Sunday, 28 March 2010

Federal Magistrates Court: gambling, staying in the home

I am often asked by clients about how property settlement might change because of the other party's drinking or gambling problem, or because one of the parties stays in the home.

A good illustration of the limitations of both these arguments is shown in the recent Federal Magistrates Court case of Tozer and Tozer. Federal Magistrate Altobelli had to consider the wife's arguments that the husband should receive less because he had a gambling problem, and because she had stayed in the home, including paying the mortgage.

His Honour rejected the wife's case on these points:

The wife’s case is that the husband was addicted to gambling, that this was without her consent or support and knowledge, and that this amounted to a negative contribution made by him. It is clear that the wife’s case involved quite a considerable amount of evidence designed to attempt to establish and then quantify the extent of the husband’s gambling activities. When the evidence is carefully examined however, there remains a real doubt about the precise extent of the husband’s gambling activities. Whilst he sought to minimise the extent of this, I am satisfied that the wife sought to minimise the extent to which she was aware of the husband’s gambling and either supported or acquiesced in relation to the same. All of the schedules and asserted calculations produced by the wife as part of her case to demonstrate the extent of the husband’s gambling is quite inconclusive. At the end of the day the only reliable matter that the court can proceed on is a concession made by the husband’s counsel that the evidence indicate that over a period of about six years the husband seems to have used $53,000 for his own purposes and even then it is unclear how much of this was attributable to gambling. It does seem clear from the evidence produced that both the husband and the wife consumed alcohol regularly, attended clubs regularly and invested in race horses. The husband, through his counsel, concedes that the maximum loss on gambling was $35,000 over a period of six years which, he submits, amounts to about $120 per week. Counsel for the husband submits that even on a worse case scenario, this does not amount to waste or a negative contribution. The solicitor for the wife, in closing submissions, submits that the evidence indicates gambling losses of $134,067. I do not agree that that is what the evidence indicates.

The wife’s case for negative contribution and/or waste is not established on the evidence. Even if the husband was gambling $120 a week for a period of years I am not satisfied that, on the evidence before me, such expenditure was disproportionate to reasonable lifestyle expenditure by this family. Even the wife conceded in cross-examination that at no stage was there a default in the mortgage payments. She gives no evidence of inability to pay debts as and when they fall due. I am not satisfied, therefore, that any gambling expenditure in this case was incurred recklessly, negligently or wantonly, or with a view to minimise the value of that matrimonial assets.

Finally, the wife asserts that she made a post-separation contribution by paying all outgoings on the former matrimonial home since separation, including the mortgage. The husband does not dispute this but points out that the wife had the benefit of occupation of the property whereas he was paying rent/board for his accommodation. I do not believe it is appropriate to make an adjustment for post-separation contribution as asserted by the wife, in the circumstances of this case. She clearly had the benefit of occupying the former matrimonial home but to the exclusion of the husband, in this period. (emphasis added)

Saturday, 27 March 2010

I have revamped the look of the Australian Gay and Lesbian Law Blog What do you think?
I have revamped the look of Australian Divorce Blog What do you think?

Relocation principles

Some of the hardest types of cases to agree on, because the outcomes are so uncertain, are relocation cases.

Helpfully, Justice Murphy of the Family Court has summarised the principles that apply to relocation cases following the 2006 changes to the Family Law Act. He did so in Pitken and Hendry:

  • A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances;
  • A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.
  • Relocation cases, like all parenting cases, involve a determination of best interests as the measure by which legitimate rights and freedoms of the parties must give way to the rights and interests of the children;
  • In that way, best interests is the paramount, but not the sole, consideration whatever be the nature of the order informed by findings as to best interests. That includes orders relating to parental responsibility and the rebuttal of the presumption in favour of equal shared parental responsibility in particular;
  • All parenting cases require precise proposals by the parties (including, if thought appropriate, alternative proposals). The proposals are (or should be) the expression of each party’s assessment of their children’s best interests. “Relocation cases” are no different.
  • The issue of relocation (and, necessarily, the parties’ proposals in respect of same) should not be considered separately from the issue of best interests. In truth, the proposals, including potential relocation, form part of the factual permutations within which best interests must be considered and findings made.
  • The court is not bound by the parties’ proposals. Where the evidence points to an alternative being in the best interests of the children, orders should be crafted by the court accordingly;
  • Findings in respect of the relevant s 60CC considerations, and an ultimate analysis and balancing of those findings should, when applicable, take account of the prospect of equal or substantial and significant time, whether because s 65DAA mandates it or because either is a proposal of the parties or looms as a potential order;
  • Findings relevant to s 65DAA, if applicable, can and often more appropriately should be made as part of the s 60CC exercise, because, although requiring a specific process, any s 65DAA considerations are founded ultimately in findings as to best interests; Findings necessary to underpin an ultimate finding of “reasonable practicability” (s 65DAA(5)) can be, and often more appropriately are, conducted as part of the s 60CC exercise. Any specificity inherent in those s 65DAA(5) factors which do not overlap with s 60CC considerations can often readily be accommodated within the s 60CC exercise (s 60CC(3)(m)). As best interests governs the s 65DAA exercise, it is often convenient and appropriate to consider any matters directly relevant to s 65DAA(5) within the overall assessment of best interests. Of course, those findings, must be applied as the s 65DAA process requires;
  • The abrogation or curtailment of parental responsibility with respect to long term issues involves a serious interference with fundamental rights and that is a factor which ought often be taken into account in assessing whether the best interests require the rebuttal of the presumption. Obviously, that right must give way where the best interests of the children require it. Equally, the court may need to craft orders for parental responsibility where the children’s best interests require it.

His Honour's summary of the law must now be seen as subject to the views by the High Court in the Mt Isa Case about the provisions of s.65DAA of the Family Law Act.

Friday, 26 March 2010

Family Court grants nullity when wife was still married

The Family Court in the recent case of Olmpei and Banieneva has ordered a decree of nullity to issue because the wife, unknown to the husband at the time of marriage, was already married.

Family Court: mistress provisions might apply

I have commented before about witty and amusing names used as pseudonyms in cases under the Family Law Act, the most amusing being named after two race horses: Doriemus and Van Der Hum.

Those were the 80's: Linda Evans (Krystle Carrington), John Forsythe (Blake Carrington) and Joan Collins (Alexis Carrington) in Dynasty

The names issue has come up again in the recent case of Carrington and Carrington. The Carringtons on TV were the over the top subject family in the top rating US soap Dynasty.  Blake Carrington, played by John Forsythe,  was married to Krystle Carrington (Linda Evans). The central character however was Blake's scheming ex-wife Alexis Carrington (played by Joan Collins).

No doubt the name was chosen in this case was because it was unchallenged that during the marriage the husband had a relationship of up to 26 years with another woman, and that there was a child of that relationship aged 16. It appears that by the time of the trial that relationship had ended and the husband was now in another relationship. Justice Benjamin considered whether notice should have been given to the first woman because of the possibility of there having been a de facto relationship, but as that relationship ended before 1 March 2009, when the Family Law Act was amended to include de facto property claims, he decided against it.

Similarly, his Honour did not order notice to be given to the husband's new partnerto be able to make a claim, as they had been together for less than the threshold time of 2 years.

It was widely claimed when the amendments came into force that they might allow mistresses to make claims. Last year Today interviewed me specifically about that issue.  His Honour's views clearly show that the possibility of claims by mistresses cannot be discounted.

