Family Court Case Notes – December 2020

Children – Contravention – COVID-19 – Reasonable excuse – Variation of primary order
In Kardos & Harmon [2020] FamCA 328 (7 May 2020) McClelland DCJ heard an application by a father alleging the mother’s contravention of a parenting order which provided for their three year old child to travel from Adelaide to spend time with the father in Darwin and, from January 2020, Brisbane.

The mother did not send the child to the father in March or April 2020 due to her concerns about the COVID-19 pandemic. The mother argued reasonable excuse due to her concern for the child’s health and the border restrictions requiring her and the child to be in self-isolation for 14 days after their return to South Australia.

Having taken judicial notice ([33]) of publications about COVID-19, McClelland DCJ said ([76]):

“Having regard to that … information, I am satisfied that the mother believes ‘on reasonable grounds’ that not allowing the child to spend time with the father … was necessary to protect the health of the child and the mother. This is because the mother would not have been able to maintain safe social distancing during the period of the aircraft travel and there was an unacceptable risk that the child would come into close contact with a person infected by the virus during the course of the aircraft travel. … ”

The Court added [81] that “had it been necessary to determine [the self-isolation] issue I would have determined it in favour of the mother”. After citing a Canadian case where it was held that “[t]he parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behaviour or plans by the other parent which are inconsistent with COVID-19 protocols”, the Court said ([117]):

“ …[D]espite the existence of the COVID-19 pandemic, it is important that all reasonable efforts are made for children to spend time with both parents consistent with taking a responsible approach in respect to mitigating against risks associated with the presence of the COVID-19 virus in the community and, specifically, the child coming into close contact with a carrier of the virus.”

Procedure – Litigation funding sought by husband from wife and her mother
In Edson & Whitney and Anor [2020] FamCA 184 (25 March 2020) Rees J dismissed an application by a husband in a property case for litigation funding from the second respondent (the wife’s mother); the wife (by lump sum paid by her obtaining a mortgage over her real property, her mother to waive her security over that property); and the wife as a “dollar for dollar order”. The wife’s case was that she owed her mother $3,616,000 and $350,000, which exceeded the value of the marital assets and were secured over the wife’s property and owed her brother $111,000 for legal fees.After citing ([27]) Knight v FP Special Assets Ltd [1992] HCA 28 as to the court’s power to order interim costs against a non-party, Rees J referred to the Full Court’s statement in McAlpin [1993] FamCA 71:

‘We do not think that we should conclude our discussion of the matter, however, without saying that we think that the approach taken by his Honour in this case, is one that should be taken with great caution. It is one thing for a family or organisation to stand behind a party in proceedings under the Family Law Act, either by paying their costs or supporting them in the course of the litigation, but it is quite another matter, in most cases, to make orders against an impecunious party in the expectation that such other person or persons will discharge the orders on their behalf.’”The Court concluded (from [37]):

“[T]here is no possibility that, if the second respondent were required to waive her security to allow the wife to borrow $180,000, thus diminishing the security for her asserted loan, and if the husband’s challenge is not successful, the second respondent can ever be compensated by the husband for her loss.

( … )

[39] It would not be just and equitable to interfere with the security where the beneficiary of the security could not be compensated for any loss occasioned.”

Procedure – Withdrawal of consent to arbitration due to alleged family violence
In Palgrove [2020] FCCA 846 (27 March 2020) a financial case was referred in 2019 to arbitration by consent pursuant to s 13E of the Family Law Act. Before the court was the wife’s application for the discharge of that referral due to her inability to be in the same place as the husband after being subjected to serious violence by him.

Judge Harman said (from [30]):

“ … [T]he parties are relatively agreed in their position that the referral to arbitration should be discharged and the parties instead referred to a conciliation conference …

[31] I do not intend to take that path, even though both parties consent.

