Ressam & Benida (2022) FEDCFAMC1A 203

The matter of Ressam & Benida [2022] FEDCFAMC1A 203 is a parenting appeal. 

The father’s appeal was against Orders granting the mother sole parental responsibility for a child and a no contact Order with the father. 

The focus of the Judgment is to comment on the poor quality of the grounds of appeal.  They are described as a “prolix narrative comprising eight pages”. 

The appeal was dismissed, and the party party costs of the Respondent were fixed. 

Austin J formed the Court of Appeal on this occasion. 

The case involved a 6-year-old child. The father had commenced proceedings straight after separation in October 2018. 

The Interim Orders were made in March 2019 with the father to spend substantial time with the child and a trial was adjourned part-heard with the parties’ consent permitting the Primary Judge to vary the former Interim Orders to “adjust the amount of substantial time spent by the child with the father”.

In October 2021, a year later, after another three days of hearing, the Judgment was reserved and the Orders of March 2019 which granted the father substantial time were stayed. 

It may be that the Trial Judge intended, but inadvertently failed, to suspend all prior Interim Orders pending Judgment.  That was not, however, achieved and in July 2022, a Judgment was delivered. 

The father’s trial position was inconsistent with the concessions he’d made back in 2019 where the child was to live with the mother and spend substantial time with him. 

The mother’s case and the ICL’s case was a no time case.  

The father’s case appeared to display the same limited insight that was the basis for the mother and the ICL’s position. 

The critical point was this:

“It was not in contest that the child, despite his tender age, engaged in misbehaviour which was horrifying.”

 This “horrifying behaviour” tended to occur upon the child returning from visits to the father.  The mother’s evidence in this regard was accepted.  The physical behaviour engaged in by the child was as follows:

• Physical assault
• Punching her in the head and stomach
• Spitting in her face
• Trying to strangle her
• Pulling her hair
• Pushing her head against a wall
• Brandishing a knife and threatening to cut her throat

It was accepted that the father had failed to comply with Interim Orders requiring the child to be assessed and to engage in family therapy which were designed to mollify the child’s misbehaviour. 

Importantly, a single expert under cross-examination recommended the child not spend any time with the father “so as to guard against the risk of harm he posed”.  The expert opinion was accepted by the Primary Judge and endorsed by the mother and the ICL. 

The father unsuccessfully brought an application to adduce further evidence. 

The appeal grounds were “incompetent”. 

The Court said quite generously:

“Rather than peremptorily dismissing the appeal for an absence of any competent ground, an attempt will be made to address the general thrust of the father’s complaints within the Notice of Appeal and the Summary of Argument in the guise of legal, factual or discretionary error.”

The Court made this point:

“The provisions of s 36(5) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) do not give the father open slather to challenge earlier interim parenting orders from which an appeal could have been brought.”

Importantly, at paragraph 35 the Court said:

“The father had nearly three weeks’ notice that the orders might be made, but did not submit against them, either orally or in writing. The primary judge made it clear on 14 September 2021 that her Honour was inclined, but had not resolved, to make the interim orders. The father failed to file any written submissions to address that issue, despite an invitation to do so. The orders were then not made until 8 October 2021, at which time the father’s counsel accepted it was open to make them and acquiesced to that course.”

The Appeal Court determined there was then no denial of procedural fairness to the father. 

The next ground of the appeal was an allegation that the Primary Judge had lost objectivity. 

The Trial Judge had summarised the essence of the father’s case.  

The Trial Judge expressly preferred the mother’s evidence. 

The Primary Judge “observed how a party’s forbearance from cross-examining a witness reasonably allows an inference to be drawn that the party does not challenge the reliability of the evidence. That was not a “finding” so described, but rather the recognition of orthodox principle”. 

The Court made this comment:

“Even if it is the father’s honest perception, it is not objectively vindicated.”

That sentence was worth reading the case for. 

The father, in another ground of appeal, complained that when the Judge relisted the matter and posed the possibility of re-opening the evidence, the Judge ultimately decided not to.  

The Court assisted us by saying:

“The primary consideration is whether it would cause embarrassment or prejudice to the parties (Smith v NSW Bar Association (No 2) [1992] HCA 36. The father did not submit to the primary judge he would be embarrassed or prejudiced if the evidence was not re-opened.”

Another appeal ground was a complaint about the Primary Judge’s evaluation of evidence given by two witnesses. 

In regard to this ground, the Court reminds us that “evidence does not necessarily carry significant probative weight just because it is relevant”.

When it came to considering Ground 3, the Court says:

“This ground contains three miscellaneous grievances but, in truth, none of them are competent grounds of appeal.”

