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.

Blevins and Blevins [2019] FCCA 1923 (11 July 2019)

In the matter of Blevins and Blevins [2019] FCCA 1923 (11 July 2019), the court considered whether or not leave was required pursuant to s 44(3) to institute spousal maintenance proceedings.  The case determined that leave was not required.

This is a judgment of Judge Baker. 

An application was filed seeking a spouse maintenance payment in the sum of $400 per week to commence on 4 January 2019. 

The application was made 23 years after the parties separated, after a property settlement order and an order in favour of the applicant for periodic spouse maintenance of $750 per month payable for 10 years which was made in 1999 and a lump sum spouse maintenance order in favour of the applicant for $275,000 made in 2009. 

The applicant is 69. The respondent is 71.

The parties were married in 1970 and separated in January 1996. 

The respondent husband has remarried.

The parties divorced in 1998 and the decree was made absolute in 1998.

The importance in the case is the way in which the parties’ final property order was dealt with. It provided that “….and thereafter the wife shall be at liberty to seek the payment of further spousal maintenance pursuant to the Family Law Act 1975 as amended”.

The orders contained a s 77A order that said the entirety of the final payment of $275,000 was attributable to the provision of spouse maintenance for the former wife, and there was a s 81 notation indicating that this was to finally determine any obligation by the former husband to provide spouse maintenance to the former wife.

The wife had been on a disability support pension in 2009.  On 5 June 2014, she attained the age of 65 years and she was required to move to an aged pension with a different asset test. Later, that asset test was changed to take into account superannuation, and she lost all pension income from January 2017. 

At paragraph 16, the court set out the applicant’s submission in the following terms:

“Counsel for the applicant relied on the Full Court decision of Atkins and Hunt [2016] FamCAFC 230. In that decision, Murphy J said: “˜As has been seen, s 44(3) does not impose an impediment to the wife pursuing an order for maintenance pursuant to s 74 of the Act so as to seek the revival of “an order previously made in proceedings with respect to the maintenance of a party”. Indeed, as has earlier been seen, the Act contemplates applications for maintenance that sit squarely outside any “finality” said to be effected by earlier orders.”

The court also relied on Emerald and Emerald [2017] FamCA 798 and the court said:

“Paragraph 44(4)(b) of the Act provides that leave shall not be granted unless the court is satisfied that, in the case of spousal maintenance, at the time of the decree (now order for divorce) became absolute (now final), the circumstances of the applicant were such that she would have been unable to support herself without an income tested pension, allowance or benefit.”

The respondent relied on the Caska & Caska [2001] FamCA 1279 case as authority for the case that if an order has been complied with and has been perfected, it has ceased to have any further operation.  If there is no existing order that is capable of variation, amendment, rescission or the like, there is requirement for a fresh application.

The court considered, at paragraph 28, the relevant law and referred to s 83 of the Act. It is clear that this was a new application and not an attempt to vary a previous order.

The court agreed with the counsel for the respondent that there was no order in force. This application was therefore not an application under s 83 of the Act.

The court determined that it had power to grant leave to institute proceedings out of time if the matters in s 44(4) were satisfied.

The court discussed the difference between the extent of finality offered in relation to spouse maintenance and the level of finality offered in property settlements.

The court again referred to Atkins and Hunt and Murphy J’s decision in which he said at 52 to 54:

“First, and centrally, the liability for spousal maintenance does not come to an end upon the end of the marriage, nor necessarily when orders are made pursuant to Part VIII of the Act. While the court is required, as far as practicable to effect a “clean break” – to “make such orders as will finally determine the financial relationships between the parties … and avoid further proceedings between them” – the liability for spouse maintenance is that of a “party to the marriage”. The latter expression is defined as including a person who was a party to a marriage now ended by death, divorce or annulment.  That new spouse maintenance orders can be made in circumstances where the initial order is properly made within time is entirely consistent with a liability for spousal maintenance persisting despite the formal end of the marriage or other financial orders having been made.