[32] As discussed in Loomis & Pattison [2020] FCCA 345 … the Court should be loath to interfere in the arbitration process, other than its facilitation and support once it is ordered. …

[33] The outcome the parties desire to achieve can be achieved through the prescriptive order I have referred to [for arbitration by video]. ( … )

[35] Whilst consent is purported to be withdrawn, I am not satisfied that I should simply accept that position and return the matter to the Court’s jurisdiction. There are a number of reasons for that. Firstly, the arbitrator is clearly seized of the matter. The arbitration has commenced. …

[36] It would be more cost effective for the arbitration to proceed … by video, subject to the dispute remaining arbitrable [discussed at [15]] and both parties being sufficiently supported in the process to feel safe.

[37] Secondly, the delay that these parties will face, if the matter returns before the Court, is extreme. At present and as a consequence not only of response to the pandemic, but as a consequence of an underlying chronic absence of resourcing, this case could not and would not be heard until 2021 at the earliest, if even then. That disadvantage to the parties, when it can be cured through a prescriptive order as to how the arbitral process should proceed and thus that disadvantage avoided, should play some significant role in determining the issue.”

The Court dismissed the wife’s application for dismissal of the referral and made prescriptive orders for the conduct of the arbitration by video.

Property – Forum non conveniens – Wife restrained from continuing her earlier proceedings in Singapore
In Scarffe & Obannon [2020] FamCA 77 (18 February 2020) Wilson J granted the husband’s application for an anti-suit injunction against the wife from continuing her application for property settlement in Singapore, and dismissed her application for a stay of the husband’s subsequent proceedings in the Family Court of Australia. The husband’s case was that most of the parties’ assets were in Australia and that the Singaporean litigation would not fully determine all property issues.

The parties cohabited in Australia from 1997 and married in 2014. They had three children. The family lived mostly in Australia, moved to Singapore in 2014 and separated in 2016. The husband left and in 2018 relocated to Australia. The wife and children remained in Singapore. The Australian assets were at least $3.4 million plus the wife’s inheritance here of about $5 million. The Singaporean assets comprised the wife’s bank savings and her company.

Wilson J (at [62]) cited CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33 in which the High Court said:

“ [T]he power to grant an antisuit injunction should not be exercised without the court … first considering whether its own proceeding should be stayed and, in determining whether its own proceeding should be stayed, the test is as stated in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 and in Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32, namely, a stay will only be granted if the Australian court is a clearly inappropriate forum.”

The Court concluded (from [64]):

“Self-evidently, it is undesirable for a proceeding to be on foot in Singapore in which the precise subject matter is being addressed as is being addressed in this court. The financial cost, personal toll to the litigants and inconvenience, to say nothing of the risk of inconsistent decisions of the two courts is manifest. ( … )

[66] In my view, in this case it cannot be said that the precise same litigation is on foot in Singapore as it is in this court. While true, the Singapore court has power to grant orders in personam against both parties. Yet those orders are likely to be of little utility having regard to the fact that the majority of the property is in Australia. Enforcing any orders made by the Singapore court will be problematic in Australia whereas an order of this court is enforceable according to its terms without more.”

Children – Hague Child Abduction Convention – Return order set aside

In Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 (25 March 2020) the Full Court (Ryan, Aldridge & Watts JJ) allowed the mother’s appeal from Ainslie-Wallace J’s order under the Family Law (Child Abduction) Regulations 1986 (Cth) to return to New Zealand (“NZ”) with her two children.

The parties cohabited in NZ where the father had many convictions for assault and other offences for which he was imprisoned. He was violent towards the mother, was imprisoned again for assault and in 2012 for contravening a domestic violence order.

Their first child was born in 2016 in Australia.

The father was deported in 2017 to NZ where their second child was born. In

the mother was granted orders for the children to live with her, whereupon she and the children returned to Australia.

