FAMILY LAW CASE NOTES
Family Law Case Notes ROB GLADE-WRIGHT, THE FAMILY LAW BOOK PROPERTY – ISOLATING PARTICULAR CONTRIBUTIONS OVERLOOKED “MYRIAD OF CONTRIBUTIONS” BY PARTIES IN LONG RELATIONSHIP
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n Barnell [2020] FamCAFC 102 (1 May, 2020) the Full Court (Ryan, Aldridge and Kent JJ) allowed the wife’s appeal of a 25 per cent differential between the parties’ contribution based entitlements assessed by a judge of the Family Court of Western Australia. The parties were together for 21 years and had two children (22 and 16) who lived with the wife. The wife had received gifts from her family of $70,000. The husband made initial contributions including an interest in “the B property” which the trial judge held ([20]) should give rise to a 25 per cent contribution based adjustment in his favour. At trial the B property was worth $340,000 and represented 36 per cent of the net pool ($941,096). The Full Court said (at [34]): “In Hurst [2018] FamCAFC 146 the Full Court quoted what the primary judge had recorded … as to a property inherited by the husband … ‘the Suburb C property’: ‘[16] Each party received inheritances throughout the marriage which were in large part used for the benefit of the family (other than the [Suburb C] property). (…) Apart from paying the rates and regular slashing the land has remained untouched. It cannot be said that the wife has made any contribution to this property other than indirectly by the rates and slashing costs being paid. The
[Suburb C] property has appreciated in value over the years and even after separation. This property is now the most valuable asset of the parties.’ (Emphasis in original)” The Court concluded ([42]): “We are persuaded that by isolating the B Property in the manner in which his Honour did and by adopting a differential of as much as 25 per cent between the parties as to their contributions based entitlements as a consequence of ‘quarantining’ the B Property, and giving discrete consideration to that contribution, the primary judge fell into the same error as was made … in … Hurst [above] and Jabour [[2019] FamCAFC 78] … We consider that his Honour’s approach had the overall effect of according a subsidiary role to the wife’s contributions.”
CHILDREN – CHILD WELFARE – MOTHER FAILED TO SATISFY COURT THAT SUPERVISION OF FATHER WAS BOTH NECESSARY AND AVAILABLE In Aitken & Gladstone [2020] FCCA 966 (8 May, 2020) Judge McGuire heard an interim application by the father to spend unsupervised time with his six year old child X. The mother sought an order that the father be supervised. The Department of Health and Human Services, Victoria (“DHHS”), who had been the applicant in State Court child protection proceedings for three years, appeared as amicus curiae. DHHS supported the mother’s case, which
was consistent with the existing State Court order. The parties had been involved in Federal Circuit Court (FCC) proceedings since 2013, including two parenting trials. There had been long-standing State Court intervention orders including an interim accommodation order made in the Children’s Court that the father’s time with X be supervised. The Court said (from [77]): “ … [I]t is the mother who argues that X’s time with the father should continue to be supervised. … [S]he offers no further particulars … except leaving the obligation for the orders that she seeks on the father … She insists on a supervisor but does not nominate one. ( … ) [80] … I think it disingenuous to simply leave the finding of a supervisor to the father … where he does not seek an order in those terms and when the Department suggests no availability. ( … ) [83] … I am not persuaded that X’s time with his father needs to be supervised in the interim. Significantly, I have found importance for X in maintaining a relationship with his father. I am not satisfied on the evidence that any supervisor, even if necessary, is available. … In this sense, the obligation to show that supervision is both necessary and available sits here with the mother and the Department. ( … )” An interim order was made that X spend unsupervised time with the father, the State Court order to be discharged. August 2020 THE BULLETIN
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