Property – De facto thresholds – Parties lived separated but under one roof as de facto wife was too fearful to deny the de facto husband entry – Separation found to have occurred in 2016 and leave to proceed out of time refused – De facto husband’s evidence inconsistent with Centrelink and bankruptcy documents

In Brenna & Kolby [2023] FedCFamC2F 1523 (29 November 2023) Judge Cope heard a de facto husband’s application for property adjustment where he said the parties separated in 2016 but reconciled, before finally separating in 2020. The de facto wife said final separation occurred in 2016 and save for a brief reconciliation in 2018, the parties remained separated.

The parties had two children, aged 10 and 8. The asset pool was primarily comprised by a property purchased in 2018 (on the de facto husband’s case, purchased during the de facto relationship and on the de facto wife’s case, bought after separation in her sole name) ([6]). It was accepted that when the de facto husband stayed in the property, he slept in a separate room.

The Court said (from [5]):

“[The de facto wife gave evidence] … of a relationship characterised by violence and threats. Her evidence is that post separation she was too fearful of the applicant to deny him entry to her home or to refuse to go on family outings with him.

( … )

[31] … [W]hether [the de facto husband] … viewed himself to be in a de facto relationship and whether it was in reality a de facto relationship in terms of the legislation may well be two very different matters.

( … )

[34] It beggars belief that the applicant did not move heaven and earth to obtain documentary evidence about his claims of financial and non-financial contributions. Rather he produces only one Westpac receipt reflecting one mortgage repayment, and only one receipt reflecting payment of rates to support his contention of regular and ongoing payments.

( … )

[44] There is no dispute that a de facto relationship existed. What is in dispute is when that ended.

( … )

[48] The respondent … produced many texts that gave evidence contrary to [the de facto husband’s evidence as to separation] … supporting her evidence of separation in 2016. The majority of those texts were to and from an unnamed third person. The respondent advised that these texts were retrieved from a lost device which had just that week been found.

( … )

[50] The applicant’s earlier and repeated evidence as to the dates of separation and resumption of cohabitation was, on his own evidence, wrong. I am asked by the respondent to place little weight on his more recent evidence as a consequence of this inconsistency.

[51] During the lengthy cross examination, and despite the changes to his evidence, the applicant did not concede that the parties had not lived together in a de facto relationship after 23 March 2016 …

[52] He did however concede that at times he claimed Centrelink benefits as a single person when in between jobs …

[53] I also considered that on the Bankruptcy Notice dated late 2019 the applicant’s address is listed as E Street, Suburb F. This is at a time when the applicant alleges he lived with the respondent and nowhere else, yet even on his own evidence to an independent third party that was not the case.

( … )

[56] The respondent’s evidence is that the parties separated on a final basis in 2016 and that any communication or time spent after that was not a continuation of or reinstatement of the de facto relationship save for a brief reconciliation in 2018. Rather her evidence was that she was too afraid to say no to the [respondent] when he sought to stay in her home or, in the case of the trip to Country H, unwilling to turn down a once in a lifetime opportunity.

( … )

[65] The applicant concedes that when they were living under the one roof in the Town C property that he slept in a separate room – variously giving evidence that this was due to his snoring, because he started work early and because a child liked to get into bed.

[66] However, the Bankruptcy Notice dated late 2019 does not support that…

( … )

[73] The applicant’s understanding seems to be that if they had sex then they recommenced a de facto relationship – for example at his party in late 2017 he gives evidence of ‘rekindling’ the relationship. However, under cross examination he gave evidence that on some unnamed date in mid-2018 as they were going to daycare to collect the children the respondent turned to him and said, ‘why don’t we give it another go’. That evidence suggests that he accepts that at that stage they were not in a relationship which directly contradicts his own evidence.

( … )

[75] I accept the respondent’s evidence that the applicant constantly sought to persuade her to resume the relationship and that he interpreted every kindness, politeness or concession as a resumption of the relationship.

( … )

[80] The applicant provided only two documents supporting his evidence of financial contributions. …

( … )

[95] It is hard to accept that intimidation walks hand in hand with an overseas holiday. The respondent’s position was that this was her dream destination and that his organisation paid rather than the applicant. She also denied that they were there as a couple but conceded that she wore the engagement ring because she was told to do so by the applicant. It was a trip that even on the applicant’s evidence was undertaken at short notice.

( … )

[98] There is no evidence of any mutual plans for a joint future or for the children that is persuasive of the degree of commitment suggested by the applicant. That he wished there to be is clear enough, but it takes more than one person to form a de facto relationship.

( … )

[110] People can be in a relationship of some sort without it being a de facto relationship. They date, they have casual relationships, and they may, as alleged by the respondent in this case, be in a forced relationship or forced proximity due to fear or coercion.

[111] The applicant points to a series of events over about a five-year period after March 2016 as evidence of an ongoing de facto relationship together with his evidence of financial contributions which are largely unsupported by documentary evidence. The respondent concedes those social events but argues that she had no choice but to comply with the applicant’s invitations due to her fear of him and her concern for the children in his sole care. I accept her evidence about those social outings. While I am troubled about the trip to Country H, as noted earlier, those concerns are well and truly outweighed by my views of the applicant in the witness box as to his determination and strength of purpose. I formed the view that it would be hard indeed to deny the applicant what he wanted.

( … )

[114] Having weighed all the above matters I am of the view the weight of the evidence supports the respondent’s evidence that the de facto relationship ended in 2016. Although there was a short reconciliation occurring in 2018, I am not satisfied that what occurred was sufficient to amount to a resumption of a de facto relationship.”

The Court declared that a de facto relationship existed between 2008 and May 2016 and dismissed the application for leave to proceed out of time, finding that it was brought five years and four months after separation.

