By and -

Key decisions

  • Hullet & Benton [2022] FedCFamC1A 13
  • Sarto [2022] FedCFamC1A 16
  • Palange & Kalhoun [2022] FedCFamC2F 149
  • Cantoni [2022] FedCFamC1A 11


Registrar erred when an application for consent orders was dismissed after husband’s death when wife withdrew consent

In Hullet & Benton [2022] FedCFamC1A 13 (11 February 2022) the Full Court (Austin, Tree & McEvoy JJ) dismissed an appeal from Macmillan J’s decision in Hullet & Benton [2021] FamCA 449.

Macmillan J found the Registrar to have erred when he dismissed an application for consent orders following the husband’s death and the wife’s withdrawal of her consent. Macmillan J held that the proceedings can continue where the rules enabled the husband’s executor, as legal personal representative, to apply as to the future conduct of the proceedings.

The wife appealed and argued that when determining the review application, Macmillan J’s power was limited to either granting the application for consent orders or dismissing it and the latter was the only option in the absence of the wife’s consent. She argued that an Application for Consent Orders was a ‘different species of application to an adversarial application … and had to be treated differently (at [10])’.

The Full Court said (from [15]):

‘The existence of a “judgment” is the pre-requisite for a competent appeal (s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘the FCFCA Act’)), for which purpose a ‘judgment’ is defined to include an order or decree, whether it be final or interlocutory (s 7 of the FCFCA Act)

[16] … [A] “judgment’ does not include a mere ruling on a question of law which is not decisive of the parties’ rights in the justiciable dispute, even if it is expressed in the form of an order …

[17] … [N]one of the orders amount to a ‘judgment’ since none is decisive of the parties’ rights under Pt VIII of the Act. The orders do no more than achieve the continuity of the proceedings. …

[18] Leave to appeal must be refused once it is understood that no appeal validly lies. …’


Erroneous dismissal of the parties’ countervailing applications for sole occupation

In Sarto [2022] FedCFamC1A 16 (10 February 2022) Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, allowed an appeal in a case where the Court heard countervailing applications for sole occupation of the former matrimonial home.

The wife had vacated the home upon separation but sought an exclusive occupation order to move back in as the sole registered owner of the property. The husband had lived in the property since the separation and sought a sole occupation order.

The Magistrates Court of Western Australia dismissed both applications. The wife appealed.

Austin J said (from [11]):

‘Being the sole legal proprietor of the property, absent an injunction to the contrary, [the wife] … is entitled to exclusive possession …

[14] Regardless of whether or not persons are married, property law governs the ascertainment of their property rights and interests (Wirth v Wirth [1956] HCA 71 …

[19] The husband … seeks to obtain a property settlement order which substitutes him as the exclusive legal proprietor of the property … [T]he success of the husband’s claim depends upon an eventual exercise of discretion … under Pt VIII of the Act adjusting the … existing property interests.

[20] In the face of the wife’s withdrawal of consent, the only way … the husband could evade ejection from the property was by securing an injunction to restrain the wife from exercising the rights which attend her legal title …

[21] … Evidently, the magistrate concluded it was not proper to do so, because the injunction sought by the husband was refused. …

[22] … [T]he magistrate also refused to make the orders sought by the wife … The magistrate decided no order was necessary, but that conclusion was reached on the false premise that making no order at all would then permit the husband to continue residing in the property …

[30] … The husband … has not demonstrated it would be “proper” to grant an injunction depriving the wife of her legal entitlement to possession of the property. An order should be made requiring the husband to immediately vacate the property. … ’


Order for vaccination of child against Covid-19 – evidence of public health researcher preferred

In Palange & Kalhoun [2022] FedCFamC2F 149 (16 February 2022) Judge Smith heard an application for a 10-year-old child to be vaccinated against Covid-19.

The Court directed each parent to file any expert evidence they sought to rely upon. The mother filed an affidavit of ‘Dr E’, a public health researcher in the area of vaccination, who had a PhD in public health amongst other qualifications. There was no other expert evidence.

The mother also sought to rely upon publications by the World Health Organisation and the Centers for Disease Control Prevention.

The Court said (from [68]):

‘ …[E]ach party has given evidence of what various bodies have said, and what is contained in the pamphlets provided, to seek to prove the truth of those statements. …

[81] Dr E … has a PhD on the topic on which she has given her opinion. She currently works in the field in which she has given her opinion and her role is to study the area on which she gave an opinion. There was no challenge to Dr E’s expertise. …

[83] I am satisfied that Dr E’s opinion evidence sufficiently satisfies the criteria for admissibility pursuant to s 79 Evidence Act

[109] I do not consider it appropriate to give any weight to either of [the parties’] opinions on the medical and public health issues associated with COVID-19 infection or vaccination. …

[111] I also give no weight to the pamphlets tendered by the mother.

[112] … I give substantial weight to the unchallenged and uncontested evidence of Dr E who is a highly qualified expert. …

[154] My role is to consider and weigh the relative risks … taking into account the evidence before me, and … to make a decision as to what course of action I believe is in his best interests. …

[155] … I am satisfied that it is in the child’s best interests to be vaccinated against COVID-19 …’


Court erred by not providing reasons when rejecting a valuation that was not from a single expert

In Cantoni [2022] FedCFamC1A 11 (7 February 2022) the Full Court (McClelland DCJ, Williams & Wilson JJ) allowed an appeal from a decision of Foster J, reviewing an interim order for the sale of a property made by a Senior Registrar.

The property had been the subject of construction that had stalled. The husband sought interim orders for the immediate sale of the property. The wife sought the appointment of a single expert as to value, and sought orders for a builder to complete the construction and for the property to be sold upon completion.

After the Senior Registrar ordered an immediate sale; the matter came to the Court for review, where Foster J refused the wife’s solicitor’s oral application for leave to rely upon adversarial evidence as to value, the only reason given being ‘she’s not a single expert’ ([18]).

The Full Court said (from [22]):

‘The obligation to give reasons varies with the circumstances of the case (Police Federation of Australia and Another v Nixon and Another [2011] FCAFC 161 … at [67]). … While there is generally no need to give detailed reasons when exercising a procedural discretion such as, whether in the context of this case the affidavit of [the adversarial expert] … should have been admitted into evidence, the reasons provided must nonetheless disclose the process of reasoning …

[23] The primary judge in this matter was placed in an invidious position as a result of the appellant not having complied with the requirements of the then applicable Family Law Rules 2004 (Cth) (‘the Rules’). First, the appellant did not file a formal application seeking leave to rely on an adversarial report. Second, the appellant failed to support such an application with an affidavit addressing the requirements of the Rules as required of a party seeking to rely upon an adversarial report. …

[27] … [T]he primary judge did not, in giving reasons for rejection of the report … refer to those matters. Instead, the reason provided by the primary judge for rejecting the report … was solely that she was not “a single expert”…

[29] The failure of a trial judge to provide adequate reasons makes it impossible for the party aggrieved by the ruling and for an appellate court to determine whether the ruling was based on an error of law and, in those circumstances, the failure to give reasons will itself constitute an error of law … ’

Craig Nicol
and Keleigh Robinson are co-editors of The Family Law book and Accredited Specialists in Family Law.