Thursday, 25 March 2010

Family Court: friendly parent provisions cut both ways

The Family and Federal Magistrates Courts are criticised at times for removing children from mothers, because the mothers are not considered to encourage the relationships between children and their fathers.

By contrast, in the recent Family Court case of Binder and Merza, Justice Barry on an interim basis returned the child back to the mother, and made an order for the child not to have contact with the father in the meantime, because of comments emanating from that household:

The legal representative for the mother submits that the court should cease contact between the child and the parents in the father’s household because of the risk of ongoing pressure from the father or members of his household. It is a step that I am most reluctant to take, but the view that I take is nothing good will come out of the father’s household in the short term. ...

The child’s love for the mother is very much in evidence and that relationship is seriously prejudiced if the child is to remain in the father’s household. I will suspend the father’s time until the matter can be reviewed by the court. It is very sad that I have to do that. I’m sure the child loves her father. I don’t need any convincing he loves her greatly. It is just that the attitude towards the mother has to be changed if any positive gains are to be had out of this litigation.
The law says a primary consideration I have to take into account is the benefit to the child of having a meaningful relationship with both parents. I’m satisfied that the mother would not sabotage the father’s relationship with the child. I’m far from satisfied that the reverse is the case, because there are indications all through the material that I’ve read of a mean-spirited, bloody-minded, anger-driven attitude on the part of the father. He does it with full love of the child, not realising the destructive nature of what he is doing to this little girl.

I will allow for there to be telephone communication and any other form of communication, such as written communication between the father and the daughter, as may be agreed between the parties. The mother has to demonstrate that she can be gracious. The phone records will speak for themselves. The mother may want to monitor the calls; it is a matter for her.

Wednesday, 24 March 2010

Family Court: wife can sue husband separately for damages for sexual assault: Australian Divorce Blog

Family Court: wife can sue separately for damages for sexual assault

There has long been controversy about how the Family and Federal Magistrates Courts deal with the impact of assualts in the context of property settlements. Initially conduct was ignored, although Justice Bell in an early case stated that a wife could sue her husband for assault in separate civil proceedings.

Then for a brief period in the 90's with cross-vesting claims being allowed, [where the Family Court exercised the jurisdiction of State Supreme Courts] there were a number of claims in which wives (or children) sued for damages, as well as the property claim proceeding. For example in Marsh and Marsh, the wife was able to obtain her damages claim first, with this amount to be paid by the husband from his property settlement entitlement. In Re Q, the children were able to obtain damages for their being sexually assaulted by their step-father, at the same time as their mother, the wife obtained a property settlement.

In Kennon the wife sought and obtained damages in addition to property settlement, as well as the domestic violence resulting in a small adjustment for property settlement, the majority holding that the adjustment could occur in "exceptional circumstances", so as not to open the floodgates when domestic violence allegations would be common currency, and that it involved a "course of conduct" which made the wife's contributions over time more arduous.

Then in 1999, the game changed. The High Court ruled in Re Wakim that the cross-vesting regime was unconstitutional, so these damages claims were no longer brought in the Family Court, but instead reliance was had on the "more arduous" claim in Kennon.

Recently in the Family Court case of Yen and Yen, the husband was found guilty in separate criminal proceedingsof carrying out indecent acts to the wife:

The wife asserted that on or about 10 August 2006 she was indecently assaulted by the husband after he administered to her a sedative or drug designed to impair her consciousness, render her drowsy or asleep.

The allegation in the statement of claim is further that on or about 15 August 2006, the husband similarly assaulted the wife.

Further, it is alleged that between May 2006 and August 2006 on a number of occasions, the husband similarly assaulted the wife.

The defence of the husband may be summarised as follows. He says that save that he pleaded guilty to a charge of indecent assault, he does not admit the allegations set out in respect of the two incidents in August 2006. He otherwise denied the allegation that was generally particularised as taking place between May 2006 and August 2006.

In her claim, the wife seeks damages, aggravated damages and exemplary damages totally $100,000. 
The wife also sought property settlement in the Family Court. The parties had been together 25 or 26 years.
The husband sought that the damages claim also be brought in the Family Court under its accrued jurisdiction, arguing that there was one justiciable controversy. The husband argued that there was- that these events arose out of the marriage and therefore should be dealt with at the same time.
Justice Cronin rejected the husband's application, stating in effect that unlike Kennon there was no long period of allegation of abuse, but incidents late in the marriage:
This is a long marriage where this Court’s primary role under the Act is to determine entitlements based upon factors set out in s 79. Save in respect of s 75(2)(o) to which I have referred, and the issue of conduct being irrelevant to the diminished contribution of a party, issues of conduct giving rise to compensation and damages are not matters with which this Court would normally deal. Thus, an issue such as a series of assaults late in the marriage would not normally be relevant.

The claim by the wife in tort is not connected to any property proceedings and the evidentiary issues are of peripheral relevance to the property proceedings. To the extent that an order for damages against the husband might diminish his financial strength including particularly his retirement benefits, those matters can be contemplated under s 79(2).

The claim is also disparate from the property claim. It has different concepts involving issues of the duty of care. Whether that duty has been breached and what should be done to put the plaintiff in a position she should have been in but for the tort, is not a matter connected with the evidence of contribution and adjustments of the type set out in s 75(2).

In addition, in this case, there is an application for exemplary damages which might normally be awarded to reflect public disapprobation. Those matters are also unrelated to the determination of any entitlement based upon contribution....

One way of looking at this issue is whether the common facts or substratum of facts give rise to the issues in dispute. It is stretching the language to say that an assault in a marriage that may or may not give rise to damages is a significant factor in a property case where there is no claim that contribution has been made more difficult because of conduct or because the conduct adversely affects future health or earning capacity.

In my view, the nature and basis of the claims in the two proceedings are quite different having arisen from completely different sets of facts. (emphasis added)

Tuesday, 23 March 2010

Family Court: stay refused

If clients are upset at a result in court, sometimes they want to appeal, thinking that an appeal will immediately stay or freeze the outcome. This is not the case, as the court must separately make a stay order.

An example of this was in the recent Family Court case of Cameron and Walker. The mother sought to stay an order of Justice Waddy allowing the amount of time that the father spent with the child to move from supervised to unsupervised.

Justice Coleman dealt with the stay application. Ordinarily, one cannot go judge shopping- the judge who made the orders hears the stay application also - but in this case Justice Waddy had retired.

Justice Coleman, in refusing the stay, noted the usual factors:

  • the order appealed against was a parenting order, which is discretionary (therefore harder to succeed against on appeal)
  • granting a stay is discretionary
  • the mother did not delay in appealing- the appeal was genuine not just to get a stay
  • the limiting of change in circumstances in this case did not render the appeal nugatory [useless] without a stay being put in place
  • the child's best interests are always the paramount concern

Monday, 22 March 2010

Pat Keane's appointment as Chief Justice of the Federal Court

Pat Keane has not been appointed as a Federal Magistrate or a Family Court judge. He has now been appointed by the Rudd Governemtn as Chief Justice of the Federal Court.

I wrote this article as Pat Keane has been seen in Brisbane for a long time as an extraordinarily gifted counsel of the highest calibre and intellect prior to his appointment to the Queensland Court of Appeal.\, where, not surprisingly he has also been seen as a very effective judge.

I have set out here what the Federal Attorney-General Robert McClelland said today at the ceremonial sitting of the Federal Court. Sometimes these speeches seem to be spin. With Justice Keane, they are entirely accurate:

May it please the Court.

It is a great privilege to be here today to welcome his Honour Justice Patrick Keane as Chief Justice of the Federal Court of Australia.

