FAMILY LAW CASE NOTES

By Craig Nicol and Keleigh Robinson Accredited family law specialists. Editor and co-editor of The Family Law Book

Children – Indefinite severance of children’s relationship with their mother disproportionate to identified unacceptable risk

In Bielen & Kozma [2022] FedCFamC1A 221 (20 December 2022) the Full Court (McClelland DCJ, Henderson & Harper JJ) allowed an appeal from orders where 6 and 4 year old children changed from living with the mother to the father.

At first instance, the Court found that the children had been exposed to the mother’s ongoing false narrative that they had been sexually abused by the father, posing an unacceptable risk of ongoing emotional harm in her care. The Court ordered that the mother have no time nor communication with the children, save for the provision of cards.

The mother argued that the Court erred where it found that as the mother posed an unacceptable welfare risk “it is unnecessary to explore the remaining primary consideration and additional considerations contained in section 60CC” ([40]).

The Full Court said (from [28]):

“ … [T]he focus of parenting proceedings should be on ‘the effect on the child’ of the parties’ respective proposals (Fairfield & Hoffman [2021] FamCAFC 151 … ( … )

[37] … [T]he primary judge was in error in failing to consider s 60CC(2)(a) and any factor contained within s 60CC(3), particularly s 60CC(3)(d). ( … )

[42] … The fact that [the primary judge] … failed to give ‘proper, genuine and realistic consideration’ in a manner that was consistent with the objects of Part VII of the Act … is apparent from the judgment. Nowhere in the body of the judgment does the primary judge set out her assessment of the consequences for these young children of losing the benefit of a meaningful relationship with their mother. ( … ) [51] In Helbig & Rowe [2016] FamCAFC 117, the Full Court explained … that where a case is conducted on the basis of … unacceptable risk of harm to a child in the care of one parent, ‘[t] he first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk’ … ”

Property – No error in 60:40 contribution weighting in $4.5 million asset pool where de facto wife’s father provided $1,250,000 and interest free loans

In Bokin & Wild [2022] FedCFamC1A 209 (13 December 2022) the Full Court (Alstergren CJ, Rees & Altobelli JJ) dismissed with costs a de facto husband’s appeal from a decision of Brasch J in respect of a relationship of between 17 and 21 years, which produced five children. The de facto wife also had a child of a previous relationship.

The de facto husband argued that the Court erred in its assessment as to contributions and by offsetting his contribution to the de facto wife’s child against the de facto wife’s father’s contributions.

The Full Court said (from [16]):

“ … The Court does not adopt a precise, mathematical approach to the exercise of discretion as the various matters taken into account under s 79 are not all capable of precise calculation (Kessey and Kessey [1994] FamCA 162 … ). Some considerations involve value judgments or are matters of impression (Lovine & Connor [2012] FamCAFC 168 … ).

[17] The findings of the primary judge are the result of a detailed and holistic assessment of a myriad of contributions in a long marriage. ( … )

[24] … [T]he respondent’s father’s quantified contributions were some $1,250,000 and his unquantified contributions, particularly the provision of interest free loans, were substantial and in addition to the quantified contributions.

[25] The … assessment of contributions as favouring the respondent by 20 per cent or $914,696.75 is readily explained by a proper analysis of … contributions. ( … )

[27] … [H]er Honour’s reasoning is well able to be ascertained. … [W]e are satisfied that the inevitable ‘leap’ from words to the figure of 60 per cent … does not invite appellate intervention … ( … )

[43] … [T]he appellant raised … Robb and Robb [1994] FamCA 136 … owing to his assistance with the care of Ms B the respondent’s first child from an earlier relationship (‘Ms B’). ( … ) [50] … [E]vidence of the respondent’s father’s contributions is relevant to negate the appellant’s contention … that he provided financial support for Ms B.”

Children – Unified parents’ joint opposition to grandmother spending interim time with children does not displace judicial scrutiny as to the children’s best interests

In Chandler & Bonner [2022] FedCFamC1A

210 (14 December 2022) Tree J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, dismissed an appeal of unified parents against interim parenting orders made by the Magistrates Court of Western Australia for professionally supervised time between the parents’ four children and their maternal grandmother.

The parents argued that the Court had erred, including by not applying s 43 of the Act.

