By Craig Nicol and Keleigh Robinson
Property – Declaration of de facto relationship contained error as it included an unnecessary commencement date – De facto relationship existed where parties did not live together in the traditional sense but their use of a hotel room did form a “quasi-common residence”
In Yoxall & Eide [2024] FedCFamC1A 200 (29 October 2024), the Full Court (Austin, Gill & Baumann JJ) heard a de facto husband’s appeal against a declaration by Williams J that the parties had lived in a de facto relationship between March 2017 and December 2020.
The Full Court said (from [54]):
“… It was unnecessary for the primary judge to determine the length of the parties’ de facto relationship because the birth of their child made the duration of their relationship irrelevant to the existence of jurisdiction…
( … )
[69] The primary judge concluded that … their use of the J Hotel formed a ‘quasi-common residence’. The primary judge then reasoned that the concept of residence should be considered in the light of the parties’ ‘preferences to live a luxurious lifestyle in which travel, and holidays were at the fore’ … [and] that this constituted ‘shared life as a couple with their daughter, although in an unusual and unorthodox manner’ (at [152]).
( … )
[73] Although there was no intermingling of their finances, the primary judge found that the respondent was financially dependent upon the appellant during the relationship…
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[115] Under circumstances where the end of the relationship was uncontroversial, once the aggregation of factors had led to the conclusion that there was a de facto relationship, little reasoning was necessary to determine the end date of the relationship.
[116] However, a more explicit reasoning process was necessary to establish a particular date early in the relationship as forming an adequate conglomeration of factors. That was not done, and so the basis on which March 2017 was perceived by the primary judge to be the start of the de facto relationship was not adequately exposed.”
The appeal was allowed and the Full Court set aside the offending order, substituting another order declaring “ … [T]hat a de facto relationship existed between the parties, ending in December 2020” ([2]). Costs certificates were ordered.
Children – Contravention – Conflation of different burdens of proof borne by the parties – Family Law Amendment Act 2023 (Cth) only applies to contraventions that occurred on or after 6 May 2024 – The repealed Division 13A of Part VII applies to pre- 6 May contraventions
In Hatfield & Rivas [2024] FedCFamC1A 202 (31 October 2024) Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a father’s appeal from a dismissal of his contravention application.
At the hearing the father alleged five counts of breach by the mother. The trial judge dismissed each count and found that the father’s evidence did not establish that the mother either intentionally breached the orders or made no reasonable attempt to comply ([7], [10]). The father appealed.
Austin J said (from [32]):
“His Honour confused the father’s initial obligation to prove the lack of any reasonable attempt by the mother to comply with the orders (s 70NAC(1)(a)(ii)) with the mother’s separate subsequent obligation to prove a reasonable excuse for breaching the order (s 70NADA). There is a material difference between, on the one hand, no reasonable attempt to comply with an order and, on the other, a reasonable excuse for not having complied with it.”
His Honour continued (from [67]):
“The contraventions alleged against the mother were confined to the period between April 2023 and December 2023. The contravention application was heard in June 2024. In the interregnum, on 6 May 2024, the provisions of Pt VII, Div 13A of the Act were substantially amended by the Family Law Amendment Act 2023 (Cth) (“the Amendment Act”).
( … )
[72] … [A]bsent express legislative intention for the new provisions of Pt VII, Div 13A to apply to contraventions alleged to have occurred whilst the old Pt VII, Div 13A was operable, the old provisions must still apply to such historic contraventions.
[73] … [T]he primary judge expressly applied the new, rather than the old, provisions of Pt VII, Div 13A of the Act (at [14])…”.
The appeal was allowed and the dismissal orders set aside. The matter was remitted for rehearing and a costs certificate was granted to the father.
Property – A finding that wife’s parents sold a farming property to the parties for less than market value held to be in error where wife had failed to obtain a retrospective valuation of the property
In Perna [2024] FedCFamC1A 183 (15 October 2024), McClelland DCJ, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a husband’s appeal from property orders.
The major assets were two rural farming properties (“Property C” and “Property D”) which were intergenerationally farmed by the wife’s family. Property D was sold by the wife’s parents to the parties and other family members during the relationship ([2]).
No retrospective valuation was obtained of Property D. The trial judge found that Property D was sold to the parties at 20 per cent below market value. The husband appealed.
McClelland DCJ said (from [39]):
“ … [T]he primary judge was not in a position to determine the market value of Property D at the time of its sale from the wife’s parents to the wife and her siblings in 2009 in circumstances where the primary judge had not been provided with evidence from an appropriately qualified expert with specialised knowledge of the valuation of farming properties. …
[40] I accept … that, ordinarily, in undertaking the task of assessing contributions, it is unnecessary to place a precise value on any particular contribution, however it was necessary to do so in respect to Property D … because the finding by the primary judge that the property was sold to the wife and her siblings at 20 per cent less than market value was a significant finding in respect to his ultimate conclusion that the appellant and the respondent had benefited from the generosity of the wife’s parents…
[41] In those circumstances, the error was material to the assessment of the primary judge that the wife was entitled to a 4 per cent adjustment in her favour … as a result of contributions … including the generosity by her parents as so found. … I am satisfied that the error was material to the outcome of the proceeding…”
The appeal was allowed, the final property orders set aside and the proceedings remitted for rehearing. A costs certificate was granted to the husband. No costs certificate was granted to the wife.
Children – Order for no time – Father carried out “retributive attempted suicide” at mother’s place of work and used the trial process to inflict further psychological harm on mother – Father was “devoid of the capacity for reflection, insight and remorse”
In Batas & Gaire (No 2) [2024] FedCFamC1F 672 (18 October 2024) Kari J heard a father’s parenting application for time with the parties daughter born in 2011 (“X”). The father was a perpetrator of significant family violence, coercive and controlling behaviour and had carried out a “retributive attempted suicide” at the mother’s place of work ([3]).
Kari J said (from [8]):
“ … I am satisfied that the father used the trial process itself to inflict further psychological harm on the mother. I have made findings throughout these reasons about the serious family violence perpetrated by the father and endured by the mother, quite separate from the retributive attempted suicide. …
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[89] In all, the father impressed as a person incapable of taking responsibility for his actions and the impact his actions have had upon the mother.
[90] Importantly the father provided little evidence of substance to the Court as to the work that he has done in the post separation period, and importantly since the release of Dr B’s report to address the significant risks presented by the family violence he has perpetrated.
( … )
[102] I am satisfied from all of the evidence that the mother continues to suffer from PTSD, anxiety and depression, which presents with symptoms that are intrusive and significantly debilitate and impact the mother’s functioning.
( … )
[105] I also accept that the mother is unable to cope with any form of communication or time spending between the father and X.
( … )
[114] I am satisfied from the evidence that the retributive attempted suicide was not an impulsive and isolated incident. …
( … )
[125] In light of these findings, I am satisfied that the father presents an unacceptable risk of harm to the mother and X and particularly if there was to be any form of time spending between the father and X.”
Orders were made as sought by the mother and supported by the ICL.