The appointment of a Chief Justice is a rare moment in history. Your Honour is only the third Chief Justice to be appointed to this Court.

Last week, I had the honour of addressing a ceremonial sitting of this Court to farewell your predecessor, the Honourable Dr Michael Black AC, and I am pleased to see him here today to wish you well on this auspicious occasion. In my address, I reflected upon the many changes that the Court had implemented during his Honour’s tenure.

Your Honour takes on the role of Chief Justice at an exciting time in the Federal Court’s development. With the many virtues that your Honour brings to this office, I have absolute confidence that this Court will have strong and effective leadership in the years ahead.

Your Honour is known for your intellectual talent. Born in Brisbane, you were educated at St Joseph’s College and later graduated from the University of Queensland with a Bachelor of Arts and a Bachelor of Laws with First Class Honours. Your Honour exhibited a particular flair for the law at this early stage. Your Honour won the University Medal in Law in 1976. You then studied at Oxford University where you were awarded a Bachelor of Civil Law with First Class Honours.

It is clear that your Honour’s love of reading and learning has not diminished. Your service as a member of the Supreme Court Library Committee from 1989 to 2005 and as Chairman of the Supreme Court Library Collections Subcommittee since 2006 is testament to that.

Your knowledge is not limited to the law. I understand that your Honour’s recent contribution to a book on prominent champagne houses allowed you to combine your prodigious knowledge of history with some of your other passions – a love of France, good food, and fine wine.
You have a remarkable capacity to absorb the written word. In fact, one colleague commented that your Honour appears ‘to have the entire case content of Lexisnexis in [your] head’.

Your Honour’s achievements throughout your career demonstrate your ability to apply that knowledge in a logical and useful way. By combining this talent with your commitment to justice and passion for the law you have achieved much.

Your Honour was admitted as a solicitor to the Supreme Court of Queensland in 1976 and as a Barrister in the following year. Your Honour had a successful private practice at the Bar until 2005, concentrating principally in commercial and constitutional law.

Your colleagues have said that as a Barrister ‘You set a standard of professionalism that was impossible to match’. And your high ethical and professional standards made you an outstanding exemplar for the Bar and the legal profession.

Your Honour’s great skill as an advocate was recognised when you were appointed Queen’s Counsel in 1988 after just 11 years at the Bar. In 1992, you were appointed Solicitor-General for Queensland. In this role, your Honour appeared before the Full Court and High Court in a great many leading cases.

That your Honour was the only Barrister in Australia to be asked to speak at the High Court Centenary Conference in 2003 demonstrates the great esteem in which you were held. In that same year your Honour was awarded the Centenary Medal.

In 2005, your Honour was appointed to the bench of the Court of Appeal of the Supreme Court of Queensland. It goes without saying that you will be deeply missed by that Court – but as the former Chief Justice commented in his farewell address on Friday, you are sure to be welcomed by this Court in your new role.

In recent years your Honour has helped to define the operation of the law through your appellate determinations. Your Honour’s judgements, particularly in criminal trials, will leave a permanent impression on this branch of the law.

That expertise will be invaluable to the Federal Court as it develops its new criminal jurisdiction.

Throughout your career you have always given back to the law. You have served as Deputy Chairman of the Queensland Law Reform Commission and you have maintained memberships of both the American Law Institute and the Australian Association of Constitutional Law Inc. You recently took up the role of President of the Australian Institute of Judicial Administration after serving as a member of the Council since 2006.

As Chair of the Projects and Research Committee your Honour has been responsible for significant projects, including the Bench Book for Children Giving Evidence in Australian Courts and the Solutions-Focussed Judging Bench Book.

I have observed the collegiate culture of the Federal Court. That is a real strength and your Honour will add to that culture.

Your former colleagues of the Supreme Court of Queensland describe your Honour as witty and good humoured. Your warm and considerate manner is welcomed by colleagues and friends. These attributes will serve your Honour well as you communicate your vision for the future to this Court.

I have observed that your Honour has already turned your mind to the future development of the law and of this Court. I’m sure your Honour will find willing partners in the judges of this Court. They have been real innovators in ensuring that the law – even at this high level – is accessible.

I am confident that with the skills and attributes that your Honour brings to the Court, including your intellect, passion for justice and the law and - most importantly - your vision, you will join your predecessors as a great leader of this Court, and build on its proud history.

On behalf of the Government and the Australian people, I extend to you my warmest congratulations on your appointment as Chief Justice and welcome you to the Bench of the Federal Court of Australia.

May it please the Court.

Family Court: step-mother v. mother

The recent Family Court case of Darwin and Gryner is an illustration that a link by affection and care of the child can count more than a link by blood.

Justice Barry ordered that on an interim basis that a 10 year old boy live with his step-mother and not his mother. The father had died in 2008. Since then the parties had been to  mediation  when they agreed that the child was to still live with the step-mother, who although she had not lived with the father had been in a long term relationship with him.

The child had not seen his mother in 5 or more months. The mother was not consistent in exercising telephone contact with her son. More significantly, the mother sought that the son live with her, even though she was a virtual stranger to the child, at a time when her partner was a convicted sex offender. The child wanted to remain living with his step-mother. The mother had 5 other children all of whom, for various reasons, left her care.

Justice Barry allowed the mother to see the child for short periods of time, provided that her partner was not present.

His Honour had this to say:

The child is in a invidious position in that at a young age he’s lost his father, he has not had a relationship with his mother and it is well known that if children have a parent that they’re not having a relationship with they tend to fictionalise or fantasise or idealise, that relationship. It’s far better that the child has a relationship with the surviving parent so the child can have concrete thoughts based in reality.

I do have to question her commitment if she’s not making any phone calls and the court will be looking at that aspect to say, well, if you’re serious about wanting this child, to have a relationship with him, you should be making a greater effort to either communicate with him by post or by phone calls.

Sunday, 21 March 2010

Kids and property settlement

I have been asked whether where children live can make a difference to property settlement, and does it mean that property settlement cannot be dealt with until the kids matter has been sorted out.

The answer to both questions is a big "maybe".

The answer lies in section 75(2) of the Family Law Act, for married couples, and the equivalent provisions for de facto couples (those outside SA and WA and separating from 1 March last year) of section 90SF(3) of the Family Law Act.

Just to recap, there is a four stage process of property settlement:

  1. Identify and value the pool
  2. Assess financial and non-financial contributions
  3. Consider, and if necessary adjust for future factors under section 75(2) or section 90SF(3)
  4. Come up with a just and equitable result
Why in general terms arrangements for children need to be sorted out first before property settlement is contained in section 75(2) (and section 90SF(3). Here are the relevant factors under section 75(2) (equivalents under section 90SF(3)):

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; 

[Comment: If a party has full time care of young children the party may have very little capacity for appropriate gainful employment.]

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
[Comment: The younger the child, generally the more impact on section 75(2) components. For example, the care arrangements for an 18 month child may have a much bigger impact than for a 17 year old.]

(d) commitments of each of the parties that are necessary to enable the party to support:

(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain
[Comment: Again, generally younger kids equal higher adjustment. However, every case is different, as the Family and Federal Magistrates Court keep emphasising. A child who is going to an expensive private secondary school might result in a significant adjustment.]

(e) the responsibilities of either party to support any other person;

(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

(l) the need to protect a party who wishes to continue that party's role as a parent;

(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
[Comment: Child support may vary depending on the care arrangements. Substantial child support payments may impact on what adjustment there might otherwise be under section 75(2).]