There was complaint that the child’s behavioural report, a behavioural assessment report, had not been tendered in evidence. The Court said:

“The intentional decision to abstain from tendering the report in evidence at the trial precludes its receipt as evidence in the appeal.”

The next ground of Appeal was dealt with in this way:

“It is impossible to reconcile such expert opinion evidence with the complaint made by the father under the rubric of this ground.”

The next ground is described as “a loose collection of complaints” and eventually, the entire appeal was dismissed for lack of merit.

There are some very useful basic reminders in the management of this appeal as to the limits of an appeal and the requirement to approach an appeal with detailed preparation. 

Bielen & Kozma (2022) FedCFamC1A 221

The case of Bielen & Kozma [2022] FedCFamC1A 221 is a Full Court parenting appeal. 

In this case, there was an appeal against final parenting orders. The children’s residence was changed from the mother to the father following a finding that the mother posed an unacceptable risk of harm to the children due to her belief the children had been subjected to sexual abuse by the father. 

The important issue for practitioners is that there is a consideration that the primary judge failed to give consideration to methods of risk amelioration before considering no time. 

The matter was remitted for hearing in relation to the issue of whether and how the children will spend time and communicate with the mother and pending further hearing, the children are to spend time with and communicate with the mother as agreed between the parties. 

The notation is important as it says at B:

“That the findings as to the mother posing an unacceptable risk to the children are not challenged by the mother in the context of the rehearing.”

The primary judge had made a finding that the mother’s views and manner of engagement with the children was unlikely to change through a program of therapy. 

The appeal was upheld primarily on the basis that:

“… the primary judge failed to consider whether steps could reasonably be taken to allow the children to retain their meaningful relationship with their mother, to the maximum extent possible, consistent with protecting them from that identified risk. The indefinite severance of the children’s relationship with their mother was, in those circumstances, disproportionate to the identified risk”.

The court referred at paragraph 27 to the High Court Decision of Masson v Parsons [2019] HCA 21 in which they noted that:

“…the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child” (Bold emphasis added).“

The Act provides at paragraph 43(1)(c) that the court must have regard to the need to protect the rights of children and promote their welfare. 

The court said at paragraph 30:

“While used on several occasions in the Act, there is no definition of the “welfare” of the child. We are of the view, however, that consideration of matters impacting upon the welfare of the child necessarily involves focusing upon the immediate, medium and long-term impact of proposed orders upon the child’s physical, emotional and psychological safety, security and well-being.” 

Section 60CC sets out the matters the court “must consider”. 

The Act requires the court to 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 – section 66(2)(b). 

The Full Court found that the primary judge was in error in failing to consider section 60CC(2)(a) and any factor contained within section 66(3), particularly section 66(3)(d). 

Paragraph 67 of this decision is important.  

“In that respect, we recognise that there are a number of pronouncements by the Full Court expressing disapproval of parenting orders which see protracted or indefinite supervision of the child’s time with a parent. However, as noted by Tree J in Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96 at [19], the views expressed in such cases are not legislative edicts and each case must be decided on its own facts, including whether, in the particular circumstances of this case, an order for supervision was justified even though it could potentially be for an indefinite period.”

The court remitted the matter for rehearing. 

Aiken & Cassone (2022) FedCFamC1A 220

Aiken & Cassone FedCFamC1A 220 is a December 2022 parenting appeal. 

This revisits an important point for practitioners. 

The primary judge is not obligated to accept and act upon opinion evidence given by a court child expert. 

At the appeal, the Appellant was in person; the Respondent was represented by Victorian Legal Aid; and the Independent Children’s Lawyer was represented by a firm of solicitors. 

The ICL was not successful in obtaining an order for costs of the appeal. 

The parties’ relationship commenced in 2013. The parties separated in August 2019.  They have children born in 2015 and 2017.  

In October 2019, Consent Orders were made with the children to live with the mother and spend only supervised time with the father. 

Fortnightly supervised visits have continued. 

The father and the children have regularly remained in touch by telephone. 

In December 2021, the father consented in the midst of a hearing to defend the application to an indefinite Family Violence Order.  He did so without making any specific admission. He did not proceed with a cross reciprocal Family Violence Order against the mother. 

In September 2022, a parenting judgment was delivered.  

The mother was granted sole parental custody. The children were to live with the mother.  The children were to see the father with supervision on four occasions each year and the children could communicate voluntarily with the father by telephone, with the father permitted to send written correspondence to the children on their birthdays and Christmas and the children being able to travel overseas without the father’s consent. 

These Orders reflect largely what the mother sought; they had broad support of the ICL and were “generally consistent with the opinion evidence given by the court child expert“.  

