In 2016–17, 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). 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 decisions.

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). In 2016–17 the Court published 1106 first instance and 216 full court judgments.

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.

Clarence & Crisp

[2016] FamCAFC 157 (Thackray, Ainslie-Wallace & Aldridge JJ)

Appeal—De facto Relationship—Parentage

This was an appeal against a finding that the parties were in a de facto relationship at the time of the child’s conception and that the respondent is therefore a parent of the child.

The appellant was the birth mother of the child but the child was conceived using the respondent’s egg. The medical procedure by which the child was conceived was performed on 11 July 2011. If the parties were in a de facto relationship on that day, then they were both the child’s parents for the purposes of the Family Law Act 1975 (Cth) (“the Act”).

As his Honour found that the parties were in a de facto relationship on that day, the legislative presumption in favour of equal shared parental responsibility applied.

The parties agreed that they had commenced a de facto relationship in 2004. The appellant claimed that the relationship ended on 21 March 2011, when the respondent left the home in which they had been living. The appellant’s case was that after 21 March 2011, the parties remained in “a friendly relationship” and the respondent agreed to donate embryos for use in the July 2011 procedure because she “understood the depth of the desire of the [appellant] to have a child”.

The relevant question was not whether the parties separated when the respondent moved out of their home, but whether the relationship subsisted at the time of conception.

The respondent’s evidence was that she continued to spend four or five nights a week at the appellant’s home until August 2011.

His honour found that in the period from 6 May 2011 to 26 July 2011 there had been 850 text messages between the parties on topics which ranged “from the mundane to the highly personal”. The messaging contained florid announcements of each of the parties’ love for each other in circumstances where his Honour considered that the expressions were not empty statements but a genuine reflection of how the parties felt towards each other.

His Honour considered that the frequency of the text messaging and the range of sentiments expressed and exchanged between the parties were not as would be expected where there were irreconcilable differences between them. There may have been dissatisfaction and disharmony but he held the content of the messaging was consistent with parties who were either in a relationship or had not yet determined that the relationship was over.

His honour held that notwithstanding the parties’ physical separation in March 2011, the entire focus of the parties was to explore a reconciliation. Ultimately their endeavours were unsuccessful but his Honour accepted that they were genuine in their pursuit of an ongoing relationship which would have a child as its focus.

His Honour held that there was undoubtedly volatility in their relationship both before and after their physical separation but it could not be said that their conduct towards each other, and their public representations and engagement, was significantly different to that which existed in happier times.

One ground of appeal involved a distinction between the nature of de facto relationships and the institution of marriage. It was held that the trial judge’s focus was on the conduct of the parties and any asserted distinction merely acknowledges that a marriage persists until a court grants a divorce order.

The remainder of the appeal asserted that the trial judge had erred in finding that a de facto relationship had existed on the relevant date. It was asserted that the trial judge had failed to take sufficient account of the respondent’s intention to nurture the child; that the couple were not living together on a genuine domestic basis; of the respondent leaving the home; failure to make a finding of when the relationship ended; failure to have regard to financial factors; failure to have regard to the significance of the text messages not mentioning the couple supporting the child; and failure to give proper weight to the evidence of a psychologist.

The Appeal Court found that the trial judge had not erred and the appeal was dismissed.

Saska & Radavich

[2016] FamCAFC 179 (Bryant CJ, Murphy and Kent JJ)

Appeal—Children—Proper interpretation of definition of family violence in s 4AB(1) of the Family Law Act 1975 (Cth)

In this case, the trial judge found that the father’s behaviour towards the mother on 4 December 2013 (when he assaulted and verbally abused her) amounted to “family violence” within the meaning of s 4AB of the Family Law Act 1975 (Cth) (“the Act”). The trial judge also recorded findings as to the father’s various behaviours which the trial judge found coerced and controlled the mother and which constituted “family violence” as defined. The “family violence” as found by the trial judge had the result that the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child did not apply.

On appeal, the father contended that because the trial judge did not make a finding that the parents were, or had been, in a de facto relationship, or a finding that the parents regularly resided or had resided together, it could not be concluded that the mother was a member of the father’s family for the purposes of s 4AB(1) of the Act.

On appeal it was argued that if the mother was not a member of the father’s family within the meaning of the provisions, the actions of the father could not fall within the definition of family violence.

Bryant CJ, Murphy and Kent JJ noted that the father sought to mount an argument on appeal which not only was not raised by the father before the trial judge but which was directly contrary to the case he advanced at trial. At trial the father had said the parties had lived together for about three years between early 2008 and January 2011.

On appeal it was held that the father’s contention, upon which each of his foreshadowed grounds of appeal depended, was doomed to fail, deriving, as they did, from a misconceived interpretation of s 4(1AB) of the Act.

Section 4(1AC) relevantly provides that for the purposes of subsection (1AB), “a relative of a person” includes “a father” and “a mother” of the person (subparagraph (a)) or “a son” of the person (subparagraph (b)). The combined effect of s 4(1AB)(e) and s 4(1AC) is that for relevant purposes:

  1. The child is a member of the family of the father, and vice versa, and
  2. The child is a member of the family of the mother, and vice versa.

