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Family Law Judgments

Every Issue

Cite as: December 2015 89 (12) LIJ, p.56

Children
FCC lacks jurisdiction to make order after transferring case to Family Court

In Janssen & Janssen [2015] FamCAFC 168 (4 September 2015) the Full Court (Strickland, Ryan & Aldridge JJ) allowed the mother’s appeal against an order made by Judge Scarlett three months after transferring the proceedings to the Family Court. The mother argued at [2] that the Court’s jurisdiction was exhausted upon it transferring proceedings and that the subsequent interim parenting order was a nullity. The Full Court agreed, stating at [31] that while “the Family Court has concurrent jurisdiction in relation to the matter types under consideration (save for the limited exceptions referred to in s19(2) of the FCC Act) [Federal Circuit Court of Australia Act 1999 (Cth)] there can only be one proceeding between the parties under the Act pending at the same time in the Family Court and Federal Circuit Court”.

Conflict of interest
Whether confidential information held – Waiver of objection

In Osferatu & Osferatu [2015] FamCAFC 177 (15 September 2015) the Full Court (Finn, Ainslie-Wallace & Aldridge JJ) allowed the husband’s appeal from an injunction made by Foster J restraining Barkus Doolan from continuing to act for him, where a solicitor (Mr F) joined that firm having previously worked for the wife’s solicitors, Watts McCray. It “was common ground that Mr F did not have any direct dealings with the wife” while he was a member of that firm (at [1]).

The wife retained Watts McCray in 2011, Mr F left there in 2012, and the parties entered into final parenting orders in 2013 and final property orders in January 2014. Mr F joined Barkus Doolan in May 2014. An undertaking by Mr F that he would not convey any information he may have had concerning the wife to anyone at Barkus Doolan nor involve himself in the wife’s case was accepted by her on the basis that she would formally object if there were further proceedings between the parties (at [6]).

In February 2015 the husband (as a litigant in person) applied for the re-listing of the case, to which the wife emailed saying she had “no issue” with his re-engaging Barkus Doolan (at [11]). Upon his doing so however, she objected, applying for an injunction restraining the firm from acting. The Full Court at [22] cited McMillan & McMillan [2000] FamCA 1046 as to “the manner in which a client’s confidential information is to be protected in family law proceedings”, continuing at [24]-[26]:

“In an unreported decision of Stewart & Stewart . . . Lindenmayer J said:

‘ . . . All that is necessary is that the wife swears that she has conveyed confidential information to the solicitors and that she believes, not unreasonably, that that information may be used against her, or at least to her disadvantage, in these current proceedings . . . ’

“Of that passage the Full Court in McMillan said at [87]:

‘In other words, the client need only give evidence that he has provided confidential information to the solicitor (or in this case, the law clerk/secretary). The client does not have to divulge the content of that information . . .’

“. . . Because the applicants in those cases had given instructions to the solicitor about the very matter in issue, it follows easily that there would be a finding that the solicitor who had moved was in possession of confidential information which is or may be relevant to that matter. It is for that very reason that the passage of Lindenmayer J in Stewart commenced with the words ‘All that is necessary is that . . .’ His Honour was simply saying that, in such circumstances, the burden borne by the applicant was discharged by such evidence. Nothing that appears in Stewart, Thevanez or McMillan obviates the need for an applicant seeking such relief from discharging his/her burden of proof by adducing cogent and persuasive evidence. This is particularly so where, as here, the circumstances differ from McMillan. In this case Mr F had never taken instructions from the wife.”

The Full Court concluded (at [48]):

“ . . . for evidence to be persuasive and cogent [the wife] should have identified the nature of the information received or likely to have been received by Mr F . . . that was now, or could now be, relevant to the current proceedings. She did not do so. It is not sufficient to say that, as family law proceedings cover a range of matters, any information at all received by Mr F could have been relevant. This was especially so given that three years had passed since he could have received any information and both sets of substantive proceedings . . . had resolved.”

It was also held that the court below erred in giving no reasons as to why the wife’s email (waiving objection) did not carry significant weight.

Property
No error in treatment of wife’s redundancy entitlement as an initial contribution

In Hearne & Hearne [2015] FamCAFC 178 (16 September 2015) the Full Court (Strickland, Ryan & Austin JJ) dismissed the husband’s appeal in which he argued that Judge Harman at first instance mischaracterised the wife’s redundancy entitlement as an initial contribution where she had no right to the redundancy when the relationship began. Strickland J (with whom Ryan J agreed) said at [97]:

“There is no doubt that when a trial judge comes to identify the property of the parties, accumulated service cannot be treated as an item of property, but, that is not what the trial judge is doing here. He is assessing the initial contributions of the parties which can comprise items of property such as real estate or chattels or bank accounts, but which are not limited to items such as that. Relevant contributions can equally be the bringing of benefits by a party to the relationship, and those benefits need not be crystallised as at the commencement of cohabitation. Thus, it was quite open to his Honour here, and indeed it has been a common occurrence throughout the entire operation of the Family Law Act 1975 (Cth) for accumulated service, which ultimately leads to a redundancy payment, to be taken into account as an initial contribution of a party. The only rider to this is that ‘double dipping’ cannot occur . . . by also taking into account the pre-cohabitation service when assessing the receipt of the actual redundancy payment subsequently”.

Property
Leave to proceed out of time rejected

In Mackrell & Mackrell [2015] FCCA 1996 (29 July 2015) Judge Harland dismissed the wife’s application for leave to apply for a property order 16 months out of time. In 2011 the parties attended a mediation at which they were legally represented and “entered into an informal property settlement . . . documented by email” and sent to the parties by the mediator (at [3]). The wife’s case was that while the property agreement had been implemented the business had not been valued, she was entitled to a better property settlement and she had not been paid periodic child support since the agreement was reached (at [8] and [20]). After citing authority at [14]-[17] the Court said at [21]-[24]:

“The parties clearly compromised on the value of the business . . . They chose a mid-point rather than incurring the expense of a valuation . . . It is not a ground to establish hardship. The wife makes no suggestion that she was misled in some way about the value of the business.

“On the limited information available to the Court, it could not be said that the settlement was outside the range of just and equitable outcome particularly given the fact that the wife’s inheritance was excluded as a consideration. It would have been relevant as a s75(2) resource the wife had if nothing else. The fact that the settlement was not approved and that she may have achieved a better outcome is not enough to establish hardship. Many people compromise their claim. In order to litigate a claim to a final hearing, the wife could have incurred considerable further expense and delay.

“Much of the wife’s evidence focuses on the issue of child support. The husband has said in open court that he is willing to enter into a binding child support agreement in the same terms as was agreed in 2011. The wife was well aware at the time of implementing the settlement that in order to properly formalise the settlement, consent orders should be made and a binding child support agreement should be signed and registered with the Child Support Agency.

“It is open to the parties to enter into a binding child support agreement now. If they do not and the father seeks to have a child support assessment, then the wife can agitate that issue in another forum. The wife has failed to establish hardship.”

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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