted promptly, appropriately and with obvious concern for the mother’s welfare…”.
A witness gave evidence and the Full Court said:
“The primary judge said this witness gave evidence as summarised at [94]. Those findings misstate the evidence and provide no foundation for the findings the primary judge went on to make at [96] and at [97].”
The Full Court went on and said:
“The effect of the mistaken findings as to Ms H’s evidence is that not only was the primary judge satisfied that the father engaged in coercive and controlling behaviour but his Honour also recognised a pattern of behaviour in the father accessing the mother’s private emails which enabled a finding that the father accessed the mother’s emails and electronic searches during their relationship without permission [101].”
The Full Court went on to consider whether the father had supported the children’s relationship with the mother. The Full Court, in considering this, came to the conclusion:
“We agree with the submission by the father that the fact that the children had been in the father’s primary care for just shy of three years, the children had excellent relationships with the mother and spent time with her as the parties agreed, was highly relevant to an assessment of his support for the mother’s relationships with the children and role in their lives.”
The Full Court then considered the children’s views.
The court accepted the father had established appealable error and the matter was remitted for hearing.
Ranford v Myles [2019] FamCA 1004 is a case that dealt with an ex parte application.
It involved a nearly 17 year old child who proposed travel to the United States to participate in a scholarship selection process. This was a case where the husband had indicated he would frustrate the child’s travel out of Australia. There was no appearance for the Respondent as would be expected in an ex parte application.
One of the orders in the case was:
“The husband be and is hereby restrained from stopping, attempting to stop and/or communicating with authorities to prohibit the child X from travelling out of Australia on or about 6 December 2019.”
The reasons were given extempore.
The proposed date of travel was 6 December and the hearing came on before Bennett J on 5 December.
The child was travelling for the express purpose to participate in “the selection process for a place in prestigious universities in the United States of America on the basis of his athletic prowess and eligibility to be a scholarship student there.”
The court marked any correspondence to the husband as an exhibit and read into the record a letter from the wife’s solicitor to the husband. The husband did not participate in the hearing and notwithstanding that the court directed that a telephone call be placed to his phone number.
The court, however, noted that it considered that the proceedings had been dealt with on an ex parte basis.
The wife was required to enter into the usual undertaking as to damages that is part of the backdrop of an ex parte application.
The husband had been advised of the travel arrangements and responded as follows:
“Thanks Ms P for your inaccurate advice, no wonder you and [Ms Ranford] get along so well…
I will be speaking with my very good contacts at the Department of Human Services and have X stopped from clearing customs based on y concerns that I have not been informed directly by [Ms Ranford] or asked if my son has my permission to leave the country.”
The child had communicated with his father as follows:
“Dad
I am absolutely lost for words that you would want to destroy the biggest opportunity of my life, that I have worked so hard for so many years. I have got myself here, not you so how dare you take it away.
This moment will secure my future, it is completely within my best interests and what I have dreamt of for years. I will never forgive you should you action your threats.”
The court noted that an order to remove a child from Australia is a parenting order and as a result, the best interests of the child has to be regarded as the paramount consideration. The court said:
“‘Paramount consideration’ means that it is not the only consideration and that I also take into account the views of the parents and other matters.”
The wife was seeking to take only one of four children out of Australia. The wife is in occupation of real property which is described by the husband as the principal asset of the marriage. The wife has accommodation. She was found to have no motive to remain in the United States.
The court found that it was satisfied that it was in X’s best interest to be able to travel to the United States. The court had a high degree of satisfaction that the wife’s promise to return to the jurisdiction would be honoured.
The undertaking given by the wife was brought and in these terms:
“The undertaking of the wife, Ms Ranford, given personally this day to pay as directed by the Court to any person restrained or affected by the restraints imposed by the injunction granted today, or of any continuation thereof, such compensation as the Court may in its discretion determine.”
The injunction, of course, was the injunction to restrain the husband from stopping, attempting to stop or communicating with the parties to prohibit the child from travelling out of Australia.
This is an interesting short judgement and reminds us of the damages that may be claimed as a result of an injunction and the undertaking that is habitually given.
This is a case dealing with a 45 year marriage and the death of one party during proceedings.
Section 79(8) will be relevant.
The estate of the husband was represented by a Legal Personal Representative.
The husband was the original Applicant.
A significant issue was the wife’s substantial inheritance 24 years prior to separation and 22 years into the marriage.
The husband had contributed to the support of the wife’s three children, and the wife had engaged in high risk investments post-separation which had occasioned loss.
They were married in 1969 and separated in 2015 having had no children together and not having divorced.
At the time of their marriage, they each had been married before and each had three children.
The husband’s children spent weekends and school holidays in the household while the wife’s children, aged 12 and twins aged 9, lived with the parties throughout the marriage until they were 18, 22 and 25 respectively.
While the husband provided support to the wife’s children, he also paid child support to his former wife for his three children.
At the time of their retirement, the husband was 80 and the wife was 75.
The total value of an inheritance she received in separate distributions in 1990 and 1991 was approximately $1M.
