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Family law judgments

Every Issue

Cite as: December 2012 86 (12) LIJ, p.57

Children

Contravention of parenting orders – Hearsay evidence

In Biddell & Ervin [2012] FMCAfam 926 (5 September 2012) Sexton FM dismissed the father’s contravention application against the mother, saying that his allegations were “imprecise” [41], “couched in vague, generalised terms” [42] and lacked any specific allegation relating to any of the orders [43]. Sexton FM said at [62] that the applicant needed to show “that it was the [Respondent] who was, either by her action or inaction, preventing those arrangements from commencing”. As to hearsay evidence relied on by the applicant (statements made by Contact Centre staff to him), Sexton FM said at [68] that the evidence was “so remote and therefore unreliable” and that it “[could] not be given any weight (under s 69ZT(2) FLA)”.

Children

Order for disclosure of notifier’s identity set aside

In Department of Family and Community Services & Jordan and Ors [2012] FamCAFC 147 (7 September 2012) the Full Court (Bryant CJ, Coleman and Ryan JJ) allowed an appeal by the Department of Family and Community Services (“the Director General”) against an order made by Cleary J under s69ZW (FLA) for production to the Court of a notification of suspected abuse and associated documents and disclosure of the identity of the notifier. The appellant had argued that the order was contrary to s29(1)(e) and (f) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“State Act”) and to s69ZW(3) and (6) (FLA). The Full Court concluded at [61]:

“Section s69ZW did not provide her Honour with power to order the Director General to disclose the identification of the notifier. In relation to this matter her Honour was required to apply the provisions of the State Act, in particular s29(1)(f), (2) and (3). We are strongly of the view that the Director General was correct in her contention that disclosure of the identity of the notifier was not critical and, that failure to order disclosure would not prejudice the proper administration of justice.”

Children

Time sought by paternal grandmother opposed by mother as father’s “backdoor attempt” at more time – Time granted

In Schroeder & Raleigh & Anor [2012] FMCAfam 834 (3 August 2012) the paternal grandmother applied for an order that she spend time with her grandchildren. The mother opposed the application, alleging that it was a “backdoor attempt to increase the father’s time with [the children]” [115]. She also alleged that the applicant was attempting to undermine the mother’s parenting and that the order sought would cause the mother to suffer such anxiety that her parenting capacity would be adversely affected. Bender FM disagreed, saying at [119]:

“I am satisfied that it is in Y and X’s best interests that they have a special relationship with their grandmother that is different to that which they have with their parents. That they currently spend relatively limited time with their father is not a reason, in my opinion, to place limits or constraints on their relationship with the grandmother or their time with her.”

De facto relationship

Meaning of “couple” and “living together on a domestic basis”

In Taisha & Peng and Anor [2012] FamCA 385 (24 May 2012) Ms Taisha lived for 17 years with Ms Peng who remained married to Mr Pan. Ms Peng and Mr Pan had three children. During that time all either lived together or Mr Pan and one child lived elsewhere. Ms Taisha alleged that she and Ms Peng were in a “de facto relationship” (in that they slept together, shared holidays and she had made financial contributions), seeking a declaration under s90RD as a precursor to property proceedings. Ms Peng’s case was that her association with Ms Taisha was “that of like mother and daughter” [4]. Upon reviewing the evidence, case law and legislation, including s4AA(1) (FLA) (which requires that the parties were a couple who lived together in a domestic relationship), Cronin J dismissed the application, referring at [17] to the Australian Bureau of Statistics’ definition of a “couple relationship” as “two people usually residing in the same household who share a social, economic and emotional bond . . . and who consider their relationship to be a marriage or marriage-like union.” Cronin J continued at [20]-[21]:

“But there must still be evidence of a domestic relationship . . . a domestic relationship must be one in which there are activities of running a household or shared households. That is, something must be seen to be related to domesticity which refers to home conditions and arrangements. For example, it could be indicated by people coming and going as if entitled to use and share the home’s facilities which is quite distinct from a boarding house or backpacking hostel where individuality reigns. A couple therefore living in a domestic relationship is the opposite of a couple of individuals.”

Property

Superannuation – Treatment of a DFRDB pension

In Semperton [2012] FamCAFC 132 (24 August 2012) the Full Court (May, Thackray and Ryan JJ) allowed the husband’s appeal against a property order made by Baumann FM in relation to his Honour’s treatment of the husband’s Defence Force Retirement and Death Benefits Scheme (“DFRDB”) interest. Baumann FM had taken a separate pools approach to the parties’ superannuation interests and non-super assets. The husband’s case was that his Honour “erred by considering the husband’s DFRDB pension as a relevant factor at the s75(2) adjustment stage, and then treating the pension as if it were a capital sum which could be used when adjusting the parties’ superannuation interests, in effect ‘double dipping’ of the asset” [40]. Thackray and Ryan JJ concluded at [194]-[195]:

“There can be no doubt that the Federal Magistrate appreciated the special nature of the DFRDB. This is because he referred to it as having a ‘different character’ at an early stage in his reasons when commenting on the fact the parties had adopted a two pool approach, when his Honour considered three pools may have been more appropriate. However, we consider his Honour should also have paid regard to the ‘different character’ of the DFRDB when he came to the s75(2) adjustment. The ‘different character’ of the DFRDB required attention not only when constructing the pools, but at each other point in the process, most especially at the s75(2) stage and when assessing the justice and equity of the outcome.”



ROBERT GLADE-WRIGHT, a former barrister and accredited family law specialist, is the founder of The Family Law Book, a looseleaf and online service: see www.thefamilylawbook.com.au. 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 at www.austlii.edu.au. The numbers in square brackets in the text refer to the paragraph numbers in the judgment.

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