The Court held (at [129]):

“The reason given for the delay was the applicant’s alleged belief that the parties remained in a de facto relationship up until late 2020. I do not accept that was a reasonable belief in all the circumstances of this case. The fact that the applicant wanted to be in a de facto relationship with the respondent is not sufficient to make it so.”

Divorce – Wife’s application for rescission of divorce order dismissed – Wife’s submissions as to husband’s emotional distress did not discharge thresholds for rescission at sections 57 and 58 of the Family Law Act

In Moreau (No. 4) [2023] FedCFamC2F 1473 (21 November 2023) Judge Carty heard a wife’s application to rescind a divorce order.

The parties had been married for 48 years. A divorce application was filed by the husband that was granted after a contested hearing in which the wife alleged that the parties had not separated under one roof and had not lived separately and apart for 12 months.

Following the divorce order, the wife filed an application in a proceeding seeking that the order be rescinded and that the parties attend counselling, the Court noting that the effect of the wife’s application was such that the divorce order was yet to take effect ([19]).

Prior to determining the application to rescind, the Court directed the parties to attend counselling, after which the wife maintained that reconciliation was possible, while the husband said he was “more satisfied than ever” that there was no chance of reconciliation ([13]).

The wife’s evidence and submissions included that due to the husband’s “adverse childhood experiences” that he responds in “a reactive manner when he is afraid” ([23]), that the husband had a false belief that the wife was having an affair ([25]), that the husband’s “expressions of love for her” demonstrated possibility of reconciliation ([29]) and that the husband had not received the “support and guidance he needs to deal with the situation” ([29]).

The Court said (from [16]):

“There are two circumstances in which a court may rescind a Divorce Order before it takes effect.

[17] Pursuant to s.57 of the Act the Court may rescind a Divorce Order if the parties have become reconciled.

[18] Pursuant to s.58 of the Act the Court may rescind a Divorce Order if satisfied that the order was made because of a ‘miscarriage of justice’ by reason of fraud, perjury, suppression of evidence or any other circumstance.

( … )

[36] I am unable to find that the parties have become reconciled, even in the sense of having restored ‘friendly relations.’ … After an extended period of counselling … the husband maintains his position … and I accept that the recent family counselling has further cemented his position, which has remained consistent throughout the entire course of the proceedings to date.

[37] I accept the wife’s submission that the husband was under the misapprehension that the Divorce Order came into effect in mid-2023. I have already noted that the wife’s application to rescind the order has, by operation of s.55(3) of the Act, automatically extended the date upon which the divorce order will take effect.

[38] I do not accept the wife’s submission that the husband’s misapprehension materially affected his attitude to the counselling. The husband has consistently expressed his opposition to being ordered to engage in counselling or mediation with the wife, and the wife’s assertion that the husband’s attitude to reconciliation was affected is mere conjecture…

[39] I am not satisfied that the divorce order ought to be rescinded under s.57 of the Act.”

As to whether there had been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance, the Court said (from [42]):

“The wife has provided no evidence that either party in this matter has done anything intentionally dishonest. Further the wife has provided no cogent evidence in support of her contention that the husband was advised by his lawyers to omit information about his alleged childhood trauma, with the purpose of deceiving the Court.

( … )

[46] The wife has provided no cogent evidence that there has been any perjury in the divorce hearing.

( … )

[51] … The Court was always alive to the possibility that the wife’s cross examination of the husband may have elicited from him a concession that there was a prospect of reconciliation, in which case the Court would properly have dismissed his application for divorce. But the husband’s evidence was not shaken in cross examination …

( … )

[53] … [T]he husband… bore the onus of proving the facts required to be proven before the Court may grant a divorce. It was relevant to consider whether the husband’s evidence was credible, and the Court found that it was.

[54] The Court has had no reason at all to question the wife’s integrity or her honesty. There is no doubt that she is a very genuine person… She is desperate to avoid a divorce, and during the divorce hearing she begged the Court to dismiss the husband’s application.

[55] The Court is not able to find that either party has committed perjury in the divorce proceedings. There has been no miscarriage of justice due to perjury.

( … )

[62] In the current rescission application it appears that the wife considers that the Court should simply infer that the alleged adverse childhood experiences of the husband impacts on his capacity to deal with issues that have arisen in the parties’ marriage, and that the Court should infer that the husband lacks capacity to make proper decisions …

[63] The wife presents herself as the only person in the marriage who has capacity to make a sound decision and she says that she is ‘doing all she can to advocate for the husband and his needs.’ … She commented to the Court that she does not know whether the husband has had any agency in these proceedings, and she accuses the husband’s lawyers of failing to provide him with proper advice and guidance … The wife is not able to know what legal advice the husband has received, so her criticisms of his lawyers are without proper foundation. There is no cogent evidence before the Court of any impairment in the husband’s capacity … The wife invites the Court to find that it is only she who knows what is good for the husband … The Court is not persuaded by any evidence before it that such a finding would be soundly based.

( … )

[73] I am not satisfied that any of the circumstances set out in s.58 of the Act have been proven, and therefore the wife has not discharged the onus of proving that the divorce order made in mid‑2023 should be rescinded on the basis that there has been a miscarriage of justice, and I find that that there is no circumstance which would justify a rescission of the divorce order.”

The wife’s application was dismissed. She was ordered to pay costs fixed at $1,100.

Property – Husband’s failure to repay his parents within timeframe required by order was not a default, nor was the wife a “person affected” by that order – Wife fails to set aside order pursuant to s 79A(1)(c)

In Benito & Emmanouel [2023] FedCFamC1F 1023 (30 November 2023) Rees J heard a wife’s application to set aside consent orders made in September 2020, to which the husband’s parents were parties.

The orders declared a debt owing by the husband to his parents of $1,365,000 and that the wife would transfer her interest in a particular property (the “Suburb D” property) to the husband in exchange for $65,000, that property and two others to be charged with the debt to the parents.

