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Family Law Judgments

Family Law Judgments

By Robert Glade-Wright & Craig Nicol

Child Welfare Family Court Judgment Practice & Procedure Young Persons 


Property

Granting of application for leave to proceed out of time filed after respondent’s death during case set aside for want of jurisdiction

In Simonds (deceased) & Coyle [2019] FamCAFC 47 (26 March 2019) Ms Coyle instituted a de facto financial cause in May 2017. Two months later her partner (Mr Simonds) died after filing a response in which he alleged that separation occurred in October 2013, such that the application was out of time. In May 2018 (10 months after her partner’s death) Ms Coyle filed an amended application for leave to proceed. Judge Egan found that separation did occur in October 2013 but under s44(6) of the Family Law Act granted Ms Coyle leave to continue the proceedings against the respondent’s estate under s90SM(8). The executors’ appeal to the Full Court (Strickland, Murphy & Kent JJ) was allowed unanimously and Ms Coyle’s property application was dismissed.

Strickland J said:

“. . . [H]is Honour did not have jurisdiction under s39B(1) . . . to entertain the Amended Initiating Application filed by the de facto wife . . . because there was no financial de facto cause instituted . . . (at [25]).

“His Honour . . . failed to deal at all with the question of whether he had jurisdiction. Without addressing that issue His Honour simply proceeded on the basis that despite the death of the de facto husband, he could grant leave to the de facto wife to institute proceedings for property settlement . . . (at [27]).

“His Honour has also sought to grant leave ‘nunc pro tunc’. That is a rule of practice and procedure to regularise the records of the court, and it cannot create jurisdiction where there is none. In other words, if there was no jurisdiction to entertain the [amended] application filed on 25 May 2018, the Court still did not have jurisdiction at the time his Honour made the orders” (at [30]).

Property

Negative pool although husband was to retain business with annual turnover of $4m – Treatment of his director loans

In Keating & Keating [2019] FamCAFC 46 (21 March 2019) the Full Court (Ainslie-Wallace, Ryan and Austin JJ) allowed the wife’s appeal against a property order made by Judge Baumann (as his Honour then was). Non-superannuation assets of $1,784,854 were valued at a deficit of $804,805 net of the husband’s director loans relating to his failed tax venture. His business still traded, with an annual turnover of $4 million. At first instance, contributions to non-super were assessed at 70:30 favouring the husband due to his initial contribution of the business; contributions to superannuation ($710,824) being assessed as equal. No adjustment was made under s75(2).

The pool being assessed at a negative value, it was ordered that the wife receive her possessions, a super split of $119,000 and half of any payment to the husband as the result of a pending class action relating to the venture. The wife appealed, arguing that the trial judge did not engage with her argument that the husband’s director loans were not matrimonial debt.

Ainslie-Wallace & Ryan JJ said at [23]-[24]:

“ . . . [H]is Honour went no further than to say that the wife was ‘aware’ that the investment scheme was unsuccessful

. . . Whether or not she was aware that the scheme had failed was irrelevant. The issue was whether she knew of and supported the husband’s investment in the scheme to the extent that she should shoulder half of the resulting debt. In the result, his Honour’s decision to fix both parties with responsibility for the debt was made ‘. . . because [the debt] actually exists’ . . .

“His Honour’s finding that the wife was ‘aware’ that the investment scheme failed falls considerably short of engagement with the reasons why the wife said she ought not to be fixed with joint responsibility for the debt. The same applies to the finding that the debt ‘actually exists’. Although parties would ordinarily be expected to take the good with the bad, there was no active engagement by the primary judge with the wife’s case that the husband should bear sole responsibility for the debt and why.”

Children

Father’s contravention application was met by mother’s application for variation of parenting order – Which should be heard first

In Maddax & Danner [2019] FamCAFC 38 (5 March 2019) a parenting order was made in 2016 in respect of a child, now aged 9. Subsequent to that order the father appealed, filed a parenting application which was summarily dismissed and withheld the child in Germany after a holiday causing the mother to apply for a return order under the Hague Child Abduction Convention. After the return of mother and child the father also returned 13 months later and filed an application alleging 100 contraventions by the mother who applied for variation of the order.

Judge Turner adjourned the contravention application for 16 weeks, sought a family report and suspended the father’s time with the child (the child not having seen her father for 19 months). The father appealed, arguing that the Court erred in not dealing with his contravention application before suspending his time and adjourning the case.

In dismissing the appeal, Murphy J said:

“. . . An . . . adjournment is a procedural order and . . . discretionary . . . (at [21]).

“ . . . the father’s argument seems to suggest that adjourning his contravention application involved an error of principle . . . that her Honour was bound to deal with his . . . application on that day and, it seems, in priority to any other application . . . (at [22]).

“It will be observed [from s70NBA(1) of the Family Law Act] that an inquiry into the variation of parenting orders can take place irrespective of whether a contravention is established or not. That is in my view important. It places the best interests of children as central not only to parenting orders but also to a consideration of how asserted or established contraventions might be dealt with (at [48]).

“The powers given to the Court in applying [the] principles [enunciated in s69ZN(6) and (7) as to ‘principles for conducting child-related proceedings’] are referenced as mandatory duties contained in s69ZQ. In particular the Court must ‘decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily’ and ‘decide the order in which the issues are to be decided’ . . . (at [52]).

“The assertion by the father that her Honour erred, as a matter of principle, by adjourning his contravention application must be rejected” (at [53]).

Procedure

Adjournments – Dismissal of dormant proceedings pursuant to FCCR 13.12

In Skivington & Skivington [2019] FamCAFC 36 (11 March 2019) Ainslie-Wallace J allowed the wife’s appeal against the dismissal of both parties’ parenting and property applications for failure to advance their applications. After the case had been adjourned several times on the application of the parties to allow them time for mediation and a negotiation of their property matters Judge Obradovic made an order at [9] that “there be no further adjournments in this matter and that if the parties failed to prosecute their claim, the matter would be dismissed on the next occasion”.

At the next return (at [10]) the Court dismissed the applications despite submissions from each party’s solicitor that parenting matters had been resolved and that a mediation had partially taken place but was incomplete due to the mediator’s commitments.

Ainslie-Wallace J said at [21]-[27]:

“The procedure adopted by her Honour clearly fails to comply with the mandatory steps set out by the Rule [FCCR 13.12]. That, of itself, would be sufficient to allow the appeal on the basis of an error of law.

“However, it was further contended by the appellant that the matter was not ‘dormant’ in the relevant sense. The notice of appeal particularises that the parties had in compliance with the order, attended mediation, but the mediation process was incomplete, not it seems through any recalcitrance of the parties but because of the mediator’s other commitments.

“This, it was asserted in the notice of appeal, meant that the parties were acting to progress the proceedings and thus had ‘taken steps to advance the proceedings’.

“Regrettably, her Honour’s reasons do not illuminate why, in her view, the partial settlement and the incomplete mediation process were not sufficient to progress the matter in the proceedings or, put another way, why in this case, those steps were insufficient to prevent the proceedings being dismissed.

“Albeit the appeal was not argued, it is plain that the parties had complied with the order to attend mediation, and while the process may have taken some time, it was still in process.

“It is too to be observed that the parties had, in the interim periods, resolved the parenting issues and had agreed as to a process of valuing the property. Her Honour was told that the parties anticipated that on completing the mediation, the parties expected the matter to resolve.

“Thus her Honour erred in failing to consider that those actions demonstrated that the parties were indeed prosecuting the proceedings.” 

 

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 accredited family law specialist

Craig Nicol. References to sections of an Act in the text are 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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