The father had sought to retain equal shared parental responsibility and increased frequency and duration of visits with the children to achieve equal time. 

The primary judge found that in relation to the father, it was “unlikely his behaviour would change” and that “he poses risks of harm to the mother and children”.

The court would not permit the father to adduce further evidence.  They said this at paragraph 17:

“17. The proposed evidence is rejected because it would be contentious, it would not help establish appealable error by the primary judge, and its reception now would tend to obliterate the distinction between original and appellate jurisdiction. The father’s right of appeal is only the right to evaluation of whether the exercise of discretion miscarried, not an opportunity to try and make the case he wishes he had at the trial.”

The Full Court described the father’s ground in this way:

“This ground is misconceived in so far as it purports to challenge a finding, as distinct from orders, by reason of the weight attributed by the primary judge to certain parts of the evidence. Such “weight” submissions are only pertinent to contentions of discretionary error infecting orders, characterising them as being “unreasonable or plainly unjust” or “plainly wrong.”

The Full Court adopted a statement by the primary judge:

“This dispute is fundamentally about risk: what risk the children face, if any, in the care of either parent and how any such risk can be mitigated. This case brings into sharp focus, therefore, the balance that needs to be struck by the court when making parenting orders between the benefit to a child of having a meaningful relationship with both parents, on the one hand, and the need to protect the child from harm on the other.

…

this case brings into sharp focus the balance to be struck between the two primary considerations set out in section 60CC(2).”

The Full Court said:

“As stated, in balancing the two primary considerations, greater weight must be given to the need to protect the children from harm.”

The trial judge said:

“I find that there is an unacceptable risk posed by the father having regular and unsupervised time with the children and that this outweighs the need to facilitate a meaningful relationship between the children and their father…”

The father complained that the primary judge had no reasonable regard to an aspect of the decision, and the Full Court found that that was without foundation. 

Importantly, we are reminded in this case as follows:

• “The discretion to make orders in the children’s best interest rested with the primary judge, not the court child expert.”  The court referred to U v U [2002] HCA 36 and Albert & Plowman [2020] FamCAFC 23.

The Full Court was satisfied that there was a “satisfactory evidentiary foundation for the finding made about the risk of harm the father poses, which means this ground fails”.

Again, there were a series of no reasonable regard grounds. 

This case simply reminds us that the primary judge determines the findings and although assisted often by a court expert, we should not forget that the court expert is not the judge.

Chandler v Bonner (2022) FedCFamC1A 210

The parenting case of Chandler v Bonner [2022] FedCFamC1A 210 was decided on 14 December 2022. 

The Full Court was made up of Justice Tree. 

This appeal was dismissed. The First Appellant and the Second Appellant were self-represented. 

This is an appeal from interim parenting orders made in August 2022 in the Magistrates Court of Western Australia. 

Interim Orders had been made for the grandmother to spend professionally supervised time with the children for 3 hours twice a month with other limits. The parents appealed those Orders.

The mother and the grandmother’s relationship had deteriorated over years and the children ceased spending time with the grandmother in or about February 2018. The grandmother initiated proceedings in March 2021. 

The parents had created a theme that because the parents’ marriage was intact, it required some protection and assistance. 

The court here said at paragraph 17:

“Plainly neither s 43 nor s 69ZN of the Act operate to displace the paramountcy of children’s best interests established by s 60CA of the Act, nor the considerations (and weight to be given to them) which s 60CC requires to be taken into account in determining those best interests.” 

Ground 2 was dealt with in this way:

“The absence of a positive finding of a benefit to the children in having a relationship with the grandmother was therefore acknowledged by his Honour; the interim orders merely enabled any relationship to be, in a very limited way, facilitated at least until final orders were made. The primary magistrate did not err in doing so, and hence there is no merit to this challenge.”

At 41 of this Decision:

“In this case, it is clear from the extract of the reasons recited at [33] above that the reason why, on an interim basis, the primary magistrate considered that the children should spend time with the grandmother, was the possibility of them deriving benefit from that relationship. That is an adequate exposure of his reasoning.”

The next ground alleged a failure to properly consider risks. 

At paragraph 57, this court said:

“The primary magistrate was therefore aware of, and took into account, the risks referred to above, particularly when explaining why he imposed supervision and made the non-disparagement (etc) orders I have referred to earlier.”

The next ground considered that the magistrate had erred in law by taking into account an irrelevant consideration. The court said:

“This ground misunderstands what the primary magistrate said…in that it is patently clear that the primary reason for supervision was to protect against the children being exposed to negative comments by the grandmother.”

The appeal was dismissed. 