The orders required the husband to repay his parents by 31 March 2021 and in default, he was to sell all three properties and also pay interest.

The husband failed to pay the debt by 31 March 2021, sold two of the three properties and ultimately repaid the debt with interest in November 2023.

The wife argued the orders should be set aside pursuant to s 79A(1)(c) (i.e. a person has defaulted in carrying out an obligation and in the circumstances that have arisen as a result of that default, it is just and equitable to vary or set aside the order) with a varied settlement so that she receive 57.5 per cent ([3]).

The husband argued that the wife was “not a ‘person affected’ for the purpose of s 79A(1) and therefore she cannot invoke the provisions of s 79A(1)(c)” ([11]). The husband’s parents opposed the application and sought indemnity costs.

The Court said (from [12]):

“The wife, in these proceedings, bears the onus of proving, by admissible evidence, that,

  • there has been a default, and
  • as a result of that default it is just and equitable to set the orders aside.

[13] It is not in dispute that the wife has received all that to which she was entitled pursuant to the orders…

( … )

[15] The only persons affected by those orders are the husband and the second and third respondents.

[16] I do not accept that, in these proceedings, the wife is a person affected by the relevant orders.

( … )

[25] While I accept that the husband was required to sell the Suburb E property after March 2021 if the debt remained unpaid, the orders do not specify a date by which the sale was to be completed and Order 9 makes provision for the payment of interest on the amount outstanding after 31 March 2021.

[26] I am not satisfied on the available evidence that the husband’s conduct of the sale of Suburb E constitutes default.

[27] Order 13 provides that, in the event that any part of the debt to the husband’s parents remains outstanding by 31 August 2021, the Suburb D property is to be sold and the proceeds used to repay the debt.

[28] The husband deposed that the property was to be auctioned in late 2023.

[29] The husband’s parents and the husband were living in the Suburb D property. The husband’s father deposed that, by 31 March 2021, the market was depressed and,

… as my wife and I had no other place to live, if we forced [the husband] to sell his properties, including [Suburb D], we would have no place to live. It suited me and my wife to stay in [Suburb D] and not force [the husband] to sell until we had a place ready to buy and move to. My wife also did not want to move more than once, something that I agreed with.

As such, my wife and I decided not to press the repayment when it came due …

( … )

[32] Again, I am not convinced that the husband’s delay in selling the Suburb D property, in circumstances where the persons entitled to enforce the sale consented, constitutes a default.

( … )

[38] The wife bears the onus of proving, to the standard required by s 142(2) of the Evidence Act (1995) Cth, the facts which base a submission that it would be just and equitable to set aside the 2020 orders.

[39] I am not satisfied that the fact that the properties which were to be sold pursuant to the orders were sold for a greater sum than that which was jointly agreed to be their value at the time that the orders were made is sufficient. Using the same logic, the husband would not be able to set the order aside if the properties had sold for a lesser value than the agreed values. The vicissitudes of the market must have been in the contemplation of each of them.

[40] I am not satisfied on the evidence before me that the division of property effected by the 2020 orders should be set aside or that the result would be different if the matter were re-litigated.”

The application was dismissed. The parties were directed to file written submissions as to costs.

Spousal maintenance – No error in exclusion of compulsory expenses associated with non-income producing real estate – Contractual or unavoidable expenses validly excluded if they are unreasonable

In Herczog [2023] FedCFamC1A 219 (7 December 2023), Aldridge J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a husband’s appeal against an order of the Magistrates Court of Western Australia that he pay $1,647 per week by way of interim spousal maintenance to the wife.

When making the order, the Court also ordered the husband to pay the wife a partial property settlement of $60,000, finding that the net asset pool had an “approximate total value of $2,329,688” ([9]).

The Court found that the husband controlled a family trust, business entities and “various real estate” interests; that he controlled how much he was paid as income (including dividends); that his disposable income was “not clear”; that his income was at least $2,770 per week via rental income and a further $6,942 per week of non-rental income; and that the companies under his control earned profits of $1.6 million in 2022 and $800,000 until May 2023 in that financial year ([11]).

The Court said (from [13]):

“Three of the properties owned by the applicant did not generate any income. One was said to be a vacant block of land, another was a derelict and condemned house. The third was a property in which the paternal grandmother lived and who held a 75 per cent registered interest. She made, as far as can be seen, no contribution to its outgoings.

[14] As explained in submissions, written and oral, it was submitted that her Honour erred in that:

The property expenses were contractual and not discretionary and it was an error of law to exclude them …

( … )

[17] The applicant’s point, essentially, is that the expenses for the properties were compulsory and therefore should not have been excluded. Yet unreasonable discretionary expenses may also be compulsory, if they are the subject of a contract. It is clear from the reasons in [Mee and Ferguson [1986] FamCA 3] … that what is meant to be included are unavoidable commitments such as taxation, Medibank levy, compulsory superannuation, and the like and necessary living expenses, but not all expenses the subject of a contractual obligation.

[18] The principle to be drawn from Mee is that when considering an application for child maintenance the Court may determine to exclude what it regards as unnecessary expense even though such expenses might fall short of being described as clearly unreasonable, extravagant or inappropriate.

[19] So, understood, it does not assist the applicant unless the expenses of the properties could be categorised as necessary living expenses.

[20] That decision was in relation to child maintenance pursuant to the then s 73 of the Family Law Act 1975 (Cth) (“the Act”) which required parties to a marriage to maintain their children ‘according to their respective financial resources’.

[21] Section 72(1) of the Act, dealing with spousal maintenance, states that a party to a marriage is liable to maintain the other ‘to the extent that the first-mentioned party is reasonably able to do so’. If s 72 is engaged the Court may ‘make such an order as it considers proper’ (s 74). In doing so, the Court must take into account ‘the income, property and financial resources of each of the parties’ (s 75(2)(b)).