At the hearing of the father’s application for a return order, Ainslie-Wallace J rejected the mother’s case that there was a grave risk that a return would expose the children to harm or place them in an intolerable situation pursuant to reg 16(3)(b). On appeal the Full Court set aside the return order. Ryan and Aldridge JJ (at [61]) adopted the dissenting judgment of Hale LJ in TB v JB (Abduction: grave risk of harm) [2001] 2 FLR 515:44. ( … ) Primary carers who have fled from abuse and maltreatment should not be expected to go back to it … We are now more conscious of the effects of such treatment, not only on the immediate victims but also on the children who witness it ( … )

57. But it cannot be the policy of the Convention that children should be returned to a country where … they are at grave risk of harm, unless they can be adequately protected from that harm. Usually, of course, it is reasonable to expect that the home country will be able to provide such protection. ( … )

59. … [But it] would require more than a simple protection order in New Zealand to guard the children against the risks involved here … ”

Property – Order set aside for denial of procedural fairness – Unwarranted judicial interventions

In Finch [2020] FamCAFC 60 (20 March 2020) the Full Court (Ryan, Aldridge & Tree JJ) allowed the wife’s appeal of a property order of the Federal Circuit Court. Her case was that excessive judicial intervention during the hearing denied her a fair trial. The Full Court agreed, at [14] eliciting from Galea v Galea (1990) 19 NSWLR 263 at 281-282 the following

relevant legal principles:

1. The test … is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. ( … )

3. … whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and “into the perils of self-persuasion”.

( … )

4. ( … ) It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion ( … )The Full Court said ([24]-[25]):

“ … [I]f one deducts the 35 minutes which the impugned interventions took from the length of the cross-examination of one hour and 59 minutes, there was a total of no more than 84 minutes of cross-examination, but it was interrupted by impugned interventions 45 times, thereby meaning that counsel, on average, was interrupted nearly every two minutes. ( … )

[25] … Counsel for the wife was significantly impeded in conducting his cross-examination … “In setting the order aside and remitting the case for rehearing, the Full Court said (from [59]):

“ … [W]e conclude that [the] frequent … interventions were … wholly unwarranted, unduly personalised, demonstrated an unfortunate entry by the primary judge into the arena, and did not adequately undo the consequences of the very forceful initial expression of a ‘preliminary view’ by the primary judge.

( … )

[66] ( … ) There is a real danger that the trial was therefore unfair, and hence miscarried.”

Children – Unilaterally relocating mother with infant ordered to return – Unacceptable risk of harm rejected
In Tandy & Eastman [2020] FCCA 541 (19 February 2020) Judge Young heard the father’s application for the return of a 20 month old child (“X”) who was removed from Darwin to City B by the mother. The mother moved to Darwin to live with the father in 2015. They married in 2017, X was born in 2018 and they separated in 2019. The mother was the child’s primary carer although the father deposed that after separation he was spending “two or three nights a week with the child and some … times on the weekend” ([9]). The mother alleged family violence.

Judge Young said (from [23]):

“ … [T]he mother has also annexed … SMS conversations between her and the father [in which] some of the father’s language is boorish, immature and angry and might be interpreted as him reflecting his feelings about the parties’ relationship breakdown. However, the language was not threatening.

[24] … I consider that the mother’s family violence claims are not particularly forceful or compelling. ( … )

[25] ( … ) While I accept that there have been unpleasant and distressing … verbal exchanges … I am not satisfied that there is any unacceptable risk of harm to the mother or to the child resulting from family violence.”

In ordering the mother to return with the child to Darwin, Judge Young concluded (at [40]-[41]):

“I do not propose to make time orders. I think it is appropriate that the parties discuss this themselves. But I would expect … that the child spend substantial and significant time with the father. Whether the material would justify an equal time arrangement … I am far from sure about: again I would expect the parties to discuss that. I don’t have any concluded view about that and I haven’t heard submissions.

… [T]here was some reference … to whether … the mother had a car, should she return to Darwin. … [I]f the mother is to return I expect her to be provided with a motor car, and a serviceable one at that.”

Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a looseleaf and online family law subscription service for lawyers, published in Melbourne.