Kisiel & Kisiel (2022) FedCFamC1A 218

Kisiel & Kisiel [2022] FedCFamC1A 218 is an appeal from a parenting case.

The father appealed Orders that restrained him and for the child to only spend professionally supervised time with him.

The appeal was unsuccessful.

Costs were awarded in a fixed sum to the Respondent on a party party basis.

Interim orders were made on 11 August 2022.

These interim orders have been appealed as the father had been restrained under section 68B of the Act from approaching the mother and the child, for the child to live with the mother. The orders also allow the child to spend time with the father under professional supervision for no less than 2 hours a week and restrain the father from contacting the child outside these times.

An ICL was appointed after that interim hearing and joined with the mother in resisting the appeal.

The child is 5 years old.

From separation in 2020 to mid-2022, the parties had a voluntary arrangement where the child spent substantial time with the father.

The father’s refusal to return the child to the mother in June 2022 prompted litigation.

At paragraph 8 we are told:

“Due to the mother’s intended reliance upon belatedly served evidence, the hearing proceeded on the understanding that the primary judge would make the orders on what was described as being only an “interim-interim” basis, with the interlocutory dispute having to be finalised at a later time. The primary judge pronounced the orders and delivered ex tempore reasons following the hearing on 11 August 2022.”

The father tried to file an application in an appeal seeking leave to adduce further evidence and that application was dismissed.

The father had wanted to rely on evidence that had not been able to be relied upon by him at the interlocutory hearing. The court said, “If there was no justification for it then, there could be no justification for it now”.

The court further said “the father is still able to revive the as yet unfinished interlocutory hearing before the primary judge and seek to adduce the evidence in that forum. The appeal is not the place to complete the unfinished original hearing”.

There was discussion about the issue of interim interim and the court provided these notations.

“The court offered the parties the opportunity for an Interim Hearing to conclude the hearing of the Application in a Proceeding in which Interim Interim orders were made on 11 August 2022. The father declined that opportunity.”

That ground did not succeed.

The next ground was that the primary judge failed to engage with the legislative pathway.

The court rejected this ground.

The court then considered many of the aspects of the legislative pathway.

The court said:

“In this instance, the dispute was entirely focussed upon the parties’ reciprocal allegations that the child was at risk of harm in the other’s care.”

At paragraph 34, the court said:

“At no time did the father’s counsel make any submission at all to engage s 60CC(2)(a) of the Act as a material consideration, so its invocation in the appeal has the appearance of being an afterthought.”

That ground was found to be without merit.

The next ground was that the primary judge erred in the assessment of risk in ordering supervised time.

The next ground considered that the injunctions were made without a proper basis. In the course of the trial, the judge had said to the father’s counsel “he has made threats and has posted them publicly. It seems a very unwise course to take.

Then, counsel for the father replied, “Certainly. Certainly, your Honour, there is no doubt about that” and then went on to add, “He has not acted on any of those threats”.

His Honour then asked the father if he needed to come near the mother, and when the father’s counsel said no, His Honour responded then as to what would be the injustice if a 68B Order was made. The father’s counsel replied, “There wouldn’t be, your Honour”.

The mother received a costs order as the appeal was unsuccessful.

Bosanac v Commissioner of Taxation (2022) HCA 34

The case of Bosanac v Commissioner of Taxation [2022] HCA 34 (12 October 2022) is a case that on the face of it is simply a tax case.  

However, the concepts and legal principles considered are of use to the family law practitioner.

The parties married in 1998.  In 2006 the wife purchased a property in her sole name applying funds from an existing joint account of the parties to pay the deposit and with both parties applying for the loans to complete the purchase. 

Securities required by the bank for the loans were mortgages over that property and properties owned either by the husband or the wife or both of them. 

The parties didn’t intermingle all of their funds. They had both separate property and some bank accounts that they shared. 

The husband was a creditor of the Tax Commissioner. 

The Commissioner sought a declaration of resulting trust over the equity in one-half of the property. 

At paragraph 8:

“The Commissioner sought to take advantage of the law’s presumption, known as a presumption of resulting trust, that a person who advances purchase monies for property, which is held in the name of another person, intends to have a beneficial interest in the property.” (Footnote 2 – Calverley v Green [1984] HCA 81)

“That presumption is subject to an exception that, in the case of purchases by a husband in the name of a wife, or a parent (or person who stands in loco parentis) in the name of a child, there is a presumption of advancement or, in other words, a presumption that the purchaser intended that the beneficial interest would pass with the legal interest.” (Footnote 3 – Napier v Public Trustee (WA) (1980) 55 ALJR 1 at 3)

The Commissioner contended ” that the presumption of advancement of a wife by her husband, which operates to preclude a resulting trust from arising, is no longer part of the law of Australia in relation to the matrimonial home following the decision of this Court in Trustees of the Property of Cummins v Cummins.” (Footnote 4 – (2006)  227 CLR 278 at 302-303 [71]

The Primary Judge dismissed the Application. 