Tree J said (from [17]):

“Plainly neither s 43 nor s 69ZN of the Act operate to displace the paramountcy of children’s best interests established by s 60CA … [A]s the section headings of both s 43 and s 69ZN suggest, they … articulate general principles to which regard must be had in all proceedings under the Act (s 43) and to which effect must be given in conducting child-related proceedings (s 69ZN). ( … )

[19] … [T]he primary magistrate did not … disregard either s 43 or s 69ZN of the Act. … [H] e expressly considered the potential impact on the parents and the children of time with the grandmother resuming, and … recognised the desirability of minimising that impact … ( … )

[25] … [T]he time the children were to spend with the grandmother was sparse … and … denigration of a party, or discussing the proceedings in the presence of the children was prohibited … [E]nforcing those prohibitions was the main reason for the grandmother’s time with the children being supervised. ( … )

[34] … [T]he interim orders merely enabled any relationship to be, in a very limited way, facilitated at least until final orders were made.

[35] … [T]he grandmother’s historical involvement in the children’s lives was … contested, and therefore unable to be determined … ( … )

[41] … [T]he reason why … the primary magistrate considered that the children should spend time with the grandmother, was the possibility of them deriving benefit from that relationship ... ”

Law Council unwaveringly supports Constitutional recognition of First Nations peoples

The release today of the question and proposed Constitutional amendment to establish a Voice to Parliament and the Executive that will be put to Australian voters at referendum is a welcome step closer to the necessary and overdue recognition of First Nations peoples in the Australian Constitution.

“The Constitutional enshrinement of the Voice is necessary to meet the aspirations of the Uluru Statement, and to respect the direct wishes of First Nations peoples,” Law Council of Australia President, Mr Luke Murphy said. “Our nation’s support of a Constitutionally enshrined Voice will represent an acceptance of the invitation extended to all Australians in good will by First Nations people through the Uluru Statement.

“The Law Council considers that amending the Constitution to provide for a Voice is a modest step in respecting the enduring value and strength of First Nations culture; recognising the unique place First Nations occupy in Australia’s history as its Indigenous peoples; and overcoming an indisputable legacy of dispossession and disadvantage since European settlement.

“The Law Council considers that the Voice is a necessary and overdue advancement of the right of First Nations peoples to selfdetermination. The right to self-determination is a fundamental principle of international law,” Mr Murphy said.

“Too often the voices of First Nations persons go unheeded amidst the formal, complex and time-critical processes of lawmaking and implementation. This can, and does, have disastrous consequences.

“Empowering First Nations peoples and enabling their voice to be heard on policies and legislation that impact them will help ‘close the gap’ and address the significant disadvantage First Nations peoples experience across several key indicators such as life expectancy, health, household income, experiences of violence and education.

“A bill containing the text of the proposed amendment to the Constitution will be introduced to the Parliament next week. The Law Council looks forward to making a submission to the joint parliamentary committee inquiry which has been foreshadowed.”

Law Council Calls for Reform to Abolish Continuing Detention Order Regime

The Law Council of Australia welcomes the release of the Independent National Security Legislation Monitor’s (INSLM’s) report into the operation and effectiveness of Division 105A of the Criminal Code Act 1995 (Cth) and calls for urgent consideration of its recommendations.

“There are two post-sentence orders that can be made pursuant to Division 105A: the continuing detention order (CDO), and the extended supervision order (ESO). In essence, the CDO regime allows for the detention of an individual based on a prediction they may commit a future offence,” said Law Council President Luke Murphy.

“Detention should only be imposed as a criminal sentence following a person's conviction for an offence. The Law Council welcomes the INSLM’s recommendation that the power to make CDOs be abolished.

“The Law Council’s long-standing position is that the CDO regime is not a necessary or proportionate response to the threat of terrorism. Detention should not be available based on a prediction of a person's future risk, which is a fraught exercise in the absence of an empirically validated risk assessment methodology. The Law Council agrees with the INSLM’s findings that Australia remains an outlier among countries that share Australia’s values and traditions, such as the United Kingdom and New Zealand, in having a CDO mechanism as a response to the risk of terrorism.

“The Law Council has consistently expressed concern that there is a lack of an established body of specialised knowledge on which to base predictions about a person’s future risk of committing a terrorism offence. Accordingly, the Law Council supports implementation of amendments suggested by the INSLM, which will improve procedural fairness governing the admission and use of expert evidence in determining the risk posed by an offender.

“In principle, the Law Council supports retention of the ESO scheme, subject to implementation of the INSLM’s detailed recommendations to improve proportionality and better achieve the objectives of rehabilitation and reintegration of the defendant into the community.

“The Law Council strongly supports the INSLM’s finding that the Commonwealth has the obligation to fund the legal costs of defendants confronting these applications and must fund them in a timely and adequate manner. It is essential that defendants have, or be provided with, the capacity to respond to these applications in a manner consistent with their seriousness.

“The Law Council congratulates the INSLM and his office for this report and looks forward to seeing these important recommendations implemented.”