It was never in issue in the proceedings that, at all material times, the mother ordinarily or regularly resided with the child, a member of the family of the father within the meaning of these provisions. Thus, by operation of subparagraph (h) of s 4(1AB), the mother was, at all material times, a member of the father’s family.

Further, within the meaning of subparagraph (i) of s 4 (1AB) each of the mother and the father, respectively and alternatively, “is or has been a member of a family of a child of [the other]”.

It followed that, by operation of either of these subparagraphs, as a matter of law the mother was at all material times, for the purposes of s 4AB of the Act, a member of the father’s family or a “family member” as there referred to.

The appeal was dismissed.

Britt & Britt

[2017] FamCAFC 27 (May, Aldridge and Cronin JJ)

Appeal—Property—Admissibility of evidence—Whether the appellant’s evidence of family violence was properly taken into account by the primary judge

The parties’ relationship lasted some 30 years from their marriage in 1988 until their separation in November 2011. They raised four, now adult, children.

The parties were farmers and for most of their married life lived and worked on a property described in the judgment as “Property D”. The property was owned by the husband prior to the commencement of the relationship. Property D was found to be on a valuable coal seam deposit and in 2009 it was sold for $3.4 million. Of that sum, $1.9 million was used to purchase Property E, which the parties farmed together until separation.

With both parties involved in the farming operations and the care of the children, the trial judge held that contributions were equal. The initial contribution of the farm by the husband was recognised by an adjustment of 0.05 per cent in the husband’s favour. Thus the entitlements were found to be 50.05 per cent to the husband and 49.95 per cent to the wife.

The trial judge rejected parts of the wife’s evidence as to family violence. Her Honour considered that the evidence consisted of conclusions, was “just too general” and lacked particularity. In particular, her Honour was critical of adjectives such as “regularly”, “routinely”, “repeatedly” and “often” in describing the family violence, stating that these words lacked specificity and were too general. Her Honour was of the view that such evidence gave no indication as to “whether [the family violence] happened once a week or once a decade”.

The most significant grounds of appeal were, for convenience, grouped under the following topic: Was the evidence of family violence properly taken into account?

The wife contended that her contributions towards the property of the parties and the welfare of the family were made more onerous by the coercive and controlling behaviour of the husband and the physical violence he inflicted upon her (see Kennon v Kennon (1997) FLC 92-757).

However, much of the evidence regarding family violence, as relied upon by the wife, was rejected by the primary judge. The primary judge ultimately did not accept the evidence of the wife, with her Honour stating:

94. I cannot be satisfied on the balance of probabilities that any of the evidence the wife gave about the husband’s aggression or violence is true. The wife was not a witness of credit … The wife clearly has aggressive tendencies herself which leaves open to question whether she would have meekly put up with the husband assaulting her.

On appeal, it was held that the statements made by the primary judge, to the effect that the evidence was too general and was in the form of conclusions, confused admissibility with weight. Whilst the evidence could have been more specific, any generality went to the ultimate weight to be given to the evidence and not to whether it should be admitted or not. It was stated that evidence is commonly given in general terms and, when taken in conjunction with other evidence, it can be tolerably clear what was meant. Thus one would not expect any person who had been in a long relationship to remember the exact nature and frequency of recurring events throughout that relationship, let alone specific dates.

It was held on appeal that the Court could not be satisfied that the excluded evidence would have made no difference to the outcome if it had been admitted. Thus it was determined that the matter must be remitted for a re-hearing.

It was submitted by the husband that because the primary judge did not accept the evidence of the wife on the issues of violence, no miscarriage of justice had occurred. That submission was not accepted. It was held that the wife, by reason of the primary judge’s error, had lost the opportunity to have her case determined on all of the admissible evidence available. That meant that the credit finding itself was not based on all of the available evidence.

Atkins & Hunt and Ors

[2017] FamCAFC 79 (Bryant CJ, May and Murphy JJ)

Appeal—Practice and Procedure—Discussion of the alter ego principle in relation to corporate entities

This appeal came before Bryant CJ, May and Murphy JJ. Bryant CJ and Murphy J (May J dissenting) held that the wife was not entitled to raise certain issues not raised at trial.

The relevant business was run by a corporate structure, N Pty Ltd.

The wife’s central contention on appeal was that the nature, degree and extent of the husband’s control over N Pty Ltd – described by senior counsel for the wife as both “ultimate control” and “absolute control” – should have led his Honour to conclude that N Pty Ltd was the husband’s “alter ego” and that the husband asserted total control over N Pty Ltd. However, these were not arguments run before the trial judge.

The High Court has stated that “a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below”: Water Board & Moustakas (1988) 180 CLR 491 at 497 (“Moustakas”). There are limited exceptions to that principle: where “all the facts have been established beyond controversy or where the point is one of construction or of law”, the Court in its discretion may “find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied”: Moustakas at 497.