The Full Court took a different view. 

The High Court then engages in a discussion of the presumptions with that discussion taking 12 to 18 of the paragraphs of the Judgment. 

The Court said:

“The term “resulting trust” states a legal response to proved facts.” (Footnote 12 – Swadling, “Explaining Resulting Trusts” (2008) 124 Law Quarterly Review 72 at 79)

“The presumption can be rebutted by evidence from which it may be inferred that there was no intention on the part of the person providing the purchase money to have an interest in land (or other property) held on trust for him or her.”

If more than one person pays the purchase price, then “regard is necessarily had to evidence of each of their intentions”.

“The presumption of advancement allows an inference as to intention to be drawn from the fact of certain relationships.”

At paragraph 15:

“On one view, the presumption of advancement is not strictly a presumption at all. It may be better understood as providing “the absence of any reason for assuming that a trust arose”. At an evidentiary level, it is no more than a circumstance which may rebut the presumption of a resulting trust or prevent it from arising. It too may be rebutted by evidence of actual intention.“

The Court said that this appeal concerns the intention of Ms and Mr Bosanac when the property was registered in her name.  Also, the weight they might now have to both presumptions. 

The Court then went on to consider the weight of the presumptions. 

At paragraph 22:

“The presumption of advancement, understandably, is especially weak today.” 

There is discussion in the case as to the current relevance of a concept such as the presumption of advancement with authorities commenting that abolishing the presumption may be best left to the legislature. 

The Court then moved to a consideration of concept of proof of intention. 

The Court’s consideration was “the question is what inference is to be drawn from the available facts and in particular the history of the parties’ dealings with property”, with that being a reference to Ms and Mr Bosanac.

At paragraph 35:

“There was a history of Ms and Mr Bosanac holding their substantial real and other property in their own names. Consistently with this, it was evidently the desire of Ms Bosanac to purchase the property and have it registered in her name alone. She was the moving party. These facts alone are sufficient to rebut any presumption that her interest in the property was attributable to the relationship of husband and wife and his intention to benefit her.” 

These parties had their own way of dealing with property. Apart from some shared bank accounts, there does not appear “to have been any substantial property in which Ms or Mr Bosanac had a joint interest”. 

Gageler J dealt with it in this way:

“For better or for worse, the weight of history is too great for a redesign of that magnitude now to be undertaken judicially.”

The presumption and counter-presumption are “landmarks in the law”. 

At paragraph 59:

“Evaluated by contemporary standards, the categories of relationships seen in the past to attract or not to attract the counter-presumption of advancement are inconsistent and discriminatory.” 

At paragraph 60:

“Unless and until they are together reappraised as an exercise in law reform and abolished or modified by legislation, the presumption of a resulting trust and the counter-presumption of advancement are here to stay. The Commissioner’s contention that the counter-presumption of advancement should alone be abandoned as a doctrine of equity must be rejected.” 

The case provides an interesting review of these concepts. 

Gordon and Edelman JJ also published their own decision. Their discussion of presumption of resulting trust begins at paragraph 95.  We are encouraged to think about the distinction between a presumption of fact or an evidentiary presumption and a presumption of law. 

At paragraph 105 they say:

“Where the presumption (of a resulting trust) arises, the existence of a resulting trust is an inference drawn in the absence of evidence.” 

But such an inference – of resulting trust – “cannot arise where a plaintiff has led evidence that tends to establish an objective intention or the lack of an objective intention to create a trust”.

Their discussion of the presumption of advancement is this:

“First, the “presumption” of advancement is not a “presumption” at all, but is, instead, one circumstance of fact in which the presumption of resulting trust does not arise.”

“Second, although the “presumption” of advancement has been described as entrenched, its rationale has not been consistently explained and, no less importantly, it has long been recognised that the limited classes of relationships of close trust from which the “presumption” arises “may not accord with contemporaneous practices and modes of thought””.

They considered the case of Cummings and determined that it was not relevant. 

The appeal was allowed by all Judges, although there are three different discussions. 

It is an interesting case. 

Valder & Saklani (2022) FamCAFC 142

The case of Valder & Saklani [2021] FamCAFC 142 provides further assistance to practitioners in the area of interplay between family law and bankruptcy. 

The Appellant was a creditor of the bankrupt estate of the Second Respondent. 

Consent Orders were entered into between Ms Saklani, the First Respondent, and Mr Saklani, the Second Respondent. The parties were married at the time. 

