By Craig Nicol and Keleigh Robinson -
Key decisions
- Bielen & Kozma [2022] FedCFamC1A 221
- Bokin & Wild [2022] FedCFamC1A 209
- Chandler & Bonner [2022] FedCFamC1A 210
- Faldyn & Badenoch (No 2) [2022] FedCFamC1A 204
CHILDREN
Indefinite severance of children’s relationship with their mother disproportionate to identified unacceptable risk
In Bielen & Kozma [2022] FedCFamC1A 221 (20 December 2022) the Full Court (McClelland DCJ, Henderson & Harper JJ) allowed an appeal from orders where six and four year old children changed residence from living with the mother to the father.
At first instance, the Court found the children had been exposed to the mother’s ongoing false narrative that they had been sexually abused by the father, posing an unacceptable risk of ongoing emotional harm in her care. The Court ordered the mother have no time nor communication with the children, save for the provision of cards (at [2]).
The mother argued the primary judge erred when she found that as the mother posed an unacceptable welfare risk ‘it is unnecessary to explore the remaining primary consideration and additional considerations contained in section 60CC’ (at [40]).
The Full Court said (from [28]):
‘ … [T]he focus of parenting proceedings should be on “the effect on the child” of the parties’ respective proposals (Fairfield & Hoffman [2021] FamCAFC 151 …).
[37] … [T]he primary judge was in error in failing to consider s 60CC(2)(a) and any factor contained within s 60CC(3), particularly s 60CC(3)(d).
[42] … The fact that [the primary judge] … failed to give “proper, genuine and realistic consideration” in a manner that was consistent with the objects of Part VII of the Act … is apparent from the judgment. Nowhere in the body of the judgment does the primary judge set out her assessment of the consequences for these young children of losing the benefit of a meaningful relationship with their mother.
[51] In Helbig & Rowe [2016] FamCAFC 117, the Full Court explained … that where a case is conducted on the basis of … unacceptable risk of harm to a child in the care of one parent, “[t]he first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk”…’
PROPERTY
No error in 60:40 contribution weighting in $4.5 million asset pool where de facto wife’s father provided $1,250,000 and interest free loans
In Bokin & Wild [2022] FedCFamC1A 209 (13 December 2022) the Full Court (Alstergren CJ, Rees & Altobelli JJ) dismissed with costs a de facto husband’s appeal from a decision of Brasch J in respect of a relationship of between 17 and 21 years, which produced five children. The de facto wife also had an adult child from a previous relationship.
The de facto husband argued the Court erred in its assessment as to contributions and by offsetting his contribution to the de facto wife’s child against the de facto wife’s father’s contributions.
The Full Court said (from [16]):
‘… The Court does not adopt a precise, mathematical approach to the exercise of discretion as the various matters taken into account under s 79 are not all capable of precise calculation (Kessey and Kessey [1994] FamCA 162 … ). Some considerations involve value judgments or are matters of impression (Lovine & Connor [2012] FamCAFC 168 …).
[17] The findings of the primary judge are the result of a detailed and holistic assessment of a myriad of contributions in a long marriage.
[24] … [T]he respondent’s father’s quantified contributions were some $1,250,000 and his unquantified contributions, particularly the provision of interest free loans, were substantial and in addition to the quantified contributions.
[25] The … assessment of contributions as favouring the respondent by 20 per cent or $914,696.75 is readily explained by a proper analysis of the respondent’s father’s contributions.
[27] … [H]er Honour’s reasoning is well able to be ascertained. … [W]e are satisfied that the inevitable “leap” from words to the figure of 60 per cent … does not invite appellate intervention …
[43] … [T]he appellant raised … Robb and Robb [1994] FamCA 136 … owing to his assistance with the care of Ms B the respondent’s first child from an earlier relationship (‘Ms B’).
[50] … [E]vidence of the respondent’s father’s contributions is relevant to negate the appellant’s contention … that he provided financial support for Ms B.’
Plainly neither s 43 nor s 69ZN of the Act operate to displace the paramountcy of children’s best interests established by s 60CA…
CHILDREN
Unified parents’ joint opposition to grandmother spending interim time with children does not displace judicial scrutiny as to the children’s best interests
In Chandler & Bonner [2022] FedCFamC1A 210 (14 December 2022) Tree J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, dismissed an appeal by unified parents against interim parenting orders made by the Magistrates Court of Western Australia for professionally supervised time between the parents’ four children and their maternal grandmother.
The parents argued the Court had erred, including by not applying s 43 of the Act.
Tree J said (from [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 … [A]s the section headings of both s 43 and s 69ZN suggest, they … articulate general principles to which regard must be had in all proceedings under the Act (s 43) and to which effect must be given in conducting child-related proceedings (s 69ZN).
[19] … [T]he primary magistrate did not … disregard either s 43 or s 69ZN of the Act. … [H]e expressly considered the potential impact on the parents and the children of time with the grandmother resuming, and … recognised the desirability of minimising that impact …
[25] … [T]he time the children were to spend with the grandmother was sparse … and … denigration of a party, or discussing the proceedings in the presence of the children was prohibited … [E]nforcing those prohibitions was the main reason for the grandmother’s time with the children being supervised.
[34] … [T]he interim orders merely enabled any relationship to be, in a very limited way, facilitated at least until final orders were made. …
[35] … [T]he grandmother’s historical involvement in the children’s lives was hotly contested, and therefore unable to be determined …
[41] … [T]he reason why … the primary magistrate considered that the children should spend time with the grandmother, was the possibility of them deriving benefit from that relationship …’
PROPERTY
No denial of procedural fairness or error in consent orders between wife and husband’s trustee in bankruptcy, without husband’s consent
In Faldyn & Badenoch (No 2) [2022] FedCFamC1A 204 (8 December 2022) Aldridge J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, dismissed with costs an appeal from final property orders made by Judge Taglieri.
The orders were made by consent between the wife, the husband’s father and the husband’s trustee in bankruptcy, in the husband’s absence. The orders pertained to a short marriage and about $200,000 of sale proceeds.
The orders were made at a case management hearing, at which all parties (including the husband) appeared. The matter was stood down to facilitate property settlement discussions, where the husband was invited to attend when the matter resumed at 3pm. The husband failed to appear upon resumption of the hearing and orders were made in his absence.
The husband appealed, arguing that he was denied procedural fairness as to the orders and further argued that he had a right to be heard in respect of ‘concealed assets’ that he said were not disclosed by the wife.
Aldridge J said (from [29]):
‘The appellant could have been under no doubt that the purpose of the matter being stood down was so that not only could settlement discussions take place, but it was also anticipated that they would be successful and consent orders could be placed before the Court later that day.
[33] The appellant was afforded the opportunity to present his case at the time the consent orders were made. …
[34] There was no denial of procedural fairness …
[44] Both s 79(11)(c) and s 79(11)(d) applied … [T]he appellant was not entitled to “make a submission to the court in connection with any vested bankruptcy” without the leave of the Court (s 79(12)). …
[47] … [Section] 79(12) of the Act prevents the bankrupt party from making submissions unless he or she has leave or unless there is property of the bankrupt that has not vested, or at the least, there is non-divisible property that can be retained by the bankrupt pursuant to s 116 of the Bankruptcy Act.
[48] There is no suggestion of any such property here, so that the only division of property that can occur is that between the respondents and the Trustee, on which the appellant, absent leave, has no right to be heard. …
[59] … [O]n the facts of this case, there is no basis whatsoever, for the appellant to pursue a claim under s 79 of the Act against any concealed assets. …’