The care arrangements for children can make a big difference to property settlement. Property settlement might not be able to be determined until the children's matter is sorted out. If going to court about children's proceedings, substantial costs might be saved to tack property proceedings onto the end of those proceedings, rather than have a separate fight and increasing costs as a result. Each case is different.

WARNING: Time limits apply to property settlements and spousal maintenance- 1 year from date of divorce for married couples, and 2 years from date of separation for de facto couples. After that time, leave (or permission from the court) is required to commence proceedings- and is not automatically given. If in doubt, get advice from an accredited family law specialist, like me.

Saturday, 20 March 2010

12 points in getting leave to adopt

Twelve points in getting leave to adopt

  1. The father was violent and abusive to the mother.
  2. The father lost interest in the child, and did not seek to spend time with him or her.
  3. The father resented paying child support, and either did not pay, or was substantially in arrears.
  4. The mother had remarried or repartnered. Her new relationship was loving and stable.
  5. The new partner had parented the child from when the child was young- infancy or toddler.
  6. The new partner was seen by the child as a father figure.
  7. The child had a strong, loving relationship with the mother's new partner.
  8. The child knew about the existence of the natural father.
  9. The child wanted the mother's partner recognised as his or her father.
  10. The father did not want to be involved in the court proceedings- either evading service or when served not turning up.
  11. It was clearly in the best interests of the child for leave to be granted.
  12. The parties are eligible to adopt and the child is eligible to be adopted  in that State or Territory.
If parties are seeking to adopt a child in Australia where the child is the child of a marriage of one of them, then the adoption will not be effective unless the intending adoptive parent or parents obtain leave (or court permission) to adopt under the Family Law Act.

Without leave to adopt, the child remains a child of the marriage, irrespective of the adoption. With leave to adopt, the natural parent (usually the father) has no rights or responsibilities (such as payment of child support) relating to that child.

The reason that the section of the Family Law Act, section 60G and related provisions were inserted into that Act was because it was perceived by Parliament that women were freezing men out of having contact with the ir children. The preception was that mothers who had repartnered were ensuring that either the new partner adopted the child, or the mother and new partner adopted the child, resulting in the child no longer being a child of the marriage.

The odd provision about section 60G is that, with the exception of the NT and WA, and if cleverly used the ACT, applications for leave to adopt cannot be made in the same proceedings as the adoption proceedings. In the NT the application is made to the Supreme Court, WA to the Family Court of WA. Everywhere else, the application for leave to adopt is made to the Family Court (but not the Federal Magistrates Court), but the adoption proceedings are conducted elsewhere- for example in NSW in the Supreme Court and in Queensland in the Childrens Court.

The other odd provision about section 60G is that it is a standalone procedure. In Queensland for example, Adoption Services Queensland requires leave to adopt to be given first before applying to adopt. Any step-parent thinking of adopting therefore needs to factor in delays caused by the two step process. Step 1- apply for leave to adopt. AFTER that has been obtained, THEN step 2- apply to adopt.

Section 60G is an obscure provision of the Family Law Act. Most family lawyers, from my discussions, have never made an application under this section. I have made several, all successfully (touch wood). Ignorance of family lawyers about this section has meant that when several clients came to me asking for advice, and had previously been to a family lawyer, the option of adoption, and leave to adopt, had not been raised by the lawyer. An example of when lawyers did not know what they were doing can be seen here.

Another odd provision is whether or not you have to serve the State adoption services. I do not know what the practice is throughout Australia and can only comment on Queensland. My first application for a client was a long time ago. In those days (before the High Court decision in Re Wakim) the Family Court also had the jurisdiction of the Supreme Court of Queensland. I served the State adoption services, in part because my clients were seeking dispensation of the consent of the father to the adoption. This was an order that could only be made in the adoption proceedings by the Supreme Court. I managed to obtain leave to adopt and dispensation of consent in one go, saving my clients delay and cost.

However, since that case, whenever I have served the State adoption services since, they have returned service copies of the documents to me, as they were not interested, taking the view that leave to adopt had nothing to do with them. I always figured that as the State authority they should be accorded procedural fairness, and I could always tell the court that a copy had been provided, even if the service had then sent it back. (Of course I would tell the court that, too.)

As will be seen below, it seems that in Queensland at least that State adoption services now want to be served.

With overdue changes to Queensland's adoption laws, to allow de facto couples for the first time to adopt in this State, there has been a rush of applications for leave to adopt. All those applications, except one, have been beofre Justice Murphy, who has set out standard reasons in his judgments

Howard and Horta (2009)

Justice Strickland stated:

The question to be answered in an application under s 60G is if the applicants bring adoption proceedings and if those proceedings are successful would the children’s best interests be better served by the adoption having the wider consequences under the Family Law Act which the granting of permission for the adoption application would give it.

Hutchens and Franz (2009)

This was an altruisitc surrogacy in which leave to adopt was sought before Justice Strickland in Adelaide. I note that the intended parents (unlike Re Michael: Surrogacy) appeared to be eligible to adopt in South Australia. Leave was granted.
Re Michael: Surrogacy (2009)

Intended parents from a surrogacy arrangement in NSW were refused  leave to adopt by Justice Watts because they were not eligible to adopt in NSW.

Benson & Orlando (2009) - doing it smart

The mother and her partner not only obtained leave to adopt, but ensured that they also obtained an order that they share parental responsibility,  that the child live with them, and that the child's name be change don the birth certificate:  useful first steps before the adoption application succeeds.

Morrison and Anor & Starter (2009)

The mother and her partner not only obtained leave to adopt, but ensured that they also obtained an order that they share parental responsibility, that the child live with them

Brooks and Sloan (2009)
The significance of this decision was that the court required a family report to be prepared first, before considering granting leave to adopt. It also found that the practice of NSW DOCS was not to order such an assessment before granting leave to adopt, but only after that step had been undertaken, as part of the adoption applicaiton itself.

Justice Austin also said that he needed to consider, in the best interests of the child, the list of matters under section 60CC of the Family Law Act.

Carter and Jackson (2009)

Justice Mushin stated:

The relevant factors [as to the best interests of this child] to my mind start with the proposition that there is a lengthy status quo of parenting of the child for most of her life, not just by her biological mother but by Mr Carter, her social father. It would appear that on the basis of all the expert evidence and on the basis of the material to which I have referred, the child does not have the sense of identity which she would acquire were she to be adopted by Mr and Mrs Carter together. While this is not necessarily applicable to all children, it is clear that it applies in this particular case. She would appear to have some developmental difficulties, although hopefully at this stage not too advanced, and all of the evidence points towards the proposition that adoption is a realistic possibility for enabling her to improve those difficulties and to live a happy and fulfilled life.

Falconio and Conchita (2009)

Justice Faulks exercised the jurisdiction of the ACT Supreme Court as well as that of the Family Court. His Honour gave leave, and an adoption order, after the father had refused to consent. However, the father also did not oppose the applications.
Somerville and Somerville (2010)

Justice Mushin gave leave to adopt. Adoption Services Queensland consented to leave. His Honour stated:

This application does not create an order for an adoption. It is simply, if granted, an expression by this Court that there is no impediment to the relevant parties proceeding in the Children’s Court of Queensland to seek to adopt the subject child. The question of the merits of that application is not a matter for this Court, it is a matter for the Children’s Court.

And now for Justice Murphy...

