Family law: November 2017

Property – married man and sex worker found to be in a de facto relationship

In Sha & Cham [2017] FamCAFC 161 (16 August 2017) the Full Court (Bryant CJ, Ainslie-Wallace & Cronin JJ) dismissed Mr Sha’s appeal against Johnston J’s finding that Mr Sha had been in a de facto relationship with Ms Cham. The appellant (who lived with his wife) met Ms Cham in a massage parlour where she worked. They began having sex; discussed having a baby; she stopped work at his request (Ed: cf. Kristoff &

Emerson [2015] FCCA 13 where Ms K continued her sex work); he helped with her mortgage; then they entered into a s 90UC financial agreement (which at trial he claimed not to understand). Ms Cham then fell pregnant to Mr Sha via IVF and it was found that the parties did have a de facto relationship when they made their agreement.

The Full Court said (from [28]):

‘In determining whether two people have a relationship as a couple living together on a genuine domestic basis the court is to have regard to all of the circumstances of their relationship, which may include the matters to which s 4AA refers. Whether such a relationship exists will depend on an assessment of all of the circumstances of the relationship, each … to be given such weight as the court considers appropriate (see Sinclair & Whittaker [2013] FamCAFC 129; … [E]ach … element that makes up a relationship should be considered in the context of all the aspects of the … relationship (Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131) (‘Lynam’) …

[50] As was said in Lynam at 131:

“ … [e]ach element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.” (Emphasis added)’

Property – exclusion of any property from consideration is an error of principle – post-separation inheritance should be in one or two pools

In Holland [2017] FamCAFC 166 (9 August 2017) the Full Court (Ainslie-Wallace, Murphy & Aldridge JJ) allowed the wife’s appeal against a property order in a case where the parties cohabited for 17 years and had two children. The husband inherited ‘Property W’ from his late brother’s estate three years after separation which was worth $715,000. Judge Jones excluded Property W from the asset pool and the wife appealed. The Full Court said (from [25]):

‘In our view it is wrong as a matter of principle to refer to any existing legal or equitable interests in property of the parties or either of them as “excluded” from, or “immune” from, consideration in applications for orders pursuant to s 79 …

[26] More often than not, the expression is used to indicate that particular property, or a particular category of property, or superannuation interests, are to be treated separately from other

property for the purpose of a consideration of s 79(2) or for the purpose of assessing contributions …

[59] If her Honour was to adopt an “asset by asset” or “two pools” approach to the assessment of contributions, her Honour’s task was to assess contributions across the whole of the more than 25 year period under consideration (approximately 17 years of co-habitation and approximately eight and a half years post-separation) in respect of Property W and to assess contributions separately across the same period in respect of the balance of the parties’ interests in property (and superannuation). In our view, her Honour cannot on any view be seen to have done so.’

Children – maternal grandmother wins appeal against parenting order that discharged supervision of violent father

In Stott & Holger and Anor [2017] FamCAFC 152 (7 August 2017) the Full Court (Thackray, Kent & Watts JJ) allowed the maternal grandmother’s appeal against Berman J’s order that permitted a 10 year old child who lived with her to spend time with the father who had ‘a history of serious violence’ (at [1]). At the time of the order the child had not seen the father since April 2016. The Full Court said (from [34]):

‘The “unacceptable risk” test articulated by the High Court, in the context of disputed allegations of sexual abuse, is expressed … in M v M (1988) 166 CLR 69 where the High Court said at 78:

“In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.” …

[38] We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N & S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier & Hepburn [2006] FamCA 1316 … per Warnick J adopted with approval in Potter & Potter (2007) FamCA 350 …

[39] We find merit in the argument that this did not occur here …

[40] All the more is this so in the face of findings by the primary judge that the father seemed incapable of accepting his history and was dismissive of his propensity to violence … the father’s trenchant denials accompanied by “barely restrained anger when giving evidence” and being “aggressive” and at times raising his voice “to a frightening level” … and findings that the father was not a truthful witness about either his criminal history or the nature of his engagement historically with the child’s mother … ‘

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