In 2015–16, judges of the Family Court of Australia handed down judgments at both first instance and appellate levels. The decisions reflect the Court's expansive jurisdiction, the wide variety of issues that it addresses, and its position as a superior specialist federal court that deals with the most complex and serious family law cases. A selection of significant and noteworthy judgments are published in this report.

The Court recognises that the accessibility of its judgments to the public is important. It commits the resources required to ensure that every final judgment delivered is anonymised and published consistent with s 121 of the Family Law Act 1975 (Cth).

Virtually all judgments, after anonymisation, are published in full text on the Australasian Legal Information Institute (AustLII) website. There is a link to the AustLII site from the Court's website (www.familycourt.gov.au).

Recent decisions are also published on the Court's website: full court decisions are published for two months and first instance judgments are published for one month. This policy has enabled the Court to better respond to community interest and concerns about particular cases highlighted in the media and demonstrates the commitment of the Court to being open and accountable for its judgments.

JANSSEN & JANSSEN

[2015] FamCAFC 168 (Strickland, Ryan and Aldridge JJ) – delivered on 4 September 2015.

Appeal – transfer of proceedings – jurisdiction

In this appeal the Full Court considered what jurisdiction, if any, remains with the Federal Circuit Court after an order made by that court transferring proceedings to the Family Court pursuant to s 39 of the Federal Circuit Court Act 1999 (Cth) ("the FCC Act") has been made. The appeal was brought by the mother who argued that interim parenting orders made by a Federal Circuit Court judge after a transfer order had been made were made in excess of jurisdiction and were therefore a nullity. The father opposed the appeal, arguing that by virtue of s 39(5), the Federal Circuit Court retained jurisdiction to make such interim orders as it considers necessary and in aid of the transfer.

By way of background, the mother initiated proceedings in the Federal Circuit Court in relation to the parties' three children in October 2013. On 19 December 2013 the primary judge made interim orders providing for the mother to have sole parental responsibility for the children, for the children to live with her and have regular telephone contact with the father. In January 2014 the father was convicted of two offences of "common assault and stalk and intimidate" in relation to his behaviour towards the mother. An apprehended violence order was also made. In February 2014 the father filed an interim application seeking to spend time with the children, initially under supervision. On 9 April 2014 the primary judge heard that application and reserved his decision. In August 2014 the father's convictions and the apprehended violence order were set aside by the District Court of NSW. On 21 January 2015 the mother filed an application for interim restraining orders. That application came before the primary judge on 8 April 2015 and on that day his Honour made an order transferring the proceedings to the Family Court pursuant to s 39 of the FCC Act. Subsequently, on 30 June 2015, almost three months after making the transfer order, the primary judge made interim parenting orders in relation to the father's interim application filed in February 2014.

In its reasons for judgment, the Full Court first sets out the provisions of s 39 of the FCC Act governing the transfer of proceedings. Relevantly it sets out s 39(1) which provides that an order for transfer may be made to the Family Court where a proceeding is pending in the Federal Circuit Court. It then sets out the terms of s 39(5) which provides that:

If an order is made under subsection (1), the Federal Circuit Court of Australia may make such orders as it considers necessary pending the disposal of the proceeding by ... the Family Court, as the case requires.

The Full Court then discusses the provisions of s 19 of the FCC Act which provides that, subject to limited exceptions, proceedings must not be instituted in the Federal Circuit Court "in respect of a particular matter if proceedings in respect of an associated matter are pending in the Family Court". The Full Court held the effect of this provision is that:

31. ... there can only be one proceeding between the parties under the [Family Law Act 1975 (Cth)] pending at the same time in the Family Court and the Federal Circuit Court. In other words, there cannot be parallel proceedings in each of the Family Court and the Federal Circuit Court in respect of the same matter.