Secondly, no specific reference is made within s 44(3) either to s 83 itself or to any link between the expressions used within s 44(3) and like expressions in s 83. In that regard, it is of significance in my view that the exceptions provided for in respect of settlement of property are made by reference to specific sections whereas the expressions used in respect of maintenance are not. The nature of orders for settlement of property and their “finality” should be contrasted with orders for spousal maintenance which the Act contemplates specifically might be later modified. Despite that important distinction, the words use in s 44(3) are not confined by specific reference to s 83.

Thirdly, the expression “an order previously made” is not defined, confined or restricted in its operation. Fourthly, the expression “revival” is not confined in s 44(3), as it is in s 83, to the situation where an order has been suspended. Finally, the word “revival” is a word of ordinary usage and meaning. It means, for example, “the state of being revived” which is “to become operative or valid again” or “restoration to use, acceptance or currency” or “an instance of something becoming … active or important again”. Thus, s 44(3) can be seen as having in contemplation “an order previously made” becoming “operative or valid again”.”

The court determined that the 12 month limitation period in s 44(3) does not apply to a matter where an order made in “proceedings with respect to the maintenance of the wife” is an order previously made. 

At paragraph 60, Murphy J said:

“As has been seen, s 44(3) does not impose an impediment to the wife pursuing an order for maintenance pursuant to s 74 of the Act so as to seek the revival of an “˜order previously made in proceedings with respect to the maintenance of a party’.”

In this case, the court found that the applicant did not need to obtain leave pursuant to s 44(3). The matter was then sent for an ordinary spouse maintenance determination.

Keating & Keating 2019 FamCAFC 46

In the case of Keating & Keating [2019] FamCAFC 46, the Full Court considers a property appeal. Included in the grounds of the appeal was a Kennon type claim.

The Primary Judge had declined to make the adjustment sought.

Before the Court discussed the fourth ground based on family violence, they had already determined that the appeal would be allowed, and the matter remitted for hearing. The Court said, however:

“Although the fate of the appeal has been established, it is important to discuss the wife’s claim for an adjustment arising from family violence.”

The Full Court made clear that the references were to Kennon & Kennon, which was later considered in Spagnardi.

The Trial Judge in Keating incorporated an analysis of those two cases undertaken by Watts J. in Minterly & Minterly [2013] FamCA 418.

The Court said:

“The fact that the wife gave evidence of family violence during periods when the parties were separated and after they separated for the last time ought not to have minimised the significance of her evidence of that which occurred during the relationship.”    (my emphasis added).

The Court went on to say that Kennon should not be interpreted as setting out a rule that post-separation family violence who seeks “to continue to contribute to the welfare of the family as a parent is irrelevant”.

This Full Court imposed a bolding on discernible impact in the Kennon judgment discussion and also bolded quantify in the Spagnardi discussion of Kennon.  The Court said:

“At first blush, the reference to Spagnardi to “quantification” seems to elevate the need for an evidentiary nexus or “discernible impact” between the conduct complained of and its effect on the party’s ability to make relevant contributions, requiring expert or actuarial evidence of the effect of the violence.”

The Court commented that an analogy used in this previous decision did not illuminate “what quantification of the effect of violence on contributions might look like”.  This Full Court said:

“We struggle to understand what that “quantification” evidence might be beyond that given by the victim spouse as to the incidence and effect of the violence as identified in Spagnardi in the first two dot points at [47].”

Quantification is clearly something this Full Court in this decision is unhappy with. It is described in this way:

“Perhaps the use of the word “quantification” is infelicitous and has unintentionally added a gloss to the ratio in Kennon when, in truth, the Court in Spagnardi was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions.”

The Court described itself as “troubled” that the Primary Judge had been dismissive of incidents of violence “apparently because her evidence was uncorroborated”.  The Full Court said:

“Nonetheless it seems to us that his Honour’s approach to the issue of family violence as demonstrated in his reasons is persuasive of the conclusion that he misdirected his attention from the “discernible impact” of the husband’s violence on the wife’s capacity to make contributions focussing instead on there being no evidence allowing “quantification” of that effect.”

