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Latest Notable Cases samplesTHE FAMILY LAW BOOK 10 Anniversary

This is a sample (posted 22 April 2019) 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 – History of parental conflict – Father’s contravention application was met by mother’s application for variation of parenting order – Adjournment of contravention application for 16 weeks – “Widely held view” that contravention applications must be heard before any other proceedings has not applied since introduction of Division 13A of Part VII – Best interests of children paramount

In Maddax & Danner [2019] FamCAFC 38 (5 March 2019) Murphy J (sitting in the appellate jurisdiction of the Family Court of Australia) heard the father’s appeal against Judge Turner’s adjournment of his contravention application where a family report was ordered in respect of the parties’ child now aged nine, the mother having cross-applied for variation of a parenting order made in 2016. Since that order was made the father appealed, filed an application for parenting orders which was summarily dismissed and withheld the child in Germany after a holiday causing the child to be the subject of proceedings by the mother under the Hague Convention. After the return of the mother and child to Australia the father followed 13 months later and filed an application alleging over 100 contraventions by the mother.

In response the mother sought variations to the 2016 order. Judge Turner adjourned the contravention application for 16 weeks, sought a family report and suspended the father’s time with the child (the child not having seen her father for 19 months). The father appealed, arguing that the Court erred in not dealing with his contravention application before suspending his time and adjourning the case.

Murphy J said (from [21]):

“… An order for adjournment is a procedural order and quintessentially discretionary. …

[22] … [T]he father’s argument seems to suggest that adjourning his contravention application involved an error of principle. The contention appears to be that her Honour was bound to deal with his contravention application on that day and, it seems, in priority to any other application. …

( … )

[45] There is a widely held view that contravention applications must be dealt with prior to any other proceedings before the Court. That view emanates, I think, from a time prior to the introduction of Division 13A of Part VII of the Act.

[46] That substantial amendment to the Act introduced an entirely new regime dealing with ‘Consequences of failure to comply with orders, and other obligations, that affect children’. Division 13A of the Act is to be contrasted with Part XIIIA of the Act and the latter’s focus on ‘sanctions’.

[47] Division 13A falls within Part VII of the Act which has the consequence that Division 12A applies to Division 13A proceedings. That has important consequences for the instant challenge. Further, the provisions within Division 13A can be seen as de-emphasising sanctions in cases which do not involve ‘serious disregard of [a party’s] obligations under the primary order’ [s 70NFA] in favour of seeking to address difficulties in existing parenting orders and how they might be addressed in new or varied parenting orders. That can be seen exemplified in s 70NBA(1) ( … )

[48] It will be observed that an inquiry into the variation of parenting orders can take place irrespective of whether a contravention is established or not. That is in my view important. It places the best interests of children as central not only to parenting orders but also to a consideration of how asserted or established contraventions might be dealt with.

( … )

[51] The decision [of the Full Court] in Kettle [Kettle & Baker [2014] FamCAFC 85] has been cited with approval in Kovacs & Graham [[2015] FamCAFC 98] where the Full Court held that contravention proceedings are … Part VII child-related proceedings and that consequently the Court has conferred upon it the powers under Division 12A of the Act … In that respect, specific reference might be made to s 69ZN of the Act and in particular the fourth and fifth principles set out in s 69ZN(6) and (7):

Principle 4

(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.

Principle 5

(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

[52] The powers given to the Court in applying those principles are referenced as mandatory duties contained in s 69ZQ. In particular the Court must ‘decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily’ and ‘decide the order in which the issues are to be decided’ …

[53] The assertion by the father that her Honour erred, as a matter of principle, by adjourning his contravention application must be rejected.

[54] Similarly, the assertion that, as a matter of principle, the contravention application must have been heard before any parenting or other orders could be made must also be rejected. The Court was empowered to vary the existing parenting orders irrespective of whether the contravention application was heard or adjourned and irrespective of whether the asserted, or any, contraventions were made out.”

The father’s appeal was dismissed.

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 – Respondent died after commencement of proceedings – Grant of leave for applicant to proceed out of time where application for leave filed after respondent’s death set aside for want of jurisdiction

Property – Negative pool although husband to retain his business with annual turnover of $4 million – Treatment of his director loans – Court erred by accepting them as matrimonial debts rather than engaging with wife’s case that she should not be liable for debt resulting from husband’s failed business venture – Trial judge’s dismissal of wife’s case under Kennon also set aside

Property – Pre-separation transfers by husband to family members – Wife applied under s 106B of the Family Law Act – Error made when trial judge held that a letter from husband’s solicitor prior to the transfers was privileged without inspecting it to ascertain whether privilege was lost due to fraud or implied waiver

Procedure – Adjournments sought by the parties to allow for mediation and negotiation of property matters – Order foreshadowing the dismissal of all applications “if the parties failed to prosecute their claim” by the next return did not comply with requisite notice under FCCR 13.12 – Finding that the proceedings were dormant pursuant to that rule was also in error

Property – Separate pools preferred where one pool approach would see wife receive more than 100 per cent of non-super assets and husband a net deficit excluding super – Large disparity of income – Order for spousal maintenance for four years and non-periodic child support

Property – De facto threshold for relationship of 14 months – Homemaking and non-financial contributions not “substantial” for purpose of s 90SB(c) nor were they such that a failure to make an order would “result in serious injustice”