Family Law Case Notes – December 2024

Property – Declaration of de facto relationship contained error as it included an unnecessary commencement date – De facto relationship existed where parties did not live together in the traditional sense but their use of a hotel room did form a “quasi-common residence”.
In Yoxall & Eide [2024] FedCFamC1A 200 (29 October 2024), the Full Court (Austin, Gill & Baumann JJ) heard a de facto husband’s appeal against a declaration by Williams J that the parties had lived in a de facto relationship between March 2017 and December 2020.

The Full Court said (from [54]):

“… It was unnecessary for the primary judge to determine the length of the parties’ de facto relationship because the birth of their child made the duration of their relationship irrelevant to the existence of jurisdiction…

( … )

[69] The primary judge concluded that … their use of the J Hotel formed a ‘quasi-common residence’. The primary judge then reasoned that the concept of residence should be considered in the light of the parties’ ‘preferences to live a luxurious lifestyle in which travel, and holidays were at the fore’ … [and] that this constituted ‘shared life as a couple with their daughter, although in an unusual and unorthodox manner’ (at [152]).

( … )

[73] Although there was no intermingling of their finances, the primary judge found that the respondent was financially dependent upon the appellant during the relationship…

( … )

[115] Under circumstances where the end of the relationship was uncontroversial, once the aggregation of factors had led to the conclusion that there was a de facto relationship, little reasoning was necessary to determine the end date of the relationship.

[116] However, a more explicit reasoning process was necessary to establish a particular date early in the relationship as forming an adequate conglomeration of factors. That was not done, and so the basis on which March 2017 was perceived by the primary judge to be the start of the de facto relationship was not adequately exposed.”

The appeal was allowed and the Full Court set aside the offending order, substituting another order declaring “ … [T]hat a de facto relationship existed between the parties, ending in December 2020” ([2]). Costs certificates were ordered.

Children – Contravention – Conflation of different burdens of proof borne by the parties – Family Law Amendment Act 2023 (Cth) only applies to contraventions that occurred on or after 6 May 2024 – The repealed Division 13A of Part VII applies to pre- 6 May contraventions.
In Hatfield & Rivas [2024] FedCFamC1A 202 (31 October 2024) Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a father’s appeal from a dismissal of his contravention application.

At the hearing the father alleged five counts of breach by the mother. The trial judge dismissed each count and found that the father’s evidence did not establish that the mother either intentionally breached the orders or made no reasonable attempt to comply ([7], [10]). The father appealed.

Austin J said (from [32]):

“His Honour confused the father’s initial obligation to prove the lack of any reasonable attempt by the mother to comply with the orders (s 70NAC(1)(a)(ii)) with the mother’s separate subsequent obligation to prove a reasonable excuse for breaching the order (s 70NADA). There is a material difference between, on the one hand, no reasonable attempt to comply with an order and, on the other, a reasonable excuse for not having complied with it.”

His Honour continued (from [67]):

“The contraventions alleged against the mother were confined to the period between April 2023 and December 2023. The contravention application was heard in June 2024. In the interregnum, on 6 May 2024, the provisions of Pt VII, Div 13A of the Act were substantially amended by the Family Law Amendment Act 2023 (Cth) (“the Amendment Act”).

( … )

[72] … [A]bsent express legislative intention for the new provisions of Pt VII, Div 13A to apply to contraventions alleged to have occurred whilst the old Pt VII, Div 13A was operable, the old provisions must still apply to such historic contraventions.

[73] … [T]he primary judge expressly applied the new, rather than the old, provisions of Pt VII, Div 13A of the Act (at [14])…”.

The appeal was allowed and the dismissal orders set aside. The matter was remitted for rehearing and a costs certificate was granted to the father.

Property – A finding that wife’s parents sold a farming property to the parties for less than market value held to be in error where wife had failed to obtain a retrospective valuation of the property.
In Perna [2024] FedCFamC1A 183 (15 October 2024), McClelland DCJ, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a husband’s appeal from property orders.

The major assets were two rural farming properties (“Property C” and “Property D”) which were intergenerationally farmed by the wife’s family. Property D was sold by the wife’s parents to the parties and other family members during the relationship ([2]).

No retrospective valuation was obtained of Property D. The trial judge found that Property D was sold to the parties at 20 per cent below market value. The husband appealed.

McClelland DCJ said (from [39]):

“ … [T]he primary judge was not in a position to determine the market value of Property D at the time of its sale from the wife’s parents to the wife and her siblings in 2009 in circumstances where the primary judge had not been provided with evidence from an appropriately qualified expert with specialised knowledge of the valuation of farming properties.