[22] Thus, whilst spousal maintenance applications are often determined by looking at income only, the remit of the Court is not so limited.

[23] The use of the word ‘reasonably’ incorporates concepts similar to those identified in Mee. As the statute directs, the Court is not limited to looking at income. In DJM v JLM [1998] FamCA 97 … the Full Court confirmed that what is reasonable depends on the circumstances …

( … )

[27] Her Honour applied the above principles and found that it was not reasonable to include the property expenses which included significant amounts for properties which were not earning an income, so that they should not be prioritised over the obligation to support one’s spouse.

[28] The applicant’s identification of the test, namely that all expenses that are contractual, unavoidable, compulsory or longstanding must be taken into account ignores the statutory requirement of reasonableness and the obligation to make such order as is proper.

[29] I consider that the magistrate did not err by applying the incorrect test. The findings were open on the evidence. …

[30] In the circumstances where it was found without challenge that the exact amount of the applicant’s income was not clear and that he had the capacity to control his income and that it was not reasonable, in the circumstances, for the applicant  to prioritise the retention of non-income earning properties the outcome cannot be described as unreasonable or plainly unjust. … ”

The appeal was dismissed. The husband was ordered to pay costs as agreed or assessed.

Appeal – Application to extend time to file draft index to appeal book filed 1 hour before deadline – Appeal deemed abandoned under FLR 13.14(3) despite the filing of that application – Appeal reinstated and security for costs ordered (in the sum of $100,000) – Respondent’s estimate of her appeal costs as $600,000 was “rank avarice”

In Fowles [2023] FedCFamC1A 238 (20 December 2023) Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard an appeal against the appeal registrar’s refusal to file an Amended Notice of Appeal, an Application in an Appeal and an affidavit in support.

After an 18 year marriage that produced one (adult) child and a 43 day trial heard over 3 years, Bennett J made orders dividing a $7 million asset pool 60:40 in favour of the wife ([6]). The husband filed a Notice of Appeal against that order within time, but later failed to file a draft index to the appeal book within the 28 day time limit (per r 13.14). Rather, via his Application in an Appeal, he sought to extend the time limit by 2 months (from 1 December to 31 January).

The appeal registrar rejected the husband’s documents, explaining that where they were filed about an hour before r 13.14(3) deemed the appeal to be abandoned, the application seeking an extension of time could not be listed, served and determined before the appeal would be deemed abandoned under the rules ([15]).

The husband appealed the appeal registrar’s decision and also filed an application seeking to reinstate the appeal.

The Court said (from [23]):

“The applicant had the right to file the Amended Notice of Appeal (r 13.10(1)).

[24] The applicant also had the right to file the Application in an Appeal prior to the appeal being deemed abandoned. However, the applicant is mistaken to assume that the acceptance and filing of that Application, wherein he sought relief by an extension of time within which to file the draft appeal book index, would have then or would now suspend the progression of the time period within which the draft appeal book index had to be filed until the application for the extension of time was heard and determined. It was the applicant’s problem that he left the Court with insufficient time within which to list, hear and determine his application for an extension of time before the appeal was deemed abandoned.

[25] The appeal was deemed abandoned by operation of r 13.14(2)(a)(i) of the Rules at 4.30 pm on 1 December 2023. The discretionary power to extend the time within which the applicant had to file the draft appeal book index (r 13.14(2)(b)) could arguably not have been exercised after 4.30 pm on 1 December 2023 because, by then, the appeal was deemed abandoned and appellate jurisdiction was exhausted …

( … )

[29] The application to extend the time for filing the draft appeal book index is extended to 31 January 2024, as sought. An extension of time is not unreasonable in light of the length of the trial and the volume of documents adduced in evidence … With the intervening Christmas period and the closure of legal offices, extending the time until the end of January 2024 is reasonable.

( … )

[40] The principles which govern applications to re-instate appeals are not in doubt. In Allan & Ors & Allan & Ors [2014] FamCAFC 162 … the Full Court said:

The discretion to re-instate an abandoned appeal is not exercised in an unstructured or unprincipled way, but rather in accordance with the established legal principles set out within Gallo v Dawson [1990] HCA 30 … (see Haykal & Krawiec & Anor [2014] FamCAFC 110 … ; Bemert & Swallow [2010] FamCAFC 100 … ). As was made plain in Gallo v Dawson, the discretion may only be exercised in favour of the applicant upon proof that strict compliance with the Rules will “work an injustice upon the applicant”.

[41] In accordance with those principles, the application to re-instate the appeal is granted. The appeal is re-instated in the form of the Amended Notice of Appeal now accepted as being filed on 1 December 2023.

[42] The applicant moved with commendable haste to re-instate the appeal after its deemed abandonment. No prejudice could accrue to the [wife] by the appeal’s re-instatement after such a short interlude of abandonment. Her submissions about the weakness of the appeal are not so obviously correct as to militate against the appeal’s re-instatement. The asserted demerit of the appeal is not so important a consideration when the appeal was lodged within time and the default … concerns the failure to meet a time limit within the appeal, as distinct from when an application is made to extend time within which to bring the appeal in the first place …”

The Court considered the wife’s application for security for costs and said (from [55]):

“… On the primary judge’s calculations, the property to be retained by the husband should be worth $2,760,336 … but the bulk of such equity exists in the real property due to be transferred to the [wife] and an American corporation the husband controls. Under the appealed orders … the [wife] is due to obtain the assets of the American corporation, but executing those orders in Country FF may well prove so expensive and time consuming as to be futile. There is good reason to anticipate any costs order made in the [wife’s] favour would go unsatisfied unless security is granted.