Dixon and Ferrier (2010)

Justice Murphy refused leave to adopt. The mother and her partner sought leave to adopt and dispensation of service of that application. There was no evidence about what efforts they had made to contact the father, although they stated that a process server had been engaged. In an own goal for the intended adopters, the court telephoned the father who said that this was the first anyone had told him about it, and he was opposed to it. He said that the mother and her partner had made it difficult for him to spend time with the child in accordance with the orders.

Joseph and Sadler (2010)

Justice Murphy refused the father's application for adjournment when, if it had been granted the 2 1/2 years spent by the applicants in the adoption queue would have had to be re-started.

Lester and Martin (2010)

Justice Murphy stated that:

In these undefended proceedings, it is appropriate for this court to rely on the presumption that the relevant provisions of the Family Law Act are constitutionally valid. I note, however, that for reasons developed by Dr Jessep in a jointly-authored article, their validity may well be arguable: C.O. Jessep and R. Chisholm, “Step-parent adoptions and the Family Law Act” (1992) 6 Australian Journal of Family Law 179 at 182-185, discussing, in particular, Re LSH; ex parte RTF [1987] .

The parties must be eligible to adopt and the child eleigible to be adopted in that State or Territory.

Re Garwood (2010)

Justice Murphy stated that he had to take into account section 60CC of the Family Law Act, as well as the requirements of the State adoption act. He also stated:

Proceedings for leave to adopt pursuant to section 60G of the Act are, in my view “child-related proceedings” within the meaning of the Act and, specifically, within the meaning of division 12A. That division imposes duties upon the court included among which are to deal with as many aspects of the matter as possible on a single occasion.

Moreover, the court is required to apply a number of principles in the determination of child-related proceedings, all of which are directed towards focusing the court upon the interests of children and the impact of proceedings on children. In my view, those matters apply no less so in proceedings of this type.

I note, in particular, section 69ZN of the Act requires the court to consider the impact that the conduct of the proceedings may have upon the child, and the court is instructed to actively direct, control and manage the conduct of the proceedings and that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible.

As if to underline the last mentioned principle (contained in section 69ZN(7)), section 69ZT makes specific provision with respect to the rules of evidence, and in particular, as it might apply to this case, the rules relating to the receipt of hearsay evidence.

It is important to understand that the decision facing this court is different to the decision which will face the court charged with the decision whether to permit the adoption (which, in this State, after 1 February, will be the State Magistrates Court). The granting of leave does not have the consequences just described; only the order for adoption made by that State court has those consequences

Justice Murphy granted leave in circumstances when the mother did not know who the father, as the child had been conceived from a one night stand.
Re McIlroy (2010)
Justice Murphy granted leave in similar circumstances to Re Bairstow:
His mother conceived of him  [ a child now aged 7] at a time when she was 16. She deposes to the circumstances of the conception in her affidavit. She says that she went to a party, drank alcohol for the first time, has no recollection of the events of the night, including having no recollection of having sexual relations with anyone. She says that it wasn’t until some seven weeks later that she “started to develop symptoms of pregnancy.” By implication, it is suggested that no pregnancy could have occurred with any other person in the intervening time.

Berry & Wratten (2010)
Justice Murphy granted leave after dispensing with service on the father, which had also happened in separate adoption proceedings.
Black & Duncan (2010)  Sedgman and McMullen (2010)
In Black and Duncan, Justice Murphy granted leave to adopt 4 children, when the father proposed that the stepfather adopt the children, and told the court that he supported the adoption process.
In Sedgman and McMullen, Justice Murphy granted leave to adopt a child when the father proposed that the stepfather adopt the child, and told the court that he supported the adoption process.
Thomasson and Stewart (2010)
Justice Murphy, again:
It will be plain that the consent of J’s father is a precondition to the State Magistrates Court granting the order for adoption, and is therefore, in my view, an important matter to be taken into account by this court in deciding whether to grant leave. The facts and circumstances of this case are redolent of the consent of the father having been given to the process of adoption and, furthermore, in my view, Division 12A of the Act applies to applications pursuant to 60G of the Act by reason of these proceedings being “child-related proceedings” within the meaning of the Act.
Levine and Popenko (2010)
Justice Murphy granted leave where the natural father was dead, and neither he nor his extended family had "little to do with the child either during the father’s lifetime or since

 Murray and East (2010)  
Justice Murphy granted leave when the father could not be located.

Missing kids- please help

All too often, Australian parents abduct and hide their children. The Family Court of Australia, the Federal Magistrates Court and the Family Court of Western Australia publish  lists of missing children as the last resort to help try and find these kids.

If you can help, call:

Crimestoppers 1800 333 000

Australian Federal Police 02 6126 7777

Family Court of Australia and Federal Magistrates Court call centre (except WA)

Opening Hours:8.30am to 5.00pm Monday to Friday

Phone: 1300 352 000 (except WA)


Fax: 02 8892 8585
Western Australia: Crimestoppers: 1800 333 000 or your local police station
Michail Sergeev Ivanov

Born: 18 May 2000
Sex: Male

Hair: Dark Brown

Eyes: Dark Brown

Height: 150 - 153 cm

Weight: 70 kg

Michail was last seen by his mother with his sister and father at Joslin Reserve, 4th Avenue, Joslin, South Australia. The Family Court is asking for assistance from the public to help locate Aleksandra and her brother Michail.

Distinguishing marks:

Michail is solidly built tending to be overweight.


This is a matter under the Hague Convention on the Civil Aspects of International Child Abduction. The child has been wrongfully removed from the Republic of Bulgaria.

Where child might be now:


Michail is believed to be with his sister Aleksandra, their father Sergei and possibly their grandmother Penny Ivans or people associated with her father.

Aleksandra Sergeeva Ivanova

Born: 26 September 1998

Sex: Female

Hair: Light Brown

Eyes: Hazel (yellowish-green)

Height: 155 cm

Weight: 70 kg

More Information

Aleksandra was last seen by her mother with her brother and father at Joslin Reserve, 4th Avenue, Joslin, South Australia. The Family Court is asking for assistance from the public to help locate Aleksandra and her brother Michail.

Distinguishing marks:

Aleksandra is solidly built tending to be overweight.


This is a matter under the Hague Convention on the Civil Aspects of International Child Abduction. The child has been wrongfully removed from the Republic of Bulgaria.

Where child might be now:



Aleksandra is believed to be with her brother Michail, their father Sergei and possibly their grandmother Penny Ivans or people associated with her father.

Andrew John Thompson

Born: 19 August 2004

Sex: Male

Hair: Fair

Eyes: Brown

Height: 1.2m

Weight: 22 kg

More Information

The Family Court is asking the public to help locate Andrew.

Melinda Margaret Thompson

Melinda Margaret Thompson took the child to Germany on 24 April and neither has been seen since. Anyone with any information about the location of Andrew or his mother is asked to contact the the Australian Federal Police on 02 6126 7777. Anyone recognising the mother is asked not to approach her but to contact the AFP on the above number which applies in all states and territories.

Aaliya Kachina Kinny
Public help is being sought to find a six-year-old girl who has not seen her father since July 2005.

Aaliyah Kachina Kinny hasn't seen her father since then, despite a court order stating the three-year-old should live with him.

Jane Kinny (AKA Vivien Kinny)

Police have asked the public to help find Aaliyah, who is believed to be with her mother, Jane Kinny (also known as Vivien Kinny) and her 16-year-old half-sister, Aurora Kinny. They are probably accompanied by two small white maltese cross poodles.

"I haven't seen nor heard from Aaliyah since early July 2005, when she didn't return from a contact visit with her mother," Aaliyah's father said.

