Case Law

FAMILY LAW - APPEAL – From decision of Family Court Judge – CHILDREN – With whom a child spends time – Consent orders – Contravention – The mother alleged 33  contraventions of the parenting orders – Mother also sought that she be granted leave to reopen virtually all parenting issues that had been resolved by consent – Trial Judge heard nine of the alleged contraventions and dismissed them – The mother then consented to the dismissal of the balance of the allegations – Trial Judge dismissed the mother’s application for leave to reopen parenting issues – Mother appealed – Whether the mother suffered procedural unfairness – Whether the trial Judge erred in accepting into evidence a letter and whether he placed undue reliance on it – Whether, in refusing leave to re-open parenting issues, the trial Judge placed reliance on his recollections of evidence of a psychiatrist and social worker who had prepared reports in earlier litigation – Whether the trial Judge erred by not receiving into evidence contact centre notes – Whether the trial Judge did not have proper regard to the mother’s claims that she had been under duress when signing the consent orders – No error in the trial Judge’s treatment of the applications – Appeal dismissed

FAMILY LAW - APPEAL – Application to adduce further evidence – application allowed

FAMILY LAW - COSTS

FAMILY LAW - APPEAL – From decision of Federal Magistrate – CHILDREN – Orders – Child to spend time with father – Contravention – Whether the mother had a reasonable excuse – The mother argued that she had a reasonable excuse because the child was ill and that it was the wish of the child to be cared for at home by the mother – On appeal, contended that the Federal Magistrate should not have found the mother’s excuse made out because the mother’s evidence did not meet the terms of s 70NAE(5) – Onus of proving reasonable excuse lay upon the mother – Evidence about the child’s health was not expressly addressed in terms of whether it constituted “reasonable grounds” for a belief that contravention was necessary to protect the child’s health – Discussion about the application of s 70NAE(5) – Failure of the Federal Magistrate to apply s 70NAE(5) – Test of “reasonableness” in relation to “reasonable excuse” under s 70NAE – Whether an inference can be drawn from events ex post facto to the contravention, if those events are relevant

FAMILY LAW – APPEAL – APPEAL FROM FEDERAL MAGISTRATES COURT – SUPERANNUATION – CONTRIBUTIONS – Not established that Federal Magistrate erred in the exercise of discretion by failing to have appropriate regard to non-financial contributions of the wife to the superannuation interest of the husband, that being in the payment phase when the parties met. House v The King [1936] HCA 40; (1936) 55 CLR 499; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 and Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 cited. Circumstances of this case differed from those in Farmer & Bramley [2000] FamCA 1615; (2000) FLC 93-060 and contributions post-separation were appropriately considered by Federal Magistrate. Federal Magistrate held not to have treated the superannuation interests inconsistently to non-superannuation assets.

FAMILY LAW - APPEAL FROM DECISION OF FEDERAL MAGISTRATE – CHILDREN - SCHOOLING – Where the parties had entered into consent orders which noted that they had agreed their child should attend a primary school which was “central to both parents’ residences” – Before the Federal Magistrate the mother sought orders that the child attend a particular primary school and the father sought that the child attend a different primary school – Federal Magistrate ordered that the child attend the primary school nominated by the father on the basis that it was central to both parties’ residences and would lead to less travelling for the father, and therefore less expense being incurred by him from transporting the child to and from school – Appeal allowed on the basis that the Federal Magistrate erred in the calculation of the costs that would be incurred by the father transporting the child to and from the two schools – Order amended to be interim rather than final – Issue of primary schooling arrangements to be re-considered at a final hearing of the matter before the Federal Magistrate.

FAMILY LAW - APPEAL – PROPERTY – CONTRIBUTIONS – REASONS - Where husband appealed against orders the wife pay $2 million to the husband and release him from any debt owing to any company controlled by the wife - Where total property pool was over $66 million – Where asserted contribution assessment manifestly unjust – Where parties' cohabitation was of 5 years duration - Where husband bankrupt at commencement of cohabitation - where wife had assets (and interest in a discretionary trust) of approximately $14.5 million at commencement of cohabitation - Whether trial Judge erred in assessing husband’s contribution based entitlement at $1 million – Whether trial Judge failed to give adequate weight to husband’s contributions – Whether adequate reasons given for contribution finding – Where husband’s asserted financial contribution came from employment on the wife’s rural property and to commercial business enterprise - Where trial Judge evaluated the parties’ respective contributions pre-cohabitation, during cohabitation and post-separation – No error in trial Judge’s assessment of husband’s contributions - Whether trial Judge erred in calculating contribution entitlement as a lump sum rather than as a percentage of the total property pool – Trial Judge gave adequate reasons. No error in contribution assessment.