( … )

[58] … The [wife’s] giddy estimate of her costs of the appeal being $600,000 defies rational explanation and is preposterous. Making an order for the [husband’s] payment of any sum remotely approaching that amount by way of security for costs would be tantamount to the Court’s endorsement of and complicity in the lawyers’ practice of rank avarice. The practice should be condemned, not encouraged.

[59] Despite the expanse of the trial, the amended appeal comprises 16 relatively confined grounds … The [wife’s] counsel addressed each of the grounds individually within the written submissions filed on 14 December 2023 for the purpose of this interlocutory hearing, so why it would cost $600,000 to meet the appeal is anyone’s guess, particularly when the respondent’s counsel repeatedly submitted to me ‘this is a very simple case’. On the other hand, the appeal book is likely to be expansive and the Summary of Argument will probably be intricate. The sum of $100,000 recommends itself.

[60] The sum need not be paid until the draft appeal book index is filed on 31 January 2024 because, failure to do so shall mean the appeal is again abandoned. If the security is not paid to the respondent’s lawyers by 4.30 pm on 1 February 2024, the appeal stands dismissed by self-executing order.”

Spousal maintenance – Court erred by finding that de facto wife could adequately support herself as she had cut down her expenses prior to the hearing – A reasonable standard of living under s 90SF(3)(g) does not mean subsistence – De facto husband’s insistence upon invoices to prove expenses “not to be encouraged” at an interim hearing

In Qin & Donato  [2023] FedCFamC1A 223 (11 December 2023), Aldridge J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia heard an appeal against Judge Jenkins’ dismissal of a de facto wife’s application for interim periodic maintenance.

The wife’s application for interim maintenance was unsuccessful in all respects when first heard by a Senior Judicial Registrar. Upon review, Judge Jenkins dismissed her application save that a lump sum maintenance of $8,408.40 was ordered to assist her buy a car ([14]).

On appeal, the Court noted that the appeal book spanned 1,951 pages, including 648 pages of invoices, in response to the de facto husband “taking issue with the costs of the appellant’s claimed household supplies, clothing, shoes, cleaning and other necessary commitments” ([4]).

As to the invoices, the Court said (from [6]):

“In hearing interim spousal maintenance, the Court does not conduct an audit of the parties’ expenses or require extensive proof of every expense. Such a course would place an intolerable burden on those seeking maintenance, who after all, are doing so because they assert they are unable to support themselves adequately.

[7] Of course, the applicant must prove his or her case. However, long standing and widely accepted authority states the Court conducts ‘not perhaps as final or exhaustive a hearing as would be the case if one were hearing the matter finally’ (Williamson and Williamson [1978] FamCA 57 … ). This was quoted with approval by the Full Court in Redman and Redman [1987] FamCA 2 … where the Full Court added:

The evidence need not be so extensive and the findings not so precise.

( … )

[10] The approach of the parties, particularly it seems the respondent, in requiring precise proof of many ordinary everyday expenses when his expenses for the same were over four times as high, does not appear to be in accordance with their obligation under s 67 and s 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCA Act”) to conduct the proceedings according to law and as quickly, inexpensively and as efficiently as possible. The evidence in what is supposed to be a summary procedure was more extensive than in some final property hearings. This approach is not to be encouraged.”

As to the dismissal of periodic maintenance, the Court said (from [21]):

“After finding that the appellant’s expenses exceeded her income by $586 per week, the primary judge noted that the appellant was able to support herself without increasing her liabilities since 2 February 2022 (at [27]).

( … )

[23] This led to the finding that ‘the [appellant] appears to have been able to adequately support herself without additional support since February 2022’ (at [29]).

[24] There are a number of difficulties with these passages.

[25] First, the primary judge is asking whether the appellant could adequately support herself at the time of the hearing. The answer to that question was ‘no’, because of the finding that her income, at the time of the hearing, fell well short of her expenses, none of which was rejected as unreasonable. How she had been able to manage previously was only indirectly relevant, if at all, particularly when the primary judge accepted that the appellant had reduced her expenses.

( … )

[27] Secondly … the section focuses on the needs of the applicant for spousal maintenance. Whilst adequate needs can often be inferred from a person’s expenses, such expenses may not extend to reasonable needs. A person with no income and who cannot pay any expenses, still has needs.

[28] Thirdly, what are assessed to be ‘reasonable needs’ are to be assessed having regard to the parties’ previous standard of living. This was confirmed in Brown and Brown [2007] FamCA 151 …

( … )

[30] Whilst the primary judge correctly identified the task as falling short of ‘ensuring’ that the previous standard of living was maintained, that standard remained relevant, albeit not determinative, to the consideration of reasonable needs. The appellant’s standard of living, as disclosed by her evidence, fell well short of that which was enjoyed during the relationship. That consideration was not undertaken at all.

[31] Fourthly, the only sensible reading … is that the appellant failed because she had not hit subsistence level. Reasonable means reasonable in all of the circumstances, not subsistence …”

Leave to appeal was granted. The appeal was allowed and the case remitted for re-hearing. The de facto husband was ordered to pay the costs of the appeal fixed at $17,000.

Property – Court erred in double counting premature distribution of matrimonial property – Transfer from joint account to wife’s personal account was of historical interest only, whereas her dissipation of amounts transferred to her account were of critical importance

In Zao & Lee [2023] FedCFamC1A 232 (20 December 2023), the Full Court (McClelland DCJ, Jarrett & Riethmuller JJ) heard a wife’s appeal against property orders made by Altobelli J that included notional add-backs totalling $636,712 ([5]).

The $636,712 was comprised of withdrawals made by the wife from a joint account, a deposit for a real property and an add-back for gambling ([7]). The wife appealed and argued that the add-backs included $403,930 of funds already on the balance sheet – that the Court had “double-dipped” ([5]).

The respondent husband agreed that the adding back of the deposit ($57,330) was sourced from the withdrawals made by the wife from the joint account, such that the inclusion of both in the balance sheet was an error.