It was found that N Pty Ltd is a significant and long-standing trading entity. One of the husband’s children was a director of N Pty Ltd at the time of the trial. He had been a director of that corporation (together with the husband) for over 15 years prior to the trial. He was, and had been, active in the day-to-day running of the business. He gave evidence at the trial. It was not suggested to him at any time that, as a director, he did his father’s bidding or did not otherwise independently exercise his mind in and about the direction of the company.

The question of the direct control of the day-to-day operations of the company (held to have little relevance by the trial judge) may have had significant relevance if the alter ego argument had been agitated at first instance.

Bryant CJ and Murphy J held that it could not be said that all of the facts upon which the alter ego argument rested were established in the Court below. Indeed many had not been referred to at all.

It was also held that the questions now sought to be decided on appeal were questions of fact, not law.

They therefore could not be entertained as questions of law or construction based on uncontroversial facts.

Ultimately the appeal was allowed but based on the separate issue of discretionary error of the trial judge relating to different grounds.

In Focus: Magellan Case Management in the Family Court of Australia

The Magellan Program commenced in Victoria in the late 1990s and was implemented in all family law registries in 2003. It is designed to identify and deal effectively and efficiently with cases involving allegations of sexual abuse or serious physical abuse of a child. These are the most resource-intensive cases and involve the most vulnerable children.

Image of the cover of Cooperation and Coordination: An evaluation of the Family Court of Australia's Magellan case-management model

Magellan involves

  • Priority early intervention so that, from the outset, resources are directed toward the dispute and evidence gathering to enable the case to be listed for trial.
  • A designated team headed by a judge, or other judicial officer, a Magellan registrar, senior family consultants and court administrative staff specifically assigned to handle the case from start to finish.
  • A target time to finalisation of six months.
  • Use of a court-ordered Independent Children’s Lawyer in every case, funded by Legal Aid with the cap for parents to qualify for Legal Aid lifted.
  • The state and territory child protection and welfare agencies commencing a comprehensive initial investigation founded upon the filed Notice of Child Abuse, Family Violence or Risk of Family Violence together with close liaison and attention to what other management of the file or evidence may be required from external information providers and single experts including police and medical and forensic experts.
  • Setting the case down for trial, with the intention that a comprehensive family report prepared by a court family consultant be completed shortly prior to trial.

There is a protocol between the Family Court, state and territory Legal Aid authorities and the departments responsible for child protection, reflecting agreed procedures and outcomes.

How a case is designated Magellan

  1. When a Notice of Child Abuse, Family Violence or Risk of Family Violenceform is filed with an application initiating proceedings for parenting orders, the notice, application and any affidavit are referred to the Magellan registrar for assessment. If suitable, the case is then listed as appropriate. The Magellan judge, or other judicial officer, hears and determines all interim and interlocutory applications and substantive matters including making trial directions for final hearing.
  2. The second but less common way for a case to be designated a Magellan matter is when a file is transferred by order of a judge of the Federal Circuit Court to the Family Court, requesting it to be considered for designation as such. In these cases, the file is referred to the Magellan registrar to assess its suitability. If it is found suitable, the usual arrangements and procedures apply for the case to be listed as soon as practicable.

Early steps in a Magellan case

  • The Magellan registrar makes orders for the appointment of the Independent Children’s Lawyer and for filing of any other documentation prior to its first substantive listing. At that listing a judge, or the Senior Registrar, will make such other appropriate orders as may be required to protect a child because of risk until the matter comes to trial.
  • A Magellan report by the state and territory agency may be ordered and may include:
    • a summary of its investigation including what persons, agencies and others may have been spoken with or interviewed, as well as setting out any history of prior engagement of the department, including notifications and outcomes
  • whether, as a result of investigation, the department concludes the existence of a risk and its reasoning and conclusions about that, if the department intends to intervene in the proceedings and any particular suggestions and recommendations about orders the Court may consider making
  • whether or not it considers a child or children is/are at risk, and if so, what level of risk and from whom.
  • This report is prepared and available for a substantive listing before a judge and the file produced so that the report, which is a summary of the content and case notes, is available for inspection by legal representatives and child representatives.

Matters that impact the target timelines

The Court cannot direct or require the police forces of the states and territories if they are undertaking investigation with the potential for criminal charges to be laid to do so in a timeline that satisfies the Magellan target dates. Likewise, suitably qualified experts such as psychiatrists, paediatricians, forensic psychologists or psychiatrists who can undertake risk assessment, may take a number of months to commence and complete the reports.

Note: in Victoria, a trial program which places a family law liaison officer from the Department of Health and Human Services’ Child Protection in the Court registry, has significantly aided the ability to follow up and ensure things are done, pursuant to the protocol. The officer in place is also able to assist by answering, as far as is appropriate and permitted, questions and queries about matters they have from the Court or from legal representatives as to dates and times to ensure that reports, if ordered, can be completed and provided to the Court without unnecessary or wasted listings and costs expended or lost as a result.

National oversight of the Magellan list

A Family Court judge, at the request of the Chief Justice, is designated the national Magellan judge. That judge, currently His Honour Justice Stewart Austin of the Newcastle registry, oversees the Magellan lists.