Family law: October 2017

Property – treatment of property acquired after separation is discretionary

In Calvin & McTier [2017] FamCAFC 125 (12 July 2017) the Full Court (Bryant CJ, Ryan & Aldridge JJ) dismissed with costs the husband’s appeal against a property order of the Magistrates Court of Western Australia. Magistrate Calverley included among the parties’ divisible property an inheritance received by the husband four years after separation (of which $430,686 was unspent). He had also made initial contributions to the $1.3m pool, being real estate to the value of $580,000 and a car, shares and superannuation of unstated value (at [10]-[11]). The parties were married for eight years and had one child who spent equal time with them.

Contributions (which were found to have been otherwise equal) were assessed as 75:25 in favour of the husband, a 10 per cent adjustment being made for the wife under s 75(2).

The Full Court said (at [24]) that ‘both the relevant definition of “matrimonial cause” and s 79 refer to all of the property held by the parties at the time of the hearing before the court’ and that ‘[a]ll of the property then held by both of the parties or either of them can therefore be the subject of orders under s 79, regardless of when particular assets were acquired’.

The husband’s counsel (at [38]) argued that ‘where there is after- acquired property and the owner of that property objects to its inclusion … there must be a separate … consideration as to whether there is a principled reason for its inclusion and division’. The Court rejected that submission as being (at [44]) ‘contrary to the extensive weight of authority’, saying (at [51]-[52]): ‘In short … the court retains a discretion as to how to approach the treatment of after-acquired property. The trial magistrate could have included the inheritance amongst the property to be divided, or dealt with it separately. The trial magistrate was not obliged to follow one course or the other… It is worth repeating that it was not submitted that any error said to have arisen from the inclusion of the inheritance for division led to a result which, after consideration of the contributions and the s 75(2) factors, was inappropriate. Rather, the submissions were directed to the process.’

Children – father withheld children – Court’s refusal to make recovery order set aside – refusal of urgent listing unjustified

In Renald (No. 2) [2017] FamCAFC 133 (14 July 2017) an interim consent order provided that the parties’ seven children live with the mother and spend long weekends and some holidays with the father (who lived in Town H, a two hour drive away). While not pursuant to the order, the mother agreed to the father having the children B, V and A from 8 to 29 January 2017. At the end of that time the father returned A but withheld B and V, saying that they did not wish to return to the mother. The Magistrates Court of WA did not dismiss her application but refused the mother both an urgent listing ‘notwithstanding [that] the school year was about to commence’ (at [2]) and a recovery order (inter alia) as the Court did not wish to ‘chop and change’ arrangements prior to the hearing (at [14]).

On appeal Thackray J observed [at 10] that the mother would have been entitled to seek a review of the refusal to grant an urgent listing, saying (at [17]-[19]) that there was substance in her argument that in not dismissing the mother’s application the magistrate failed to determine it and that that error was compounded by the delay in listing (which, it was argued, was ‘not justified in view of the nature of the application and the evidence … including that of the single expert’).

Thackray J said (at [30]) that ‘there was ample evidence in the reports to have persuaded his Honour that the exercise of some appropriate … encouragement by the father would have ensured the children’s return to the mother’ and (at [34]) that ‘his failure to consider the effect on the other children of seeing the father flouting an order with impunity, constituted error’ (at [71] citing Bondelmonte [2017] HCA 8 at [39]).

While allowing the child B due to his age (born 2002) to stay if he wished to do so, Thackray J said (at [82]) that ‘an order requiring V to be returned, even with a trial looming, may send a message to the legal profession and their clients that the court is willing to enforce its orders, and that parents should not take matters into their own hands where there is no evidence of risk’.

Children – mother wins appeal against dismissal of her application to vary parenting order to allow her to relocate

In Searson [2017] FamCAFC 119 (5 July 2017) the parties consented during proceedings to a final order in 2015 that the children live with the mother and spend five nights a fortnight and holidays with the father. In 2016 the mother applied for variation of the order so as to allow her to relocate from Melbourne to Queensland and an order for another family report. The father opposed both applications. At a preliminary hearing Judge Harland dismissed the applications, holding that the mother hadnot satisfied the rule in Rice & Asplund, ‘raising something now which she ought to have raised previously’ (at [41]). The mother appealed.

Murphy J (with whom Kent and Loughnan JJ agreed) referred (at [11]) to Warnick J’s statement in SPS & PLS [2008] FamCAFC 16 that ‘[w]here an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing’. The Court said [at 23] that it was ‘abundantly plain from the mother’s affidavit material that no part of the … matters to which she deposed prior to the making of the consent orders involved living permanently with her now partner or postulated a significant future role for her now partner in the children’s lives or involved her moving to south east Queensland’ and (at [25]) that ‘[n]o-where in … [the earlier] family report [was] any factual foundation offered which might provide the reason for providing any opinion about relocation’.

The mother’s appeal was upheld and the case referred to another judge for orders and directions to prepare the case for trial.

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