"Since losing Aaliyah I haven't been able to concentrate, work or organise my life. I've been affected mentally, emotionally and physically. I'm always looking for her. Every time the phone rings I hope it will be good news telling me where she is and that I can go and get her, but there is nothing."

He has appealed to anyone who has seen Aaliyah or Jane to contact Crime Stoppers with information as to their whereabouts.

"I live in New South Wales, but I've been to West Australia and back searching. The police now think that she may be back in New South Wales and that her mother has changed her name to avoid police," he said.

"I'm so worried my little girl is going to live her life hiding from authority. What kind of life is that for a child? What will happen when she is sick, or needs to go to school?"

Aaliyah was born on 25 May 2002. She has blond hair, blue eyes and a slim build. Jane Kinny, 50 (born on 3 July 1958), is about 160 cm tall, with blue eyes and slim build. Her hair is currently believed to be brown or red.

A recovery order has been issued authorising all members of the Australian Federal Police, State and Territory police forces and the Marshal of the Family Court to recover the child.

Reya Lunetta AKA Hira

Born: 19 June 2001

Sex: Female

Hair: Light brown/blonde

Eyes: Blue

Height: Unknown

Weight: Medium build
More Information

Distinguishing marks:Reya has a brown birthmark on the sole of her foot; a red mark on the rear of her head.
Public help is being sought to find an eight year old girl from the United States who is believed to be in Australia.
Camilla Ellefsen Lunetta AKA Zelma Lunetta

Reya Lunetta (also known as Hira) was removed from the United States of America in mid 2002 by her mother, Camilla Ellefsen Lunetta (also known as Zelma), without the consent of her father or an order from a relevant court in the United States. It is believed the mother and child arrived in Perth in August 2003, but are now living in the eastern states of Australia.

The matter is currently the subject of a Hague Convention on the Civil Aspects of International Child Abduction application in the Family Court of Australia. Both Australia and the United States are signatories to the convention. The Family Court of Australia has issued an order authorising all members of the Australian Federal Police, State and Territory police forces and the Marshal of the Family Court to locate the child.

Reya is 8 1/2  years old with blue eyes and a fair complexion. She has a brown birthmark on the sole of her foot and a red mark on the rear of her head.

Camilla Ellefsen Lunetta AKA Zelma Lunetta (Mother)

Born: 12 February 1973
Sex: Female

Hair: Brown, usually shaved but may be grown out

Eyes: Light blue/grey
Height: 5'8" (173cm)

Weight: Slim build

Camilla Lunetta, 37, is about 173 cm tall and of slim build. She has a fair complexion and light blue/grey eyes. She has brown hair, which may be shaved or coloured. She may also speak with a northern European accent. She has a brown birthmark on her left forearm, a tattoo of her own profile on her right shoulderblade and a chip in her front tooth.

Sylvia Mitchell AKA Laughton AKA Handy-Briar

Born: 5 July 1996
Sex: Female
Hair: Black
Eyes: Brown
Height: Unknown
Weight: Unknown

Elizabeth and Sylvia have not had contact with their father since their parents divorced in 2001. It is believed Elizabeth and Sylvia are with their mother Samantha Mitchell or associated people, and may be living within the Aboriginal community in the Northern Territory.

The photos of the children were taken when the girls were 2 and 3 years old.

Please contact the Australian Federal Police on 1800 333 000 if you have any information about the location of Elizabeth and Sylvia, or their mother Samantha.

Elizabeth Mitchell AKA Laughton AKA Handy-Briar

Born: 28 August 1995

Sex: Female

Hair: Black

Eyes: Brown

Height: Unknown

Weight: Unknown


Elizabeth and Sylvia have not had contact with their father since their parents divorced in 2001. It is believed Elizabeth and Sylvia are with their mother Samantha Mitchell or associated people, and may be living within the Aboriginal community in the Northern Territory.

The photos of the children were taken when the girls were 2 and 3 years old.

Please contact the Australian Federal Police on 1800 333 000 if you have any information about the location of Elizabeth and Sylvia, or their mother Samantha.

Samantha Mitchell

Born: 27 May 1975

Sex: Female

Hair: Black usually lon

Eyes: Brown

Height: 165 cm

Weight: Solid build

Samantha Mitchell (nee Hicks but also known as MacQuillan, McQuillan, Laughton and Handy-Briar), mother of Elizabeth and Sylvia Mitchell.

Elizabeth and Sylvia have not had contact with their father since their parents divorced in 2001. It is believed Elizabeth and Sylvia are with their mother Samantha Mitchell or associated people, and may be living within the Aboriginal community in the Northern Territory.

Michael James Reid

Born: 27 October 1994

Sex: Male

Hair: Sandy brown - was short (as per photo)

Eyes: Brown hazel

Height: 150cm

Weight: 40kg

More Information

Wears a silver chain with lucky horn, has a number of small brown moles down his lower left cheek and throat. Blind in left eye, fair eyebrows, prominent ears, walks with a slight stoop/hunch as he has a slightly sunken chest, slightly receding lower jaw.

Any information as to Michael’s wherabouts should be given to the Australian Federal Police on 02 6126 7777 (this number applies in all states and territories).

Katelyn Brianna Lewis AKA Madden



Date of birth: 8 February 2000

Age now: 10

Date missing: June 2008

Sex: Female

Hair - colour, length etc: Light brown / mid-length

Eyes - colour: Brown

Complexion / ethnicity: Caucasian with fair to olive skin

Weight / build: Average to slim build

Height: Average

Description of last contact: Katelyn's father last saw her in June 2008

Photograph details: Photo was taken in March 2008.
It is believed that Katelyn is with her mother, Rebecca Lewis (also known as Rebecca Madden).

Rebecca Jane Lewis AKA Madden

Age: Born 9 October 1979, age 30

Hair: Brown, mid to long in length

Eyes: Unknown

Complexion: Caucasian with fair complexion

Height / Weight: Short, heavy build

Ethnicity: Australian

Possible whereabouts: It is not known, but Ms Lewis may be northern Tasmania or South East Queensland.

A recovery order was issued by the Federal Magistrates Court of Australia on 16 December 2009. Despite this order and many other efforts to find Katelyn and her mother, they have not been located.

Ms Lewis may be travelling with her husband and her three other children.

Benjamin Drew Jones

Date of birth: 1 April 1998

Age now: 11

Date missing: 10 February 2010

Sex: Male

Hair - colour, length etc: Darke Blonde

Eyes - colour: Blue Grey

Complexion / ethnicity: Caucasian

Weight / build: 40kgs, Thin Build

Height: 153 cms

Description of last contact: Believed to be in the care of his father, Andrew Lucas JONES

Photograph details: Photo was taken in December 2009.

Andrew Lucas Jones (Father)

Age: Born 1 June 1969, age 40

Hair: Dark Blonde, Thinning

Eyes: Grey

Complexion: Fair

Height / Weight: 168 cms, 80-85 kgs

Ethnicity: Caucasian

Possible whereabouts: Suburban Adelaide, Christies Beach

Last known vehicle: Holden SS Commodore Sedan, Silver, South Australian Registration No. XNAOO7

Wednesday, 17 March 2010

Family Court: lesbian couple and child can be a family under Family Law Act:

Tuesday, 16 March 2010

Family Court case: a hollow victory

The recent Family Court case of Allen and Green is an example of being careful what you wish for.  The matter originally came before Federal Magistrate Sexton who, in considering two reports, one being by Richard Chisholm and Jennifer McIntosh on the risks with shared care, decided to cut down the amount of time between the father and children by one night a fortnight.