The Appellant asserted that she was an unpaid creditor of the Second Respondent and thus a person affected by the Orders for the purpose of s 79A, and she was therefore entitled to apply to have the Consent Orders set aside. 

That application was summarily dismissed as Her Honour was of the view that whatever may have been the case at the time the application was filed, the Appellant no longer met the criteria of being a person affected by the Order because the Second Respondent had been discharged from the bankruptcy. 

The approach taken was that upon the discharge, the Second Respondent was released from the debt he owed the Appellant who thereby ceased to be a person affected by the Consent Orders. 

At paragraph 26, we are reminded:

“An application by a creditor under s 79A of the Act to set aside property settlement consent orders entered into by a bankrupt is such an application which requires leave from the Federal Court of Australia (“the Federal Court”), the [then] Federal Circuit Court of Australia and, where s 35 of the Bankruptcy Act applies, the Family Court of Australia (Fraser v Deputy Commissioner of Taxation (1996) 69 FCR 99).”

At paragraph 29:

“At the time the appellant commenced the proceedings in the Family Court she was entitled to do so. She was the creditor of a bankrupt estate which had been diminished by the operation of the consent orders. She had the requisite leave to commence the proceedings. As well as being “a person affected by an order” for the purposes of s 79A(1), the appellant is also a “party”, a “creditor” and a “person whose interests would be affected by the making of the instrument or disposition” for the purposes of s 106B(4AA)(a), (b) and (c) of the Act.”

The key concepts really then were the meaning of “creditor” in the various Acts and whether the fact that the trustee was a person affected or a creditor was also discussed. 

The court said:

“However, a discharge does not operate to revest in the bankrupt the property that had been vested in the trustee (Pegler v Dale (1975) 1 NSWLR 265; Daemar v Industrial Commission of New South Wales (No 2) (1990) 22 NSWLR 178). The bankrupt estate continues until it is annulled because the debts have been paid in full (s 153A of the Bankruptcy Act), by court order (s 153B of the Bankruptcy Act) or because the creditors have accepted a payment under s 73 of the Bankruptcy Act (s 74 of the Bankruptcy Act).”

This means that even after discharge, the Appellant “remained a creditor for a number of purposes and provisions of the Bankruptcy Act. Importantly, any dividend that she might receive remained diminished by the consent orders which had the effect of removing property from the bankrupt estate which would otherwise have been available for the second respondent’s creditors, including the appellant.”

This court considered “we are satisfied that the appellant remained a person affected by the consent orders, notwithstanding the second respondent’s discharge from bankruptcy”.  The appeal was successful and the Order dismissing the proceedings was set aside and the proceedings were remitted for further hearing. 

Neales & Neales (2022) FedCFamC1A 41

The appeal decision in Neales & Neales [2022] FedCFamC1A 41 provides guidance and assistance in the ongoing discussion as to the use of adversarial experts. 

The husband’s appeal was successful and the husband was granted leave to adduce and rely upon an adversarial expert. 

The asset pool included the husband’s one-third shareholding in three entities that held commercial properties which were subject to established leases with options to renew. 

The parties had jointly appointed a single expert to value the properties on the following basis:

“Market Value (As Is) presuming a sale of the 100% Crown Leasehold interest/s subject to the existing lease agreements, or with vacant possession, as applicable.” 

After the valuations were received, the husband submitted questions pursuant to the Family Law Rules.

The husband subsequently instructed a different valuer to comment on the joint valuers’ opinions and to provide his opinion as to the value of the properties.  The husband’s second valuer valued the properties at $22.465 million whereas the joint valuer nine months before had valued them at $33.835 to $34.190 million. 

The husband subsequently filed an Application in a Case.  He sought to rely upon his valuer as another expert and to discharge the single expert.  He also sought a conference of the experts. The Judge dismissed his Application. 

The court said:

“We are satisfied that the husband would suffer a substantial injustice if leave to appeal were not granted because there are different methodologies that have resulted in a substantial difference in value, which has the potential to more adversely impact the husband than the wife.”

The husband attacked the single expert’s process of reasoning and contended that he “failed to explain the calculation of the Net Present Value of Rental Reversion”.

The husband contended the expert had demonstrated a closed mind and the court did not agree, saying, “such a closed mind is not apparent”.

The Trial Judge referred to Kent J’s decision in Tsoutsouvas & Tsoutsouvas and Ors [2012] FamCA 521 at [26], where his Honour observed:

“In any case where a single expert has been appointed, allowing another party to tender evidence from another expert on the same issues creates an imbalance. That is, only one party may have what may be described as an adversarial expert, whilst the other party has only the evidence of the single expert who has acted within the constraints, in terms of instructions, as provided for in the Rules. The further possibility is the other party seeking to have their own expert to redress that perceived imbalance, undermining the original purpose of appointing a single expert; that is, to avoid a “battle of the experts.”

