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Latest Notable Cases samples

This is a sample (posted 19 August 2018) of "latest notable cases", which is posted monthly with live links for members at the Members' Home Page under Members' Practice News. Also available at our Members' Home Page (along with our E-Book, our up-to-the-minute family law and child support practice news, our online forms and precedents and our free legal help line) is our online members' Archive of all our back issue indexed case notes (assembled by topic and with live links to AustLII), useful papers and client brochures.

Our E-Book offers links to all the AustLII-published cases we cite, links to forms and precedents and a word/phrase search function (also available at our archive once you have chosen your topic).

Children – Judge avoided determining the issues presented by the parties at an interim hearing – Dismissal of all applications was in error – Observations made as to how lawyers can assist a judge with a busy list

In Matenson [2018] FamCAFC 133 (20 July 2018) Murphy J, sitting in the appellate jurisdiction of the Family Court of Australia, heard the appeal of an unrepresented father against the dismissal of his interim parenting application by an unidentified judge of the FCC in respect of three children aged 16, 13 and 11. His main concern was the lapse of time since he had seen his children despite an earlier consent order which granted time but which the mother was contravening. The mother was also unrepresented. Despite all parties seeking an order for some time (the father a variation of an existing order for supervision in the form of an order for unsupervised time and the mother and ICL an order that the eldest child see the father as she wished but that the other children spend some time with him) the Court dismissed all interim applications and set the case down for trial 10 months away.

In allowing the appeal and remitting the case for rehearing, Murphy J said (from [25]):

“The path of the parties’ litigation … which included intervention by the ICL and the preparation of a family report, saw issues that could only be resolved at a trial. That same path also saw issues that needed determination pending a trial.

[26] The transcript records her Honour referring to the setting aside of subpoenas issued by the father and then saying to the ICL that ‘we are definitely at an impasse’ … (I infer that her Honour was there referring to the husband asserting that the children were being ‘coached’ not to see him by the mother and the mother asserting that the children did not want to see their father and she could not make them do so.)

[27] Thereafter, her Honour moves immediately to set the matter down for trial some 10 months later in December this year. Having done so, her Honour then says ‘[o]therwise ... all interim applications are … dismissed’ and nothing more …

[28] In an environment of too-scarce resources, a delay between interim hearing and trial is … almost always a given. However, that … does not preclude the determination of interim issues, rather it provokes a determination of those issues. The proposals of the parties raised a central issue for determination: should the existing consent parenting orders … be changed … between the hearing and the trial? As has been seen, the parties and the ICL all contended that they should be. Each of those parties presented proposals for change.

( … )

[33] In the Federal Circuit Court at least, interim proceedings are almost always conducted within huge lists where large numbers of cases seek a hearing. The convoluted and conflicting assertions common to many of those cases cannot be tested. The exquisite difficulties in fashioning interim orders in the best interests of the subject child or children pending a trial (which those same scarce resources dictate may be significantly delayed) is, or should be, obvious.

[34] Yet, it is a task which, with all its inherent difficulties, must be confronted not avoided. The jurisdiction of the court has been properly invoked and it must be exercised, albeit it in significantly less than ideal circumstances.

( … )

[36] At no time did her Honour identify the competing proposals of the parties or identify the issues necessary for her determination. Her Honour makes no reference to matters which she considered uncontentious. Indeed, the references to any evidence are … extremely sparse. Specifically, the family report filed subsequent to the existing orders and 15 days prior to the interim hearing before her Honour was alluded to but her Honour did not refer to any particular aspects of that (albeit untested) evidence.

( … )

[42] With respect, her Honour plainly failed to embark upon a determination of the issues presented to her for interim determination. The consequence is that the process miscarried and should be revisited.”

Editor’s note – At the conclusion of his reasons (from [72]) Murphy J made observations as to the management of busy court lists, particularly ([77]) as to how lawyers can assist busy judges (although in this case the judge’s failure to make some order for time where no party was seeking “no time” was the problem). After arguing for the resources to meet the need for due process such as time for the delivery of adequate reasons he spoke of the duty of lawyers to “assist judges” at an interim hearing, especially where a party is unrepresented, saying at [78]-[84]:

“… [P]recise identification of the nature of the proceedings; their basis in statute and decided authority and … the issues to be decided expressed succinctly …

… [A] clear understanding of … the Act and authority … as to the nature of the relevant judicial determination … Concise … references to agreed or uncontentious facts and less contentious matters must form the parameters of what is argued and sought by way of orders.

Draft orders should always be provided … [to] reflect that appropriate thought has been given to whether the evidence … justifies any such order. …

Th[ose] matters … should … be … in a document for the judge. … much of which could be in dot point form … confined to a page or two.

Time spent waiting for a hearing – or … the days ahead of a hearing – can be used productively by exchanging such documents and agreeing upon the … uncontroversial facts and truncation of issues that can … be dealt with in the … confined interim process.

… [A] practitioner’s primary duty to the court … includes assisting the judge by helping to identify … issues, evidence … when a party is self-represented. That is not a duty … confined to the ICL.

These things are not difficult. They should be a perfectly unexceptional part of proper professional practice (and the rendering of a fee which has its basis in the provision of proper professional services).”


NOTE – A further 6 cases are summarised for members this month at our Members’ Home Page under “latest notable cases” under the following headings:

Property – Land inherited by husband during long marriage – In isolating a contribution to a particular property as part of a global approach, trial judge failed to heed the risk of ignoring significant contributions by both parties that did not have a nexus with that property – Extent of wife’s need for housing and other s 75(2) factors not considered either

Property – Police Superannuation Scheme hurt on duty pension was superannuation, not a damages award – Court erred in not considering wife’s indirect contribution to it

Children – Reversal of care – Section 65DAA (court to consider equal time etc) is not triggered by an order for equal shared parental responsibility as to some but not all major long-term issues – Court not obliged to provide explicit and cogent reasons for presumption of equal parental responsibility being rebutted if both parties concede that s 61DA(4) (rebuttal of presumption) applies

Property – Husband’s initial contribution of land which soared in value due to re-zoning during long marriage – Contributions (including those of wife) assessed as to two-thirds:one-third in husband’s favour

Procedure – Apprehended bias – Father who sent abusive emails to judge’s chambers could not rely on the court’s knowledge of that conduct in support of an order that the judge recuse himself due to bias – Costs

Children – Court expresses frustration at being powerless to order joinder of the NSW Department of Family and Community Services as a party to the proceedings without its consent