The Full Court continues:

32. It is against this background that s 39 and s 39(5) of the FCC Act in particular must be construed. Section 39 is concerned with the circumstances under which the Federal Circuit Court may transfer proceedings pending in that court to the Family Court (and Federal Court) and the consequences of an order of that type. In relation to s 39(5), it is important that the provision commences with the words "if an order is made". The use of these words provides a temporal nexus between the order for transfer (s 39(1)) and the power of the Federal Circuit Court to make orders pending disposal of the transferred proceedings by the Family Court. The use of present tense in s 39(5) indicates that the power conferred by s 39(5) is to be exercised contemporaneously with the power to transfer contained in s 39(1). In other words, after the contemporaneous exercise of power pursuant to ss 39(1) and 39(5), there will not be proceedings pending in the Federal Circuit Court in relation to which that court is seized of jurisdiction.

The Full Court therefore held that the interim parenting orders made by the primary judge in this case, after the transfer of proceedings, were made in excess of jurisdiction and, as the Federal Circuit Court is not a superior court of record, were therefore a nullity. Having found error, the Full Court allowed the appeal and set aside the orders appealed.

GHAZEL & GHAZEL AND ANOR

[2016] FamCAFC 31 (Finn, May and Austin JJ) – delivered 4 March 2016.

Appeal – recognition of foreign potentially polygamous marriages – effect of Marriage Amendment Act 2004 (Cth)

In this matter the wife appealed an order which dismissed her application for a declaration that her Iranian marriage to the husband was valid pursuant to the provisions of the Marriage Act 1961 (Cth). The key question for the Full Court on appeal was whether a potentially polygamous foreign marriage will be recognised as a valid marriage under Part VA of the Marriage Act having regard to amendments made to that Part by the Marriage Amendment Act 2004 (Cth) ("the 2004 amendments"). Part VA contains the provisions providing for the recognition of foreign marriages. Both the husband and wife were self-represented on appeal and because the case raised a matter affecting the public interest, the Full Court requested that the Attorney-General intervene in the proceedings. The Attorney-General was represented in the appeal by the Solicitor-General.

The husband in this case was born in Iran and the wife was born in England. The parties married in 1981 according to the law of Iran. The parties' marriage in Iran was described by the Full Court as a "potentially polygamous marriage", meaning a marriage where a man may, but has yet to, marry more than one wife. The Full Court distinguished between this type of marriage and an actually polygamous marriage and confined its discussion to potentially polygamous marriages. In late 1981 the parties moved to England and underwent a marriage ceremony at an English Registry Office. In 2003 the wife and the parties' children moved to Australia. The husband followed in 2005 and in 2007 the family became Australian citizens. In 2008 the parties filed a joint application for divorce in Australia and in that application they only referred to their marriage in England. A divorce was granted in March 2008. In 2011 the husband married another woman, Ms C, in Iran and, the wife alleged, he married Ms C in Australia in 2012. In November 2014 the wife filed an application seeking an order that her Iranian marriage to the husband be "declared valid" pursuant to the provisions of Part VA of the Marriage Act. The primary judge determined not to make the declaration and dismissed the wife's application.

As outlined above, the issue the Full Court had to consider on appeal was the effect, if any, the 2004 amendments had on the provisions of Part VA of the Marriage Act providing for the recognition of foreign marriages. The 2004 amendments inserted into the definition section (s 5(1)) of the principal Act the following definition of marriage:

Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

The 2004 amendments also inserted s 88B(4) into Part VA. That section reads:

(4) To avoid doubt, in this Part ... marriage has the meaning given by subsection 5(1).

The Full Court began its discussion by first considering whether a potentially polygamous marriage could be recognised as valid under the Marriage Act as it stood prior to the 2004 amendments. The Full Court accepted the Solicitor-General's submissions as to the proper textual analysis of the statutory provisions and was also influenced by the argument that Part VA was intended to give effect to the Hague Convention on Celebration and Recognition of the Validity of Marriages. The Full Court therefore held in relation to the Act as it stood prior to the 2004 amendments:

41. ... a potentially polygamous marriage if recognised as valid in its place of celebration would be recognised as valid in Australia unless in the particular circumstances of the case one of the exceptions [provided for in Part VA] applied.

Importantly, the Full Court also held no legislative exception to recognition expressly referred to potentially polygamous marriages.