…

[40] I accept … that, ordinarily, in undertaking the task of assessing contributions, it is unnecessary to place a precise value on any particular contribution, however it was necessary to do so in respect to Property D … because the finding by the primary judge that the property was sold to the wife and her siblings at 20 per cent less than market value was a significant finding in respect to his ultimate conclusion that the appellant and the respondent had benefited from the generosity of the wife’s parents…

[41] In those circumstances, the error was material to the assessment of the primary judge that the wife was entitled to a 4 per cent adjustment in her favour … as a result of contributions … including the generosity by her parents as so found. … I am satisfied that the error was material to the outcome of the proceeding…”

The appeal was allowed, the final property orders set aside and the proceedings remitted for rehearing. A costs certificate was granted to the husband. No costs certificate was granted to the wife.

Children – Order for no time – Father carried out “retributive attempted suicide” at mother’s place of work and used the trial process to inflict further psychological harm on mother – Father was “devoid of the capacity for reflection, insight and remorse”.
In Batas & Gaire (No 2) [2024] FedCFamC1F 672 (18 October 2024) Kari J heard a father’s parenting application for time with the parties daughter born in 2011 (“X”). The father was a perpetrator of significant family violence, coercive and controlling behaviour and had carried out a “retributive attempted suicide” at the mother’s place of work ([3]).

Kari J said (from [8]):

“ … I am satisfied that the father used the trial process itself to inflict further psychological harm on the mother. I have made findings throughout these reasons about the serious family violence perpetrated by the father and endured by the mother, quite separate from the retributive attempted suicide. …

( … )

[89] In all, the father impressed as a person incapable of taking responsibility for his actions and the impact his actions have had upon the mother.

[90] Importantly the father provided little evidence of substance to the Court as to the work that he has done in the post separation period, and importantly since the release of Dr B’s report to address the significant risks presented by the family violence he has perpetrated.

( … )

[102] I am satisfied from all of the evidence that the mother continues to suffer from PTSD, anxiety and depression, which presents with symptoms that are intrusive and significantly debilitate and impact the mother’s functioning.

( … )

[105] I also accept that the mother is unable to cope with any form of communication or time spending between the father and X.

( … )

[114] I am satisfied from the evidence that the retributive attempted suicide was not an impulsive and isolated incident. …

( … )

[125] In light of these findings, I am satisfied that the father presents an unacceptable risk of harm to the mother and X and particularly if there was to be any form of time spending between the father and X.”

Orders were made as sought by the mother and supported by the ICL.

Property – Stanford distinguished – Husband lived in aged care but the parties had separated – Court did not err by considering s 90SM(4) when determining that it was just and equitable to divide the parties’ property.
In Costello & Langdon [2024] FedCFamC1A 168 (24 September 2024) the Full Court (Aldridge, Austin & Tree JJ) heard a de facto wife’s appeal from property orders following a 41 year relationship which ended when the de facto husband entered aged care in 2021. The trial judge ordered a 64:36 adjustment in favour of the de facto wife.

The Full Court said (from [21]):

“… [I]n Stanford the parties had not separated in the sense that the relationship had ended – the parties were involuntarily living apart because of the illness of one of them. Here, there was an unchallenged finding that the parties had separated…

[22] … [T]he parties each accepted that it was just and equitable for there to be an order under s 90SM.

( … )

[37] … [W]here the relationship has not broken down the explicit and implicit assumptions about the parties’ mutual use of their property remain in place. Ordinarily, such assumptions would include the use of the parties’ income and property for each party to be provided for properly. Thus … those needs might be satisfied by orders for spousal maintenance but where they would not then those unmet needs might make it just and equitable to make a property settlement order.

[38] Considerations under s 90SM(4) of the Act may therefore inform both the exercise of the discretion in deciding whether it is just and proper to make an order…

( … )

[40] It follows that the primary judge did not err by taking into account Mr Langdon’s unmet needs for better care when deciding it was just and equitable for there to be a division of the parties’ property.”
The appeal was dismissed and a costs order was made in favour of the litigation guardian for the husband in the sum of $14,707.

Procedure – Inaccurate list of legal authorities tendered by town agent – List was generated by LEAP software utilising artificial intelligence – Agent given a month to make submissions as to why he ought not be referred to the Victorian Legal Services Board and Commissioner in relation to the list of authorities.
In Handa & Mallick [2024] FedCFamC2F 957 (19 July 2024) Judge A. Humphreys considered the conduct of the husband’s legal representative during the wife’s application for enforcement of property orders.

The husband’s solicitor (“Ms Aus Lawyers”) filed a Notice of Address for Service and instructed a town agent (“Mr B”) to appear. Mr B provided the Court with a list of authorities which neither Her Honour nor her associates could locate.