The Trial Judge considered that merely a contrary opinion was insufficient to meet the requirements of Rule 15.49(2)(a).  

At paragraph 40 of the Judgment, the court said:

“Ground 2.2 contended error by the primary judge in applying r 15.49(2)(c) of the old Rules in not considering in aggregate, each of the husband’s contentions, but rather adopting a “tick-and-flick” approach. In form, the ground, being as gracious as we can, should have been drafted with more care. It was both inappropriate and incorrect to describe the primary judge’s approach as a “tick-and-flick”. There is, however, force to the argument that in considering “another special reason”, the primary judge did not consider overall the thrust of the husband’s case for the appointment of another expert.”

The husband’s summary of argument made it clear:

“24. As set out in the case outline document it was the cumulative aspect of the complaints together with the differences between the two valuers that was sought to underpin the argument that there was a special reason for being able to rely on the reports of [the adversarial expert].”

The court agreed with the husband’s submission in relation to Ground 2.2 of his appeal. “We are satisfied that the primary judge did not consider these matters in aggregate in addressing r 15.49(2)(c) of the old Rules, but rather confined his consideration to the issue of differences in value. In doing so, the primary judge fell into error.”

The court considered Kent J in Salmon and Ors & Salmon [2020] FamCAFC 134 (“Salmon”) at [35]:

“35. … the words “substantial body of opinion” in r 15.49(2) are to be given real meaning, as was the approach taken by the primary judge. The approach that the words have meaning of substance has been adopted, correctly in my view, in other decisions at first instance in this Court. The mere expression of an opinion as to value by another expert, no matter how substantially contrary it is to that of the single expert, does not in and of itself constitute “a substantial body of opinion” within the meaning of the rule. If such a contrary opinion is founded upon identified and accepted methodology recognised within the field, or some identified and recognised field of expertise different to that founding the single expert opinion, then the requirement of “a substantial body of opinion” will be fulfilled…”

These observations were adopted. 

This is a useful case and assists further in the challenge practitioners face when seeking to appoint an adversarial expert.

Deputy Commissioner of Taxation v Changran Huang (2021)

The recent case of Deputy Commissioner of Taxation v Changran Huang [2021] provides another potential tool for family lawyers.

The case affirmed that the Federal Court of Australia has the power to make worldwide freezing orders. That power is conferred by Rule 7.32 of the Federal Court Rules 2011 (Cth).

The capacity to realistically enforce the judgment debt is not a consideration for the exercise of the power.

This case just reminds us as practitioners of the breadth of the jurisdictional issues we have to consider to be effective.

Cansdall & Cansdall 2021 FamCAFC 162

In the case of Cansdall & Cansdall [2021] FamCAFC 162, the Respondent sought costs on an indemnity basis against the solicitors for the Appellant.

Partway through the hearing of the appeal, the Appellant’s solicitors advised the court that they had received instructions to abandon the appeals and the appeals were subsequently dismissed.

The head note itself in the case is long.  It is an important decision.

Included in the costs that were sought were costs thrown away when a hearing had to be adjourned because of the failure of the husband’s solicitors to arrange for the husband to attend that hearing.

The background provided included that, on 28 April 2020, the husband filed another Application in a Case seeking the same orders as he had in an Amended Application in a Case. At a direction’s hearing on 9 June 2020, the husband’s solicitor insisted on the Application being listed before a Judge despite being put on notice that the court did not have the jurisdiction, or more to the point the power to hear those Applications.

The matter came before a Judge on 11 June 2020 when Her Honour found she did not have the jurisdiction to deal with the Applications and they were dismissed.

On 12 June 2020, Her Honour delivered her Reasons for Judgement on a costs application and made orders that the husband pay the wife’s costs on an indemnity basis fixed in the sum of $14,605 and that the money be paid to the wife by way of an adjustment of the surplus funds payable to the parties pursuant to the final orders for property settlement that had been made on 14 November 2018.

On 7 July 2020, the husband filed appeals against the orders made by Her Honour on 11 June 2020 and 12 June 2020.

On 14 July 2020, the husband also filed an Application in a Case seeking leave to join the purchasers of the property and the real estate agent and a stay of the orders made by the Primary Judge pending the determination of the appeals.

Her Honour heard the husband’s application on 12 August 2020 and on 24 August, delivered her Reasons for Judgment and made orders dismissing the husband’s application and providing the filing of written submissions on costs. The wife complied with the order, but the husband did not, and at the time of the hearing of the appeals, judgment was still pending.

