Annual report [1997-98] - Family Court of Australia

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The Family Court of Australia – annual report 1997-98 judge nor drawn the same conclusions from it, the Full Court found the trial judge had made no appealable error and affirmed the decision of the trial judge. In so doing, the Court stressed that nothing in the case raises a presumption in favour of a biological parent nor a presumption in favour of the biological mother where the child is female. In June 1998, the biological father and his wife filed an application seeking special leave to appeal to the High Court. In July 1998, a differently constituted Full Court of the Family Court heard an appeal by the biological father and his wife seeking the issue of a certificate pursuant to s95(b) of the Family Law Act permitting an appeal to the High Court and an order continuing the stay of the orders of the trial judge pending the determination of proceedings in the High Court. Judgment has been reserved. Preparation of Family Reports In Renshaw v Reschke (1997) FLC 92-777, the Full Court held that a court can only order the preparation of an expert’s report in proceedings involving children where such proceedings are pending. Accordingly, where an application for a parenting order is dismissed, as it was in this case, the Court could not make an order for an expert assessment. The Full Court also considered the validity of Order 23 Rule 5(5) of the Family Law Rules which prohibits the calling of a child as a witness without the leave of the Court. Although the Court found it unnecessary to determine the question in the present case, the Court indicated there was considerable force in the submissions that Order 23 Rule 5(5) is beyond the rule-making power of the Court. Section 79(5) adjournments In Grace (1998) FLC 92-792, the wife appealed the decision of the trial judge refusing to adjourn property proceedings until the husband’s interest in a family trust vested and/or until his mother died whereupon the husband would realise his 50% remainderman interest in the estate of his late father. The Full Court allowed an appeal by the wife. The Court held that the preconditions necessary to invoke the adjournment are that there is likely to be a change in financial circumstances, the likely change is a significant one, it is reasonable to adjourn the proceedings and an order made if that significant change occurs is more likely to do justice and equity between the parties than an immediate order. Freedom of information – counsellor’s notes In O’Sullivan v The Family Court of Australia(1997) FLC 92-769, a senior member of the Administrative Appeals Tribunal held that handwritten notes made by a Family Court counsellor containing the content of counselling sessions or of conversations a counsellor has had with members of a family engaged in Family Court proceedings involving children are not “documents relating to matters of an administrative nature” within s5 of the Freedom of Information Act 1982. Costs orders In Re JJT & Ors; Ex Parte Victoria Legal Aid (1998) FLC 92-812, the trial judge made orders which included an order that Victoria Legal Aid provide a specified sum for the future costs of the child representative or facilitate the making available of the child rep- 47
The Family Court of Australia – annual report 1997-98 resentative’s services and provide for the payment of counsel’s fees in advance of such proceedings. The order was expressed to be made pursuant to s117 of the Family Law Act.On appeal to the High Court, it was held (per Gaudron, Gummow, Hayne and Callinan JJ; Kirby J dissenting) that as the subject matter of the order made by the trial judge was not costs, as required by s117, but the provision of legal aid, jurisdiction was not conferred by s117 to make the order. The High Court discussed the costs power and the capacity to make provision for costs in advance of proceedings. Section 79A(1)(a) “Miscarriage of justice” by reason of “any other circumstance” In Bigg v Suzi (1998) FLC 92-799, the husband sought to have consent property orders set aside. The husband alleged that he had agreed to the property settlement because he had been led to believe he would receive substantial benefits from the wife’s family. Such belief was mistaken and the husband submitted that this amounted to a “miscarriage of justice” by reason of “any other circumstance” as identified in s79A(1)(a) of the Family Law Act. The trial judge dismissed the husband’s application summarily. On appeal, the Full Court upheld the finding by the trial judge that a miscarriage of justice for the purposes of s79A(1)(a) must arise out of the judicial process and that the husband’s belief did not satisfy that requirement. The Full Court also discussed the source of the Court’s jurisdiction to dismiss an application summarily and the factors bearing upon the exercise of that jurisdiction. Requirements for a valid marriage ceremony In W v T (1998) FLC 92-808, the wife sought a decree of nullity of marriage on the basis that the parties had not been validly married. The celebrant who had conducted the marriage ceremony was not an authorised celebrant. An authorised celebrant had been present in the church throughout the ceremony, although the parties were unaware of his presence and the trial judge found that the marriage had therefore been “solemnised…in the presence of an authorised celebrant” as required by s41 of the Marriage Act 1961 (Cth). On appeal, the Full Court upheld the decision of the trial judge. The Full Court held that providing the authorised celebrant had consented to attend the ceremony for the purpose of ensuring its validity, mere physical presence, rather than any active participation, is sufficient for the purposes of the Marriage Act.The Full Court also discussed the requirements of a valid marriage, both at common law and under the current legislation. 48
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