FAMILY LAW - APPEAL – CHILDREN - Child related proceedings – Whether the Federal Magistrate erred in the exercise of discretion –Where the Federal Magistrate ordered a gradual regime of shared care leading to an equal shared care arrangement - Whether Federal Magistrate erred in failing to consider how orders would affect the mother’s earning capacity – Where the mother’s evidence was that she had flexible work hours – Whether Federal Magistrate inappropriately made findings based on the Family Report – Whether Family Report flawed because of report writer’s methodology – Federal Magistrate’s findings available on totality of evidence – No challenge made to Family Report at trial – Challenge not open on appeal - Whether inappropriate weight was given to matters favouring the father’s parenting capacity – Whether Federal Magistrate properly considered s 60CC factors - Where the Federal Magistrate appropriately considered relevant factors under s 60CC before determining the periods of time which the child should spend with each parent – No error found – Appeal dismissed.

FAMILY LAW - APPEAL – HAGUE CONVENTION – Where the Full Court had allowed an appeal against, and set aside, declarations and orders made by the trial Judge – The effect of the Full Court orders was that the child should return to the United Kingdom with her mother pursuant to the Family Law (Child Abduction Convention) Regulations 1986 – The Full Court had made directions for submissions to be filed by the parties (in either agreed or separate form) in relation to the machinery orders required to provide for the return of the mother and child to the United Kingdom – Separate draft orders and supporting submissions were subsequently received from the parties – Where the mother is now in an advanced state of pregnancy and seeks to remain in Australia for the birth of her child and for the following two months to permit immunisation of the infant – Proposed machinery orders set out by the Full Court in the reasons for judgment – Order made that each party file and serve on the other side brief submissions indicating their agreement or otherwise with those proposed orders.

FAMILY LAW – Children – equal shared parental responsibility – lives with – spends time with – four year old child having difficulty separating from mother – mother not heeding advice of staff of Contact Centre to leave quickly and make her goodbyes short.

FAMILY LAW - APPEAL – From decision of Federal Magistrate – CHILDREN – Consent orders were made that the children live with the mother and that the parties have equal shared parental responsibility for major long term issues – Children spending time with the father – Less than three months after the consent orders were made the father filed an application seeking major changes to them – Consideration by the Federal Magistrate of the rule in Rice and Asplund on the papers – Father’s application dismissed – Whether the Federal Magistrate failed to find that the alleged denial by the mother of a meaningful relationship to the father with the children and the mother’s alleged neglect of the children in relation to their medical conditions, constituted a significant change of circumstance – Whether Rice and Asplund in now “old law” because of the 2006 amendments to the legislation – Whether the Federal Magistrate failed to deal with the application on the merits and did not apply the paramountcy principle – Whether the Federal Magistrate erred in applying his discretion by considering the time that had elapsed since the consent orders as a relevant factor – Appeal dismissed

APPLICATION FOR REINSTATEMENT OF APPEAL – Where appeal deemed abandoned – Where applicant was unable to prosecute appeal due to illness – Appeal reinstated subject to applicant’s compliance with costs orders.

FAMILY LAW - APPEAL – PROPERTY – 15 years of premarital relationship followed by 5 years cohabitation post marriage – Wife’s appeal against property division giving her 45% of the non-superannuation assets, representing 40% based on contribution and a 5% adjustment for s 75(2) factors – At trial both parties conceded that initial contributions should be measured not at the date of the commencement of the relationship but at the date of marriage when the parties began to commingle finances – The trial judge’s conclusion of a contribution split at 60:40 in favour of the husband unsustainable – An appropriate division taking into account the parties’ contributions was 55:45 in favour of the wife – This capital disparity and the capacity of each of the parties to adequately support themselves meant no s 75(2) adjustment was appropriate – The extent of the trial judge’s consideration of the wife’s gambling when weighing up s 75(2) factors was unclear, however any adverse consideration was not appropriate having regard to the findings that the gambling losses were relatively modest and an accepted part of the parties’ lifestyle – Appeal allowed

FAMILY LAW - APPEAL – From decision of Federal Magistrate – Interim orders – CHILDREN – With whom a child lives – Relocation – Whether the Federal Magistrate gave sufficient reasons for his decision – The challenge on appeal is to the cogency of the explanation for the result and to the adequacy of content, namely, whether there has been a failure to address relevant considerations under the legislation – Appeal allowed