Justice Boland, sitting as the Full Court, determined that Federal Magistrate Sexton's discretion had miscarried. This was because the Federal Magistrate had only briefly referred to one of the reports in cross-examination of the expert psychiatrist, and did not otherwise mention it to the parties or invite submissions on it, did not mention the other report at all, but it was clear that her Honour's decision was based at least in part on that research.

But the real interest is what the father achieved by succeeding on the appeal. The answer is: not very much. In many ways it was a hollow victory.

The matter originally came on for hearing before Federal Magistrate Sexton in April 2009. It was listed for 2 days. The court was told by the parties' lawyers on day one that it could not finish in that time and would take 4 days. Demonstrating the workload of her docket, her Honour allocated new dates - a year later, in April this year.

The father no doubt then thought that the best course to take was to appeal, given that one day a fortnight had been taken from him.

His appeal was filed in May 2009. The appeal was not heard until October 2009. Due to Justice Boland's workload, with a timeframe that was not particularly unusual, judgment was delivered in February this year, 10 months after the original orders and 2 months before the 4 day trial.

Justice Boland upheld the appeal and stayed the order reducing the time by one day a fortnight. The matter ultimately was sent back to the Federal Magistrates Court for further hearing- no doubt to be heard by Federal Magistrate Sexton!

The answer of the substantive outcome was obvious:

The reality is that it is now approximately ten months since the making of the orders the subject of appeal. I could not appropriately re-determine this matter without the parties having the opportunity to file updating material. In circumstances where final hearing dates have been allocated in April 2010 the practical solution must be that the parties should devote their resources to the final hearing when the Federal Magistrate will have the ability to hear all the evidence and see the parties in the witness box to arrive at a decision which is in the best interests of these children.

Monday, 15 March 2010

Family Court: jail may not stop child support payments

In the recent Family Court case of Balzano and Balzano, going to jail for soliciting to murder the wife did not relieve the husband from an obligation to pay child support to the wife.

Justice Warnick, sitting as the Full Court said:

Should a payor of child support under a child support agreement be relieved of liability for arrears, which accrued while he was in prison, convicted of “soliciting to murder” the payee, mother of the children concerned?

The husband sought to set aside the child support agreement on the grounds of "exceptional circumstances" not contemplated at the time of the signing of the agreement, and "hardship".

The wife, in opposing the application said:

Exceptional circumstances must surely amount to circumstances which had not been contemplated by either party when the Agreement was entered into. It was the Appellant’s own conduct that caused him to be incarcerated. Any person who commits a crime, does so in the knowledge that if they are caught and convicted, it is highly likely they will go to prison. The legislation would not have intended for criminal activity to be considered an exceptional circumstance. If the Appellant is found to have satisfied the criteria for exceptional circumstances on the basis of his incarceration, then surely this allows him to benefit from his own criminal behaviour and criminal behaviour of a most heinous type, that of Soliciting to Murder, directed at me, the other party to the Agreement. It is not in the public interest for criminal conduct, particularly in the context of Family law situations and Binding Agreement, to be seen to be rewarded.
Justice Warnick held:

Though at a particular time a payer might not have had capacity to meet a level of child support, that circumstance is far from conclusive as to whether arrears should be “expunged”.

All that the father carries is a debt owing. He does not, at this point, face any other interference with his financial affairs. I am unaware of any current enforcement proceedings.... I think two relevant questions in the overall exercise of discretion are these: What is the justice, not as a matter of public policy or condemnation, but as bearing on the justice of the alternatives available, of relieving the husband of his obligations under the agreement, when the very basis of his application arose from a criminal act of which the mother was the intended victim? How fair would it be to the mother, having carried alone the financial burden of raising the children for four years, if the father prospers, [as he well might - though I make no finding that he will] but has been relieved of any obligation to reimburse the mother?

In my view, justice between the parties can be adequately addressed if and when any enforcement proceedings are brought, when the capacity to pay at that time and the circumstances in which the debt occurred, can be weighed and balanced.

His Honour stated that "hardship" did not exist now for the husband as no enforcement action had been taken.

Family Court: tension in balancing children's matters

A recent Family Court case pointed out

the tension between, on the one hand, the capacity, indeed the duties of Courts considering parenting orders, firstly, to make the orders found to be in the best interests of the children, irrespective of the orders sought by each party and, secondly, to follow the “legislative pathway”, which may involve compulsory consideration of equal time and substantial and significant time for children with each parent and, on the other hand;

the many pragmatic and forensic reasons for hearing a case within the parameters set by the parties.

In Whisler and Whisler each of the parties tired of week about care of the children. Each sought that the children live primarily with that parent and have alternate weekends with the other. They had mirror proposals.
The Magistrate rejected week about care, preferring the mother's approach.
The father's counsel:
... raises another aspect: the Federal Magistrate should have addressed the “concept” of equal time, not just an arrangement of “week-about”. Asked whether she was suggesting Phipps FM should, for example, of his own selection, have considered “month-about”, [the father's counsel] answers in the negative, but argues that he should have considered shorter periods of rotating care than week-about, such as 3 days/4days.

As this submission also applies to the argument that the learned Magistrate should have addressed various possibilities of “substantial and significant time”, and in that respect, for reasons that will appear, the argument seems less abstract than in relation to the question of equal time, it will be considered in the following discussion.
For the present, I simply record that no party sought or even raised any other arrangement for equal sharing and there was no evidence directed to such arrangements and their consequences, such as changeovers in the middle of the school week.

Justice Warnick, sitting as the Full Court, while accepting that the magistrate had dealt with substantial and significant care, stated that it was highly desirable that the magistrate, whilst considering the question of substantial and significant time, do so in a clear and discernible manner.

Family Court case: extraordinary costs

A recent Family Court case, Stephens and Stephens  is an illustration of the enormous costs that can be incurred when matters wend their way through the system, backwards and forwards. The court commented:

Litigation has now been on foot for almost eight years and has cost hundreds of thousands of dollars in legal costs. No quantification of the public cost is possible, but it must be assumed that it has also been extraordinary.

The case started in 2002 when the wife filed proceedings for property settlement.

The trial was held in 2005 and orders were made for payment to the wife. By this stage, the wife's legal costs were estimated to be about $300,000.

The husband did not like the outcome of the trial and appealed. The matter was appealed to the Full Court then to the High Court. By the time of the High Court judgment in late 2008, the wife's costs were almost $700,000.

In early 2009, the wife engaged in self-help. She entered the husband's home and took $4.42 million in cash. Ex parte orders were made to preserve the money. The money was then banked to the wife's solicitors' trust account.

The wife then made application for enforcement. On the first day of that trial in February, 2009, the husband assigned about $1 million of the frozen monies to the wife. He was allowed to keep $50,000. $100,000 of the monies that the wife received was paid to her lawyers in costs.

That judge, Justice Coleman, ordered that the husband pay about another $1 million to the wife and a further $500,000 for interest. The wife then received that $1.5 million.

The husband was not happy with this outcome, and again appealed. He sought and obtained a further stay. The wife repaid the $1.5 million back to her solicitors.

The Full Court then delivered its judgment on Christmas Eve. The wife must have thought her Christmases had come at last, because the Full Court ordered not only that she receive the $1.5 million, but a further $250,000 as further interest.

The latest manifestation of the case, Stephens and Stephens (Stay Application) was an application by the husband in February for a stay of orders made by the Full Court on Christmas Eve, pending an application to the High Court for special leave to proceed.