Although those comments are the comments of two of the three Judges with Austin J. not adopting the same position about the family violence aspect of the primary judgment, it suggests that there may be a further consideration of the Kennon principles in the future.

Watch this space!

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.

Cluny & Skinner Case Note (2019)

There are a series of 2019 decisions in a matter of Cluny & Skinner.

In the period from 1 August to 23 August, Kent J has provided three Judgments that are of assistance to parties considering the consequences of a failure to comply with judicial authority.

The court considered the application of s.112AK, which is the statutory provision that deals with the variation and discharge of orders made under s.112AD.

His Honour said:

I have not identified any authoritative judicial pronouncements upon the interpretation or operation of that section…I would adopt the approach that the power conferred by s.112AK must be exercised judicially with the relevant criteria being the justice of the case. In other words, there must be some feature of the case which renders it necessary in the interests of justice, for an order under s.112AD to be varied or discharged.

Later in the Judgment, his Honour said:

The position has now been reached in this case in my judgment that the vindication of judicial authority must be given appropriate emphasis.

The decision is of assistance to practitioners in determining some circumstances in which the court will decline to vary such an order.

Braddon v Braddon 2018 FCCA 1845

The Decision of Braddon v Braddon [2018] FCCA 1845, a Decision of Judge Harman in 2018, deals with an Arbitral Award.  It was an award dealing with family property interests.

This is a case where the parties had sought by consent that the matter be referred to arbitration.

Orders were made referring the matter to arbitration pursuant to section 13E of the Family Law Act.

By Order made in Chambers on 1 March 2018, the Arbitral Award was registered.

In March 2018, the husband filed an application seeking orders for the Arbitral Award to be set aside and for the court to consider and determine the outstanding property matters in dispute between the parties in accordance with section 79(4).

The husband claimed the arbitrator had not determined the dispute in accordance with the law, had given inadequate reasons, and that the Arbitral Award was “unreasonable and plainly unjust”.

His Honour affirmed the Arbitral Award.

The court said:

“The husband’s submissions in his application to set aside the Arbitral Award were founded on the assertion that the arbitrator had made an error of law”.

The court distilled this into a complaint that the Arbitral Award should not be registered or if registered, should be reviewed and registration reversed on the basis of an error or errors of law.

The court said that there had been no submission as to what error of law was allegedly made by the arbitrator.

The husband, on the issue of whether the arbitrator had provided adequate reasons, relied on authorities the court considered could be distinguished from the present case.

This case reminds us that there is a two-step process involved: first, there is registration of the award which is dealt with by Regulation 67Q. Once an award has been registered, a court has the powers set out in section 13J and 13K of the Family Law Act.

An error of law is provided by section 13J(1) of the Family Law Act.

The court considered this particular award.

The applicant had provided written submissions rather than an affidavit. An affidavit is not required.

His Honour suggested that:

“It could be validly argued that this object, focussed upon resolution of matters without the need for the Court’s intervention, supports a narrower interpretation of the basis of review on “questions of law”.

The Arbitral Award can be reviewed on “questions of law“.”

His Honour considered other sources of information and made reference to a paper by Justice Keane of the High Court called “˜Judicial support for arbitration in Australia’.

Complaints were:

1. Was the dispute determined in accordance with law? There was no submission made;
2. Were the reasons inadequate?

At paragraph 35, His Honour made reference as follows:

“It would appear settled law that the appropriate standard by which I might approach the adequacy of the Arbitrator’s reasons is the “Bremer test”, namely:

• All that is necessary is that the arbitrators should set out what, on their view of the evidence, did or did not happen and should explain succinctly why, in the light of what happened, they have reached their decision and what that decision is.”

At paragraph 113:

“I am satisfied that the reasons given adequately and tolerably explain the basis for the Arbitral Award made and the justice and equity of the Arbitral Award.”

The court’s consideration is, is the Arbitral Award unreasonable or plainly unjust?

This complaint can only be made by reference to the evidence.

His Honour said:

“It is inappropriate for the review to be approached from the perspective of whether the reviewer would have come to the same decision.”

The court affirmed the Arbitral Award dated 22 January 2018 and registered by Order 1 March 2018.