Having accepted that prior to the 2004 amendments, a potentially polygamous marriage would be recognised in Australia, the Full Court turned its consideration to the effect of those amendments. In its judgment the Full Court discussed in some detail academic analysis of the effect of the 2004 amendments which concluded that the importation of the definition of marriage meant that potentially polygamous marriages could no longer be recognised pursuant to the provisions of the Marriage Act. While noting the Solicitor-General's submission that this position had "some force", the Full Court took the contrary view and held that, notwithstanding the 2004 amendments, potentially polygamous marriages remain recognisable in Australia. In reaching this conclusion the Full Court was persuaded by the submission that the 2004 amendments were "entirely focused on the issue of same-sex marriages" and not polygamous marriages. The Full Court accepted that "where Parliament clearly did not contemplate that the 2004 amendments would affect any [marriages other than same sex marriages the] Court should strive against a construction that would have ... broader ramifications". The Full Court therefore concluded potentially polygamous marriages are still recognisable as valid pursuant to Part VA of the Marriage Act.

The appeal was therefore allowed and the Full Court made a declaration that the Iranian marriage between the husband and wife was valid.

MEDLOW & MEDLOW

[2016] FamCAFC 34 (May, Ryan and Aldridge JJ) – delivered on 8 March 2016.

Appeal – adoption of new test for leave to appeal

In this appeal the Full Court adopted a new test for determining whether to grant leave to appeal pursuant to s 94AA of the Family Law Act 1975 (Cth). In doing so, the Full Court brought the test applied in the Family Court into line with that used in the Federal Court. This matter involved two applications for leave to appeal brought by the wife in relation to two separate orders for interim property distribution made in favour of the husband. The effect of the interim orders sought to be appealed was that the husband would receive $2.9 million by way of interim property distribution. In its reasons for judgment the Full Court began its consideration of whether to grant leave to appeal by first outlining the test applied in the Family Court. Citing previous Full Court authority of Rutherford and Rutherford (1991) FLC 92-225, the Full Court articulated the test as being:

44. ... the test that has been applied in this Court as to whether leave should be given is that the applicant for leave should establish an error of principle and/or a substantial injustice.

(emphasis added)

The Full Court noted that this formulation of the test for leave to appeal was derived from Adam P Brown Male Fashions Proprietary Limited v Philip Morris Inc. and Anor (1981) 148 CLR 170 and that the High Court in that case also left open the issue of whether the test was conjunctive or disjunctive.

The Full Court then contrasted this formulation of the test for leave to appeal with that applied in the Federal Court. The test applied in that court is:

46. ... whether, in all the circumstances of the case, the decision is attended by sufficient doubt as to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused supposing the decision to be wrong.

(emphasis added)

It can be seen that there are two relevant differences in the tests for leave to appeal. The first appears in the first limb of the test, being "error of principle" versus "sufficient doubt" and the second is that the test applied in the Federal Court is conjunctive.

The Full Court cited with approval a previous Full Family Court judgment of Jess and Ors & Jess and Ors (2014) FLC 93-620 which had considered but not ultimately determined the correct test for leave to appeal. In that case the Full Court was supportive of adopting the test applied by the Federal Court to ensure a uniform approach to the issue of leave to appeal by the two federal intermediate appellate courts.

The Full Court in this case ultimately determined to adopt the test for leave to appeal that is applied in the Federal Court. The Full Court emphasised, however, that:

55. ... it is a litmus test to be applied in the general run of cases by always in the context of the unfettered discretion given by s 94AA. In appropriate cases, it being a test or a guideline, it will give way to the particular interests of justice in that case.

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & PADWA

[2016] FamCAFC 57 (Bryant CJ, Murphy and Kent JJ) – delivered 15 April 2016.

Appeal – Hague Convention on Child Abduction – habitual residence

This matter required the Full Court to consider the correct test for determining a child's "habitual residence" as that term is found in the Convention on the Civil Aspects of International Child Abduction ("the Convention") and the Family Law (Child Abduction) Regulations 1986 (Cth) ("the Regulations"). The orders appealed provided for the child the subject of the proceedings to return to Indonesia (which is not a signatory to the Convention) where her mother lived, rather than to the Netherlands where her father lived. The appeal was brought by the Secretary for the Department of Family and Community Services, acting as the Central Authority, at the request of the father. The appeal was opposed by the mother.