The starting point with a stay or freeze application, is to apply to the court immediately when the orders are made, or as soon as possible after that, because otherwise money can be paid out that can't be put back. The husband put the wife on notice on the morning of Christmas Eve that a stay application would be made after judgment was delivered later that morning, but then did nothing until February.

In the meantime, the wife's solicitors paid her the $1.5 million, the balance interest remaining to be paid by the husband. Not surprisingly, this time around the wife bought a home, and invested the balance.

By the time the matter came before the Full Court, the wife undertook to preserve these funds, pending the outcome of the High Court proceedings. The husband sought that the monies paid to the wife be repaid into her solicitors' trust account, an approach opposed by her and, not surprisingly, not adopted by the Full Court:

In summary, in our view, the evidence clearly demonstrates that the Wife currently has more than adequate assets to support the undertaking. In our view, the evidence does not establish that the two matters that were identified in the submissions in support of the application could be described as reckless, wanton or negligent. We are not persuaded that there is evidence that the Wife is a spendthrift or that she would dissipate her assets such that we could infer that she would take steps to put at risk her financial position by incurring significant unsecured liabilities.

The Wife as the successful party is entitled to the benefit of our judgment of 24 December 2009 and a relevant matter is any loss that she may be caused in the event that a stay was granted. In her affidavit the Wife set out in some detail her financial circumstances and what has happened since proceedings were commenced in 2002. Ultimately, in 2009 the Wife acquired a home for her personal accommodation and to enable her to pay the cost she obtained a loan for $1,096,500.00. If the Wife paid interest at the rate of 6.76 per cent then she would be required to pay around $5,500.00 per month. However, in December 2009 the Wife obtained the amount of $1,516,525.80 and used a significant portion of the funds to repay the debt and thus significantly reduced her outgoings. The Wife is in receipt of a salary of $16,000.00 per annum and dividend/interest income.

If the Wife had not received the amount of $1,516,525.80 in late December 2009 she would still have a debt of $1,096,500.00 owed to Westpac Banking Corporation and not have the full benefit of the orders she obtained over four years ago in November 2005.

If the Wife had to repay the amount of $1,516,525.80 she would have to borrow a significant portion of this amount and probably also realise a large portion of her share/cash at bank portfolio. The Wife would have borrowing costs, periodic repayments and reduced dividend/interest income. We observe that no suggestion was made by the Husband that, either in his personal capacity or as trustee of the Stephens Trust, he would pay to the Wife any shortfall between the loan repayments and interest on any funds invested by the stakeholders, borrowing costs and the amount of reduced income of the Wife. However, on one view, this is understandable because the Husband and the Stephens Trust do not have the ability to make any payments. In our reasons of 24 December 2009 we explained what the Husband contended he did with the amount of $1,345,219.84 that he received in April 2009 from the funds held by the stakeholders.

In summary, the order sought by the Husband as trustee of the Stephens Trust would cause significant loss to the Wife which could not be compensated for in the event that the special leave application was refused, or if allowed, the appeal was dismissed.

The Full Court dealt with the principles of a stay application:

The mere filing of an application for special leave to appeal to the High Court does not operate as a stay of execution of the orders in respect of which leave to appeal is sought. Further, there are no provisions in the Act or the Rules that directly address the question of a stay of orders of the Full Court pending the determination of an application for special leave. Nevertheless, it is well established that when an application for special leave to appeal is made to the High Court, the jurisdiction to grant a stay may be exercised by the court below and it is to that court (that is, the court in which the matter is pending and which is familiar with the matter) that an application to stay should be made: Fauna Holdings Pty Ltd and McGillivray v Mitchell [2000] FamCA 548; (2000) FLC 93-024; Tate and Tate (No 4) (2003) FLC 93-139. As such, it is not controversial that this Court has the power to grant such a stay.

However, the jurisdiction to grant a stay pending an application for special leave to appeal to the High Court is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted....

In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject matter of the litigation, it is relevant to consider —first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

Sunday, 14 March 2010

Family Court case: balancing violence v. ongoing relationship

One of the most common issues in Family Court cases is how to balance the effects of domestic violence against the rights and needs of the child to have an ongoing relationship with the perpetrator of that violence.

A clear illustration of this balancing act was seen in the recent Family Court case of Bookhurst and Bookhurst, a decision of the Full Court. The father appealed from various orders made by Justice Rose. It was common ground that the father had an explosive temper, and had at times beeen violent, including punching a stranger while carrying a baby, and on another occasion while naked holding a knife to his throat in their kitchen, making death threats. The mother decribed that "we":

'lived our family life in constant fear that there was always the trigger of provocation' from unintended word, action or lack thereof, or facial expression, or mention of someone who the father disliked. On the other hand the mother states in her primary affidavit that there were many happy and enjoyable times for the family.

Justice Rose held:

So far as the evidence of the father is concerned in relation to disputed allegations of fact, I have taken into account the admission that he has made of violent behaviour, shouting and tirades directed to the mother and his longstanding difficulties over many years in controlling his outbursts of anger, his recognition of the need to have professional assistance to improve his control over his impulsive poor behaviour in that regard, his continuation of verbal and written abuse of the mother last year, notwithstanding that at the time he had been consulting with a psychiatrist. These proceedings were of course pending last year and obviously that did not result in the father being able to refrain from continuation of his abusive conduct to the mother.

Justice Rose accepted that “the mother has been motivated at all times to ensure that the three children are protected from the effect of the father’s temperamental shortcomings”.

The father appealed from an order requiring him to have supervised time with the children until a report was obtained from a psychiatrist or psychologist. The report had to cover these issues:

(a) The name, place of practice, qualifications, and experience in providing adult therapy.

(b) The Reasons for Judgment given this day has been read by him/her.

(c) The nature and extent of therapeutic treatment provided to the father.

(d) The unqualified opinion that the father does not nor is it reasonably foreseeable that he will pose a risk to the three children or any of them of him of engaging in abusive behaviour, physical or emotional to or in the presence or hearing of the children or any of them regardless of the period of time including overnight periods that may be spent by such children or child in the care of the father.

The father also appealed from an order granting the mother sole parental responsibility in relation to the health, religious and cultural upbringing of the children.

Supervised time/ the order for the report

The Full Court remitted the matter for rehearing on this point, because of evidence of a psychiatrist given on the appeal that no psychiatrist could do ethically what was asked of him or her by the trial judge. The Full Court stated:

As we see it, the issue to be determined is what time should the children have with the father, if it is to be supervised, for how long such supervision should persist, and that some review mechanism be set in place.

 Sole/shared parent responsibility

Justice Rose stated:

So far as the major long term issue of religious and cultural upbringing is concerned, the children have been brought up in a household in which the Jewish religion and culture has been celebrated at the behest of the mother, her extended family and with the positive support of the father. To that extent, it has been to his credit as otherwise discord would have been a further potentially troubling issue to be dealt with, not only by the parties, but also by the children. However, communication between the parties is poor and the father has a history of being prone to abusive outbursts to the mother which cannot be understood in the circumstances which then prevailed. Until such time as the father has the benefit of therapy, I do not have confidence that communication in relation to those matters between the parties is likely to be fruitful. Consequently, I have found that it is in the best interest of the children that the mother have sole responsibility for the major long term issues that I have designated. With regard to the remainder of the long term issues, the parties appear to be at one.

The Full Court dismissed the appeal on this point, saying that Justice Rose had not erred in the exercise of discretion.