Each party’s Will provided life interests to the other and that the combined estate be ultimately divided amongst their six children.
The husband entered a rehabilitation centre in August 2014 and at that time, and for the rest of his life, he was wheelchair bound. The wife continued to visit him on a daily basis. She visited, did his washing, cleaned the windows in his room, took him treats, took him on outings or to visit the home. She provided two wheelchairs and an air-conditioner for his room.
By late September/October, within say two months of his entering that facility, the parties began to have discussions about their financial circumstances.
The parties got financial advice and eventually the wife purchased a unit pursuant to that advice that was, in her view, not entirely suitable, being described as “less than ideal for a range of reasons”, but which permitted there to be a sufficient RAD (refundable accommodation deposit) to the husband for a private room in the nursing home, which he wanted. The unit was purchased by the parties as tenants in common in equal shares.
The parties entered into a contract for the sale of the former matrimonial home. The sale settled in April 2015. The wife instructed the conveyancer to place the proceeds of sale of the former matrimonial home into the parties’ joint account. She discovered the husband had instructed the conveyancer to place half of the sale proceeds into an account in his sole name. She was shocked and upset as neither party had had their own bank accounts for the entirety of the relationship. She then instructed the conveyancer to deposit the other half of the sale proceeds into an account in her name. They each got the same amount.
The wife visited the husband and raised the issue with him. He said he didn’t remember their financial advice and that he had given the instructions he had because half of the house was his.
The wife said she needed to ensure her own financial needs and the husband asked whether she was divorcing him. She said she wasn’t but because he had reneged on their arrangement, she felt the need to separate their finances.
The husband had a different version as to what happened on 24 April after the issue of the sale proceeds.
The wife didn’t visit the husband again.
She learnt three weeks later that the husband was moving to a nursing home close to his children. The wife said until then she had not regarded the marriage as over. She had only chosen her particular unit because it was close to the husband’s nursing home. She would have purchased a property closer to her own children.
A financial planner subsequent told the wife that given the relative life expectancy, a 70/30 percent division of funds in her favour “was necessary ensure both parties had sufficient funds to meet their living expenses”. Please note that this was not legal advice. It was not advice perhaps that contemplated the factors in sections 79 and 75(2).
The matter came on for trial on 27 and 28 March 2017. The husband did not attend and he was too unwell to give evidence even by telephone from his nursing home.
Proceedings were adjourned as a witness was not available in March and were adjourned to June. By the time the matters came on in June, the husband had died.
The next date was 6 April 2018, 13 months after the first trial.
The husband’s RAD account had been returned to his estate. The court considered the wife’s investment losses.
The wife didn’t advise the husband she was making the investments, she was using joint funds, there were court proceedings on foot, and when she filed material before the court she failed to declare the investments. She was in fact the victim of fraud.
The net loss was $360,000.
The wife’s reaction to being the victim of a scam resulted in her being referred to a psychiatrist “who prescribed medication to manage her depression”.
Between February and August 2016, there were 144 transactions involving the transfer of funds from the wife’s account to the high risk investments.
The court noted that she “had a number of opportunities to avoid the loss of the funds”.
The psychiatrist didn’t think she had a cognitive impairment.
The court felt there was no evidence of her actual capacity at the time she was making the decisions but said, “The state of the evidence does not allow me to make such a finding”.
The court went on to say:
“If impaired decision making was to be seriously argued I would expect to see a careful forensic report where the expert had been given all the relevant information and had had an opportunity to test the wife’s narrative. That did not occur in this case.”
The contentious issues were the treatment to be given to the loss through the wife’s investment and how to deal with the proceeds of the life insurance policies of the husband.
The court determined that her conduct was reckless and came within the second category of behaviour referred to in the case of Kowaliw & Kowaliw [1981] FamCA 70.
In considering that, the court said:
“The parties have a particular duty not to do anything to dissipate or diminish the value of joint assets within their control”.
The court determined to add back the sum rather than take it into account in section 75(2)(o).
The life insurance issue arose in this way. Until December 2015, the husband both owned and was the beneficiary of the policies. That meant any payment on his death would return to his estate.
After proceedings were commenced, he transferred ownership of each of the policies to his three children who were then also named as beneficiaries. This was done without any reference to the wife.
The wife didn’t press for a section 106B Application, but rather sought to have the funds removed from the estate added back to the property pool. The Judge determined that the proceeds should be added back to the property pool.
The court determined to add back the gross amount paid pursuant to the life insurance policies and that legal fees paid from joint funds should be brought to account.
The court then considered contributions. A particular issue was that the wife’s total inheritances in 1990 and 1991 were a significant sum, especially in 1991 and represented almost 60% of the current pool.
The wife received an adjustment of 15% of the current asset pool as a result of those contributions halfway through the marriage.
The court then considered s.75(2) factors.
The wife was 84 at the time of a medical report. The life expectancy figure suggested 88.9 years, but medical opinion was that she could live beyond 90 and possibly to 95 years of age.
As a result of the contribution adjustment, the court did not make any s.75(2) adjustment.
