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Family Court judgments

Every Issue

Cite as: November 2011 85(11) LIJ, p.60

Children

Commercial surrogacy – referral of case to DPP

In Dudley and Anor & Chedi [2011] Fam CA 502 (30 June 2011) Watts J granted parenting orders to a Queensland couple who brought three babies back from Thailand under a commercial surrogacy arrangement, finding them to be “persons concerned with the care, welfare and development of the children” under s65C(c). Watts J discussed state laws authorising altruistic surrogacy but making commercial surrogacy illegal, and directed that a copy of his reasons be sent to the Queensland DPP for possible prosecution of the applicants. See Lowe & Barry [2011] FamCA 625 (altruistic surrogacy).

Children

Judge’s reliance on newspaper editorial

In Herridge & Handerson and Ors [2011] FamCAFC 156 (28 July 2011) the Full Court (Coleman, May and Crisford JJ) allowed an appeal against a parenting order made by Cohen J, who took into account a newspaper editor’s opinion as to the overuse of Ritalin. The Full Court said: “where there was unchallenged admissible expert opinion evidence that the child B exhibited a ‘degree of ADHD’, it was not open to the trial Judge, without reference to admissible evidence which was before him, to speculate as to whether or not ADHD existed or was exhibited by the child B. His Honour’s personal opinions, whatever their basis, were no substitute for evidence”.

Children

Secretly taped interview with family consultant

In Hazan & Elias [2011] FamCA 376 (24 May 2011) the husband taped his interview with the family consultant, seeking to tender it under s11C (FLA) (communications with family consultants admissible). The father argued that s11C ousted s138 of the Evidence Act 1995 (Cth) (EA) (evidence illegally or improperly obtained). Watts J disagreed, referring to the “golden rule” of statutory construction that “the grammatical and ordinary sense of the words is to be adhered to unless that would lead to . . . absurdity . . . or inconsistency with the rest of the [statute]”. Watts J gave examples of “manifestly absurd or unreasonable” outcomes of the husband’s interpretation, saying:

“I have found that the words of s69ZU, s62G(8) and s69ZT(1) FLA are inconsistent with . . . s11C FLA . . . I read s11C FLA down so that it is subject to . . . the normal evidentiary provisions [of] s69ZT(1) FLA . . . [and] s56(2), s138 and s135 EA”.

Contempt of court

Relevant law and procedure

In A bank & Coleiro & Anor [2011] FamCAFC 157 (2 August 2011) the husband withdrew $200,000 from bank accounts during property proceedings. When the husband insisted he had no money Harman FM charged him with and convicted him of contempt of court under s112AP, sentencing him to imprisonment, although later ordering that the sentence not be executed. The joinder of the bank was set aside by the Full Court (Bryant CJ, Finn and Strickland JJ). Bryant CJ also reviewed the law and procedure for determining a contempt charge, concluding that “his Honour failed to comply in almost all respects with the [FMCR] and with the well established authorities” as to how contempt in the face of the Court is to be dealt with.

Procedure

“Haystack” of an affidavit struck out

In Symes & Glover [2011] FMCAfam 735 (13 July 2011) Halligan FM struck out an affidavit that counsel said could be reduced from 130 pages to 20, saying: “it is an abuse of process . . . oppressive . . . and vexatious . . . It casts a ridiculous burden upon the Court to try and deal with a document of that magnitude where so much of its content should never have been included . . . To . . . find any specific piece of evidence in that particular haystack, even with an index to the annexures . . . is almost impossible”.

Procedure

Registrar’s refusal to abridge time not reviewable

In Zeller & Whitby [2011] FMCAfam 431 (24 May 2011) Altobelli FM dismissed an application for the review of a Registrar’s refusal to abridge time, holding that the Court had no power to do so under s104 of the Federal Magistrates Act 1999, the “exercise of power . . . not to abridge time [not being] a power under s102(2) or s103(1)”.

Property

Superannuation pension – life expectancy

In Winn [2011] FamCA 501 (30 June 2011) the husband’s interest in his superannuation pension was valued under the Family Law (Superannuation) Regulations 2001 at $774,265, applying the assumption under the Australian Life Tables that the husband (aged 57) would live to age 80. Johnston J found that that assumption was not supported by the opinion of a consultant physician that the husband’s life expectancy was between five years and living into his seventies. Johnston J adopted “the mid-point” between 65 and 70 to find $382,534 as the correct value.

Property

Valuation – alleged life tenancy – promissory estoppel

In Sabell & Medhurst (No 2) [2011] FamCA 596 (30 June 2011) the parties held a 47 per cent share in a Sydney unit, with 53 per cent being held by the husband’s mother who lived there with her husband. The unit was valued at $1 million if not subject to a life tenancy and $615,000 if it was. The husband argued, as “a category of promissory estoppel . . . ‘tenancy by estoppel’ . . . [that] he and the wife are estopped from denying . . . that [his] parents have the right to occupy the unit for life”. After examining the law relevant to promissory estoppel Rose J found that the 47 per cent share had been substituted for the balance of the husband’s loan to his parents and that the parties had agreed to the parents having “exclusive occupancy for an indefinite period” subject to paying the rates and other outgoings.

Property

Worker’s compensation “not adequately taken into account”

In Galliano [2011] FamCAFC 149 (13 July 2011) the husband’s worker’s compensation exceeded the wife’s income and his lump sum payout comprised half the pool. Strickland J disagreed that the husband (whom the wife alleged was lazy) had made “negative contributions”, allowing the husband’s appeal against Simpson FM’s assessment of equal contributions (“the most significant factor . . . [being] the husband’s financial contributions”). His contributions were reassessed at 60 per cent.

Subpoena

Order to produce counselling documents set aside

In UnitingCare – Unifam Counselling & Mediation & Harkiss and Anor [2011] FamCAFC 159 (5 August 2011) Coleman J allowed Unifam’s appeal against Altobelli FM’s order that Unifam produce counselling documents under subpoena by the father. Coleman J said that “the learned Federal Magistrate effectively concluded that ‘may’ [disclose upon consent] in s10D(3) [FLA] meant ‘must’, and that, the parties’ consent to disclosure having been given, Unifam had no discretion to disclose or not disclose”.



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). 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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