Proctor : February 2019
31 PROCTOR | February 2019 Child support – application for maintenance of stepchild must also seek child maintenance – FCC must follow FCA decisions unless plainly wrong In Eames  FamCAFC 204 (1 November 2018) the Full Court (Alstergren DCJ, Aldridge & Austin JJ) dismissed with costs the father’s appeal from Judge Bender’s summary dismissal of his application for credit of child support payments he made to third parties in respect of the parties’ children and a declaration that he was lawfully obliged to maintain his new partner’s stepchildren. Judge Bender followed decisions of the Family Court of Australia to the effect that an application for maintenance of stepchildren under s66M Family Law Act must be coupled with an application for child maintenance under s66F. The father appealed on the ground that there was Federal Circuit Court of Australia (FCC) authority that contradicted that authority. The Full Court said (from ): “...[W]e do not agree that there are competing authorities on the point. The position has been settled by a number of first instance decisions of the Family Court of Australia. There are two decisions of judges of the then Federal Magistrates Court of Australia to the contrary. (...)  It is clear that a court...is obliged to follow decisions of a court to which an appeal lies (Viro v The Queen  HCA 9...)  However, no appeal lay from a decision of a judge of the [FMC] or lies from a judge of the [FCC] to a single judge of the Family Court of Australia sitting at first instance. [FCC] judges are therefore not bound to follow first instance Family Court decisions. (...)  This does not mean that the decisions of the Family Court should not have been followed. Judicial comity required that those decisions be followed unless a judge was convinced that they were ‘plainly wrong’. (...)  A similar principle applies between judges of first instance (...)  The course taken by the primary judge entirely accorded with these principles. ...” Property – mother of post-divorce children fathered by former husband denied leave to apply for property order 30 years out of time In Emerald  FamCAFC 217 (13 November 2018) the parties married in 1977 and divorced in 1984. Post-divorce three of their five children were born, they bought two properties together and the wife lived with the husband and his new wife for nine years. They separated in 2004. The husband applied to the Victorian Civil and Administrative Tribunal (VCAT) for a declaration that he was the sole owner of a joint property, whereupon the wife, after seeking legal advice, applied to the Family Court of Australia for leave to seek property and maintenance orders. Cronin J relied on s44(4)(b) and the wife’s Centrelink pension in granting leave for a maintenance application, but (at ) found that as the wife had not particularised her claim, a finding of hardship if leave for a property case was refused was “difficult if not impossible”. In allowing the husband’s cross-appeal against leave for a maintenance case, the Full Court (Alstergren DCJ, Strickland J and Murphy JJ) held (at -) that Cronin J erred by applying s44(4)(b), which did not come into operation until after the wife’s time limit had expired and (at -) that VCAT lacked jurisdiction to hear the husband’s claim, the wife’s proceedings being “a matrimonial cause...within the exclusive purview of courts exercising jurisdiction under the Act [which] plainly...does not include VCAT”. The Full Court also agreed (at -) that the criteria for hardship for maintenance were different to those for a property order. Alstergren DCJ and Strickland J said (at - ) that in the absence of particularisation of her property case, the wife had failed to satisfy the test referred to in Sharp  FamCAFC 150 that she had a prima facie claim worth pursuing. Murphy J disagreed, saying (at ) that “it was not reasonably open for his Honour to conclude that the absence of particularity in the wife’s claim for s79 relief should lead to the conclusion that the wife would not suffer hardship if leave was refused”. The wife’s application for leave to proceed for maintenance was remitted for re-hearing. Children – mother wins appeal against order that children live with father if she relocated to the United States In Kerson & Blake  FamCAFC 215 (12 November 2018) the parents and two children were US citizens who moved to Canberra in 2012. Upon separating in 2015, the parties shared the children’s care for two years until the mother filed a relocation application to return with the children to the US. Gill J found it a “finely balanced case” and a “choice between good parents” () but that the father would be more likely to facilitate the children’s relationship with the mother. An order was made for equal shared parental responsibility and that if the mother relocated the children live with the father. The mother appealed, contending that that finding was not open on the evidence. The Full Court (Alstergren DCJ, Ainslie- Wallace & Austin JJ) said (from ): “...[H]is Honour found that up to the time of the trial the parties had co-operated in an equal shared care arrangement... [and] concluded that the parents each had been ‘generally supportive of each other’s relationship with the children although this ha[d] taken place in the context of severe conflict between them’. (...) ...[C]ounsel for the mother argued that his Honour’s...conclusion that the father was likely to better support the children’s relationship with the mother was based solely on what occurred in the July/August 2017 trip to the USA. ( ...) ...[W]e accept that his Honour placed determinative weight on th[at] one occasion... to support the finding that the mother was hostile to that communication and then, relying on this finding,...found...that the mother’s commitment to fostering the relationship was called ‘into question’ based, it seems, not on the whole of the mother’s evidence which his Honour clearly accepted...” The appeal was allowed and the case remitted for re-hearing. with Robert Glade-Wright FCC must follow FCA decisions unless plainly wrong Family law Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS accredited specialist (family law – Qld).