The appeals were heard on 19 November 2020 and partway through the hearing the husband’s solicitors obtained instructions to “abandon both appeals”.  The wife then made an oral application for an order for costs against the solicitors calculated on an indemnity basis.

An order was made for written submissions to be filed and for the hearing to take place on 7 December 2020. The husband filed his submissions late.  The solicitors made no arrangements for the husband to appear at the hearing. The hearing was adjourned and the wife made an application for the costs.

Discussion beings at paragraph 27.

The court determined that there was “no doubt that an order for costs is justified here pursuant to s 117(2) of the Act.  Both appeals were incompetent and had absolutely no chance of success. They should never have been filed, or been pursued to the point where they were both abandoned midway through the hearing on 19 November 2020, and dismissed as a result“.

The court indicated it would consider who the costs order should be against and the basis upon which the costs would be calculated.

The court decided that indemnity costs could be awarded if there are exceptional circumstances with references provided. The court relied on Colgate Palmolive Company v Cussons Pty Ltd [1993] 46 FCR 225.

The court determined that a costs order should be made and that it should be made on an indemnity basis.

At paragraph 35, “To repeat, the appeals as drawn were incompetent, the written summaries of argument were baseless, and the oral submissions made at the hearing were devoid of all merit”.

The court then considered the appeal against the order dismissing the application.

Her Honour, in dismissing the application, had no power rather than no jurisdiction, the Full Court found. Also, the sale had already taken place by the time the application for an injunction was heard.

Notice of appeal filed on 7 July 2020 identified a finding the Primary Judge did not in fact make.  It referenced certain evidence as being in Her Honour’s Reasons when that was not the case.

The appeal made no reference to Her Honour’s finding that she had no jurisdiction or power to make the orders sought. No argument was included in the written argument or in the amended summary of argument which addressed the application for leave to appeal.

A general complaint that Her Honour had erred in failing to make the orders sought but “There was no indication as to how Her Honour had erred and again significantly, there was no direct challenge to Her Honour’s finding that she had no jurisdiction or power to make the orders sought and that should have been the primary issue raised in the appeal”.

The orders sought in the appeal were described as “equally deficient”.

There was the injunction restraining the sale after the sale had taken place.

The amended summary of argument was, as with the initial summary of argument, “completely without merit, either legally or factually”.

The appeal proposed to identify section 79A(1)(a) as providing a mechanism for the Trial Judge.

At paragraph 49:

“However, there were two insurmountable hurdles to s 79A(1)(a) providing the relevant jurisdiction or power. First, there was no application made by the husband seeking orders pursuant to that paragraph. Thus, her Honour could not have erred by not applying it. Secondly, and equally fatal to this submission, the miscarriage of justice has to arise out of events prior to or occurring at the time of the making of the orders being sought to be varied or set aside. Plainly, this was not the case here, yet not only was that not recognised by the husband’s solicitors who prepared the amended summary of argument, but it was not recognised by the solicitor-advocate, who, to repeat, was a member of that firm of solicitors, at the hearing of the appeal”.

At paragraph 51:

” Inexplicably, the solicitor-advocate also submitted that with the evidence the husband presented, her Honour should have granted a stay of the orders. How this overcomes the lack of jurisdiction or power to entertain the applications that were before her Honour, which did not include an application for a stay, was not explained by the solicitor-advocate”.

Further, ” the solicitor-advocate made up submissions as he went along”.

At paragraph 53:

“…the solicitor-advocate attempted to rely on a separate paragraph of s.79A(1) without understanding it was a separate paragraph, namely (b).”

“The solicitor-advocate misrepresented what Her Honour found”.

Leave to appeal was sought, but leave was in fact not required as it was a final order.

The husband’s solicitor-advocate sought to make submissions as to the husband’s financial circumstances since the order for costs were made, although “without any application seeking leave to adduce further evidence”.

The husband’s solicitor said it was “a case of a mistaken yet genuinely believed understanding of the Law”.

At the hearing on 21 February 2021, the husband, however, in this matter spoke on his behalf and waived his privilege.

The wife’s solicitors had been engaged in correspondence taking the position that the appeals were “doomed to fail”.

The husband “was not given the correct advice and indeed the advice given was substantially flawed and devoid of any merit and the fact the husband instructed solicitors to proceed cannot prevent an order for costs being made against them”.

The court said this:

“To adopt the phraseology of Goldberg J (Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155), they have “unreasonably initiated [and] continued [the appeals] when [they] had no prospect of success” and that unreasonableness relates “to a serious dereliction of duty or serious misconduct”.