By -

Key decisions

  • Barnell [2020] FamCAFC 102
  • Aitken & Gladstone [2020] FCCA 966
  • Hallett & Malcolm & Anor [2020] FCCA 835
  • Lacy & Cloett [2020] FCCA 791


Isolating particular contributions overlooked ‘myriad of contributions’ by parties in long relationship 

In Barnell [2020] FamCAFC 102 (1 May 2020) the Full Court (Ryan, Aldridge and Kent JJ) allowed the wife’s appeal of a 25 per cent differential between the parties’ contribution based entitlements assessed by a judge of the Family Court of Western Australia.

The parties were together for 21 years and had two children (22 and 16) who lived with the wife. The wife had received gifts from her family of $70,000. The husband made initial contributions including an interest in ‘the B property’ which the trial judge held (at [20]) should give rise to a 25 per cent contributions based adjustment in his favour. At trial the B property was worth $340,000 and represented 36 per cent of the net pool ($941,096). 

The Full Court said (at [34]):

‘In Hurst [2018] FamCAFC 146 the Full Court quoted what the primary judge had recorded … as to a property inherited by the husband … “the Suburb C property”:

“[16] Each party received inheritances throughout the marriage which were in large part used for the benefit of the family (other than the [Suburb C] property). … Apart from paying the rates and regular slashing the land has remained untouched. It cannot be said that the wife has made any contribution to this property other than indirectly by the rates and slashing costs being paid. The [Suburb C] property has appreciated in value over the years and even after separation. This property is now the most valuable asset of the parties.” (Emphasis in original)’

The Court concluded (at [42]):

‘We are persuaded that by isolating the B Property in the manner in which his Honour did and by adopting a differential of as much as 25 per cent between the parties as to their contributions based entitlements as a consequence of “quarantining” the B Property, and giving discrete consideration to that contribution, the primary judge fell into the same error as was made … in … Hurst [above] and Jabour [[2019] FamCAFC 78] … We consider that his Honour’s approach had the overall effect of according a subsidiary role to the wife’s contributions.’


Child welfare – mother failed to satisfy court that supervision of father was both necessary and available 

In Aitken & Gladstone [2020] FCCA 966 (8 May 2020) Judge McGuire heard an interim application by the father to spend unsupervised time with his six year old child X. The mother sought an order that the father be supervised. The Department of Health and Human Services, Victoria (‘DHHS’), who had been the applicant in State Court child protection proceedings for three years, appeared as amicus curiae. DHHS supported the mother’s case, which was consistent with the existing State Court order. 

The parties had been involved in Federal Circuit Court (‘FCC’) proceedings since 2013, including two parenting trials. There had been long-standing State Court intervention orders including an interim accommodation order made in the Children’s Court that the father’s time with X be supervised. 

The Court said (from [77]):

‘[I]t is the mother who argues that X’s time with the father should continue to be supervised. … [S]he offers no further particulars … except leaving the obligation for the orders that she seeks on the father … She insists on a supervisor but does not nominate one. … 

[80] … I think it disingenuous to simply leave the finding of a supervisor to the father … where he does not seek an order in those terms and when the Department suggests no availability. … [83] … I am not persuaded that X’s time with his father needs to be supervised in the interim. Significantly, I have found importance for X in maintaining a relationship with his father. I am not satisfied on the evidence that any supervisor, even if necessary, is available. … In this sense, the obligation to show that supervision is both necessary and available sits here with the mother and the Department.’

An interim order was made that X spend unsupervised time with the father, the State Court order to be discharged. 


Mother suffers PTSD due to father’s violence – order for introduction of children to their paternal Aboriginal family 

In Hallett & Malcolm & Anor [2020] FCCA 835 (15 April 2020) Judge Small heard an application by a paternal grandmother to spend time with her 9 and 7-year-old grandchildren ‘X’ and ‘Y’. The children lived with the mother. The father had a history of violence, drug use and criminal conduct, had not seen the children since 2015 and took no part in the case. The children had not spent any time with the grandmother for three years. 

The mother opposed the application due to her fear that the grandmother would bring the children into contact with the father. The paternal family were of Aboriginal heritage from the ‘B’ region. Before the Court were a family report prepared by psychologist ‘Ms L’ and evidence from Koori support workers and Aboriginal elders ‘Ms H’, ‘Ms N’ and ‘Ms A’.

The Court said (from [419]):

‘I must craft orders that protect X and Y from … harm … [423] The children’s views as expressed to Ms L are quite clear: they do not wish to see or spend time with Ms Hallett.

[424] … [T]he children are still quite young, and Ms L’s evidence is that their views have been negatively influenced by their mother. It is difficult to see how they can have avoided that influence, whether directly, by being told that [the grandmother] and the father are “bad people”, or indirectly by being exposed to their mother’s severe PTSD around issues involving their father’s family. 

[425] While I accept the children’s views as genuine, I do not place a great amount of weight on them because of their young age, and the … influence of their mother. ’

The Court continued (from [441]):

‘The evidence … does not give … much confidence that the … grandmother is capable of caring for the children. … [456] I am satisfied … that Ms A’s proposal that she work with [the mother] to allow the children to be introduced to paternal family members and taught where they fit into their father’s family and B society at family gatherings and cultural events … will allow them to “enjoy” their Aboriginal culture with other people who share that culture.’ 

It was ordered accordingly.


Leave to proceed sought – costs could equal or exceed claim – hardship 

In Lacy & Cloett [2020] FCCA 791 (9 April 2020) Judge Boyle dismissed an application by a de facto partner (‘Ms Lacy’) for leave pursuant to s 44(6) of the Family Law Act to commence property proceedings out of time. The respondent (‘Mr Cloett’) opposed the application.

The parties lived together for five years. There were no children. A property was bought by the respondent for $399,000 with a mortgage of $364,930. The applicant alleged that she paid $24,000 towards the deposit and $1,000 per month towards repayments. The respondent’s case was that those payments were rent; that he had given the applicant money and that her loans to him were repaid. 

After separation the respondent’s property lost value from $575,000 in 2018 to $499,000 in 2019 (its mortgage at trial being $376,000) and the applicant bought her own home for $500,000 with a mortgage of $385,000. She argued that she would suffer hardship within the meaning of s 44(4) if leave were not granted.

The Court (at [16]) cited Whitford [1979] FamCA 3 in which the Full Court said that ‘where the costs which the applicant will have to bear … are about as much [as] or more than what the applicant is likely to be awarded on a property claim, ordinarily hardship would not result if leave to institute proceedings were not granted’.

The Court said (from [30]):

‘[T]here is no adequate explanation advanced by the applicant with respect to delay in filing proceedings. … [35] The applicant should have filed an application for property settlement by October 2016. Despite having spoken with a solicitor shortly after separation in September 2014, and receiving advice in March 2018 from her current solicitors, no application was filed until the current application on 4 April 2019.

[36] The parties are currently in a similar financial situation in terms of assets and liabilities. Life has moved on for both of them, as one would expect, in the years following separation. The respondent has refinanced the property, as he was entitled to do.

[37] There is a modest pool of assets. The parties have been separated for five years at the date of filing. The costs of the litigation would at best limit any amount received, and there is a real possibly could equal or exceed it.’  

Robert Glade-Wright is the founder and editor of The Family Law Book.