The child in this case was born in 2009 in the Netherlands. Her father is a citizen and resident of the Netherlands and her mother is a citizen and resident of Indonesia. The mother and father had married in 2007 and resided in the Netherlands. After the child was born she lived in both Indonesia and the Netherlands. The parties separated in July 2012 and in May 2013 they entered into a parenting plan agreement in the Netherlands. Between July 2010 and November 2013 the child lived for approximately 24 months in Indonesia with the mother and approximately 15 months in the Netherlands with both parents. The child began attending pre-school in Indonesia. From November 2013 until 17 October 2015 the child lived with the father in the Netherlands, where it was agreed between the parents that she would attend her first year of primary schooling. On 17 October 2015 the child travelled to Indonesia to spend time with the mother. The child was due to return to the Netherlands on 25 October 2015. On that date the mother informed the father she would not return the child. On 19 December 2015 the mother travelled with the child to Australia for a holiday. It was at that point that the father took action, Australia being a signatory to the Convention, and on 24 December 2015 the Central Authority filed an application pursuant to the Regulations seeking the return of the child to the Netherlands. The primary judge found that the child was not habitually resident in the Netherlands and ordered her to return to Indonesia.

In its reasons for judgment the Full Court determined that the primary judge applied the incorrect test for habitual residence and therefore his ultimate finding that the child be returned to Indonesia was erroneous. The Full Court identified the sole issue for determination on appeal, and the correct test to be applied at first instance, was the question of whether the child was habitually resident in the Netherlands immediately prior to her retention in Australia on 19 December 2015.

In reaching this conclusion the Full Court considered the two questions the primary judge posed for himself in determining the habitual residence of the child. After tracing through the history of the movement of the child, the primary judge posed the question as being, "what would the habitual residence of the child have been in November 2013?" The primary judge appeared to then make a finding that the answer to that question would be Indonesia. The trial judge then posed the question he had to answer as being, "[w]hat then has changed since November 2013 which might impact upon the determination of where the child is a habitual resident?"

The Full Court's reasons make it clear that the question, as required by the Regulations, was not where the child was habitually resident in 2013, some two years prior to her retention, but where was the child habitually resident immediately prior to her retention in Australia in December 2015. After a careful analysis of the authorities the Full Court also emphasised that this question is to be considered "from the child's perspective". The Full Court held the only answer to that question available on the evidence was that the child was habitually resident in the Netherlands.

The Full Court also considered a finding by the trial judge, apparently made as an alternative to the finding of habitual residence in Indonesia, that the child had two habitual residences, being Indonesia and the Netherlands. Noting that no ground of appeal was directed to challenging whether, as a matter of law, a finding of two habitual residences can be made, the Full Court said it was bound by existing Family Court authority that it is not possible to find that a child can simultaneously have more than one habitual residence. However, the Full Court then suggested that the High Court in LK v Director-General Department of Community Services (2009) 232 CLR 582 left open that possibility when they said:

25. ... it is unlikely, although it is not necessary to exclude the possibility, that a person will be found to be habitually resident in more than one place at one time.

In this case though the Full Court ultimately concluded that even if the child could be habitually resident in the two countries, in circumstances where Indonesia is not a Convention country and the Netherlands is, and where proceedings were properly invoked pursuant to the Convention by the father who had rights of custody in the Netherlands, the child must be returned to the Netherlands. The Full Court therefore allowed the appeal and made orders providing for the child to return to the Netherlands.

FAUKLAND & SHIKIA

[2016] FamCAFC 83 (Bryant CJ, Ryan and Murphy JJ) – delivered 25 May 2016.

Appeal – sentences for contempt of court – consecutive sentences – indefinite suspension of sentences

In this matter the husband appealed against the severity of sentences that had been imposed on him for contempt of court. The primary judge found that the husband was in contempt of court pursuant to s 112AP of the Family Law Act 1975 (Cth) ("the Act") in relation to two charges. Those charges arose from the husband's non-compliance with two previous orders of the court. The primary judge sentenced him to three months imprisonment on each charge to be served consecutively, and ordered that the terms of imprisonment be wholly suspended indefinitely. The wife did not participate in the appeal.