As to $145,570 of the controversial withdrawals, the Court said (from [11]):

“As to the balance of $145,570, the evidence was that the [wife] transferred these funds from [a joint account] … to her own account … excluding the [husband] from the use of these funds … The [husband] also accepts that this amount has been included twice in the balance sheet. It should only be included once. However, the concession that this amount ought to be an ‘add-back’ at all is curious. The balance of the [wife’s] … account as at the date of the trial was in the balance sheet as found by the primary judge … The transaction simply moved the funds from one account (a joint account) to another in the [wife’s] sole name. The funds were not otherwise dissipated by that transaction and without subsequent transactions dissipating them, they would have been available for distribution in these proceedings as part of the balance of that account. It is not so much the transaction moving the $145,570 from one account to another which is objectionable, but rather it is any subsequent disbursal of those funds for the [wife’s] own purposes, rendering them unavailable for division between the parties that is the evil.  ( … )

( … )

[13] … [T]he concession that $145,570 ought to be ‘added-back’ to the pool simply because it was a transfer from the parties’ joint account to the [wife’s] own account without more, was probably erroneous. … [T]he fact of the transfer from the joint account to the [wife’s] account is of historical interest only. What is of critical importance is the reason for the dissipation of amounts subsequently withdrawn from the [wife’s] account.

[14] … [The wife’s] case is that [amounts included as add-backs] … were made using the $145,570 transferred to her account from the joint account – an amount already taken up … This is a question of fact which depends upon the evidence led before the primary judge.

( … )

[25] … [T]he [wife] submits before us that the evidence before the primary judge was that the source fund for the transactions … were ‘a myriad of transactions spanning over some three years including the deposit of the amount of $145,570’ … Yet, save for the transactions forming the relevant items, the primary judge was given no assistance to identify how those statements and the myriad of transactions demonstrated what the [wife] now argues. Neither could the [wife] take us to any evidence or explanation other than that which we have set out above on this issue to demonstrate the fact of double counting.

[26] The question of whether the add-back items … were double counted is a question of fact to be determined on the evidence presented at the trial. The evidence to which we have been taken does not persuade us that the primary judge [erred] …”

The Court adjusted the sum payable by the wife to the husband to reflect the double-dip that was agreed. The wife’s appeal was otherwise dismissed. She was ordered to pay the husband’s costs of the appeal, fixed at $13,000.

Children – Mother and father restrained on an interim basis from removing their terminally ill child from Perth Children’s Hospital

In Executive Director Medical Services, Perth Children’s Hospital and Cutcheon & Anor [2023] FCWA 257 (14 November 2023) Cohen J of the Family Court of Western Australia heard an application by Perth Children’s Hospital for a 10 year old child (“Child A”) to remain in hospital to receive palliative care treatment. The respondent parents wanted the child discharged as soon as possible.

The father’s position was that the child should be given palliative care at home [7]. The mother’s position was that if the child was discharged from hospital, he would be cured by God [6].

Cohen J said (at [13]):

“Child A’s condition is a rare genetic disorder that affects boys. Amongst other things, it affects the brain, which causes progressive neurological deterioration. …  Tragically, his condition is terminal, and Dr B has estimated, with the understandable caveat that predicting life expectancy is not done with any degree of certainty, that Child A has approximately 6 months left to live.”

After considering the deterioration in the mother’s mental health, Cohen J continued (from [37]):

“Before turning to the preliminary issue, namely, whether I should proceed with making orders in circumstances where the parents received the documents shortly before the hearing, and where self‑evidently, they have not had an opportunity to similarly put evidence before the Court, I want to highlight some concerns that I have about the position seemingly adopted by the Department.

[38] The Department’s present position, as I understand it, is that it is satisfied that should Child A be medically fit for discharge, it would be safe for Child A to return home to the care of his parents with safety planning in safe. The Department advised that the safety plan will be finalised by close of business the day after the hearing.

[39] I agree with submissions made by the Independent Children’s Lawyer (“ICL”), that it is somewhat vexing to understand how the Department have come to this position in circumstances where its safety planning has not yet been finalised. Further, it is unclear on the information provided by the Department as to who has been consulted as part of the safety planning process, whether the safety plan will involve other family members and if so, who. … I also do not know what consideration the Department has given to information it has about the circumstances that gave rise to the interim family violence restraining order in place between the parents, particularly noting, on the Department’s own information, the mother grabbed the father around the throat and Child D was required to intervene. Of further concern, there is an open child safety investigation on foot in respect of that particular issue. Until that is resolved, I cannot understand how the Department could conclude it is safe for a highly vulnerable little boy to return home.

( … )

[49] Having regard to the seriousness of the issues before the Court today, and the potential consequences for Child A that could follow, which could be life-threatening if interim orders were not made as sought by the Applicant, I am satisfied that it is appropriate and in Child A’s best interests to proceed, notwithstanding the fact that his parents have not yet had the opportunity to properly be heard. … ”

Cohen J continued (from [50]):

“ … The legal principles in respect to the Court’s jurisdiction to make orders about medical treatment for children were cogently elucidated by Thackray CJ … in the matter of Director Clinical Services, Child and Adolescent Health Services v Kiszko & Anor [2016] FCWA 19 (‘Kiszko’) … I respectfully adopt his Honour’s summary.

( … )

[51] … [T]he Court’s power to deal with applications of this kind … are grounded in sections 67ZC and 68L of the Family Law Act 1975 (Cth). His Honour also provided extensive commentary on the Court’s parens patriae jurisdiction, in which he observed the Court’s powers to be exceptionally wide.

