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Family law judgments

Every Issue

Cite as: April 2015 89 (4) LIJ, p.60

famcjudg@liv.asn.au

Children

Mother took children into hiding fearing father posed a threat to their lives – Father to spend no time with the children – Suppression order

In Dunst & Dunst [2014] FamCA 964 (11 November 2014) a mother had taken five children into hiding while the father was imprisoned due to her fear that the “father threaten[ed] their lives” (at [2] and [8]). Austin J found that the father did pose risks of harm to the children “which he either deceptively denied or of which he was bereft of insight” such that there “was no safe alternative but to eliminate all personal contact between the father and the children” (at [4]). Austin J said that the “eldest two reject the father outright, either through contempt or fear, but the youngest three have more positive memories and attitudes towards him . . .” but also “ambivalent feelings” (at [56]). Austin J continued (at [61]-[63]):

“Restoration of the three youngest children’s relationships with the father would most likely benefit them, but there is no utility in setting about restoring such relationships if other evidence powerfully motivates a contrary outcome. There would almost certainly be countervailing emotional disturbance for the two eldest children and the mother if the three youngest children’s relationships with the father were restored, which is a consideration properly addressed under s60CC(3) of the Act. Moreover, while children usually benefit from both the development and maintenance of good relationships with both their parents, that benefit is annulled when such relationships are abusive (see U v U [2002] HCA 36 . . .; M v M (1988) 166 CLR 69 at 76) . . .”

The Court found that an order could not “safely be made” for the children to spend either unsupervised or supervised time with the father (at [145]-[146]) but did order (at [151]) that he may communicate in writing with the children so as to facilitate any prospect of reconciliation. The Court said that the suppression order and injunctions would “impede the father’s ascertainment of the mother’s residential location and, if he learns of it anyway, prohibits his attendance at or near [their] home and the children’s schools” (at [153]). The Court dismissed the father’s application for permission to obtain details of the children’s medical treatment and school progress “as it would compromise the mother’s ability to maintain the secrecy of her residence [which would be disclosed in the children’s medical records and school reports]” (at [155]).

Procedure

Litigation guardian not needed by mother with personality disorder

In Somerville & Somerville (No. 2) [2014] FCCA 2439 (31 October 2014) Judge Altobelli heard a property and parenting case where the mother’s counsel raised the issue of the mother’s capacity to conduct the litigation, the Court taking “upon itself the responsibility for determining whether a litigation guardian should be appointed for the mother” (at [5]). After considering FCCR 11.08(1) and L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114, the Court said (at [9]-[11]) that there was “ample expert medical evidence before the Court”, including that of the Court appointed single joint expert Dr. K whose opinion was that “the mother [was] capable of understanding the nature and possible consequence of the court proceedings”. In determining that there was no evidence justifying the appointment of a litigation guardian, Judge Altobelli said (at [23]):

“Whilst it is unwise to generalise, what this case demonstrates is that just because a person suffers from a personality disorder it does not necessarily mean that they meet the alternative criteria set out in r.11.01(1) . . .”

Property

Children placed husband in home – Doctor’s report that husband had said he wanted a divorce – Wife argued abuse of process as she and husband not separated

In Stevens & Stevens [2015] FCCA 63 (15 January 2015) an 87 year old husband was admitted by his son to an aged care facility on the Gold Coast and later removed but placed in another one in New Zealand near his daughter’s home (at [5]). In 2011 the Queensland Civil and Administrative Tribunal appointed the Public Trustee of Queensland as administrator of the husband’s affairs, finding he was “easily influenced, that he exhibits short term memory loss, and as a result is unable to retain the consequences of decisions in his memory” (at [6]). The wife alleged the husband’s removal from the home was without her knowledge or consent and that the husband’s application for property adjustment should be summarily dismissed as the parties had not separated.

Judge Lapthorn dismissed the wife’s summary dismissal application and appointed the Public Trustee of Queensland as the husband’s litigation guardian. The Court (at [20]-[21]) distinguished its ruling in similar circumstances in Shearer & Defazio [2013] FCCA 1596 (that it would not in that case be just and equitable to make a property adjustment order in the absence of evidence that the parties’ marriage had broken down) by referring to a letter from a doctor annexed to the affidavit of the husband’s solicitor saying that the husband had told him he wanted a divorce. Judge Lapthorn said that such issues as whether the husband had been influenced by the children or the relief sought was an abuse of process, the proceedings being “driven by the . . . children for their own ultimate benefit”, could not be determined “without the benefit of having evidence tested” at the final hearing.

Property

Sex worker failed to prove “de facto relationship” – No financial interdependence, children or evidence she gave up her sex work for him

In Kristoff & Emerson [2015] FCCA 13 (13 January 2015) a sex worker alleged a de facto relationship with the respondent (originally a client of hers) from 2003 (when their relationship “ceased to be a commercial one”) until 2011 (at [2]).

Judge Brewster found that by 2002 the applicant had given up her sex work “and obtained employment elsewhere” (at [5]), that from 2003 she lived at the respondent’s property up to five nights per week (at [10]), that sexual intercourse was “regular” (at [11]), that the relationship was “more significant than a ‘friendship’” (at [12]) but that the parties “never shared an economic life” (at [13]).

After considering s4AA(2) of the Act and the evidence, Judge Brewster dismissed the application, saying (at [40]):

“In this case I am not satisfied that there was a de facto relationship between the parties. Some of the indicia of a de facto relationship were present, some were not. The factor to which I attach most weight is the lack of any financial relationship between the parties”. l

ROBERT GLADE-WRIGHT, a former barrister and accredited family law specialist, is the founder of The Family Law Book, a looseleaf and online service. He is assisted by family lawyer Craig Nicol. References to sections of an Act in the text refer to the Family Law Act 1975 (Cth) unless otherwise specified. The full text of these judgments can be found here. The numbers in square brackets in the text refer to the paragraph numbers in the judgment.

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