By way of background, the matter was instituted in the Federal Circuit Court for the purpose of property settlement proceedings between the husband and the wife. In June 2014 the primary judge made orders restraining the husband from disposing of a prestige motor vehicle without the written consent of the wife, or pursuant to an order of the court. In December 2014 the husband informed the wife's solicitors that the car had been sold for $90,000 cash. The husband also informed the wife's solicitors he had spent the cash gambling and on drugs. In an affidavit the husband stated he sold the car to a Mr P, that Mr P had possession of the car and that he did not know Mr P's or the car's location. On 19 December 2014 the primary judge made two orders providing for the husband to either provide the wife's solicitors with Mr P's full contact details or that the husband deliver possession of the car to the wife's solicitors by 22 December 2014. The husband did not comply with either order. It is the husband's non-compliance with those two orders which led to the findings of contempt by the primary judge in August 2015 and the imposition of the sentences, the severity of which was ultimately challenged before the Full Court.

The husband raised two challenges to the severity of his sentences on appeal. The first related to the fact that the sentences were to be served consecutively and the second challenge was directed at the indefinite suspension of the sentence of imprisonment.

By his first challenge, the husband argued that the primary judge gave insufficient weight to his poor physical and mental health. He argued that had sufficient weight been given to those factors, the sentences should have been imposed concurrently rather than consecutively. The Full Court found no error in the primary judge's decision to impose the sentences consecutively saying, "[i]ndeed, given the gravity of the contempt we have little doubt that a total sentence of imprisonment not longer than three months would have been insufficient." In its consideration of this challenge the Full Court confirmed what was said by a previous Full Court in Abduramanaoski & Abduramanaoska (2005) FLC 93-215 where it was held that Part XIIIB of the Act is a complete code for dealing with contempt and sentencing under the Act and that "s 112AP affords a sentencing judge a wide discretion, which is to be exercised transparently and in light of the individual facts and circumstances of the case".

By his second challenge, the husband argued that the indefinite suspension of the terms of imprisonment would mean that the sentences would, prima facie, continue for the rest of his life and were therefore excessive. In considering this complaint the Full Court adopted what was said by the Full Court of the Federal Court in Hughes v Australian Competition & Consumer Commission [2004] FCAFC 319. In that case the Full Court of the Federal Court, applying similar principles to those contained in s 112AP, said:

56. ... We are, however, firmly of the view that it is rarely, if ever, that an order should be made suspending the whole or part of a term of imprisonment for an indefinite period. There must come a time when a person who is the subject of a conditional suspension of a term of imprisonment is no longer exposed to that sanction. Even the suspended committal orders referred to in the English authorities appear to have contemplated that the committal order lie in the Registry for a time after which the contemnor would not be exposed to the risk of committal.

(emphasis added)

The Full Court therefore found that the primary judge had erred in suspending the sentences imposed on the husband indefinitely.

In reaching this conclusion, the Full Court noted that nothing they said:

24. ... brings into question the appropriateness of a coercive sentence of indefinite duration designed to compel a person to do something in the future when there is a reasonable prospect it will be done.

The Full Court re-exercised the discretion and re-sentenced the husband. Having found no error in the imposition by the primary judge of consecutive terms of imprisonment, the Full Court did not interfere with that aspect of the sentences. In accordance with its finding of error in relation to the indefinite suspension, the Full Court wholly suspended the terms of imprisonment until 31 December 2018 subject to certain conditions, including compliance with all future undertakings and court orders.

In Focus: Peer Support Network

The Peer Support Network consists of nine staff members who are trained to provide immediate assistance should a staff member experience a distressing situation or difficult event. The program is designed to complement the existing Employee Assistance Program and allows support to be available immediately should an incident occur.

Many people in the courts deal with difficult scenarios throughout the day and sometimes it affects them more than at other times. Being able to quickly debrief with a peer, by phone or in person, about a distressing situation is most important. Peer support officers from any location can provide assistance (there is no restriction on only accessing officers from the home registry or work group).

All peer support officers attend a two day training course arranged through Lifeline called the Accidental Counsellor. This course focuses on the importance of communication and resilience in the workplace, and specifically how to communicate with people experiencing crisis within a court context.

The training provides a solid foundation for crisis intervention, mental health awareness, suicide awareness, self-care and stress management.