( … )

[53] When further considering this issue in Kiszko, his Honour had regard to comments made by the High Court in the matter of the Secretary, Department of Health and Community Services v JWB & Anor [1992] HCA 15 … (‘Marion’s Case’), where the Court commented on the implicit power for parents to consent to medical treatment for a child incapable of giving consent, as recognition of the fact that parents will act in a way that is best for the welfare of the child. The High Court concluded the overriding criterion of the child’s best interests to be, itself, a limit on parental power. However, as Thackray CJ sagely reflected:

Put another way, parental power is not unlimited. It is to be exercised in the best interests of a child.

( … )

[55] When reaching his decision in Kiszko, Thackray CJ was guided by the judgment of Pullin J in Minister for Health v AS & Anor [2004] WASC 286 … His Honour quoted Pullin J as follows:

The question is not whether to respect the parent’s wishes. The role of the court is to exercise an independent and objective judgment and balance the advantage or disadvantage of the medical step under consideration. While the parent’s wishes may be relevant, they are not determinative. The guiding principle upon which the exercise of the parens patriae jurisdiction is based is that the welfare of the child is paramount. Protection of the child should be elevated above all other interests, although those other interests are not completely disregarded. The welfare of the child encompasses the child’s physical wellbeing.

When faced with the stark reality that the child will die if lifesaving treatment is not performed which has a good prospect of a long‑term cure, it is beyond doubt that it is in the child’s best interests to receive that treatment. …

( … )

[57] The father disputes some of the evidence put forward on behalf of the Applicant and puts a different complexion on the mother’s behaviour, inviting me to view it from a lens of understandable grief and distress. As much empathy as I have for her and the father, the decision I must make requires me to consider the impact (actual or potential) of her behaviour on Child A and his emotional and physical wellbeing.

( … )

[59] I am proceeding on the basis that I am making short-term orders, which will give the parents and the ICL an opportunity to put evidence before the Court, so that a more fulsome consideration of what is in Child A’s best interests moving forward can take place. … ”

Interim orders were made restraining the mother and father from removing or attempting to remove Child A from the Perth’s Children’s Hospital.

Property – Lottery win prior to marriage was not a joint contribution – No adjustment under s 75(2)(o) for husband’s support of wife’s children, considering financial contributions of wife’s son and husband’s sexual conduct towards her daughter

In Volmer & Krauze [2023] FedCFamC1F 869 (17 November 2023) Riethmuller J heard a wife’s application for property settlement.

Both parties were born in Country K. The husband migrated to Australia in 2000. The parties met in or around 2003. The wife travelled to Australia in April 2004 and stayed with the husband. She brought $9,750 with her, banked it but later withdrew $9,000 to purchase engagement rings and paid some to the husband before returning to Country K in mid-2004. There was disagreement as to how the money in the wife’s account was applied [9]-[13].

The parties continued a long-distance relationship that included the husband travelling to Country K. The husband won a lottery prize in 2006, after which the parties married in Country K and the wife and her four children moved to Australia to live with the husband [14]-[16]. A home was purchased with the lottery winnings and the balance was put in a term deposit.

The husband worked during the relationship and the wife worked from time to time. They never had a joint bank account [17]. The wife’s son moved out once he was earning an income and his siblings went to live with him too. The parties subsequently separated.

After saying that the husband’s evidence was “most unimpressive” and that he preferred the wife’s children’s evidence [22], Riethmuller J said (from [36]):

“Considerable argument was addressed towards whether or not the husband’s lottery win should be taken up as a joint contribution or a contribution on his part. The case was argued on the basis that the parties were in a de facto relationship prior to the marriage. I do not accept this argument. There are a number of circumstances of the parties that do not tell in favour of the parties being in a de facto relationship at that time. Primarily, the parties were not cohabiting as the husband lived in Australia while the wife lived in Country K. They never cohabitated until after marriage. It is not a case where circumstances beyond their control kept them apart … The parties did not have any joint bank accounts at that point. Their relationship, whilst an arranged one, was relatively short and premised upon the proposition that they would ultimately marry, which they did at a later date. Whilst they had a sexual relationship during the periods when they were together for visits, it was a modest number of nights they spent together over the years prior to marriage.

[37] Counsel for the wife pressed an argument that there was a financial interdependence based on the proposition that the wife had left some money in Australia and the husband had returned part of that to her to assist her in Country K and had used the balance. The amount was minor in comparison to the period and it does not indicate that there was any financial interdependence by the two of them as each clearly principally supported themself prior to the wife coming to Australia.

[38] They never owned property together. … Their commitment to a shared life was, at least until marriage, only a promise to marry and become a couple, which they ultimately did. The parties had no children together. …

[39] The reputation and public aspects of the parties’ relationship is more complex. It appears that the relationship was well-known to the husband’s family but not so well known to the wife’s family, or at least resisted by the wife’s family. The wife’s family did not attend the parties’ wedding and she stated that they were unhappy with her seeing the husband when he was in Country K.

( … )

[43] Contributions prior to cohabitation can be taken into account, as occurred in L & L [1994] FamCA 60 and Hsiao & Fazarri [2020] HCA 35 … However, in none of the cases did the law go so far as to suggest that a windfall obtained by a party prior to cohabitation should be considered a joint contribution as opposed to property contributed by one to the other of the parties, when assessing the property settlement. On the material in this case, the husband’s contribution of his lotto winnings must be taken to be a contribution by the husband and not a joint contribution by him and the wife.”

Riethmuller J continued (from [58]):

“Counsel for the husband submitted that the husband ought to receive an adjustment under s 75(2)(o) of the Act in accordance with the principles from Robb & Robb [1994] FamCA 136 … as a result of having provided, at the very least, accommodation, but also food and other benefits for the wife’s children living in his household for the period between when they arrived in Australia and moved out. An adjustment under Robb & Robb … is a matter of considering the circumstances of the family as a whole.

[59] In this case, the eldest child was working to contribute money to the household for the other children. The wife was also working during the period.