Judge A. Humphreys said (from [7]):

“ … I asked Mr B if the list of authorities had been provided using artificial intelligence. He informed me the list had been prepared from LEAP, being a legal software package, as I understand it, used for legal practice management and other purposes. I asked if LEAP relies on artificial intelligence. He indicated that it does…

[8] I informed the parties and their legal representatives this morning that as a concern had arisen in relation to the veracity of information provided in the list of authorities, a concern had in turn been raised in relation to the competency and ethics of Mr B…

( … )

[10] I have foreshadowed … making an order providing Mr B an opportunity to respond to the court’s proposal to refer his conduct in tendering the apparently inaccurate list of authorities today, to the Legal Services Board and Commissioner for investigation. Beyond that, I will not be making an assessment or a determination in relation to that conduct. That will be a matter for the legal professional body if a referral is made. The purpose of the order I make is for Mr B to be afforded procedural fairness in relation to my proposal to make that referral. I will provide him with one month to do that…

( … )

[14] … I will make the orders foreshadowed and Mr B can address the veracity of information provided in the list of authorities in his written submissions if he wishes to do so.”

The proceedings were adjourned.

Property – Application for consent orders refused – Mentally disabled wife was in aged care but marriage had not broken down – Court was not satisfied that the proposed property orders were just and equitable.
In Giordano [2024] FCWA 182 (2 September 2024) O’Brien J heard an application for consent orders where the disabled wife required full time care.

The husband and the Public Trustee as case guardian for the wife proposed consent orders in which the family home was to be transferred from the wife to the names of both parties as joint tenants. The parties were otherwise retaining their respective assets ([1]).

O’Brien J said (from [5]):

“There can be no suggestion that the absence of a breakdown in the marital relationship means that the jurisdiction of the Court is not enlivened.

[6] There can be circumstances other than ‘a voluntary separation of the parties marking the breakdown of their marital relationship’ in which the Court is nevertheless satisfied that it is just and equitable to make an order for the alteration of property interests …

( … )

[23] I cannot be satisfied on the available evidence that it is just and equitable to make any order for alteration of property interests, let alone that the orders presently proposed are just and equitable in all the circumstances.

[24] I do not know whether the questions which emerge from the papers have been adequately considered by the Public Trustee in the exercise of his protective duties to the wife. I accept that they may well have been – but the evidence does not presently permit that conclusion to be drawn.

[25] … [I]t is not at all clear that the parties have adequately considered the fact that there is but one exercise of the Court’s power to alter property interests. While the marriage has not broken down, the wife’s needs are apparently presently being met and the husband desires security of accommodation, the making of orders now would (subject only to the possible application of s 79A) preclude the making of further orders for alteration of property interests should the relationship end.”

The application was adjourned to allow the parties a reasonable period to consider their options and adduce further evidence ([28]).

Procedure – Father’s application for release from Harman undertaking to use expert evidence in his criminal defence dismissed, as he failed to establish that his proposed use of report would contribute to the administration of justice.
In Kuang [2024] FedCFamC2F 1191 (29 August 2024) Judge Murdoch heard a father’s application for leave to be released from his Harman undertaking in respect of a single expert report prepared for parenting proceedings. He was facing criminal charges in the District Court and sought to use the material in those proceedings.

The single expert report was prepared by a psychiatrist and pertained to the welfare of the children.

Judge Murdoch said (from [15]):

“ … [T]he pre-eminent consideration is whether there is a real possibility that the expert reports may contribute to the administration of justice in the father’s criminal proceedings.

( … )

[24] I am not satisfied the father has discharged his onus to establish that he and his legal advisors should be released from the ‘Harman Undertaking’ … because:

• No evidence was provided by the father to demonstrate that the expert is on notice as to the application for leave…
• The father has not established how an untested hearsay opinion based from material that would not appear to be adduced in the criminal proceedings … will likely contribute to achieving justice.
• The father has not established how untested alleged conversations that are potentially hearsay and given with the assistance of an interpreter will likely contribute to achieving justice…
• The father has not engaged in any meaningful manner with the best interests of the children… There is no evidence as to how the release of this report to be used in the father’s criminal proceedings will impact on the children. I accept the mother’s submissions that in the event the single expert were to give evidence in the father’s defence in the criminal proceedings it would be inappropriate for him to continue as the single expert in these proceedings. This would cause significant delay in the parenting proceedings and the children’s involvement in the preparation of a second expert report. This is not in their best interests.”

The father’s application was dismissed and the mother’s costs reserved for 28 days.

Craig Nicol and Keleigh Robinson
Co-editors, The Family Law Book