[60] In her affidavit … the wife’s eldest daughter described sexual assaults she suffered by the husband between 2007 and 2009, when she was living at his residence … There were numerous instances where the husband would approach the daughter from behind and grab her breasts. … On another occasion, she said that the husband grabbed her crotch … When she went to console the husband on the day of his own older daughter’s death, he forcefully kissed her, causing her to flee the room … In her affidavit, the daughter also sets out that the husband sent her a text message containing a picture of his genitalia …

( … )

[68] Having regard to the nature of the relationship of the husband with the children, the support that the wife’s son provided both in monetary terms and in providing a residence for the other children to move out of the matrimonial home, together with the conduct of the husband towards the daughter, I am not persuaded that any adjustment ought to be made under s 75(2)(o) of the Act, for support by the husband of the wife’s children of the former relationship (see generally: Robb & Robb [1994] FamCA 136 … ).”

Orders were made for a 67.5:32.5 per cent division in favour of the husband, who was to pay the wife $325,000.

Property – Husband’s participation as a witness in his brother’s successful litigation against the wife was not conduct that diminished the asset pool – Husband’s application to commence property proceedings out of time dismissed, where his alleged contributions indicated criminality and non-disclosure to his trustee in bankruptcy

In Krueger [2023] FedCFamC1A 203 (21 November 2023) Christie J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a husband’s appeal from dismissal of his application to commence property proceedings out of time.

The parties married in 2008 and separated on a final basis on 1 February 2018. They had two children aged 10 and 11 who lived with the wife. A divorce order was made in July 2019. The husband issued proceedings seeking property orders on 1 December 2022 (over 2 years’ out of time).

The husband was a bankrupt between 2013 and 2022 [7]. He was imprisoned in October 2013 and 2014-2015 [8].

The husband’s brother brought civil proceedings in the New South Wales Supreme Court against the wife in relation to building work undertaken by him on the former matrimonial home, which was in the wife’s name [7], [9]. The husband gave evidence on behalf of his brother. Orders were made for the wife to pay $185,000 to the husband’s brother. Her legal costs were $433,846 [9].

The matrimonial pool was $740,000 which was proceeds of sale of the former matrimonial home held in a solicitor’s trust account [10].

Considering the husband’s application for leave to proceed out of time, Christie J said (from [31]):

“… [A] Justice in the Supreme Court proceedings found that the nature of the agreement between the [wife] and the [husband’s] brother was such that it would be inappropriate for the [wife] to receive the whole of the benefit of the work on the home without any corresponding payment to the [husband’s] brother. ( … )

( … )

[33] The [husband] contends that it was the primary judge’s approach to the [husband’s] participation in the Supreme Court litigation which led the primary judge to make errors of fact and draw conclusions adverse to the [husband] which were unavailable on the evidence before the court.

( … )

[35] The primary judge concluded that the [husband’s] action (in participating in his brother’s litigation) had the effect of reducing the pool of assets available for adjustment as between the parties. As a matter of fact, the [wife] was required to pay money to the [husband’s] brother. The participation of the [husband] in that litigation may have assisted his brother but only because the judge found that monies were payable. The decision of the Supreme Court, in that sense, only crystallised the quantum – it did not create the liability.

( … )

[38] In circumstances where a judge of the Supreme Court has made findings imposing an obligation on the [wife] to pay monies to the [husband’s] brother and no appeal was filed, it was not open on the evidence before the primary judge to conclude, as he did, that somehow the husband’s participation in those proceedings improperly diminished the assets available for adjustment as between the husband and wife.”

Christie J proceeded to redetermine the application for leave to proceed out of time and said (from [84]):

“The [wife] submits that the husband’s evidence would not satisfy the Court that his claim was viable for a number of reasons. These include:

(a) While the bankruptcy of the [husband] has ended his bankruptcy is not annulled. …  The evidence in this case therefore did not exclude the possibility of there being outstanding (and unenumerated) demands on any funds to which the husband may be entitled;

(b) The husband did not provide adequate documentation concerning income to his trustee in bankruptcy raising significant questions about how he would demonstrate that he had made the financial contributions he now asserts.

[85] To those issue I would also add:

(c) The husband explicitly indicates that contributions made by him were made [by] ‘[criminal activity]’. It is difficult to conceive how the husband might demonstrate those contributions. This evidence also raises a real issue about whether any funds to which the [husband] may otherwise be entitled would be vulnerable to a claim under the Confiscation of Proceeds of Crime Act 1989 (NSW) … ; and

(d) The husband explicitly indicates that his brother diverted wages, which would otherwise have been payable to the husband, to the mortgage over B Street, Suburb F throughout the period of the husband’s bankruptcy. This evidence would appear to indicate on its face that whatever information was provided to the trustee in bankruptcy concerning income may not have been a true representation of the husband’s income … ( … )”

Christie J concluded (from [86]):

“The husband may … have an arguable case for recognition of financial and non-financial contributions made by him but its strength is not plain given the identified evidentiary difficulties. Further, the size of the pool, the childcare arrangements, the child support history and arrears and the wife’s income all speak to the wife having an entitlement to recognition of matters pursuant to s 75(2) of the Act. Finally, the costs of the litigation are such that the Court could not be satisfied that hardship would be caused to the husband by failure to pursue the claim with its attendant costs.

[87] Because I have not determined that the [husband] would experience hardship from refusal to grant leave, other matters which may be relevant to the exercise of discretion do not arise since the finding of hardship functions as a preliminary or gateway step in the process.

[88] … [E]ven if I had been persuaded that the evidence supported a conclusion that hardship would be caused to the [husband] if leave were not granted, I would nonetheless have exercised the discretion created by s 44(3) of the Act because of the matters set out at [84]-[85].”

The husband’s application for leave was dismissed and costs certificates were ordered.